Form 3

[am. B.C. Reg. 176/91, s. 15.]

[Paragraph 4 (1) (a) and subrule 5 (1)]

NOTICE OF APPEAL OR APPLICATION

FOR LEAVE TO APPEAL

CROWN APPEALS AGAINST ACQUITTAL OR SENTENCE

Lower Court Registry Number: 145835-1

Lower Court Registry Location: Victoria

 

COURT OF APPEAL

 

REGINA

Respondent

vs.

DAVID ARTHUR JOHNSTON

Appellant

PARTICULARS OF ACQUITTAL OR SENTENCE

 

 

1

Place of acquittal or sentencing: Victoria

2

Name of Judge: Supreme Court Justice Braken dismissed an appeal against a ruling from Provincial Court Judge Blake.

3

Offence(s) of which appellant convicted or acquitted, as the case may be: Justice Braken dismissed the Appellant’s appeal against a conviction for collecting multiple ‘no tents during the day’ Bylaw tickets

4

Section of Criminal Code (Canada) or other Act under which defendant was convicted or acquitted: Municipal Bylaw

5

Plea at trial: Plea at Provincial Court trial was not -guilty

6

Whether or not jury trial: not

7

Length of trial: half a day for each trial

8

Sentence imposed: $1 fine, 40 hours Community Service, 6 months Probation

9

Date of conviction or acquittal: Supreme Court dismissal on November 30, 2010, Provincial Court conviction on February 12, 2009

10

Date of sentence: March 25, 2009

 

TAKE NOTICE that the appellant appeals against the dismissal of his appeal by the Supreme Court BC upon grounds involving a question of law alone.

Note to the Court on the particulars of this case:

Upon recent instruction from the Vancouver Appeals Court Registry this Form 3 has been submitted after the proceedings have already been initiated under the Appeals Court Civil Rules (CA38760).

 

There seems to have been confusion as to the nature of these proceedings on where a Bylaw conviction stood. On ‘passing’ advice from lawyers and instruction from the Registry this Appellant submitted forms appropriate for a civil case. Going so far as to complete a Form 9 Appeal Record, including the Notice of Constitutional Question, the arguments, the Orders and Reasons For Judgment from the preceding two trials, and a completed Form 7 Notice of Appeal. As well as a Form 10 Factum. As there was no oral testimony transcripts are not supplied, along with the City’s two affidavits that suggest the existence of 30 daytime emergency shelter beds, which I do not refer to or contest, being omitted.

 

I request that the completed and submitted Criminal Forms 7 Notice to Appeal, 9 Appeal Record and 10 Factum, be accepted as replacing the Civil Rules Forms 4 Appeal Book and 6 Factum.

 

It should also be noted that this Appellant did not serve the Respondent with a copy of the submitted Form 9 Appeal Record as he was under the impression that they did not respond within the 10 day limit given in the Civil Rules to respond after being served with a copy of the Form 7 Notice to Appeal. Not understanding that their response to the initial Application to Extend the Time to Appeal was accepted as the proper response to the Notice to Appeal. This will have been remedied at the time of the submission of this Form.

 

The grounds for appeal are:

This case is about Justice Braken erring, in that his ruling fails to give adequate effect to the fact that the City conceded the section 7 violation, and thus the burden was entirely on the City to demonstrate, on the basis of proof, that the interference with life, liberty and security of the person was justified. Justice Braken did not apply the test for assessing a section 1 justification under Oakes, which would have required the City to lead clear and convincing evidence to demonstrate that every step of that test was met - including that the Bylaw was rationally connected to the objective, minimally impairing and proportional. This constitutes a fundamental error of law. Justice Braken was made aware of a possible and reasonable, Charter compliant, response to the condition of people sleeping in public during the day, yet ignored it wholly.

 

Given leave at this point the Appellant is ready to proceed to trial.

 

 

 

 

 

 

 

 

 

 

 

 

 

The relief sought is: that the City’s Bylaw prohibiting the erection of temporary abodes during the day to be made of no force and effect and a remedy to reciprocate the damage the long held deprivation of section 7 has caused and the, over, 7 years of effort it has taken this campaign to have the right to erect temporary abodes affirmed by the Court.

 

The appellant's address for service is: Appellant is Of No Fixed Address and receives mail

c/o 5090 West Saanich Road

Victoria, BC

V9E 2E7

Email at Hatrackman@Gmail.com

 

Dated this _____ day of APRIL, 2011

 

 

 

 

______________________________

David Arthur Johnston

Appellant