Argument Against My Conviction of 'Collecting Multiple No Tents During The Day Bylaw Tickets'

File No: 145835-1 Victoria Law Courts






[1] On THURSDAY, FEBRUARY 5TH, 2009, I and my co-appellant, DAVID SHEBIB, began a campaign to have the Corporation of the City of Victoria corrected in its interpretation and application of the recently found Adams ruling. The City, that day, officiated a Bylaw restricting the, newly Constitutionally-held, right for homeless people to erect temporary abodes, to only serve nighttime hours.


[2] On each of the following four days we were issued Bylaw tickets for violating the 'no tents during the day' Bylaw. Getting arrested after the fourth one on MONDAY, FEBRUARY 9TH, 2009.


[3] We were convicted of the offense on FEBRUARY 12TH, 2009. Sentenced on March 5th, 2009.


[4] On MARCH 24TH, 2009, David Shebib and myself, both applied to appeal. Him, by trial de novo and myself, conventionally.


[5] On MAY 27TH, 2009, a Judge granted the de novo so David could enter new evidence specifically regarding the daytime shelter conditions and I was told I would still be able to argue Contempt.


[6] On OCTOBER 14TH, 2009, the City’s lawyer admitted the City did not contest the absence of emergency shelter beds during the day. Subsequently, on NOVEMBER 25TH, 2009, this appeal was restyled as a conventional appeal with the added allowance of submitting any new evidence regarding daytime shelter. The City, then, again changed its position, getting affidavits suggesting the existence of emergency shelter beds during the day. A redundant position, as the City's statistics of a maximum 281 available shelter beds (page 15, exhibit A) vs. 1242 homeless/unstably housed people (page 7, exhibit A) does not change whether there are no emergency shelter beds available during the day or if there are 30 emergency beds available during the day.


[7] On DECEMBER 9TH, 2009, the Appeal's Court of BC ruled on the City's appeal of the Adams ruling, finding “no legal basis to overturn the original conclusion”, excepting the inclusion, at the City's and its interveners behest, that the ruling was only determined for nighttime erection of temporary abodes. Leaving the right to erect temporary abodes during daytime to be determined separately.  Forcing an alteration from the primary argument in my original Notice to Appeal, that the City was in Contempt of the BC Supreme Court ruling, to a Charter Challenge to determine if government can lawfully restrict the erection of temporary abodes, for those who’ve not the means or opportunities to secure it otherwise, to sleep during daylight hours, sans a section 1 exemption.




[8] According to the REPORT OF THE GAP ANALYSIS TEAM from the Mayor’s Task Force on Breaking the Cycle of Mental Illness, Addictions and Homelessness, 2007 survey (exhibit A, page 7), there are 1242 homeless and unstably housed people in Victoria.


[9] Also, according to the same report (page 15), there are 141 permanent emergency shelter beds with an additional 30 emergency youth mats that are provided through the Out of the Rain Shelter during the colder months. When the Extreme Weather Protocol is activated, there are an additional 110 mats available. Bringing the total of emergency shelter beds, during extreme weather, to 281.


[10] Pending a more current survey of the numbers of emergency shelter beds and homeless (and unstably housed) people, the Gap Analysis Team, from their 2007 report (exhibit A, page 10),


“recommends that planning for housing and supports should assume 1,500 people require housing immediately, with a growth factor ranging up to 30 per cent per annum for the first five years…”,


Presuming, in the least, that the homeless population has risen since.


[11] As of FEBRUARY 5TH, 2009, the City has been enforcing a prohibition of erecting temporary abodes during the day (generally between 7:00 AM and 7:00 PM, though altered according to the longer days of summer). Section 16A(2) of the City of Victoria Parks Regulation Bylaw No. 07-059 reads as thus,


“16(2) A person must not place, secure, erect, use, or maintain in place, in a park, a structure, improvement or overhead shelter, including a tent, lean-to, or other form of overhead shelter constructed from a tarpaulin, plastic, cardboard or other rigid or non-rigid material:


(a)        subject to sub-section (b), except between the hours of 7:00 o’clock p.m. of one day and 7:00 o’clock a.m. of the next day,


(b)        at any time, in a playground, sports field, footpath, a road within a park, Bastion Square, or any area within a park that has been designated for an event or activity under a valid and subsisting permit issued under the authority of this Bylaw.”


[12] Until the City can guarantee that each homeless person can be afforded the option of getting sleep enough to maintain their health it is not Constitutional to prevent them from, conscientiously, securing it for themselves. Period. It is not reasonable for the City to presume over a 1000 people to adjust their schedules to include a daily regiment of only sleeping when it is dark.


[13] It is a deprivation of liberty to not be trusted to act conscientiously in the maintaining of one's survival. A deprivation of liberty that cannot but be a deprivation of life, as the energy stolen from being denied the practicality and efficiency of setting up a tent, for survival's sake, is going to keeping one's self awake long enough to find sleep within accordance to the law. Which leads to a resentment of the law. Which leads to a cycle of discontent in an environment where the only freedom is the freedom you must buy, subsequently making an untenable situation for any who've been so cursed by God as to be too smart to use money.


[14] There is no more intimidating issue to have before the judiciary. To recognize the right to sleep conscientiously on government owned public access properties effectively breaks a monopoly on sleep that has been relied on and built upon since the inception of residential property taxes. Many Canadians, seeing for the first time, their right to sleep for free, will experiment with that option, potentially exasperating the housing market mortally.


[15] So, the question being asked here is- Is it in the best interest of Canada to maintain the housing market at the cost of depriving those, without means or opportunity to provide for themselves otherwise, the efficiency of having the right to, conscientiously, erect temporary abodes freely, at any hour?




[16] It is not legal to arbitrarily deprive people of life. Sleep is necessary to live.


[17] To arbitrarily deprive people of sleep removes the ability for a society to be free.


[18] Systematic enforced sleep deprivation leads to death. Murder is a crime.




[16] Given Court agreement with this appeal, it would remain the City’s prerogative to manage its public spaces within Constitutional parameters. There’ve been many proposals with the idea of placating the City’s fears. Codes of Conduct, 24/7 police cameras, many locations of small groups, one place big enough for all the different routines to have their own corners, option of private residences applying for tent-zoning if they would guarantee basic management, etc… With ‘zones’ the City’s parks could remain tent-free.


[17] The creation of ‘tent-zones’ need not be a ‘positive obligation’. It has been through the restrictions and policies of the City that has had the issue ‘put off’, as land that would have been appropriate for ‘tent-zones’ has been developed for profit. Any provision of assistance from the City could be viewed as remedy.


[18] It would also behoove the City to assist in a national ‘awareness raising’ campaign so as to let all those who exist in poverty know they have the right wherever they are in Canada and need not over-whelm the first City to sanction public tenting.


[19] I want to be compensated for my temporary abode (if repayment is in the original construction material of cardboard it need come with labourers) and a genuine and supremely public apology from mayor and council.