Interactive Documentary


Pitching the Camping Case.

Monday Magazine - September 05th, 2007

By Andrew MacLeod

Two years ago police evicted homeless people from Cridge Park.

Why won’t the city see them in court?

One could pass Cridge Park a dozen times without noticing it, but it is at the centre of a court case that could reorder how we look at public places and how we treat the homeless.

The park is tucked in the curve Blanshard Street makes as it turns into Belleville Street, between the Church of Our Lord and a lawn bowling club a block from the Inner Harbour and the provincial legislature. Several mature trees, including a couple huge broad-leafed maples, provide shade. The grass underneath looks ratty and unloved. A small rose bed is past its peak. A chain link fence, broken at one end, runs several metres along the sidewalk. Beside the fence a red sleeping bag spills out of a garbage bag.

On a warm Friday morning in late August, David Arthur Johnston and I are the only visitors. “It’s a throughway,” says Johnston, a self-styled monk with a long beard and a straw hat who for several years has been in and out of jail as he’s fought the city and the province for the right to sleep in public places. “It’s not the city’s Raj, it’s not their jewel.” Even the park’s two benches face out of the park, seeming to confirm the road offers the best view around.

The park may not be much to look at, but it could have a huge impact on the city’s street issues thanks to the coming court case. The case was set to open September 4, but as of this writing it has been delayed and lawyers for both sides were to be in court September 5 to argue whether it should continue at all.

For two weeks in 2005 the park was a much livelier place. A group of 15 or more homeless people and supporters, barred from the provincially owned St. Ann’s Academy grounds across the street, set up camp in the city park. Johnston, who at that point had earlier been barred from St. Ann’s, joined them.

He points out a spot near the sidewalk where the group had their kitchen, beside a tree that city workers have since cut down. Under the trees near the church, he says, was a large tarp with several tents below. Another “suburb” with more tents popped up further back. “It grew pretty fast. In three or four days it had gotten up to about 25 tents, 70 people. It shows that people thought it was useful.”

City officials, however, didn’t want campers taking over a public park, even one as grotty as Cridge. A long-standing bylaw forbids a person to “loiter or take up a temporary abode overnight on any portion of any park.” Erecting a shelter is also against the law. So is “placing a chattel,” a belonging, in a public place. So the city asked the courts for an injunction. The city sought a permanent injunction against the campers, but lawyers Catherine Boies Parker and Irene Faulkner, representing the campers, argued that it was unfair and likely against the Canadian constitution to block people from sleeping in the park when there is nowhere else where they can legally sleep. The city didn’t have nearly enough shelter beds for the 700 or so people believed to be then homeless, and the beds that did exist were always full.

Judge Allan Stewart agreed those arguments were worth considering. He granted the city its injunction, but only temporarily—it expired in August, 2006—so the city would have to come back to court and make its case for why the order was necessary and fair.

Meanwhile, the campers had to go. On a grey October day police officers cleared the park. Photos from the day show at least nine officers standing around while campers roll up their belongings, in some cases stuffing them into shopping carts. One of the officers carries an arm-load of zip ties, frequently used to handcuff prisoners. A camper plays the fiddle. A fire fighter in a blue helmet douses the campers’ barbecue.

The campers have been gone nearly two years and the temporary injunction expired one year ago, but now the city wants to avoid having to defend its position in court. On behalf of the city, Staples, McDannold, Stewart lawyer Bruce Jordan has asked the court to “discontinue” the case, arguing the injunction is no longer necessary. If that permission is denied, Jordan says, he’ll be in the “highly unusual” position of having to prosecute a case the city doesn’t want to fight.

“[City officials] think [the injunction’s] purpose has been served,” he says. “Their intention was to end the intolerable situation that arose at Cridge Park in October, 2005.”

With the campers gone, the city has little to gain from going to court, and plenty to lose. A win would reinforce the status quo and camping in city parks would remain illegal. But if the city loses, Jordan says, “Potentially camping would be allowed in city parks at any time by anyone.”

The loss would set a precedent that would apply not just in Victoria, but throughout Canada. Tents could go up in city parks from Victoria to St. John’s and Windsor to Whitehorse. Anti-camping bylaws would become meaningless, and police couldn’t use them as a stick to chase people out of parks. Homeless organizers and anti-poverty activists across the country are watching the case carefully.

Defending the camp

When I meet with Catherine Boies Parker and Irene Faulkner, the lawyers representing the Cridge campers, they are coming to terms with the city’s move to discontinue and figuring out what to do next. “We didn’t think the city would take this step of discontinuing,” Boies Parker says. She picks her words carefully, but says she was shocked. “People have waited in good faith for two years to have the matter decided.”

Their Fort Street office is in a series of high-ceilinged rooms in an old house. An issue of The Guardian, the newsletter for the Hospital Employees’ Union, celebrating the win on Bill 29 is on the mantelpiece. Boies Parker worked with Joe Arvay on the case, which overturned the Gordon Campbell government’s law that broke contracts with some 200,000 public sector workers.

When an injunction like the one for Cridge Park is granted, Boies Parker says, things tend to move quickly. Once the city had the legal authority, the police cleared people out. It’s quick and dirty, and the finer points of the law don’t get argued until later.

In the United States, she says, it’s the kind of case the American Civil Liberties Union might pick up and argue. In Canada, such cases are much less likely to get heard, even when there’s an obvious injustice being done.

“One of the things we were concerned about when the clients first came to us is there seemed to be such an obvious constitutional issue here,” she says. “The people who are affected by this law are really unable to comply with the law.” It is illegal to trespass on private land in the city. The police and the city were also making it clear there was nowhere on public land where people could sleep. The shelters were full and inadequate for the number of people who were homeless.

If the campers could have gone to a home somewhere, they would have, she says. Faulkner adds, “They didn’t have that choice.”

In a situation like that, where it was impossible to obey the law, the constitution should protect people. Says Boies Parker, “It was an issue that needed to be addressed.”

The thing is, it’s not easy for people who are homeless to push forward a legal case. If there’s no money for rent, there likely isn’t money for a lawyer either. If a person is having a hard time doing what it takes to get and hold a job, how are they going to conduct litigation?

“It just seems very unfair that it should be so difficult,” Boies Parker says. “When you have an ongoing concern, it seems like it’s in everyone’s interest to have it decided, because it’s not going away. The problem of homelessness, so far, is not going away.”

A growing need

A homeless survey conducted last winter found some 1,200 people homeless in the CRD. That’s up from a count of around 700 a few years earlier. Most people accept that homelessness is increasing, Faulkner says. “Lack of housing is the main cause. We’re not building any more social housing, or we’re building very, very little.” The breakdown of families, difficulties for some people finding work, a low rental vacancy rate and failure to help people deal with mental health and addiction issues all play a role.

And yet we’ve done little to stem the growth, despite the rising concerns voiced by downtown business owners and others. More people are forced to sleep outside, says Faulkner, because despite the growth in the number of homeless people “the number of shelter beds hasn’t increased.”

The city has options. “There are all sorts of ways the city can address this,” says Boies Parker. “It’s a political question, how they’re going to address homelessness.” Solutions might include designating a place for camping, creating more shelter beds or helping people afford market rents. Boies Parker and Faulkner aren’t arguing that people should be allowed to sleep anywhere, anytime, just that you can’t apply bylaws to people that they can’t comply with. “You can’t try to legislate people out of existence,” she says. “I think one of the important things about the case is people who are homeless, there’s a tendency to want to sweep the problem under the rug, make it go away.”

More support for the case going forward came when David Arthur Johnston was released on bail last summer. After 36 days on a hunger strike in Wilkinson Road Jail, the release was on the understanding he would put his energy into the court challenge. At the bail hearing judge Robert Bauman agreed that was an appropriate avenue for him to have his voice heard, says Boies Parker. So did judge Robert Metzger at the sentencing appeal. Says Boies Parker, “But [now] the forum gets yanked out from underneath him.”

Faulkner says she and Boies Parker will argue the case should continue. “We’re preparing to go. Our clients are ready to go and we’re ready to go.” If the city succeeds at stopping the case, it will be asked to pay the legal costs for the months of work that have gone into preparing an argument. The city would also face a new action aimed at striking down the camping bylaws, this time with the campers acting as plaintiffs. The case is already filed, but won’t proceed until the first case is resolved.

If the court grants the city its discontinuance, the anti-camping bylaws will remain in effect. If a new tent city goes up, as it surely will, Boies Parker asks, would the city use the bylaws again? To seek another injunction based on bylaws it has failed to defend in court would amount to an abuse of process, she says, and she would plan to argue that in court. “To start the whole process over again seems incredibly unfair to people who have difficulty accessing justice to begin with. In our view it would be much better to proceed with the current action.”

Perhaps, she says, the city has decided it can’t win. “One would think if they were confident, they would want to proceed.”

Or maybe the city agrees the bylaws are unfair and has other plans to deal with homelessness that will make the case irrelevant. “It may be the city looked at this issue and said, ‘we shouldn’t defend these bylaws,’” she says. “It may be that the city is declining to defend these bylaws because they intend to do something that will enable people to have a place where they can go.” She adds, “If the city has some other plans, it would be good to let us know about them . . . If there was an opportunity for people to have safe, secure shelter, other than this in the city, we couldn’t make the constitutional argument we’re making now.”

Whatever happens, Boies Parker, Faulkner and their clients won’t let the city walk away. “We’re very committed to making sure this issue is addressed. If the bylaws are going to be relied on and enforced, their constitutionality needs to be tested.”

Pitched position

Victoria’s corporate administrator, Rob Woodland, says the city stands behind its anti-camping bylaws, but there’s little point proceeding with the Cridge case. “In the interest of being prudent with taxpayers’ money and the fact it hasn’t been repeated, we felt a lengthy trial at this point wouldn’t be worthwhile,” says Woodland. “When we dealt with the matter in the fall of 2005 there was a massed camp that was causing damage to the park.” Now, he says, things have improved.

Of course things have improved in part because recurrent campers like David Johnston have stayed out of the park while they wait for the case to be heard. If the city backs out, they’ll be back.

So, when they start setting up a new tent city, will the city use the bylaws again? Woodland says, “We’d have to review the situation as it arose at the time. The city is concerned to maintain parks that are open for all users.” It would depend on how the use and “integrity” of the park were affected, he says, and certainly people would be encouraged to move on and make use of whatever resources are available from non-profits or the government before any enforcement was made.

But what about Boies Parker’s argument that a court is unlikely to grant another injunction based on bylaws the city has chosen not to defend? “I can’t say, to be honest with you,” says Woodland. “I can’t predict the future and I wouldn’t make a judgement on how we’d respond.”

However, mayor Alan Lowe says the city would likely use the bylaws again. If a new tent city starts, he says, “We’ll go back for a temporary injunction. We believe the parks are for everyone to use and not for individual groups to take over.”

Lowe says the city is right to pull out of the case. “The temporary injunction worked. We didn’t want to spend more money to do something that may not be necessary . . . From our point of view there’s nothing to go to the courts for at this point, so why spend money on something we don’t need?”

The courts aren’t the place to deal with social policy issues anyway, he says. The city is making progress on homelessness, he says, and will continue to make progress. In mid-October the mayor’s task force on breaking the cycle of homelessness, mental illness and addiction will report. Says Lowe, “We’re about to see great things.” When pressed for details he says the task force is looking at other models from Canada and abroad, but everyone will have to wait until October to see what the task force recommends.

Asked if the city would ever start its own tent city, which could then be managed with the public interest in mind, he says, “No, the city would not, I don’t think. I just don’t believe that’s what we should be doing.” He’d rather see resources go to temporary shelters and other housing, he says.

Woodland says dealing with homelessness requires the co-operation of the provincial and federal governments. Right after police disbanded the Cridge camp, the city and the province introduced the cold and wet weather protocol which saw more shelter beds opened during the winter, beds that were removed when the weather improved. The city has also contributed money and support to open the new Our Place building on Pandora Street. When it opens in December, it will provide housing for 45 people. The new housing replaces 22 beds that were part of the Upper Room, meaning the multi-year project will result in a net gain of 23 places to sleep.

Staking the next tent

A tent city would help reduce homelessness, says Janine Bandcroft, co-ordinator of the Victoria Street Newz. “To me it’s a viable solution in this society,” she says. “At least it’s a step. Then they’re visible somewhere, they’re accepted as part of society.” With high rents and expensive real estate, people need somewhere to go. “The cost of housing is not going to change,” she says. “{A tent city] is a stopgap for some and for others it’s just where they want to be.” It provides people a measure of security so that they can sleep without being afraid of violence or theft.

Tent cities have existed successfully in Portland and Seattle for many years, she says. Edmonton had one this past summer. It had a water tank, a portable toilet and a fence, all things which helped it run smoothly and hygienically. Media reports said more permanent housing was found for some 30 residents before the camp was closed last week.

Bandcroft is hopeful the Victoria case will proceed. “I think it’s going to be precedent-setting here and for Canadians everywhere,” she says. “I think it’s a big deal. Irene and Catherine are wonderful for taking it on.”

Sitting in Cridge Park, Johnston imagines what the next tent city will be like. “Right now everything is on schedule,” he says. “Pending political manoeuvring, it’s always hard to say how things will go. I predict at the very least the judge will find the anti-camping bylaw unconstitutional.” Perhaps, he says, the judge will go further. “I hope and fantasize the city will be ordered to make provision for basic facilities in the form of washrooms, maybe a kitchen, maybe showers.”

Last time around, without the city’s support, campers had challenges with things like finding places to go to the washroom. Johnston says during the day they would use nearby public washrooms at places like the library and the bus station. Night was more of a challenge. “Some people learn to poo in bags,” he says. A little bit of infrastructure would make a huge difference to the running of the camp.

The tent city will be a family-friendly place, he says. It will draw some of the people who sleep on the sly in other parks around the city. “I’m looking forward to tent city as a community of highly intelligent, industrious people helping each other out,” he says. “The tent city will be like the wild west. There will be good sturdy folk, there will be sheriffs and there will be . . .” he pauses, looking out at the street for a few moments, before adding, “I want to say something like ‘the flailing victims of this delusional society.’”

Like last time, it will be open to a wide variety of people. “Even obnoxious drunks, flailing meth heads, need sleep and love and the support of a community,” says Johnston. “There are basic necessities of life that draw us together no matter where we come from. The first one being community. That is more important than sleep.”

He predicts some people won’t like it. They’ll throw beer cans at the campers and hurl insults as they drive by. But others will support the camp, seeing the need people have for a place to stay and the power of what it represents. “Old retired people will come to like us because we represent a kind of freedom most of the first world has never seen before.” He adds, “It’s about basic freedom. There are those who, rightly so, can not adhere to normalcy”.

Whether the Cridge case goes ahead or not, there will be another tent city in Victoria, Johnston says. The case should be heard so the city doesn’t have to come back time and again to waste the court’s time with injunctions. There’s no doubt, he says, people need somewhere to go. “The tent city is housing. The judge may very well in an instant solve the affordable housing crisis in Canada.”