disclaimer: the following is an account of this morning's trial at the victoria's courthouse, documented to the best of my ability and understanding. it may not be absolutely perfect or accurate. i make this disclaimer because, among other reasons, the city's lawyer submitted, to the judge, a bound document containing evidence which included a photo of me i'm assuming he took off this blogsite. i have no idea of his intention, or why the city would cite information and photos from this site in a court trial that has nothing to do with me, but i suppose it's good to know someone's reading it, and i'll be sure to destroy all those naked spy photos the cia took lest they should appear in places unintended.
the city of victoria's lawyer (de souza? the same guy who ran against keith martin for the conservatives in the last federal election? the former uvic student society chair during the 'how'd we get in this financial mess' years?) argued three very interesting things today:
1. the definition of the word 'home' includes the word 'institution,' according to oxford, therefore a 'homeless shelter' is actually a home, therefore david johnston and kristen woodruff and tavis dodds (who were on trial for sleeping in the park in a tent in the daytime) are not homeless because there was room at the homeless shelter and they didn't need to sleep in the tents in the park in the daytime.
2. david, tavis, and kristen are not 'homeless,' they're 'urban camping advocates.'
3. madam justice carol ross' ruling (that found a city bylaw stating that people could not erect structures in the park to protect themselves from the canadian elements is in violation of canada's charter of rights and freedoms which says we have the right to life, liberty, and security of person) does not strike down the bylaw. the bylaw still stands, therefore the city's bylaw enforcement policy (that they enacted after they appealed the ruling and which states people can only sleep under shelter in the parks between 7 pm and 7 am) is actually enforceable.
he spent about an hour going over and over and over these points, trying desperately to convince the judge, the lawyers (he called his 'friends'), the defendants, the court stenographer, the court's witnesses (and there were many of us), and the historical record that madam justice carol ross didn't say what she said, didn't intend what she intended, and that kristen, tavis, and david are not homeless and even if they are they're activists so the law is supposed to apply differently to them. we all listened carefully, some of us incredulous that anyone would embarass themselves in an attempt to justify the city's obviously sinister intentions.
4. as a last ditch attempt, he introduced something about a case involving shell canada in south africa, a situation where a bylaw enforcement policy was in fact recognized. in south africa.
the lawyers for the defence, irene faulkner and cathie boies-parker (seen above), refuted his claims:
1. it's not this court's responsibility to define the word 'homeless.' if the city of victoria wants to pass legislation defining what it is to be a homeless person, and to enact bylaws that affect them, they're welcome to do that. if they do that, then a trial may well follow that challenges the constitutionality of the definition, and the ensuing bylaw(s). but the question before the court today is about determining whether the city is correctly and/or appropriately interpreting madam justice carol ross' decision, and whether tavis, kristen, and david are actually guilty as charged.
2. the three are charged in violation of the city's parks bylaw, #16, which reads:
16 (1) A person may erect or construct, or cause to be erected or constructed, a tent, building or structure, including a temporary structure such as a tent, in a park only as permitted under this Bylaw, or with the express prior permission of the Council.
the lawyers for the defence argued that this bylaw no longer applies to homeless people (and kristen, david, and tavis currently have no fixed address, and have been issued tickets stating that), because madam justice carol ross clearly stated, in her disposition (available online in its entirety here - click on 'read more'):
[239] Accordingly, this Court declares that:
(a) Sections 13(1) and (2),14(1) and (2), and 16(1) of the Parks Regulation Bylaw No. 07-059 and ss. 73(1) and 74(1) of the Streets and Traffic Bylaw No. 92-84 violate s. 7 of the Canadian Charter of Rights and Freedoms in that they deprive homeless people of life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice, and are not saved by s. 1 of the Charter.
(b) Sections 13(1) and (2),14(1) and (2), and 16(1) of the Parks Regulation Bylaw No. 07-059 and ss. 73(1) and 74(1) of the Streets and Traffic Bylaw No. 92-84 are of no force and effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter.
they reminded the city's lawyer, and informed the judge, that the city has already approached madam justice carol ross asking her to refine her judgement to pertain only 'at night,' and she respectfully declined, therefore her use of the word 'temporary' refers to the type of structure rather than the time it's permitted.
3. irene and cathie concluded that the city cannot simply enact a bylaw policy, amending a bylaw that no longer exists, and then attempt to enforce it. the bylaw has been rendered inapplicable, according to madam justice carol ross, and therefore it's impossible to refer to it or any bylaw policy that is attached to it. what the city ought to do is rewrite the bylaw, in light of the court's decision, and then the courts can decide if the new bylaw is constitutional or not.
if it were up to me i'd hold the city, and the city's lawyer, in contempt of court. they are clearly attempting to ignore and/or invalidate the ruling of madam justice carol ross. it leads me to wonder if they'd be so adamant about ignoring what the judge said if the ruling were issued by a judge of the male persuasion.
i'm no lawyer, but it seems clear that the city ought to just recognize and accept that the judge's ruling finds their bylaw in violation of canada's charter of rights and freedoms. after they accept the reality of that, they ought to write new bylaws - or, if they want to be democratic about it, call a public meeting and have an open discussion about how to proceed when there are 1500 (and counting) homeless people and nearly zero affordable housing units. if they're determined to argue about the definition of the word 'homelessness,' and what constitutes a 'home,' then they ought to do that and create legislation that reflects their beliefs in the form of legitimate bylaws, not bylaw 'policies,' and see what happens from there. their constant deferral of 'the problem' to victoria's police department, sending in the goons to arrest the homeless and steal all their worldly possessions, is like a teacher sending their problem students to the principal rather than sorting it out themselves. i know about this because i did it myself, during my student teaching. i realized, then and now, it's a lousy way to deal with stuff - deferring to an alternate authority. but i've forgiven myself - i was an overworked, underpaid, entirely unappreciated (they'd rather throw us in jail) activist stuck teaching junior high (the last place i wanted to be), and they're elected officials with time, money, and the means to hire lawyers who might offer better advice than just proceeding as if victoria v. adams never even happened.
despite all the lawyer jokes, irene and cathie are heroes, in my books. they've already been acknowledged and recognized by the bar association - their peers have celebrated their provincial supreme court victory. i've heard a professor of law, at uvic, express his jubilation that, as evidenced by justice ross's decision, justice is something that can actually happen and affect peoples' lives. for three years irene and cathie have stood by david johnston and those who have joined him in the quest to protect the rights of the homeless. they do this work pro bono, for free, presumably because they believe that justice is possible, and they are making history in the process. as irene said today, those homeless people who acknowledge their charter rights, and who attempt to hold others accountable when those rights are violated, are to be applauded ..... not ridiculed, arrested, and prosecuted.
there were no representatives from the newly elected mayor and council in the courtroom today. rumour has it they've agreed to meet next week with a single representative from the committee to end homelessness, to talk about the tent city solution, but only one single representative. i hope she records the meeting.
