Tents-in-Parks Ruling was Necessary

by Ron Skolrood

[This letter was published in the Vancouver Sun, October 18, 2008.]

Re: Judge pitched her tent on shaky grounds, by Ian Mulgrew, October 17)



I was counsel to the BC Civil Liberties Association, which intervened in the City of Victoria homeless case. I feel compelled to respond to Mulgrew's comments on the decision of BC Supreme Court Justice Carol Ross.

He suggests Justice Ross should be embarrassed by her decision. In fact, it is he who should be embarrassed by his misreading and distortion of her careful and thoughtful reasons for judgment.

The hysteria that erupted following the decision, fueled in part by ill-informed commentary is unwarranted. The decision doesn't grant an open license to set up "tents on the legislture lawn," nor is it an improper foray by the court into the social policy arena. It is simply the affirmation by the court of certain basic human rights our Constitution affords all Canadians, including the homeless.

The legal proceedings arose from the tent city erected by Victoria's Cridge Park and the city's attempts to shut it down under its then bylaws. By the time the case came to court in June, the city had amended its bylaws and conceded that homeless people are entitled to sleep outdoors in public spaces.

However the bylaws prohibited the erection of even the most rudimentary form of shelter.

At the hearing, it was established on the evidence that because Victoria has an insufficient number of shelter beds, a significant number of homeless people are compelled to sleep outdoors. There was further uncontradicted evidence that sleeping outdoors without a shelter creates health risks.

The question before the court was thus a fairly narrow one. "In circumstances in which a homeless person has no option but to sleep outdoors, can the city prohibit that person from erecting a basic form of shelter to protect him or herself from the elements?"

In response to that question, Justice Ross found that by denying access to shelter, a basic necessity of life, the city violated homeless people's right to "life, liberty and security of the person," as guaranteed under the Charter of Rights.

On both the evidence and the law, it is difficult to see how she could have found otherwise.