B.C. Attorney General files appeal in Beacon Hill Park sheltering decision

B.C. Attorney General files appeal in Beacon Hill Park sheltering decision
Nicholas Pescod/CHEK News
During the COVID-19 pandemic, the City of Victoria allowed homeless residents to set up encampments in Beacon Hill Park.

B.C.’s Attorney General has filed an appeal for the decision that sheltering in Beacon Hill Park is not permitted by the park’s trust.

The original ruling by B.C. Supreme Court Justice Robert Punnett stated that the Beacon Hill Park Trust does not allow for sheltering in the park.

CHEK News reached out to David Eby, Attorney General for B.C. for an interview on the matter, but was sent a statement in lieu of an interview.

In the statement, Eby says the ruling is significant due to the potential impacts on other parks with similar trusts.

“There are several parks that are subject to trusts like this that make the court’s decision significant,” Eby says in a statement. “The court’s decision raises questions about the way that changes to all of these parks’ uses can be undertaken by the province or by the cities where these parks are located, questions about the applicability of the Charter, and more specifically, questions about how the province should address local First Nations’ concerns about this particular park.”

The original ruling for this case states it did not consider the Charter of Rights and Freedoms in making the judgment.

“This proceeding is not a challenge to the Trust’s legality, on constitutional or any other grounds. It is not a challenge to the legality of any City bylaw, or any action taken by the City to either limit or allow sheltering in the Park,” the judgment by Punnett states. “More generally, these reasons do not address any challenge under the Canadian Charter of Rights and Freedoms.”

Douglas King, executive director of the Together Against Poverty Society (TAPS), says he is supportive of an appeal on this ruling due, in part, to the fact the original judgment did not consider the Charter.

“We felt like the decision didn’t really address the core issue that needed to be talked about, so hopefully, an appeal will allow for that opportunity,” King said.

“For us the core issue was whether or not, regardless of whether or not this trust is in place, if the city banning overnight sheltering from the parks would be contrary to their Charter obligations to allow places for people to shelter. To us, that’s the most important issue.”

John Alexander, legal counsel for the Friends of Beacon Hill Park says his clients were upset to receive the notice of appeal.

“My clients were quite upset about the specter of having to go through this difficult and lengthy process all over again,” Alexander said. “They stretched to find the money and the other resources to participate in the process in the B.C. Supreme Court, and it took a long time and it took a lot of money and they’re very concerned about their ability to do it all over again in the Court of Appeal.”

He says, in his experience, it would be unusual for a Charter case to be considered like this, if that is what the province intends to do.

“Charter challenges are always brought in the context of a set of facts. The court has never dealt with Charter challenges outside a specific set of facts,” Alexander said. “So in the future person in park claims that they have some Charter right to be there and brings that claim, then perhaps the issue of does the Charter override the trust or does the Charter override a city bylaw applies.”

“But Justice Punnett was very clear, he said ‘no one’s given me any facts about a person who is claiming the protection of the Charter.'”

King says he believes the City of Victoria should not have brought this matter before the courts to begin with.

“In our opinion, it would have been much more reasonable for the city just to say we have our Charter obligations, we’re not going to allow 24/7 sheltering in the park, but we’re going to allow overnight sheltering for individuals, and then leave it up to the Friends of Beacon Hill Park to challenge that under the terms of the trust,” King said. “They’ve assumed a natural defensive position, which is really damaging for the people who need the most, the people whose Charter rights are at issue.”

“So at the end of the day, it’s back to the courtroom, using more public dollars to ultimately address something that we probably already know the answer to, which is that we need to make sure that people have a place to live, and if we don’t have a place for them inside, need to have a place inside of our public park space where they can take care of themselves.”

According to Alexander a typical appeal process can cost over $40,000, which his clients are hoping to raise in order to participate.

King says, also due to costs, TAPS has not yet decided whether to get involved in the appeal, or to support the legal team that represented the campers in the original case.

Lisa Helps, mayor of Victoria, says she will not weigh in since it is a provincial matter, and because it is before the courts.

Shae Smith and Dennis Davies, who previously sheltered in Beacon Hill Park, are the other parties who participated in the initial court case. CHEK News has reached out to the legal counsel for Smith and Davies but has not yet received a response. The story will be updated when a response is received.

Laura BroughamLaura Brougham

Recent Stories

Send us your news tips and videos!