CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION

February 5, 2009 Appellant Johnston and David Michael 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.

February 9, 2009 Johnston and Shebib are arrested for collecting multiple ‘no tents during the day’ Bylaw tickets. 1 per day for the previous 4 days.

February 12, 2009 Johnston and Shebib are convicted of the offence by Provincial Court Judge Blake.

March 5, 2009 Johnston and Shebib are sentenced.

March 24, 2009 Johnston and Shebib both apply to appeal. Shebib, by trial de novo and Appellant Johnston, conventionally.

May 27, 2009 A trial de novo is granted with assurance from the judge that Appellant Johnston’s ‘Contempt’ argument can still be presented.

October 14, 2009 At an adjournment hearing, the City’s lawyer admits the City does not contest the absence of emergency shelter beds during the day. Subsequently, on,

November 25, 2009 the appeal was re-designated as a conventional appeal with the added allowance of submitting any new evidence regarding daytime shelter. The City, again changing its position, brings affidavits suggesting the existence of emergency shelter beds during the day.

December 9, 2009 Appeal's Court of BC rules 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.

September 10, 2010 Appeal for ‘daytime anti-tent’ convictions in front of Supreme Court Justice Braken. He reserved his ruling.

November 30, 2010 Justice Braken releases his Reasons, finding the City’s section 1 argument reasonable.

January 19, 2011 Appellant Johnston submits Notice Of Application For Extension Of Time To Appeal and a hearing is set for February 14, 2011.

January 31, 2011 David Shebib submits Application To Extend The Time To Appeal being given Appeal’s Court File No. CA38771.

February 14, 2011 Appellant Johnston granted leave to file a Notice of Appeal by February 18, 2011.

February 17, 2011 Notice of Appeal filed and served on the Respondent. Respondent fails to respond within the 10 day limit given in the Appeals Rules making it so the Appellant has no obligation to serve any further documents related to the appeal on the Respondent until an Appeal’s Court Justice deems it otherwise.

March 22, 2011 Appellant Johnston submits Appeal Record to the Court without concern of service on the City as it did not respond within the 10 day limit given in the Appeals Rules.

OPENING STATEMENT

The rare and distressing circumstances of this case are inextricably linked to the issues of the Fundamental Justice of Canadian Law and of the fundamental of justice that dictates the sanity of all life. This Court is called upon to make Rule of highest importance, proving to the public whether or not confidence in the administration of justice and in the integrity of the Court is justified.

BC Supreme Court Justice Braken erred in ruling the City’s section 1 argument valid, as there was no demonstration that the City considered any non-Charter Right-depriving alternatives to deal with the phenomenon of sleeping in public during the day.

The only objective in Oakes that the City passed was the simple recognizing of homelessness as a ‘pressing concern’. They did not meet the ‘Proportionality’ condition, as they had not considered the reasonable equity of providing space for public tenting elsewhere within a Municipality’s public access spaces during the day.

Err needs only Justice Braken’s Reasons for Judgment to be made evident, as it would not be what is in the transcripts that will further this case, but what is not in the transcripts. In that they prove only that the suggestion of public tenting zones was put forth in verbal argument as well as written. A suggestion which was ignored without mention at all in his Reasons. A suggestion that is reasonable given every person’s right to be ‘presumed innocent of’.

In the least, the onus is on the City to demonstrate Constitutionally compliant public tenting zones as an unreasonable consideration before being granted the section 1 allowance to suspend section 7 rights. An onus which is made impossible to provide until genuine attempt is made to determine if the public could be trusted to lawfully tent in public without the imposition of being arbitrarily required to expect obstruction from sleeping between the hours of 6:30 in the morning and 8 or 10 o’clock at night.

Appellant success, in this case, has grand consequence. The City of Victoria, seemingly overnight, becoming the most progressive city in the world. This issue, having intense public interest, will be gifted with a wide range of external Constitutional scrutiny which, subsequently, will make any further naïve indiscretions in the depriving of fundamental rights by the City, more difficult. Invariably, Victoria will become a ‘hotbed’ of political contention, gaining a place of nobility with the ‘green’ movement and a place of contemptuousness with those who’ve accepted a compromised ‘order’ as being more important than justice.

PART 1 – STATEMENT OF FACTS

History of the litigation

[1] While this is an appeal stemming from convictions given to David Arthur Johnston and David Michael Shebib on February 12, 2009 in the Provincial Court of British Columbia the litigation originally arose in response to a campaign to determine the ‘right to sleep’ initiated by Appellant Johnston on January 16, 2004 which, in turn, was a response to his conscientious sleeping in the park being deterred by City policy.

[2] Through determined activism the campaign led to an establishment of an illegal tent-city at St. Ann’s Academy on September 23, 2005.

[3] On October 5, 2005 an injunction is served on the residents of St. Ann’s tent-city, inspiring an exodus that takes the tent-city across the street to Cridge Park.

[4] On October 19, 2005 with help from UVIC law students a number of affidavits are collected from tent-city residents to help defend against an injunction application by the City of Victoria. It is around this time that Constitutional lawyers, Cathie Boise-Parker and Irene Faulkner offer their help with this defence.

[5] On October 26, 2005 City applies for, and is granted, an interim interlocutory order against the illegal tent-city in Cridge Park. It is set to expire on August 31, 2006 in order to ensure that the City had some interest in bringing the case to trial and having the Constitutional issues heard.

[6] The City did not set the matter for trial. After consulting with the City’s lawyers, the Defendants set it to be heard on September 4, 2007.

[7] Through much positioning by both parties the Charter Challenge to determine the right of homeless people to erect temporary abodes happens June 16 to June 20, 2008. Supreme Court Justice Ross gives her Reasons on October 14, 2008 declaring Bylaws to be (para. 239(b), Adams)

“of no force and effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter.”

[8] City first introduces the notion of limiting the use of tents to night time only as a Bylaw policy on October 17, 2008.

[9] Technically invalid Bylaw policy is made into a Bylaw by Victoria City Council on February 5, 2009.

[10] On February 9, 2009 Johnston and Shebib are compelled to get arrested for collecting multiple ‘no tents during the day’ Bylaw tickets as a response to the Bylaw’s inception.

[11] On February 12, 2009 Johnston and Shebib are convicted of the offence.

[12] On March 24, 2009 Johnston and Shebib file Notice to Appeal.

[13] On December 9, 2009 the Appeal's Court of BC rules on the City's appeal of the Adams ruling, finding (in the first half of para 10, Victoria(City) v. Adams, CA036551)

“no legal basis to interfere with the trial judge’s conclusion, on the uncontradicted evidence before her, that the prohibition in the bylaws on the erection of temporary shelter violates the rights of homeless people to life, liberty and security of the person under s. 7, and the violation is not justified under s. 1 of the Charter. “,

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 shelters during daytime to be determined separately.

[14] The appeal of Provincial Court Judge Blake’s conviction of Johnston and Shebib was put before Supreme Court Justice Braken on September 10, 2010.

[15] Justice Braken releases his Reasons on November 30, 2010 siding with the City’s section 1 argument that the deprivation of life was a ‘reasonable limitation’.

PART 2 – ERROR IN JUDGMENT

[16] Justice Braken failed to see the necessary ‘reasonableness’ of first considering non-Charter violating alternatives before awarding the City section 1 allowance.

[17] Justice Braken’s decision fails to give adequate effect to the fact that the City conceded the section 7 violation, and thus the burden was entirely on the City to demonstrate, on the basis of proof, that the interference with life, liberty and security of the person was justified. The trial judge did not apply the test for assessing a section 1 justification under Oakes, which would have required the City to lead clear and convincing evidence to demonstrate that every step of that test was met - including that the bylaw was rationally connected to the objective, minimally impairing and proportional. This constitutes a fundamental error of law.

[18] There is total omission of mention of the non-Charter violating alternative of public tent zones in his Reasons, even though verbally and in writing he was presented with the consideration.

Oakes Test

[19] To establish that an infringement of a Right or Freedom is justified under a piece of legislation, two main criteria must be met.

[20] Firstly, the objective of the limiting measure(s) must be “sufficiently important” and must relate to concerns that are “pressing and substantial”.

[21] This criteria was met, understanding the consequence of the phenomenon of a population of people sleeping in public within the municipality.

[22] The second criteria though, the ‘minimal impairment’ aspect, is not met by the City as it fails to demonstrate a reasonable attempt to deal with the matter without resorting to Charter infringement.

[23] The City’s sentiment towards public tenting zones, as a frivolous impossibility, is without merit as it has never seen a sanctioned public tenting zone at work.

PART 3 – ARGUMENT

[24] The City of Victoria, in its naïve convention, engages in psychotic behaviour with its across-the-board prohibition of erecting temporary abodes during the day.

[25] It is easy to empathize with the issues of this case. For longer than anyone has been alive today there has always been a monopoly on sleep. As a society we’ve developed a twisted acceptance of this deprivation that, effectively, forces everyone to, eventually, have to pay to dream lawfully.

[26] To this day, even. The total restriction of people’s right to, conscientiously, provide for themselves shelter enough to sleep without concern for undue obstruction, during the day, speaks of a grand and unlawful fear that is not worthy of an enlightened nation; speaks of the fear carried by those who’ve grown dependent on ignorance.

[27] Justice Braken over-stepped his bounds in ruling the City’s section 1 argument as valid. Reasoning why leads to much conjecture. ‘Why?’ might be a question for a later court as it speaks of a dire lack of mindfulness that is unworthy of those who’d worship justice so much that they would take the word as a title.

[28] In this case, the Appeals Court is being asked to rule on whether or not Justice Braken erred, not why.

[29] Simply put, the City is not worthy of being granted section 1 allowance as it has not attempted public tenting zones, which is a reasonable consideration given every citizen’s right to be presumed innocent of.

PART 4 – NATURE OF ORDER SOUGHT

Remedy

[30] Justice dictates accountability. Not only must the City’s Bylaw be instantly made of no force or effect, the Appeals Court must be confident that the City has the wherewithal to not, again, conceive a Constitutionally violative response to the seeming ascetic disparity of the growing population of people sleeping in public.

[31] If the Court is not satisfied with the City’s understanding of what a Constitutionally compliant Bylaw looks like, in the matter of policy regarding sleeping in public, then the Court would be required to order the City to submit any new Bylaw or Bylaw amendment, dealing with this matter, first, to a Supreme Court Master to scrutinize before it is officiated into legislation.

[32] There is no positive obligation on the City to provide land for a public tent zone, just as there is no positive obligation to conceive public tent zones at all. The only reasoning to do so being to alleviate the number of people tenting in the parks. Effectively allowing for the restriction of tents, wholly, from some parks because there is reasonable land enough that allows for the right to be asserted elsewhere within the municipality. ‘Reasonable’ in this case including the conditions of the area being within walking distance to the downtown core and not breaching capacity at any given site.

Cost

[33] As per the effort to attain this Appeal’s Court affirmation, and as per my Charter protected right to not use money, reciprocity would have it that the City provide me with non-refundable Gift Cards, Gift Certificates, or if possible otherwise, non- refundable lines of credit (with offers of up to 25% extra to secure the ability, which, if its not secured, then to pass the equivalent worth to the next item in line) in the form of:

The equivalent of one hundred thousand dollars from each of these establishments:

Thrifty Foods

Save on Foods

Real Canadian Superstore

Canadian Tire

Fairway Markets

The equivalent of fifty thousand dollars from each of these establishments:

RONA

Petro Canada

ESSO

Walburn’s Grocers

Red Barn Market

Slegg Lumber

Capitol Iron

Sears

Future Shop

The Office Depot

Dell Computers

Pharmasave

Shoppers Drug Mart

London Drugs

Market on Yates

Mountain Equipment Co-op

The equivalent of twenty thousand dollars from each of these establishments:

Boston Pizza

Jeune Bros Tent and Awning

The equivalent of fifteen thousand dollars from each of these establishments:

Robinson’s Outdoor Store

Chapters

Speedpro Signs

The equivalent of ten thousand dollars from each of these establishments:

Whitespot

SG Power

Mark’s Work warehouse

Firestone Tire & Automotive Services

The equivalent of seventy five hundred dollars from each of these establishments:

Flight Center (Mayfair Mall)

West Marine

The equivalent of five thousand dollars from each of these establishments:

Green Cuisine

the Beehive Wool Shop

Eddie Bauer

Reckless Bike Stores

Island Blue

KATA Martial Arts Supplies

Canada Post

Seed of Life

BC Ferries

Old Morris Tobacconists

Island Outfitters

The equivalent of twenty five hundred dollars from each of these establishments:

Hemp & Co

Starbucks

Serious Coffee

Tim Horton’s

Subway

7-Eleven

Mac’s

QV’s cafe bakery

OPUS Framing & Art Supplies

Ocean River Sports

Earth & Fire Pottery Studio

Bell

The Mac Pros

Paul’s Motor Inn

Ocean Island Inn

The Original Christmas Store

Bean Around the World

Vista 18

BC Ferries Experience Cards

The equivalent of fifteen hundred dollars from each of these establishments:

Lotus Pond (on Johnson)

Games Workshop (on Johnson)

Curious Comics (Johnson)

Noodle Box

E & N Rail

Greyhound

Pacific Coach Lines

A&W

The Running Room

Seven Valley Fine Food & Deli

Spinnakers’

Ali Baba’s

Self- Heal Herbal Centre

Sooke Harbour House

The equivalent of one thousand dollars from each of these establishments:

Rocky Mountain Chocolate Factory

Dutch Bakery and Coffee Shop

Sookjai Thai Restaurant

Best Buy Convenience

Taj Mahal

Ocean Garden Restaurant

Don Mee Restaurant

Seventeen Mile Pub

As well as 2000 Transit Bus tickets, adding the sum to just over one million five hundred thousand dollars equivalent of non-refundable credit, and,

[34] as per the grand exasperation of having the Charter violating policy for so long and so as to make an example for every other municipality in Canada where there exists the phenomenon of public sleeping, the City be made to acquire the property on Hillside, between Blanchard and Quadra, known as ‘the field at CanWest University’ (or its equivalent) and give it to me while zoning it as a tax exempted residential property. After seven years the land will be returned to the City as a park with a succinct covenant ensuring its sanctity.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Victoria, B.C. this ____day of APRIL, 2011.

__________________________

DAVID ARTHUR JOHNSTON

Appellant