Homeless Head to Court over Right to Sleep Outside

While most would agree the freedom of sleep is a basic human right, for the homeless in many Canadian cities, that right is elusive. A Victoria man is determined to change that by challenging bylaws that ban sleeping in public places.

Thirty-four-year-old David Arthur Johnston, a "right-to-sleep" activist who himself sleeps outside, was prepared to starve himself to death in jail to protest Victoria's "anti-sleeping bylaw." He was released on bail on August 9. He was serving a nine-month sentence for failing to honour an agreement with the Crown to leave the province.

Johnston, who lost more that 30 pounds during his 36-day hunger strike, has been in and out of jail over the past two years in his fight for the right of homeless people to sleep outside. His repeated arrests were mainly a result of his attempts to sleep on the grounds of St. Ann's Academy, a former convent now owned by the provincial government. Johnston maintained a fast each time he was imprisoned.

Victoria has a street camping bylaw that prohibits sleeping in public places, which the police enforce by constantly moving people along. The bylaw has a provision that goods can be confiscated if left out overnight.

Johnston, who has been living outside since 2000, says people are finally coming to understand something that's been "subtly hidden," that there is no such thing as public property.

"The city and the police's mentalities have it so they believe it acceptable to violate fundamental rights on city or provincially 'owned' property," says Johnston.

Irene Faulkner and Cathy Boies-Parker, Victoria barristers who are challenging the bylaw as unconstitutional, say it's a catch-22 because it's illegal to sleep outside, yet there aren't enough shelter beds for the approximately 700 homeless people in the city.

"There are somewhere in the vicinity of 100 to 175 shelter beds, depending on the time of year," says Faulkner. "In summer, many beds are actually shut down because there's nice weather and people can sleep outside. But they can't, because it's illegal to sleep outside."

The two lawyers are challenging the bylaw on behalf of a group of homeless people who lived in a tent city at Cridge Park, which was dismantled in October 2005 shortly after it was set up. They say that living in close quarters helps shield the homeless from much of the violence they encounter when alone on the streets, and that it helps prevent their possessions from being stolen and provides them with a sense of belonging. A number of tent cities were erected in Victoria in 2005, only to be quickly dismantled by the police.

David Arthur Johnston at St. Anne's Academy, where he has been arrested for sleeping. (Courtesy of Jane Bandcroft)

Boies-Parker says the police don't usually charge people under the bylaw, but instead "use the existence of the bylaw as a threat" to move people along.

"It's enforced more often by sort of intimidation," she says. "They use it as authority to make people not be able to be at peace on the streets."

Vancouver lawyer David Eby says all Canadian cities have similar bylaws preventing the homeless from sleeping outside, including Vancouver, which has an additional bylaw prohibiting entry into parks outside of daytime hours. He says a lack of public washrooms in Vancouver makes matters worse for those with no home, leaving them no choice but to use back alleys as toilets.

"It's all part of criminalizing the homeless," says Eby, who works at Pivot Legal Society, a non-profit legal advocacy organization located in Vancouver's Downtown Eastside.

In the approach to Johnston's bail hearing, a number of his supporters held an overnight prayer vigil under the cross at St. Ann's Academy. Four were arrested for falling asleep during the vigil, only to be released the next morning without being charged.

Janine Bandcroft, founder and editor of the Victoria street newspaper, the Street Newz, says that while some homeless people are purely victims of circumstance, others make a conscious choice to live outdoors. Johnston, who fits the latter category, refuses to use money or own property. Bandcroft believes people shouldn't be punished or criminalized for wanting to "live outside of the mainstream if they're not harming anybody."

"Our public spaces are becoming acceptable only for those who the police and the city deem appropriate," says Bandcroft. "If you or I fall asleep in the park on a blanket at a picnic it's okay, but if a street person falls asleep in a park he's going to be woken up and asked to move along, and to me that's just discrimination."

Boies-Parker says that in some U.S. cities, such bylaws have been struck down as unconstitutional. Both barristers see this as an important case and one that has never been undertaken in Canada, primarily because the homeless — those who would benefit the most from having the bylaw struck down — lack the resources need to launch a lawsuit.

"What the city is doing here is they're trying to put their social problem off to the side by making it illegal to be homeless, basically, but not providing any alternative to that," says Boies-Parker. "What we can't do is punish these people for the status of being homeless."

Johnston, meanwhile, has promised not to return to the grounds of St. Ann's Academy. He is to appear in court again in October for a bail hearing. He says he won't "overtly challenge the anti-sleeping policy" until the Supreme Court hears the case against the city.

"The charter challenge will be successful, because to have it otherwise would be saying that every Canadian must pay to sleep," says Johnston. "The Supreme Court will be telling the City of Victoria that it is unlawful to arrest people for sleeping in public access spaces."