What Counts As A Right When There’s Nowhere To Sleep

A city changes a bylaw, two parks get added to a no-camping list, and suddenly the real question isn’t “is this fair?” but “who has the legal power to decide?” We walk through a fresh BC Supreme Court decision on Victoria’s park camping restrictions, including why the court treats the amendment as legislation, not a mere policy tweak. That single classification reshapes the whole case: instead of weighing reasonableness, the court asks whether the City has authority under the Community Charter to pass the bylaw at all and answers yes. 

We also dig into the Charter section 7 backdrop from the 2009 Adams decision, where a blanket prohibition can become unconstitutional if there aren’t enough shelter spaces and people are forced to sleep outside. The ruling doesn’t end the broader homelessness and public space debate, but it clarifies what needs to be proven and by whom. A “free-floating” challenge without an affected person is a tough fit, while a future case with evidence of no realistic place to shelter could bring the constitutional issue back in a concrete way. 

Then we pivot to two fast, practical legal lessons. First, the BC Court of Appeal orders a new trial in a sexual assault case after the trial judge relied on prior consistent statements, a common credibility trap where repetition gets mistaken for proof. Finally, the Supreme Court of Canada interprets Charter section 16(2) on New Brunswick’s official languages and holds that appointing a unilingual lieutenant governor breaches the Charter, with implications for how we think about bilingualism and constitutional offices. 

If you found this useful, subscribe, share the episode with a friend, and leave us a review. What part of these rulings should Canadians be paying more attention to?

Follow this link for a transcript of the show and links to the cases discussed. 

Transcript

Why The Bylaw Fight Matters

Michael Mulligan 0:27

So this is a uh petition brought uh challenging some changes made to the City of Victoria bylaw uh that deals with camping in parks and when that is and isn't permitted. Um and all of this, as listeners will recall, in terms of the legal challenges, comes out of a case from back and eventually was decided by the Court of Appeal in 2009. Uh and that was a case that was a charter challenge. And the charter challenge in that case was to challenge then a prohibition on uh like setting up tents and camping uh in parks. Um and ultimately the Court of Appeal concluded in that case from back in 2009 uh that a blanket prohibition on uh putting up like a tent in any park uh was in violation of section 7 of the charter, which is the section dealing with the right not to be deprived of life, liberty, or the security of the person. Uh and the theory of the decision was that if you uh had uh not an adequate number of shelter spaces, that's an important uh caveat, um, and so people were forced to uh be live sleeping outside the end of a house, uh, then you could not have a constitutionally valid absolute prohibition on putting up a tent. Uh and so that was the start of it. But since then, uh there have been, of course, uh tent cities, there have been issues in particular tents and camping in particular parks around the city of Victoria and elsewhere. Uh and so uh municipalities, including Victoria, uh have restricted where that activity can take place. And this particular decision, which just came out, uh was a petition uh by way of a judicial review challenging uh some uh additions made uh to the City of Victoria bylaw that would prohibit uh camping in particular parks. And the parks in issue here were uh Irving Park and Vic West Park. And those

Why Irving And Vic West

Michael Mulligan 2:33

were, I think, the uh the reason those were an issue or apparently a popular place for people to be camping, um, is that uh they are two of five parks, apparently at least at the time, 2025, uh, which had 24-hour washrooms available. Uh and it was common, uh, the we're in agreement that the reason there was an issue there is that those were the two parks uh which had 24-hour washrooms available, which were closest to the intersection of Quadra and Pandora, which the party, the city, and the uh petitioners agreed was uh represented sort of downtown uh Victoria. Uh and so uh the city of Victoria added those two parks to a list of parks where camping was prohibited. And the petitioners in this uh case were challenging whether that was permissible. Now, there were a few things about it that are interesting in the decision. First of all, the petition was brought on behalf of three different people, sort of an interested person who wasn't homeless and two other people that were homeless and I guess camping. One of the challenges is that since that that started, sadly, one of those two people died, and the other person who was homeless happily now has a home, leaving only the person who was just sort of public interest generally interested in the issue. But nonetheless, the case proceeded. Uh it was agreement that it could proceed at least to the extent of making this decision. Uh and the claims being brought by the petitioners, eventually petitioner, uh included uh a claim that there was no authority for the city to eliminate these parks. And they were arguing that uh the uh that Section 7 argument uh would prevent the city from saying, well, you can't use these two parks because they're, you know, from the perspective of people into camp in them, convenient because they are near downtown, that intersection downtown, and they have bathrooms available all night.

Bylaw Or Policy The Key Test

Michael Mulligan 4:30

Now, the first point the court made uh is that when you're deciding whether there's uh authority to make that kind of a decision, the first thing that has to be decided is is this a legislative decision, like a law, uh, or is it a policy change? And the reason that matters is that if you have a policy change, that could be judicially reviewed on a standard of reasonableness. Whereas if you have a legislative change, you change a law, then really the only question to be asked in terms of authority to do it would be whether there is that authority to do it. So you would look at, in the case of a bylaw, you would look at the community charter, which delegates authority from the province to the municipality, and you would say, do the provisions of this allow the municipality to do that? Um and the court pointed out that when you're making that decision with respect to a law, and they found this indeed was a piece of legislation, not just a policy change, um, then you don't blend together sort of general charter values like the life, liberty, and security of the person, with that issue of whether something's varies or ultra-varies, allowed to do it or not allowed to do it. Uh and so because the court started with the conclusion that look, this isn't a policy change, it's a bylaw, that's treated like a piece of legislation. You then move on to, are you allowed to do it? Not whether this is a good idea or not. And and it's not a blended inquiry about values or return or values. It's do you have the legal authority to do it? Like the same thing would occur if you were determining whether the province or federal government had constitutional authority to pass a law, right? You start with, do you have authority to do it? And so the court in this case found that uh this is legislation on a policy, so it's not assessed on the basis of reasonableness. The inquiry is, are you allowed to do it? Does the authority exist to pass this law? And the conclusion on that basis was yes, it does. So you looked at the community charter, you looked at the language there, this is permitted.

Can A UN Treaty Strike It

Michael Mulligan 6:31

Now, the second argument, or one of the other arguments made by the petitioners, was uh to allege that uh these restrictions on camping in those two parks violated uh a treaty, uh international uh treaty. It's called the International Covenant on Economic, Societal, and Cultural Rights. Uh, and that's a treaty passed by a number of countries. Uh, and one of the sections in there is Article 11 says this the state parties to the present covenant recognize the right of everyone to adequate standards of living for himself and his family, interestingly, uh, including adequate food, clothing, and housing, and to the continuous improvement of living conditions. Uh, the state parties will take appropriate steps to ensure the realization of this right, recognizing uh to the effect the essential importance of international cooperation based on free consent. So that's one of these provisions of this treaty that Canada is a signatory to. And so one of the arguments made by the petitioners is hey, this violates this international covenant on economic, societal, and cultural rights. Uh, you know, that uh should be a basis to strike down the City of Victoria bylaw. Um and as the court expressed here, and I don't think this is a novel point, but it was argued in this case, uh, that the fact that Canada enters into a treaty uh doesn't make that domestically enforceable in Canada. If often or not often, sometimes you'll have a treaty, like this treaty can assign everyone has the right to adequate an adequate standard of living, whatever that might mean, right? Uh, and then you could have some domestic law that puts that into practice. Like if you had the, you know, in that case, province pass a piece of legislation saying that everyone has the right to adequate standard of living, well now that becomes enforceable in a court in Canada. But the fact that Canada has entered into a treaty isn't itself enforceable. It might be looked to by a court if you're interpreting something that was ambiguous, right? If you had some ambiguous provision, you might look at some principle there and say, well, hold on, you know, if I'm trying to interpret this thing, you can't figure it out from the wording. Maybe we'll look to that as sort of an interpretive aid. And again, sometimes things get put into domestic legislation, but Canada entering into a treaty is not domestically enforceable for a host of reasons. One of them would be, for example, some of the things listed in there would be not things within the competency of the federal government, right? Like property and civil rights is provincial. And so if you could have the federal government sign a treaty and then impose that on all the provinces and municipalities and everyone else, well, that would that's uh done a whole lot of damage to the division of powers in Canada between provinces and the federal government. You can imagine that would not go over well in, let's say, Quebec or something, right? And so um the court found that that's not a basis to uh find the Victoria bylaw to be uh outside of the constitutional authority of the city of Victoria.

When Section 7 Comes Back

Michael Mulligan 9:39

Uh and so the result of it, in in part because this was a petition sort of brought dealing with the legality of that legislation, is that it was dismissed by the court. They said, look, uh, this is valid. Uh it they did agree, however, it's common, that this doesn't mean that they're in the future. Couldn't be some challenge by some actually affected person, right? Of course, here there were none left. One passed away and the other got a house. Yeah. And so you could have in the future for somebody say, Look, uh, you know, they've put so many houses or so many parks on the no camping here list that, you know, I can't find anywhere to pitch a tent, and I'm now left in a position where I've got to sleep outside, and and there's no shelter space. I now am here for a constitutional remedy. Uh I want uh, you know, something has to be opened up. You can't say the only acceptable camping spot is a 10 by 10 patch of grass, which is full of other tents, effectively making it meaningless, right? Um and so it would have to wait for another day if there is some actual person who is homeless who cannot find a reasonable place to put up their tent, and so they're forced to be outside in clement weather, and then you would be back to the constitutional argument uh from that Adams case from back in 2009. Uh, but in a free-floating, abstract way, uh the a city has uh clear authority under the community charter to restrict where you can and cannot uh engage in camping uh and uh sheltering, uh, and you cannot point to general constitutional provisions to make that have to be larger or more expansive or quote reasonable. That's a legislative decision, not a policy one. And furthermore, you can't just point to a treaty Canada entered into with the United Nations and try to enforce that uh in terms of whether you can put up a tent in the park in Vic West. It doesn't work that way. So that's the latest from the BC Supreme Court on the city the never-ending seemingly uh issues in the city of Victoria and elsewhere about uh whether there's authority to restrict where people are allowed to put up tents to shelter if they uh can't find a space in a uh in a counter.

Adam Stirling 11:43

Michael Mulligan with Mulligan Defense Lawyers legally speaking will continue right after that. In fact, today Michael Mulligan with Mulligan Defense Lawyer Victoria, a long-running case involving a very contented political and sometimes illegally uh filtering in or any of Victoria thinking of court victory recently. What is that on our agenda, Michael?

Michael Mulligan 12:04

Uh

Prior Consistent Statements Explained

Michael Mulligan 12:05

next on the agenda is a uh case that has, I think, one particular uh uh notable point people may want to be aware of. Uh and this was a case involving a uh appeal to the BC Court of Appeal uh for a uh following a conviction for a charge of sexual assault, where the case involved really at the end of the day, a credibility assessment of the complainant and the accused. Both testified in the case, and they had just very different versions of what uh transpired. Uh and usually, I should say, uh in on appeals, courts are very reluctant to interfere with uh trial judges' findings in terms of credibility, like did you believe this person or disbelieve this person? And the core reason of that is that there's a lot that can be said for information you gather when you're a person live watching a witness testify, for example. Uh and so courts of appeal are often reluctant to say, well, you know, I've got a different view of it, having read the transcript of what the person had to say. Uh but this particular case, the uh court, the court of appeal, uh analyzed exactly how it was the judge came to uh their decision uh in terms of, in this case, believing the complainant. Um and one of the things that the Court of Appeal focused on, and I should say it's a a good thing that in Canada, judges are required to not simply make a decision, like a jury would, but they are required to explain how they've come to their decision. Uh and one of the things that makes that so important is if the way, the sort of the intellectual way a judge came to a decision is wrong, that can get corrected on appeal. Um, and here there were several issues in terms of how the judge came to their analysis of leaving the complainant. But one of them that the Court of Appeal focused on is the one that I thought people would be interested to know about, and that involves a concept of prior consistent statements. And what that means, really, um, is that the fact that a person has said something uh on multiple occasions, for example, prior to testifying, does not, as a matter of uh law and rationality, make it more likely to be true. Right? That if a person just says, this happened, this happened, this happened, and they go and tell ten friends, and you then lead in court the fact that they told the ten friends or have the ten friends show up and say, yes, the person said it to me too, the person said it to me too. That can, if you don't think about it carefully, you might think, well, you know, we've heard this from a lot of people, you know, maybe that's more likely to be true. But that is not a permitted method of reasoning because when you think about it more carefully, the fact that a person's repeated something the same thing a bunch of times makes it no more likely to be true or accurate than if they decided it to no one else previously. Uh and in this case, the trial judge uh had made use of the fact that this complainant had made these allegations to other people in the past, like told them what they were claiming to have occurred in court, and used that as a basis for accepting uh her evidence uh and convicting. And because the court, because the judge is required to explain how they wrote a road arrived at their decision, the court of appeal is able to say, look, this isn't just a matter of assessing, you know, did the person make good eye contact in the witness stand or something? The basis upon which the judge came to their decision uh was just not in accordance with the law or the fact that you can't use prior consistent statements uh in order to find a witness to be more credible. And so on that basis, the conviction was overturned and there'll be a new trial. Um so that's what that narrow issue of prior consistent statements is. Don't think if you just tell a bunch of people, uh, it's more likely that you're gonna be believed.

Adam Stirling 16:01

As we take a look, three and a half minutes left. One more item on our agenda today.

Michael Mulligan 16:05

Final,

New Brunswick’s Bilingual Governor Rule

Michael Mulligan 16:06

the final case on the agenda is a really interesting one over the Supreme Court of Canada. Uh, and it had to do with the uh the lieutenant governor in New Brunswick, uh, and uh a section of the charter which the Supreme Court of Canada has never spent any time analyzing previously. Uh and the background of it is that New Brunswick is the only province in Canada which is officially bilingual, and that's written into the charter. And we have the section, 16 sub-2, un rarely referenced section entitled Official Languages of New Brunswick. And interestingly, it uses almost identical language to 16 sub-1, which is the one that makes French and English the official languages of Canada. Except here, it applies to New Brunswick. English and French are the official languages of New Brunswick and have equal status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. The same wording is there in the preceding one for Canada. The background of it is that a few years ago a lieutenant governor was appointed in New Brunswick who didn't speak French. And so the challenge was brought saying that violates that charter provision. That argument succeeded at trial, was overturned by the Court of Appeal there, and went to the Supreme Court of Canada. And their decision just came out finding that indeed that was breached by appointing this person who didn't speak both English and French. And they analyzed saying, look, this talks about institutions of the legislature and government. And ordinarily that wouldn't mean that every person working in the, you know, motor vehicle branch has to speak both English and French, because in an institutional way you could have service in both English and French. It might just be two different wickets or something, right? Yeah. But they analyzed on the basis that the lieutenant governor, some functions they must perform themselves, granting consent to legislation, world assent. They can't just delegate that to someone. And so when you had somebody who couldn't speak both languages, they found it to be in violation of that provision. They were no longer doing the job, they'd finished their term, but they've issued this now as a declaration, so that would go forward in terms of what's required in the future. From Canada's perspective, it's interesting too. Our last govern the last um governor general, uh Mary Simon, did not speak English. She spoke English uh and uh uh uh I'm gonna mispronounce it. It was a uh uh indigenous language, but not French. That was criticized, but uh that was permitted. Now, the same analysis in this case might apply there in the future. The other interesting thing pointed out there that I didn't pay careful attention to previously is the appointment of a lieutenant governor is optional. The governor general need not appoint a lieutenant governor for each province. It's optional. They can choose to do it themselves. Um that's the latest from the Supreme Court of Canada on the necessity of there being uh bilingual uh lieutenant governors, at least of the province of New Brunswick, and that could have potential application uh for governor generals uh in Canada generally.

Adam Stirling 19:08

Michael Mulligan of Smalling Defense Lawyers, legally speaking, during the second half of our second hour every Thursday. Thank you so much. Pleasure as always. Thanks so much. It's always great to be here. All right, quick break. News is next.