The issue of camping in Beacon Hill Park will be back in court in November, when the province’s appeal of a court ruling that effectively banned setting up camp in the park is set to be heard.
The central issue in the B.C. Court of Appeal case is whether the 1882 Beacon Hill Park Trust that dictates what is allowed to happen in the park is a contract or a “statutory enactment.” If it is an enactment, then it is subject to change depending on current conditions, the province says.
In a February ruling, B.C. Supreme Court Justice Robert Punnett found the trust was a contractual document and as such, did not permit temporary sheltering. “Such activity by members of the public is contrary to the purpose of the trust: preservation of the park for the use, recreation and enjoyment of the people,” he wrote.
The outcome of the appeal hearing in Vancouver could affect future decisions around temporary sheltering in the park, which is owned by the city and operates under the trust.
The province launched an appeal of Punnett’s decision in March, arguing in a court document that the finding that the trust is a contract is an incorrect interpretation.
Modern rules for interpreting statutes look at a much broader context, it said, including the Charter of Rights and Freedoms and how parks are used today.
It argues that the February decision did not take into account the fact that allowed uses in the park can change over time as laws evolve and the needs of a community change. Factors affecting the local community in recent years have included the COVID-19 pandemic, B.C.’s housing situation, and challenges faced by people experiencing homelessness, it says.
The dispute over camping in the park erupted when the COVID-19 pandemic forced shelters to cut back on their bed numbers amid physical-distancing restrictions. In response, many people set up tents in Beacon Hill, prompting complaints from other park users.
The City of Victoria, which had temporarily allowed daytime sheltering in parks earlier in the pandemic, asked B.C. Supreme Court to clarify whether the park could be used by people without homes for temporary sheltering. The result was the February decision.
In July 2021, after working with the province and other agencies to line up housing for people living outdoors, the city prohibited sheltering in Beacon Hill Park for two years so the park could be restored.
The Friends of Beacon Hill Park backs the prohibition on temporary sheltering and wants to see the province’s appeal dismissed.
The organization, which has filed a response to the appeal, has launched an online fundraising page to help raise money for legal costs, raising slightly more than $1,000 as of Wednesday.
“If the province is successful [in the appeal], they or the city could do anything they want with the park and its citizens, the real beneficiaries of the Trust, would have no recourse to the courts,” the fundraising page says.
The organization argues the trust is a contractual document, and permitted uses of the park cannot include residential use or structures, temporary or not.
“The terms outlined in 1882 are still quite valid,” Friends treasurer Tom Epplett said.
Because the trust is registered on the city’s title to the park, the idea that it could be an “enactment” that could be changed depending on circumstances would “introduce significant uncertainty to the land title system,” the group says. “It is a grant conveying an interest in land from the Crown to the city.”
The City of Victoria says in a document filed in response to the appeal that it is not taking a position on the appeal.
