Last month, at a glance

By Rob Wipond and Leslie Campbell, March 2013

The right to sleep, continued; RCMP agrees to stop tracking innocent drivers; A healing journey in dangerous times; Ombudsperson pans incapability assessments


The right to sleep, continued

If David Arthur Johnston gets his way, the City of Victoria’s bylaw disallowing camping during daylight hours will be challenged in BC Supreme Court soon.

In what’s called “the Adams case,” Johnston helped test the City of Victoria’s earlier bylaw that prohibited any camping in public places, claiming they were criminalizing homelessness. In 2008 the BC Supreme Court ruled the bylaw was in violation of rights under the Charter due to the lack of safe facilities for an estimated 1000 homeless people in the city; the City of Victoria was also ordered to pay court costs. The City changed its bylaw so it only prohibited daytime camping, complying with the ruling, but making it difficult for any tent cities to develop.

A legal firm handled the original case pro bono for Johnston and the others, but until recently was unwilling to engage further. So Johnston fought on, getting arrested by camping in City parks past the 7pm to 7am allowances, and defending himself in court. He says he’s been arrested and charged about a dozen times, with sentences ranging from a few days to 90—adding up to about 250 days altogether. Though he dislikes prison, refuses to eat while imprisoned, and has jeopardized his health through his fasting, Johnston says he’s willing to die for the right to sleep, if necessary.

At a sentencing hearing in January 15 for a fall offence, Judge Loretta Chaperon gave Johnston a 90-day intermittent prison sentence (to be served on weekends), followed by a 12-month probation period.

Johnston proclaimed he had no other recourse but to make himself a martyr. “I just know I am not a criminal; I have been doing the right thing over and over again,” warning he would re-offend the moment he got out of prison.

Initially he did just that by camping in Centennial Square, though police did not lay any further charges. But he also put out the word that he was looking for “a mindful constitutional lawyer willing to go pro bono on this case that will set the precedence for municipal public tenting zones…in every city in Canada and the Commonwealth.” In February he reported that the same lawyers who helped out earlier are interested, though it will have to be with someone else as defendant. Johnston is now complying with the court order.

In reviewing the numerous and lengthy court documents on Johnston and related cases—and thinking about the next court battles—one can’t help but wonder if it might actually be less time and money-consuming to solve homelessness.

—Leslie Campbell


RCMP agrees to stop tracking innocent drivers

Victoria Police Department (VicPD) media rep Cst. Mike Russell dismissed critics of the automatic licence plate recognition (ALPR) program on CFAX (not CBC as stated in the print version of Focus) in January. Russell said, “There’s conspiracy theorists out there saying we’re creating a massive surveillance database on people...” 

“You mean you’re not?” said fill-in host Rosa Harris-Adler, as both she and Russell chuckled.

“Funny enough we’re not doing that,” said Russell. He described it as merely a “technicality” that VicPD had been recording and passing data about all drivers to the RCMP “for deletion.”

We’re not sure who those wacky conspiracy theorists are, but we understand how they became, er, “confused.” There are already millions of records in the police’s ALPR database. And while Russell may have meant to simply suggest that the database doesn’t include records of the movements of most innocent drivers, well, the BC government and RCMP admitted the ALPR program was indeed collecting such records from 2006-2009 until the federal privacy commissioner complained to parliament. And since then, both RCMP reps and Russell’s boss, VicPD Chief Jamie Graham, have gone on the record numerous times saying their hope was to start building exactly such a mass surveillance database of the movements of all vehicles again, as soon as they’d gathered publicly-persuasive arguments for the policing value of keeping such records.

Nevertheless, Russell’s misleading mocking may be moot. VicPD, with the help of the RCMP who administer BC’s ALPR program, has finally agreed to implement our provincial Privacy Commissioner’s recommendations and stop performing that illegal “technicality.” However, as Focus noted in a January 2013 report, there’s been a concerning silence amongst BC’s federal RCMP detachments and RCMP-managed Integrated Road Safety Units as to whether they would voluntarily comply with provincial privacy law. In a recent email to Focus, RCMP Spt. Denis Boucher cleared up the matter. We asked if the RCMP intended to stop all ALPR cruisers around BC from collecting data on most innocent drivers. Boucher replied, “The intent is to implement the solution across the board.”

If we can trust our police, this battle to protect BC from moving a step closer to becoming a surveillance state has been won. Take a conspiracy theorist to dinner?

—Rob Wipond


A healing journey in dangerous times

After a nine-day journey from the north end of Vancouver Island, Kwakwaka’wakw hereditary chief Beau Dick of Alert Bay, along with family members and supporters, including Alexandra Morton, arrived at the Victoria Parliament buildings for a ceremonial shaming of the federal government. “Cutting the copper,” explained Dick, is a demand for an apology, and also symbolizes “breaking the chains that bind us, freeing our hands so that we may create a better future for our children.”

On the steps of the legislature, Dick said: “We have endured as First Nation peoples 150 years of…near annihilation, subject to poverty, diseases inflicted on us, homelessness, alcoholism, drug addiction. Now they are poisoning our waters, destroying our homelands. Our old growth forests are disappearing, species are dropping off the face of the Earth, and it’s been accelerating for the last 150 years. These are dangerous times…

“We’re all connected. We must embrace that connection. We have to shift our values and realize that there’s something more important than money and the monetary system that’s been forced on us that in my judgement is immoral, corrupt and unjust…”

Urging us to set an example for the rest of the world, he called on all people to “be as one and be good people together, to heal together, to find our path to righteousness. That’s all I ask.”

—Leslie Campbell


Ombudsperson pans incapability assessments

Even when you already know them, sometimes it’s shocking to hear facts confirmed. In February, BC Ombudsperson Kim Carter released her 186-page investigation into BC’s processes for determining people to be “incapable” of controlling their own legal or financial affairs, “No Longer Your Decision.” Focus has reported extensively on the arbitrary, draconian, often self-serving ways by which citizens are being stripped of these basic rights by long-term care providers, health authorities, and the public guardian. Carter concluded the process has indeed been “failing to meet the requirements of a fair and reasonable procedure.” 

Indeed, on nearly every key issue, the Ombudsperson’s findings disturbingly reflected many people’s worst experiences and reinforced the worst fears of the rest of us. For starters, there’s no definition of “incapability,” even though authorities are using the concept daily to take away people’s rights to make their own decisions. BC law, Carter clarified, “does not define what it means for an adult to be incapable or establish any criteria or test for this determination. Neither the Public Guardian and Trustee nor the health authorities have defined what incapable means.”

As for the assessment process through which authorities can declare you to be incapable, that’s a free-for-all, too. BC law “does not set out a process to be followed…does not require that an assessment or opinion from a physician be obtained…does [not] establish any standards for such an assessment…does not require that the [assessor] knows the adult and has examined the adult recently…” And to top it off, most health authority staff admitted to Carter that they had no special training in conducting incapability assessments, and the health authorities admitted they provide no such training.

Carter further found that there are no requirements for health care providers or the public guardian to even notify you or your family that your incapability is being assessed, let alone to explain their reasons for concluding you’re incapable or give you any opportunity to respond.

Carter recommended that the Ministry of Justice at least create steps allowing you to legally challenge a health authority’s or public guardian’s conclusion that you are incapable. The BC Justice Ministry promised only to “review” this final recommendation; however, most of the Ombudsperson’s recommendations on the other issues were accepted by government and will supposedly be in force by July 1, 2014. Carter wrote that she was “cautiously optimistic.”

—Rob Wipond