Victoria 'monk' insists in B.C. provincial court that sleeping on public access property is not a crime.

by Shannon Griffin

What would you do if you didn't own or rent a place where you could sleep, but it was illegal for you to sleep anywhere that you didn't own or rent?

If you were David Arthur Johnston, the answer would be to sleep at St. Ann's Academy repeatedly, get charged with mischief and have seven court trials for breaching the condition not to go back there.

Up until Sept. 23, the homeless man had simply pled guilty on every one of his court dates and then ignored the judges' orders not to set foot on the historical, downtown Victoria site again.

But during his most recent appearance in provincial court, Johnston entered no plea at all, in protest of the concept that sleeping on public access property is a crime. The absence of a plea translates into a plea of not guilty under Canadian law, and the verdict of Johnston's case will be heard on Oct. 25.

Johnston has been fighting for the right to sleep at St. Ann's Academy since he began sleeping there about a year and a half ago.

The native Albertan is a baker by trade, but began living, in his words, as a "monk without a monastery," after experiencing an epiphany in 1997. Today he eats mostly out of dumpsters and refuses to touch money.

Johnston says his case is "not really about the right to sleep at all any more. It's about truthfully acknowledging that the Crown has no authority." He feels the Crown is a tyrant for waking peaceful homeless sleepers who have nowhere else to go.

Victoria shelter managers have verified Johnston's claims that there really is no shelter to be found for most of the city's homeless population.

"Victoria has a 0.5 per cent vacancy rate and one of the highest rent averages in the country," said Don McTavish, Manager of Shelters for the Victoria Cool Aid Society.

While it is difficult to calculate the actual rate of homelessness in Victoria, he says, at last count there were approximately 700 homeless people in Victoria. There are currently less than 100 beds available at emergency shelters throughout the city.

Once a person is admitted to a shelter, they are allowed to stay up to 10 days. After that they can submit an application to stay for longer, but McTavish says typically a homeless person has 10 to 30 days to get through their crisis and find sustainable housing.

"There's not a lot of options out there," he said.

The court heard similar testimony from Rev. Al Tysick of the Open Door Inner City Ministry during the trial, but Johnston's lawyer William Geimer says it is unlikely to have much affect on the judge's decision, since the case is about deciding whether or not Johnston breached his court order by sleeping at St. Ann's.

Still, Geimer says, the defense was one of necessity because Johnston really does have nowhere else to sleep but outside.

"It's a multifaceted problem, because each side has legitimate concerns," he said. "There is no one solution, but the first step is to stop ignoring the matter. This [constant charging of Johnston] is criminalizing this place and not that place, and having no policy at all is not a good starting point."

Geimer went on to say that the police have a lot of discretion as to whether or not to charge people sleeping in public places, and that there needs to be "give and take" on both sides of the conflict.

"The arrest policy is very, very haphazard," he said. "[Johnston] was arrested on 21 occasions without any formal charges, and on five occasions he was taken outside the city limits and just dropped off."

Geimer says there is very little doubt Johnston will be convicted based on the fact that he was in breach of a court order, but given the homeless situation in Victoria, they are hoping for a very lenient sentence.

Johnston does not eat when he is in prison, and on his last stay he went 20 days without food and lost 23 pounds.

Although Johnston has garnered support from Victoria activists, his lawyer says it is unlikely he will actually be able to challenge B.C.'s property laws.

"In fairness to the judge [in Friday's trial], a criminal trial is really not the vehicle to raise this issue best, but poor people don't have the funds to go into court and bring in a civil case," said Geimer.

Whether or not it is the government's responsibility to provide adequate housing, and thus the capacity to sleep undisturbed, to the homeless population would depend on a judge's interpretation of the Charter of Rights and Freedoms, said Benjamin Berger, an assistant professor in UVic's Faculty of Law.

Berger says a judge could potentially decide to include shelter as within the parameters of the "right to life, liberty and security."

"Generally speaking, it is my view that if the Charter of Rights and Freedoms is to deliver on its premise to protect the most vulnerable and marginalized in society, then it must also better protect social and economic rights," Berger said. "Among these is the right to housing or shelter."

In the meantime, Geimer is doing some pro-bono work in support of his client's cause. He is currently trying to convince the Ministry of Advanced Education that occupies St. Ann's to allow a set number of homeless people to sleep on the property, provided they clean up after themselves.

He says that although he and Johnston don't see the world in the same way, he has "a great deal of respect and affection for him."

Johnston, who his lawyer described as "just as calm as he always is" after his court date, says patience is what will sustain him as long as he fights for the right to sleep.

Copyright (c) 2005 by Martlet Publishing Society

Last update: September 27th, 2005