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?
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.
Legally Speaking June 18, 2026
Adam Stirling [00:00:00] It’s time for a regular segment, joined as always by Barrister and Solicitor with Mulligan Defence Lawyers. It’s Legally Speaking on CFAX 1070 with Michael Mulligan. Afternoon, Michael. How are we doing?
Michael T. Mulligan [00:00:10] Hey, good afternoon. I’m doing great. Always good to be here.
Adam Stirling [00:00:13] Some interesting items on the agenda today. Jurisdiction, it says, is not a charter consideration. International treaties aren’t domestically enforceable in court, and you’ll never believe what the topic respecting those items was.
Michael T. Mulligan [00:00:27] So this is a petition brought challenging some changes made to the City of Victoria bylaw that deals with camping in parks and when that is and isn’t permitted. And all of this, as listeners will recall in terms of the legal challenges comes out of a case from back, eventually decided by the Court of Appeal in 2009, and that was a case that was a charter challenge. And the charter challenge in that case was to challenge then a prohibition on like setting up tents and camping in parks. And ultimately, the Court of Appeal concluded in that case, from back in 2009, that a blanket prohibition on putting up like a tent in any park was in violation of section 7 of the Charter, which is the section dealing with right not to be deprived of life, liberty, and the security of the person. And the theory of the decision was that if you had not an adequate number of shelter spaces, that’s an important caveat, and so people were forced to be sleeping outside, at the end of a house, then you could not have a constitutionally valid absolute prohibition on putting up a tent. And so that was the start of it. But since then there have been, of course, tent cities, there have been issues in particular tents and camping in particular parks around the City of Victoria and elsewhere. And so municipalities, including Victoria, have restricted where that activity can take place. And this particular decision, which just came out, was a petition by way of a judicial review challenging some additions made to the City of Victoria bylaw that would prohibit camping in particular parks. And the parks in issue here were at Irving Park and Vic West Park. And those were, I think, the reason those were an issue or apparently a popular place for people to be camping is that they are two of five parks, apparently, at least at the time, 2025, which had 24-hour washrooms available.
Adam Stirling [00:02:50] mm hmm.
Michael T. Mulligan [00:02:50] And it was common. They were in agreement that the reason there was an issue there is that those were the two works. Which had 24-hour washrooms available, which were closest to the intersection of Quadra and Pandora, which the part, the city and the petitioners agreed was represented sort of downtown Victoria. And so the City of Victoria added those two parks to a list of parks where camping was prohibited. And the petitioners in this 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 started, sadly, one of those two people died.
Adam Stirling [00:03:41] Yes.
Michael T. Mulligan [00:03:41] And the other person was homeless happily now has a home, leaving only the person who is just sort of public interest generally interested in the issue. But nonetheless, the keys proceeded. It was agreement that it could proceed at least to the extent of making this decision. And the claims being brought by the petitioners, eventually petitioner, included a claim that there was no authority for the city to eliminate these parks. And they were arguing the, that Section 7 argument 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. Now, the first point the court made is that when you’re deciding whether there is authority to make that kind of decision, the 1st thing that has to be decided is, is this a legislative decision like a law.
Adam Stirling [00:04:45] mm hmm.
Michael T. Mulligan [00:04:45] 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 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? 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 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 varies or ultra varies, allowed to do it or not allowed to it.
Adam Stirling [00:05:43] hmm.
Michael T. Mulligan [00:05:43] 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 it’s not a blended inquiry about values or a charter values is 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 authority to do it. And so the court in this case found that this is legislation, not a policy. So it’s not assessed on the basis of reasonableness. The inquiry is are you allowed to do, does the authority exist to pass this law? And the conclusion on that basis was, yes, it does. When you look at the community charter, you look at the language there, this is permitted. Now, the second argument or one of the other arguments made by the petitioners was to allege that these restrictions on camping in those two parts violated a treaty, an international treaty. It’s called the International Covenant on Economic, Societal and Cultural Rights.
Adam Stirling [00:06:54] hmmm.
Michael T. Mulligan [00:06:54] And that’s a treaty passed by a number of countries. And one of sections in there, it’s 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, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The state parties will take appropriate steps to ensure the realization of this right recognizes 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. You know, that should be a basis to strike down the City of Victoria bylaw. And as the court expressed here, and I don’t think this is a novel point, but it was argued in this case, that the fact that Canada enters into a treaty doesn’t make that domestically enforceable in Canada. If often or not often, sometimes you’ll have a treaty like this treaty, Canada Signing Everyone Is the Rate to An Adequate Standard of Living, whatever that might mean, right?
Adam Stirling [00:08:13] Yeah.
Michael T. Mulligan [00:08:13] 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 is 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 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. Like property and civil rights is provincial. And so if you could have the federal governments sign a treaty and then impose that on all the provinces and municipalities and everyone else, well, that’s 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.
Adam Stirling [00:09:26] Hmm.
Michael T. Mulligan [00:09:27] And so the court found that that’s not a basis to find the Victoria bylaw to be outside of the constitutional authority of the City of Victoria. And so, the result of it, 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, this is valid. They did agree, however, it’s common, but this doesn’t mean that they’re in the future couldn’t be some challenge by some actually affected person. Of course, here there were none left. One passed away and the other got a house.
Adam Stirling [00:10:04] Yeah.
Michael T. Mulligan [00:10:04] And so you could have in the feature for somebody say, look, they’ve put so many houses or so many parts on the no camping here list that 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 there’s no shelter space. I am now, I’m here for a constitutional remedy, I want something else 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, and so we would have to wait for another day if there was some actual person who was homeless who cannot find a reasonable place to put up their tent. And so they’re forced to be outside in inclement weather and then you would be to the constitutional argument from that Adams case from back in 2009. But in a free-floating abstract way, the city has clear authority under the community charter to restrict where you can and cannot engage in camping and sheltering, and you cannot point to general constitutional provisions to make that have to be larger or more expansive or “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 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 never-ending seemingly issues in the City of Victoria and elsewhere about whether there’s authority to restrict where people are allowed to put up tents to shelter if they can’t find a space in a shelter.
Adam Stirling [00:11:43] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, we’ll continue right after this.
[00:11:47] COMMERCIAL.
[00:11:47] All right, we’re back on the air here at CFAX 1070. Michael Mulligen with Mulligan Defence Lawyer. City of Victoria, a long running case involving a very contentious political and sometimes legal issue sheltering in parks; City of Victorias seeing a court victory recently. What is next on our agenda, Michael?
Michael T. Mulligan [00:12:04] Next on the agenda is a case that has, I think, one particular notable point people may want to be aware of. And this was a case involving an appeal to the B.C. Court of Appeal 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 transpired. And usually, I should say, on appeals, courts are very reluctant to interfere with 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. And so courts of appeal are often reluctant to say, well, I’ve got a different view of it having read the transcript of what person had to say. This particular case, the court, the Court of Appeal, analyzed exactly how it was the judge came to their decision in terms of, in this case, believing the complainant. And one of the things that the Court of Appeal focused on, and I should say it’s a good thing that in Canada, judges are required to not simply make a decision like a jury would, but they are required explain how they’ve come to their decision. And one thing that makes that so important is if the way, sort of the intellectual way a judge came to a decision is wrong, that can get corrected on appeal. 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 is that the fact that a person has said something on multiple occasions, for example, prior to testifying, does not, as a matter of law and rationality, make it more likely to be true.
Adam Stirling [00:14:26] Hmm.
Michael T. Mulligan [00:14:27] But 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 friend show up and say yes, the person said it to me too, the persons said it too. Thank you. That can, if you don’t think about it carefully, you might think, well, I’ve heard this from a lot of people, maybe that’s more likely to be true. But that is not a permitted method of reasoning, because when you think about more carefully, the fact that a person’s repeated something the same thing a bunch of times makes it no more likely be true or accurate than if they said it to no one else previously. And in this case, the trial judge 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 her evidence and convicting. And because the judge is required to explain how they arrived at their decision, the 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?
Adam Stirling [00:15:37] hmm.
Michael T. Mulligan [00:15:37] The basis upon which the judge came to their decision was just not in accordance with the law or the fact that you can’t use prior consistent statements 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. So that’s what that narrow issue of prior consistent statement is. Don’t think if you just tell a bunch of people, it’s more likely that you’re going to be believed.
Adam Stirling [00:16:01] As we take a look, three and a half minutes left. One more item on our agenda today.
Michael T. Mulligan [00:16:05] Final the final case on the agenda is a really interesting one over the Supreme Court of Canada and it had to do with the Lieutenant Governor in New Brunswick, and a section of the Charter which the Supreme court of Canada has never spent any time analyzing previously. 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 section 16 (2), a rarely referenced section, entitled Official Languages of New Brunswick. And interestingly, it uses almost identical language to 16 sub one, 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 language 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 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 analyze 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 may just be two different wickets or something, right?
[00:17:49] Yeah.
[00:17:49] But they analyzed on the basis of the lieutenant governor, some functions they must perform themselves, granting consent to legislate word 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 Governor-General, Mary Simon, did not speak English, French, sorry, she spoke English, and I’m going to mispronounce it, it was an “indiscernible” Indigenous language, but not French. That was criticized, but 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 hadn’t paid 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 could choose to do it themselves. So that’s the latest from the Supreme Court of Canada on the necessity of there being bilingual lieutenant-governors, at least in the Province of New Brunswick, and that could have potential application for Governor-Generals in Canada generally.
Adam Stirling [00:19:09] Michael Mulligan of Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Thank you so much, pleasure as always.
Michael T. Mulligan [00:19:15] Thanks so much. Always great to be here.
Adam Stirling [00:19:17] All right, quick break. News is next.
Automatically Transcribed on June 24, 2026 – MULLIGAN DEFENCE LAWYERS