Victoria’s policy limiting camping hours in parks lacks legal ground, says one of the lawyers who helped overturn the city’s outright ban on camping in parks.

Catherine Boies Parker says she doesn’t dispute the city’s power to set a limit to the hours tents can stand, but city council acted improperly by trying to regulate camping without bringing in a new bylaw.

“We don’t think (the current policy) is authorized by a valid bylaw,” she says.

The issue turns on a single clause in Madame Justice Carol Ross’ Oct. 14 ruling. Ross wrote that seven sections of two Victoria bylaws “are of no force and effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter.”

She found the outright ban violated the homeless’ Charter right to security of the person, given a lack of available shelter space.

Two days later, city council decided to appeal the ruling. In the meantime, it has approved an enforcement policy for the same bylaw sections, specifying that camping would be allowed between 9 p.m. and 7 a.m., later amended to start at 7 p.m. due to dusk falling earlier after daylight savings.

As stated in a news release, the city’s interpretation of Ross’ words is that the bylaws remain in effect “except for where they would prohibit a homeless person from erecting temporary overhead protection overnight for the purpose of protecting themselves from the elements when there are insufficient shelter beds available.”

That’s where Boies Parker disagrees. Ross’s ruling says that “the bylaws are of no force and effect insofar as they prevent homeless people from erecting shelter, period,” Boies Parker says.

The city’s lawyers had the option to ask the court to clarify if overnight camping would be OK, but didn’t, Boies Parker points out.

Council has the power to regulate camping times or locations.

But that, she argues, must come through a new bylaw with the attendant public process.

The city’s rules around adopting bylaws specify several steps. Public notice must be given before bylaws are given a first reading, and three readings are required before adoption, which must happen during a public meeting.

“It’s kind of a technical argument, but actually it’s very important because (the homeless’) rights deserve due process just like anybody else’s,” Boies Parker says.

kvass@vicnews.com