The City of Penticton has been ordered to disclose documents relating to the Good Neighbour Bylaw, under which the city is pursuing legal action against local homeless man Paul Braun, and a four-day trial has been scheduled for September next year.
The order was made Thursday afternoon after a morning hearing with lawyers representing city hall and Braun, and orders the city to disclose emails between chief administrative officer Peter Weeber, members of council and bylaw staff regarding Braun.
Judge Michelle Daneliuk also ordered the city to disclose the number of tickets the city has handed out under section 5.2 of the Good Neighbour Bylaw, which prohibits panhandling “in a manner to cause an obstruction,” which includes within 10 metres of an enclosed pedestrian walkway.
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Defence lawyer Paul Varga had also been seeking documents relating to the council meetings surrounding the creation and amendment of the Good Neighbour Bylaw, including video and audio recordings of the meetings.
The city will have to search through agendas and minutes of council meetings to find any further mention of the bylaw beyond the meetings surrounding its creation in 2012 and amendment in 2013.
Varga’s disclosure application was largely to do with two major questions. The first is to do with a potential double jeopardy defence — a charter right against being prosecuted twice for the same alleged offence.
The defence is also looking at building a potential argument that the city is using the bylaw to target Braun.
“The records of the debates are going to be important to see what was in council’s heads when they did adopt the bylaw,” Varga told the court.
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“That’s one of the big questions there. … For what purpose was it adopted. And I guess until we see that, we won’t know what, entirely what our question will take, what arguments we’ll be able to make. Certainly we’ll be arguing on the double jeopardy grounds, and that’s clear.”
Part of the issue surrounding whether the city was targeting Braun, Varga argued, centred around a picture of a bylaw officer appearing to hold a bylaw violation ticket, standing over Braun who was sitting at his spot without any panhandling paraphernalia.
“Why does he have this pre-made bylaw ticket in his hand?” he said. “If the bylaw enforcement officer has been instructed to target Mr. Braun, then we would like to find out about that.”
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City counsel Troy DeSouza, a municipal lawyer out of Victoria, pushed back against Varga’s requests.
“He’s fishing in a pond with no fish,” he said. “It’s like trying to get the Crown to get some information on the creation of the criminal code. I don’t know where it is, I’m not really sure what I’m looking for, but please give me that history background to help our case.”
DeSouza also pushed back against the double jeopardy argument, saying the court action is replacing the enforcement tickets, not supplementing it, and suggested the city had worked to provide full disclosure.
Though Daneliuk appeared to echo the city’s argument that Varga was asking for an order to produce documents that may not exist, her judgement landed on the side of the defence.
Still, DeSouza said he was happy with the result of the hearing.
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“We’ve had three appearances and I attend by telephone to simply get a hearing date so that this can get set in court to be dealt with by a judge,” he said. “We were getting a little frustrated because it wasn’t being set, and there were all these disclosure requests being made.”
The court is set to reconvene on the matter for a pre-trial conference on June 28 and has scheduled a four-day trial for Sept. 11-14, which DeSouza called a “very quick” court date for a trial of that length.
“That’s incredible, so that is really good, and we’ll be able to have the court deal with this and have some resolution for this case,” he said.
But DeSouza also acknowledged the apparently disproportionate length of that trial to other trials, comparing it to some violent cases that might run for half a day.
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Set to testify are bylaw staff, bylaw supervisor Tina Siebert and Weeber.
In court, DeSouza had also taken aim at Varga for appearing regularly in the media over the issue, saying it was the city’s “preference to try this in the court of law,” not the court of public opinion.
Varga appears to be pushing for another media splash next week, having planned to sit with Braun in his regular spot at the Main Street breezeway in the 200 block for an hour at noon.
“To make sure he knows he’s not alone,” he said. “If Mayor (Andrew) Jakubeit wants to come down and sit with us for an hour, I’d be happy to sit there and chat with him, too.”
Varga said he hasn’t heard back from the city on that invitation, and DeSouza declined to comment on the matter.
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