Judge says Surrey night park ban justified
Christopher Lewis deliberately violated city's ban in order to make Charter challenge
Christopher Lewis knew he might be arrested when he went for an evening stroll in Surrey's Bakerview park in November 2013.
But according to a provincial court decision, he was willing to take one for the team.
In fact, Lewis told a police officer he wouldn't leave until he was given a ticket for violating a bylaw which prohibits persons from being in Surrey's public parks from dusk 'til dawn.
He wanted the chance to make a Charter challenge to the law — arguing it violates his right to life, liberty and freedom of the person under Section 7 of the Canadian Charter of Rights and Freedoms.
More than two years later, his day in court has come and gone. And Judge Peder Gulbransen says the law can stay.
"It is important to emphasize that a court is not permitted to 'second-guess' a legislative body in its choice of remedies to address a particular problem," Gulbransen wrote in a recent 11-page decision.
"The Surrey bylaw's object is to allow those enforcing the law to deal effectively and efficiently with a pressing problem of illegal activities within parks at night."
'These are my words'
The thoughtful decision may not be groundbreaking in terms of Canadian jurisprudence, but it's a boost for a city under constant pressure to tackle crime.
As it happens, the very park where Lewis was ticketed was the site of an attack which resulted in the death of 15-year-old Dario Bartoli in December 2014.
The ruling follows on the heels of court challenges in Abbotsford and Victoria which have seen judges recognize the rights of homeless people to erect temporary shelters in parks when sufficient housing is unavailable.
But Gulbransen said different issues were at stake in those cases. Right off the bat, he said he wasn't sure the right to walk in a park at night was the kind of 'liberty' the Charter usually guarantees.
Lewis didn't have a lawyer, and Gulbransen said his argument was somewhat unfocused. So the judge suggested what he felt might be the best legal argument for the defence of "the right of any citizen to choose where and when he goes to public spaces in the city."
The city wouldn't ban people from using sidewalks at night, for instance.
"A park is a truly open public space, just like a highway or sidewalk. As it is presently worded, the bylaw treats peaceful, law-abiding citizens as if they were persons committing unlawful acts. This law is both arbitrary and overbroad," Gulbransen wrote, adding: "(These are my words, not Mr. Lewis'.)"
'A reasonable law'
A police officer testified about the need for the bylaw, along with a witness from Surrey's department of parks and recreation: illegal dumping; loud parties; graffiti; drugs; bonfires.
The city conceded that, even with a bylaw, unlawful activity will still occur in parks at night. But they said the bylaw gives them a chance to minimize harm.
Gulbransen noted that the city is also required to provide some protection to park users, which would be difficult at night without spending large sums of money.
Finally, he concluded that the bylaw is concerned with what happens in parks "during a time when most people do not expect to use them."
As such, he said the ban was "a reasonable law enacted in accordance with the City of Surrey's jurisdiction and within its power to regulate lands under its control."