Vancouver Property Rights Denied by HC120306121632

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									                              Vancouver Property Rights Denied:


What started out to be a simple query into where the city of Vancouver derives its authority to
tell a property owner what kind of vehicle they can park in front of their own home (their home),
soon turned into a discovery so outrageous I thought I was going to go blind when I read what I
read. This shocking find is of paramount importance to the citizens of the city of Vancouver B.C.
and has serious implications for the rest of property owners in the province. While researching
the laws that the city of Vancouver uses to derive its authority to govern, I found that the B.C.
legislature was approached by the city of Vancouver to make an amendment to the Vancouver
Charter its purpose – to unlawfully deprive the citizens of Vancouver of their rights to certain
property: namely the highway. (It is important to remember that the laws that govern our
highways have their roots in the common law of England.)

This time last year I received a parking ticket for parking my RV in front of my home. Here in
Vancouver we have a city by-law that says you cant park a vehicle that is longer then 20 ft on the
streets of Vancouver for more than 3 hrs.. My vehicle was 21 ft with the spare tire on the back. I
thought to myself how can such a by-law exist? The vehicle is in front of my home and its
certainly not bothering me.

So I started to research this question on the internet. First I went to the by-law in question and
had a closer look at it. When I read it, it looked more like a by-law for a commercial vehicle that
was being applied to a private vehicle.

Next I asked myself what is the purpose of the parking space in front of my home?

In order to find that out I had to find out who owns the roads and for what purpose. I then went
to the VANCOUVER CHARTER this is where the city gets there authority to govern:

       http://www.qp.gov.bc.ca/statreg/stat/V/vanch_00.htm.

Under Part VIII Public Works section 289 (1) it states the city owns the highways absolutely in
fee simple. End of story. That’s it. Its their road.

I remembered while doing my research from the internet that I found that B.C. has what is called
Bill 14 COMMUNITY CHARTER this is where all other municipalities in the province get there
authority to govern. Under Division 5- highways Ownership and possession of highways 35 (1)
(a) the soil and freehold of every highway in a municipality is vested in the municipality, but
reading further 35 (4) (b) are subject to any rights reserved by the persons who laid out the
highway:

        http://www.legis.gov.bc.ca/37th4th/3rd_read/gov14-3-pt03.htm#section035 .
It is important to remember the highways were built and laid out by land developers so people
could access their homes.

I then looked up all amendments to section 289 (1) of the VANCOUVER CHARTER and in
1972 that section was amended by bill 50 by deleting the words and to any right therein which
the person who laid out or dedicated such street may have expressly reserved.

I found this quite unsettling how can all other municipalities in our province be allowed certain
rights to property and yet deny those same rights to the citizens of Vancouver? Indeed these
same rights are probably mentioned by every municipality in North America (or should be) and
England (most certainly) but not in Vancouver.

One should keep in mind that the highways were originally sold to the municipality for $1.00 the
purpose of a highway only (I don’t know if that custom is still practiced today). The city
maintains the highways as a service to its citizens much like sewage or water services but the
fact still remains the land owners dedicated the road for a highway and any other use is
prohibited by the owner of the land.

The Supreme Court of Canada mentioned in Vancouver v. Burchill [1932] the city holds the
highways as trustees for the public. The streets remain subject to the right to pass and re-pass;
and that character, of course is the very essence of a street.

In England today (yes this very day) a person that does not use the highway for its intended
purpose would be charged with trespassing. The property owner that abuts the highway is owner
of that road to the center of the highway. This was decided in a famous English court case in
1893 HARRISON V. DUKE OF RUTLAND:

       http://www.hrothgar.co.uk/WebCases/hol/reports/08/20.htm

an American law dictionary Bouviers Law Dictionary 1853

       http://www.constitution.org/bouv/bouvier_h.htm

under the definition of highway you will find the following:

       4. The owners of lots on opposite sides of a highway, are prima facie owners, each of one
       half of the highway, 9 Serg. & Rawle, 33; Ham. Parties, 275; Bro. Abr. Nuisance, pl. 18
       and the owner may recover the possession in ejectment, and have it delivered to him,
       subject to the public easement. Adams on Eject. 19, 18; 2 Johns. Rep. 357; 15 Johns.
       Rep. 447; 6 Mass. 454; 2 Mass. 125.

You can now see something went terribly wrong in the amending of the VANCOUVER
CHARTER in 1972.But what? How can an act of parliament strip property owners of just one
city in a province out of their rights to property?

I had to go to the law library downtown to find out. The bill that amended section 289 (1) of the
VANCOUVER CHARTER was Bill 50 the first reading of the bill in parliament made no
mention of the deletion of those rights to the highways that we are speaking of in section 289 (1).
Before the Bill went to parliament for the second reading the Bill was amended and this time the
words appeared, Subsection (1) of section 289 is amended by striking out the words:

       and to any right therein which the person who laid out or dedicated such street may have
       expressly reserved.

There are usually explanations at the bottom of these bills to show the intentions of the
legislators for amending these bills. There were no explanations for 289 (1) given.

When it came time for the second reading The discussion was:

       MR. LAUK: Mr. Speaker, on behalf of the second Member for Vancouver-Little
       Mountain, I move second reading of Bill No. 50, An Act to Amend the Vancouver
       charter. Motion approved; second reading of the bill. Bill No. 50 referred to a committee
       of the whole House at the next sitting after today.

The committee at the next sitting had even less discussion on this bill.

This was the second reading of the bill. I should say right now I don’t have a clue about the
procedure for passing a bill through parliament except the third reading is the final reading and
that then becomes the actual law. But reading through other debates on bills passed in the second
readings they were usually quite lengthy debates with explanations on certain topics. You would
think when they want to delete the mention of the rights of a segment of our society it would
merit some discussion and explanation.

It should suffice to say that if this wrong is not challenged it leaves the government of
Vancouver with dictatorial powers over how we are allowed to use are highways (and parks).
The rights that exist in highways are not given to us by the city we derive these rights form each
other.

Another land mark case in 1935 case MARSHAL AND OTHERS V. THE MAYOR,
ALDERMAN, AND BURGESSES OF THE COUNTY BOROUGH OF BLACK POOL

The judge said the owner of land adjoining a highway has a right of access to the highway from
any part of his premises. This is so whether he or his predecessors originally dedicated the
highway or part of it and whether he is entitled to the whole or some interest in the ground
subjacent to the highway or not. The rights of the public to pass along the highway are subject to
this right of access: just as the right of access is subject the rights of the public, and must be
exercised subject to the general obligations as to nuisance and the like imposed upon a person
using the highway This case was quickly adopted by the Supreme Court of Canada in the same
year in Toronto Transit Commission v. Swansea [1935] (s.c.c.).

It is the property owners that should be the offended parties here when someone parks in front of
their property not the city the city has no right whatsoever to tell anyone what size or shape of
vehicle they can park in front of their house (this is probably why they used a parking by-law
that looks like it was made for a commercial vehicle). By-law 20.2 of the Vancouver Street and
Traffic by-law (http://vancouver.ca/bylaws/)

The cities job is to regulate the highways as to the general usage for safety, nuisance and the like.
To regulate the interaction between those that have a right of passage and those that have a right
of access and to ensure the smooth and efficient interaction of those rights.

My question then is does the government have the right to regulate a private vehicle an RV
different then any other private vehicle?

Answer is no. The by-law is discriminatory and the municipal government has no such authority
to regulate one private vehicle different then any other private vehicle the same rights should be
open to all property owners and users of the road. The city can however regulate commercial
vehicles as it thinks appropriate because commercial vehicles partake in a licensed activity i.e.
they are using the highway for an extraordinary activity. A commercial vehicle is one that
accepts payment for using the highway. For example a Hacky, Teamster or anyone that acts as a
intermediary between two other parties for pay.

So you are probably asking yourself about now how do we make this right? The answer is not a
simple one for example a few weeks ago I talked to the MLA for Vancouver-Burrard, Lorne
Mayencourt. I explained the flaw that I found in the VANCOUVER CHARTER and thought he
would say something like, this is an outrage against the citizens of Vancouver I am going to start
an inquiry and get to the bottom of this. Unfortunately that wasn’t the response I got. When I
brought to his attention the fact that Vancouverites didn’t enjoy the same rights as the rest of
British Columbians or Canadians or Englishmen he said well Vancouver is a big city and needs
different rules to govern it. When I told him that disenfranchising certain citizens from rights
enjoyed by others in our society would be unconstitutional, he said if you can prove that in court
and present me with a bill I will present it to parliament. (I have a constitutional challenge for
this on June 28, 2006).

There you have it dear readers your rights and freedoms are now safe you have a aid attendant
who works hours in the movie industry to defend you. You have a MLA that is ready to do
something if someone else takes on this task to prove there has been some wrongdoing and to
explain why it should be made right.

This is the general response I get from any organization that has even the remotest connection to
government. Things like business associations, and the B.C. civil liberty association. For
instance two Vancouver downtown business associations told me that because they were a child
of the city (the city granted them their charter) they did not want to get into suing the city
(although the Gastown business association said they would like to hear more). Even though
reinstalling and to further declare these rights would have profound effects on the downtown
business owners. For example the downtown business owners are having a grate deal of
problems with people such as aggressive panhandlers, prostitutes, drug dealers etc.

In England today if these people were to harass anyone in front of their businesses they
personally could have the perpetrator charged with trespassing and have them arrested by police
or private security.

These kinds of powers add value to your property. Why should a person who worked hard to
save money and to invest it and take a chance to pursue a dream be left at the mercy of those
undesirables who seek to harass potential patrons passing their store?

This tragedy is to be made right it has got to be done from the ground up. Those that feel the pain
the most are property owners. Those that say that the parking space in front of their house is
private to them and no you cant stand in front of their property and make a nuisance of yourself.

Is it possible that municipality of Vancouver thinks property owners are so incapable of deciding
what is right for themselves that we need the government to decide what is right for us and that
those that live in England are mature enough to make their own decisions as to their property?
For those that don’t know it our laws about highways come from the common law of England.

Please keep in mind that if the B.C. legislature can silently delete any mention of the rights of
Vancouverites they can find a way to silently delete mention of rights in every municipality in
B.C. We in B.C. are not the only ones in danger of losing our autonomy and rights of property. If
this can happen in B.C. it can happen in the rest of Canada and even the U.S. Some of you may
remember that just recently a U.S. Supreme Court case of Kelo v. City of New London where a
big developer asked the city to expropriate private land so as to let a developer put it to use for a
modern development:

        http://www.newswithviews.com/Morrison/joyce24.htm

Could that happen here in Canada? When our government deletes any mention of private
property rights that exist in are highways I would say it already has; except we didn’t receive any
compensation. For what purpose does the government want our property rights and why are they
sneaking around about it?

Are property rights important? A few years ago Warren Buffet, Bill Gates and George Soros
bought hundreds of millions of ounces of silver they shipped it to England for save keeping. You
will notice they didn’t keep it in the U.S.A. and they didn’t come to Canada they went to
England. Why? Because England has for hundreds of years had impenetrable property right
laws. If you want to live in a prosperous country you have to respect property.

In Canada we have a unique opportunity open to us if we choose to use it. In the B.N.A. act 1867
the jurisdiction for property was given to the provinces

Exclusive Powers of Provincial Legislatures. 92. In each Province the Legislature may
exclusively make Laws in relation to Matters coming within the Classes of Subject next
hereinafter enumerated; that is to say,-- 13. Property and Civil Rights in the Province.

If we choose to we could make a formal declaration or provincial constitution that will protect
property rights it is within our powers.
I have before the courts right now a constitutional challenge that although started out to be a
parking ticket has now progressed into a property rights issue. Upon finding this flaw in the
Vancouver charter I believe my case is much more winnable, but it is still a long up hill battle. I
am sure they will fight to keep the powers they have acquired for themselves. My case will be
heard June-28-2006 09:30am Robson Square Provincial Court 103 the case is expected to go 2.5
hours the accused is REEL FIRST AID SERVICES .

While talking to various people on this subject I talked to a Mr. Mike Rosemen of the

Recreation Vehicle dealers Association of BC who informed me that the same kind of by-laws
were tried in the Okanogan and RV owners approached their MLA and had the proposed by-law
overturned. This is the kind of action we need. If all British Columbians brought this to the
attention of their M.L.A.s we can save our rights to property and determine what is best for us in
relation to our property. All of these rights have been exercised for hundreds of years and our
society has progressed in a orderly fashion. Just ask an Englishman.

I would like to ask my fellow British Columbians to come together in this effort to stop the
government in there tracks on this issue and preserve these rights. Don’t let this spread to your
community. This is a daunting task for one person in this kind of an endeavour. I will need
Guidance in law. I know experience in organizing and marketing a lobby group. Any help in
seeing this to a just conclusion is needed and appreciated, it does not have to be money to
support this property rights initiative it can be any talents you may possess or time you can spare.

As for me I want to know who did this, how they did this, and why they did this?

What is wrong with our system of government that the taking away of our rights could happen
right under our noses with no fanfare and with such ease? Needless to say we should be asking
for a public inquiry and a full investigation into this fiasco.

Oh! by the way as long as this constitutional challenge is in place you don’t have to pay for
parking tickets for parking large non commercial vehicles on the streets in Canada.

Hopefully this will be made right June 28 2006. (That’s wishful thinking)

It would be wise for those living in other provinces to research their laws on ownership of
highways and make sure there rights are still there.

Those that are interested in pitching in to help organize groups or seminars or if your just curious
and would like some answers can e-mail me at vancouverpropertyrights@shaw.ca .

I just applied for a domain name vancouverpropertyrights.com hopefully I can get a site up and
running in time to do some good. Stay tuned for seminar notices and meetings.

Yours Truly Norris Barens
April 2006

								
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