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Jordan Heath-Rawlings
In the days leading up to Christmas, the court fight was in Edmonton, but it could have been in any city in the country.
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Late Friday afternoon, a judge putting a temporary pause on the encampment evictions as a hearing for the injunction by a group currently suing the city for its encampment response will be heard. Monday.
Jordan:
Homeless encampments or tent cities, as residents often call them, have spread to every town of any size in Canada. It’s the result of a housing crisis, income inequality, the opioid crisis, and dozens of other factors that we won’t debate today. The debate doesn’t really matter at the moment. These are people, they don’t have adequate housing. This is Canada, this is the winter, and they are doing what they can to survive. For years, governments and police forces have approached these camps with not a lot of patience, to put it kindly
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With dozens of police officers on standby. Security guards have been going 10 to tent structure to structure here in Trinity Bellwood Park telling the occupants that they’re trespassing and that they have to leave.
Jordan:
Recently, however, some courts have begun prohibiting evictions and the destruction of these encampments, that approach is now becoming more common. So these two trends, the proliferation of tent cities everywhere and the increasing odds that courts might side with the residents, even in some cases ordering cities to provide washrooms and other basics of life, have put us at an inflection point. The end goal of those court decisions is to force all levels of government to fix the problem rather than continuing to tear down these camps one by one as they move from place to place. But will governments take that message away? Do they even have the resources to really tackle this problem? Or will the courts new rulings make tent cities a more permanent part of some of Canada’s most public parks and neighbourhoods? I’m Jordan Heath-Rawlings. This is The Big Story. Stepan Wood is a professor at the Peter Allard School of Law at the University of British Columbia, also a Canada research chair in law society and sustainability. He’s been deeply involved with the legal aspect of tent in this country. Hello, Stepan.
Stepan Wood:
Hi, Jordan.
Jordan:
I want to start, we’ve talked about tent cities or encampments on this podcast in the past, but I don’t think a lot of people, including myself here, have considered the issue from a legal perspective. So maybe we could start with that, and I’ll ask you, if you were in court here, as I know you have been, how would you define the sort of encampments that we are seeing in growing numbers in cities across the country? What are they legally?
Stepan Wood:
Well, that’s a really good question. Mainly because there’s no agreement on how to define this phenomenon. So even terminology is not agreed. Legal circles and often government circles, people talk about homeless encampments, but precariously housed people themselves don’t use that term. They tend to use the term tent cities. But beyond that, I would say the basic kind of disagreement about definition can be defined by sort of two polls of a continuum. Precariously housed people themselves, and the people who work with or advocate for them generally use the term encampment or tent city to refer to an intentional community of a substantial number of people who come together to shelter deliberately in the same space in order to get the benefits of doing that compared to living on the streets in isolation from each other. And those benefits, basically, greater security and greater stability for the people in the encampments translates into a lower risk of violence and harassment, theft of belongings, less stress levels, better physical and mental health, better sleep patterns and eating habits, better access to various support services, a place to keep your belongings that you don’t have to move them around every day and so on.
So the other alternative is a lot of cities I’ve seen tend to use the term encampment to refer to anybody sheltering outdoors without authorization. Even a single person in a single tent in an isolated spot, like on a median of a street or something like that. Courts are typically involved only with the first type.
Jordan:
How did you get involved with this issue in your capacity as a lawyer and as a Canada research chair and this sort of thing? So
Stepan Wood:
What happened was in the early months of the CVID 19 pandemic, the provincial government in BC shut down an encampment that had been in place in Oppenheimer Park in the downtown east side of Vancouver. It had been in place for a couple of years at that point, and it was only the latest of several tent cities that had popped up in Oppenheimer Park over the years. And the reason for shutting it down purportedly was the public health measure in response to COVID-19. And what happened was, as they were clearing that encampment, which had something like 300 people in it in a very small urban park, a handful of people who were displaced from that park went to set up a tent city in a unused parking lot owned by the Vancouver Port Authority, right on the industrial waterfront of Vancouver. The Port Authority is a federal government agency, and they were quickly joined by people from elsewhere in metro Vancouver who needed a place to shelter.
And within days though, the Port Authority, instead of working with the folks to see about decent facilities like showers, washrooms, food and so on, they went straight to court and ask for an injunction to evict the people from this parking lot that was not being used. And I was contacted by lawyers that I know who work in these cases to be an expert witness, and the specific focus of that was to provide information about what public health authorities and governments around North America were doing and saying in relation to the approach to encampments. During the COVID-19 pandemic in particular, I showed that there were dozens of public health agencies and city and state governments in Canada and the US state governments obviously only in the US that were putting in place policies saying it is a very bad idea to evict encampments in the middle of the pandemic.
It’s actually going to cause greater risk of infection by spreading people throughout the community instead of keeping them where they are. The court actually didn’t listen to that expert evidence really at all, didn’t even mention it in its decision. And within a few days, just issued an injunction evicting the encampment. When governments go to courts asking for injunctions to evict homeless encampments, the courts routinely agree and issue the injunctions, but nobody knew exactly what the numbers were, how often they actually do that. So I embarked on a research project to document systematically how the courts have responded in BC when governments provincial or otherwise go to court saying, help us to evict this tent city from publicly owned land.
Jordan:
And how often do they do that? What’s the percentage?
Stepan Wood:
Well, so what I found was that it was a whopping I watering 85% success rate for these preliminary injunctions. So preliminary injunctions are when the government launches a lawsuit claiming that these tent cities are constituting a trespass or they are violating local bylaws, but before they actually go to court to prove those allegations with evidence and witnesses and so on, they ask the court for an interim injunction that the court’s issue in extraordinary circumstances even before the plaintiff. The government in this case has proven its case, and they’re supposed to be drastic and extraordinary remedies that are issued only in the clearest of cases, but in fact, they are the norm, overwhelmingly the norm in these tent city cases. So 85% of the time the government gets this interim injunction. In theory, an interim injunction is just to preserve the status quo until the parties basically prove or disprove the case in court. But with tent cities, as you can imagine, they effectively bring an end to the case because once the tent city is evicted, the people are sort of spread to the four winds. It’s extremely difficult at the best of times for their lawyers to stay in touch with them. But once they’ve been evicted, it’s effectively impossible. What
Jordan:
Is the other side of that? Because that’s what we’re going to talk about and focus on as we look towards a prediction for this year and beyond. In those other 15%, what do the courts decide and what do they cite in doing? So
Stepan Wood:
The other side, it’s very interesting. It’s actually in the last couple of years, starting to become more the norm rather than the exception. And that is where the courts are saying, now, wait a minute, an injunction might not be warranted in this case. This has actually been an evolution over the last almost 15 years, starting in 2008 when a court in BC for the first time in Canada said that government bans on sheltering overnight in public spaces in the absence of adequate shelter alternatives, is a violation of precariously housed people’s rights to life and security of the person better understood as the right to health. And that was in 2008. In the years since then, really starting only around 2015, the courts started to recognize that it’s not quite just as cut and dried as that, but that the continual displacement of unhoused people through the eviction of tent cities causes really immense harm to the people who are being continually pushed from one place to another.
They also recognize that there’s a need to have somewhere to shelter during the day. Overnight shelter is one thing, but having to pack up every morning and carry all of your worldly belongings around with you all day until you find somewhere else to stay at night takes a huge toll on people’s health and wellbeing. And the third thing that they started to recognize, shelter spaces that governments have sort of theoretically available are often not practically accessible to the people who they want to evict from the parks and so on because of all kinds of barriers that are well understood now to accessing shelter spaces. So that was sort of the middle stage in the last, from 2015 onward. But even though they recognized those issues, the courts were still pretty routinely granting the injunctions. So there was a bit of a cognitive dissonance, and that then started to change just in the last couple of years where we really see a sea change in the way the courts are looking at these things.
Jordan:
There is probably not a major town or city in this country now that doesn’t have at least one of these communities that has sprung up. You’ve made a prediction about what’s to come in the year ahead as the shift continues. Can you kind of elaborate on what you think? We’ll see,
Stepan Wood:
I think what we’re going to see in the coming year or years is that cities and other levels of government will recognize that these tent cities are not going away, and that continually evicting them is just a futile whack-a-mole approach. So basically, literally kicking the problem down the road repeatedly is not solving any problems. And the courts in the last couple of years have finally said to the governments, this isn’t solving anything. You can’t just keep doing this. You have to deal with the underlying problem. And so I think that’s what is going to have to happen. And it’s not just the cities. The cities quite rightly point out that they don’t have the power to build affordable housing. That’s the provincial and federal governments. So I think what will happen there will be increasing pressure on all three levels of government to focus on both interim and long-term solutions. Interim solutions include finding places where these tent cities are effectively the least disruptive to the securely housed community. And having these sort of sanctioned places where tent cities will actually be supported with washroom and kitchen facilities with clean water, with electricity.
Jordan:
So essentially making them quasi permanent,
Stepan Wood:
Well, quasi permanent, but not permanent because a more medium term solution is also now experimenting with things like tiny homes. So Peter Burrough is doing this. Vancouver has now started doing this Kelowna, I believe. So you’ve got these tiny homes where people have individual heated spaces. There’s even, I saw news stories about somebody supplying ice fishing huts, these heated tents, experimentation with tiny homes with modular housing, but then ultimately investing seriously in affordable housing. Basically, what I hope will happen is that all three levels of government will switch really deliberately from a kind of criminalization approach, which really has been the characteristic up until now. Criminalizing the common manifestations of homelessness, sort of penalizing and marginalizing these already deeply marginalized people. Switching from that to taking approach of fulfilling everybody’s right to life health and to housing. We know what a rights-based approach would look like.
The federal housing advocate has laid it out in a series of reports, recognize the residents of tent cities as rights holders engage meaningfully with them. They are the experts on their own needs and situations. Prohibit forced evictions of tent cities, explore all viable alternatives to eviction. If there is a relocation, make sure it’s human rights based. Ensure when there are tent cities, that they meet the basic needs of the residents and respect and fulfill the distinct rights of indigenous peoples who are disproportionately overrepresented in the precariously housed population and in 10 cities in particular. So I think that’s what needs to happen.
Jordan:
What happens when it occurs in somewhere really large and incredibly prominent? Do you know what I’m saying? There’s a difference between a park in a relatively smaller town and a gigantic tent city, which is currently in one of the major downtown parks in Toronto, for instance. It’s interesting too, in Toronto, I’ll point out we have such a progressive mayor now who has promised to do something about this, right?
Stepan Wood:
Yeah, yeah. There are what you might call progressive mayors in other cities as well who are promising to take action on this. Yeah, I’ll be very interested to see what Olivia Chow ultimately has in mind. But there’s a couple of places where we have sort of ongoing legal battles that I’ll be particularly interested in. So in Edmonton, just in the last several weeks, something happened that has never happened before in Canada, as far as I know, which is that representatives of the unhoused people went to court and actually got an injunction to stop the city of Edmonton from implementing its DECAMP policy. It had a pretty aggressive policy for clearing out 10 cities, which it had developed without any consultation with the people themselves. And the court said, whoa, put the brakes on there. You can’t implement that policy right now until we sort out in court whether it violates unhoused people’s rights.
So that’ll be a really important one to watch because it’s such a precedent. A second is in Waterloo where earlier in 2023, the court refused to give the regional district there an injunction to clear an encampment. And that also was another first, because it was actually the first time that a Canadian court has said that effectively there is a right to shelter during the daytime. So to see what happens in Waterloo as the district there is faced with that principle that you can’t just clear people out every day and allow them to come back into the space in the evening. And then the third place is here where I am in bc In November and December, the provincial government passed a new law that attempts to define adequate shelter for purposes of getting an injunction to clear tent cities. So basically, what does the government have show in order for the court to be convinced that the shelter alternatives are actually reasonably available to the people that they want to evict from public places?
And this was a big controversy and will continue to be a big controversy because the definition was so bare bones that really a 24 hour Tim Hortons would qualify as adequate shelter. And even that very bare bones standard caused huge opposition from municipal governments saying, we can’t supply shelter that meets this basic definition. And so the government went ahead and passed the law, but it said, we will engage in further consultations with stakeholders before we bring it into force. And those consultations, as far as I know, haven’t happened yet, but I and others will be pushing hard for the government to sit down seriously, not just with municipalities, but with indigenous organizations and with individuals and organizations that have experience of or work with precariously housed people to really hammer out what a rights-based approach to this question of adequate shelter would look like.
Jordan:
It will be fascinating to see, and hopeful for the best outcome for all parties in the long run. We’ll cross my fingers for that, but not hold my breath. Stepan, thank you so much for this.
Stepan Wood:
Oh, you’re very welcome. Thanks for asking me
Jordan:
Stepan Wood of the University of British Columbia, as well as a Canada research chair in law society and sustainability. That was The Big Story. For more, you can head to The Big Story podcast.ca. You can scroll on and on and on there. I promise. If you’ve not been a listener for very long, do yourself a favour. See how far back you can go and what embarrassing clips you might find there. We like to hear any kind of feedback. You can give it to us by emailing hello at The Big Story podcast.ca or by calling 4 1 6 9 3 5 5 9 3 5 and leaving a voicemail. The Big Story is in every single podcast player, and it’s also on your smart speaker as long as you ask it to play The Big Story podcast. Thanks for listening. I’m Jordan Heath Rawlings. We’ll talk tomorrow.
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