On July 5, 2016, the Honourable Chief Justice Hinkson released his decision in British Columbia v. Adamson, 2016 BCSC 1245, following a renewed application by the Province for an interim injunction to end the “Tent City” encampment beside the Victoria Courthouse.
Chief Justice Hinkson found in favour of the Province, ordering the dismantling of the encampment to coincide with the availability of additional shelter options for the campers.
Background
Beginning in the Fall of 2015, several members of the homeless community in Victoria began setting up tents on an area of lawn on the eastern side of the Courthouse property. This land belongs to the Province and is not subject to the City of Victoria’s bylaws that allow homeless persons to take overnight shelter in City parks, nor are there any provincial enactments that apply to prohibit camping on the land.
The Province applied unsuccessfully for an interim injunction in March 2016. In his decision, released April 5, 2016, Chief Justice Hinkson found that the Province had not met the test for an interim injunction, as set out by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. The test has three elements, all of which must be established:
- Has the applicant demonstrated that there is a fair question to be tried;
- Will the applicant suffer irreparable harm if the injunction is not granted; and
- Does the balance of convenience favour granting the injunction?
On the first application, the court found that the first two elements of the test were met, albeit with qualifiers on the second element, but that the balance of convenience had not been established in the Province’s favour. The court did, however, grant leave for the Province to re-apply if the conditions in the encampment deteriorated before the trial, which was set for September 2016.
Considerations
In reaching his decision on this second application, the Chief Justice referred to the changed nature of the encampment, the impacts it has had on the surrounding neighbourhood and the health and safety of the campers themselves. The Province was able to establish that not only was the encampment to remain creating harm to the Province and its neighbours, it was no longer, on balance, better for anyone, including the encampment’s residents, to allow its existence to continue.
The Province has created a significant number of additional spaces to house the homeless in Victoria in response to the encampment. The most recent housing acquisition by the Province, adding 140 spaces, is scheduled to be available August 8. In his judgment, the Chief Justice stated that his decision was not based on the available housing options but on whether or not the conditions in the “[e]ncampment and surrounding area have significantly deteriorated.”
Changing Dynamics
The court considered the costs to both the City of Victoria and the Province of the additional police presence dedicated to the area surrounding the encampment. In the earlier decision, the court found that most of the damage to the Province’s interests had already crystallized. In this most recent decision, the Chief Justice removed that qualifier from his findings with respect to the second element of the test for the injunction, finding that harm to both the City and the Province was ongoing.
The Chief Justice also found that the leadership that had been in place within the encampment at the time of his first decision was no longer effective, due to the changing demographic within the encampment. The court heard evidence from former residents of the encampment who left because they no longer felt safe in the space. The court also heard from neighbours, including some who had previously supported the encampment, that the dynamic had changed and “had a serious and negative impact on the area surrounding the Encampment that has only worsened over time.”
Health and Safety
The health and safety of both the campers and the members of the public within the neighbourhood were considered in detail by the court.
The Chief Justice found that the encampment residents were careless about disposing of needles and other drug paraphernalia and condoms; that at least some of the human and animal feces in the area was from the residents; and that the presence of rats and rats nests had been confirmed within the encampment. For these reasons the court found that the encampment posed health and safety risks to the residents of the encampment and the surrounding neighbourhood.
The court found that the encampment had not addressed the fire safety hazards that had been identified, particularly as found by the Fire Commissioner. Structures continued to be too close together, tent openings were not accessible, combustible materials were stored throughout the encampment, people continued to smoke, cook and use candles in or around the tents, all of which created a fire and safety hazard for both the residents and the surrounding neighbours.
Finally, the court found that there had been a significant increase in violence and criminal activity between the time of the first decision and this one. The Province provided evidence from former residents, security officers, police reports and neighbours. There was some evidence that organized criminal street gang members were living at the encampment. The court concluded that the encampment poses a risk for both the residents and the neighbouring business and residents.
The Order
The court order states that the encampment residents are to leave as soon as additional housing from the Province becomes available, which is scheduled for August 8. The court also ordered that the residents wanting to transition to the new housing must register with the Province and that all residents must identify their belongings. The court order also granted the authority to the Province to prevent any new or unregistered campers from residing or continuing to reside in the encampment and the authority to remove any belongings or structures not claimed or that create hazards or obstructions within the encampment. These provisions of the order recognize that not everyone living in the encampment is necessarily looking for alternate housing and that other persons, not currently residing in the encampment may try to move in, hoping to “jump the queue” for housing.
The Impact
The court, in this second decision, did not make its determination based on any actions taken by the Province or by the City but focused on the changing dynamic and behaviour of the encampment and the negative impact those changes had on the neighbourhood. The difficulty with this approach is that it does not provide guidelines as to what positive actions might be taken by the government, provincial or local, to proactively address the issues to the court’s satisfaction, such that an interim injunction would be ordered, before such encampments deteriorate to the point where harm to the community results. Had the conditions at the Victoria encampment remained the same between the time of the first and second interim applications, it is not at all certain that the Province would have been successful on this application, even with the new housing options being made available.
The outcome of this case may also support the view that this type of encampment on public land, once established, can remain until and for as long as the occupants can maintain a level of behaviour and organization that does not constitute a significant hazard or threat to the neighbouring community.
There are larger societal issues still to be resolved, that the courts may ultimately have to determine. This decision leaves unresolved the question of the rights of the general public, through their governments, to protect public land from being occupied and damaged by disadvantaged members of society who take up residence on these lands.
As this was an interim injunction and the hearing for a permanent injunction is scheduled to be heard in September, 2016, we will keep you posted on any new developments in the case.
