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It's time for Canadian courts and governments to acknowledge that forcible displacement of homeless people is inhumane

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Oppenheimer Park. Image: Paul Sableman/Flickr

This is the second part of a two-part series on homeless camp evictions during COVID-19. Read the first part here.

Instead of acting on public health advice, governments across the country have used COVID-19 as an excuse to continue their policies of forcible decampment. British Columbia's clearance of Oppenheimer, Topaz and Pandora camps is a leading example. 

The province justified the evacuations as necessary to prevent, respond to or alleviate the effects of the COVID-19 emergency. But as Pivot Legal Society, a leading advocate for housing rights, pointed out in a letter to the province's lawyers: 

"To date, neither your office, nor any other government entity, has explained how complete decampment and closure of these spaces achieves these ends in the midst of an ongoing housing crisis where many people will remain unsheltered outside and without access to housing."

According to Pivot, the decampment was carried out in a traumatizing and oppressive manner. It caused some camp residents to flee to unknown locations, breaking connections with service providers. It heightened the risk of overdose by moving people into places where they had to use alone or by separating them from the harm reduction services available in the camps.

Tragically, this risk materialized as B.C. recorded its highest-ever number of overdose deaths in May. 

Another problem was that many of the people placed in emergency housing were likely to find themselves back on the street soon, thanks to unforgiving "one strike" rules. Indeed, this happened in Toronto, where at least one person evicted from COVID-19 emergency housing later died in a tent under the Gardiner Expressway.

Finally, governments know that despite best efforts to secure housing, forcible decampment will inevitably leave some residents unsheltered with nowhere to go. As a Toronto city official put it: "When we make an offer to someone for an inside space, we work with them to ensure they're in a position to accept that. But if they decline that offer, we will continue to clear the site."

CRAB Park

The camp beside Vancouver's CRAB Park was initially established by people evicted from Oppenheimer Park in May. That park was cleared after a long history of overcrowding, unsanitary conditions, fires, criminality and non-compliance with government orders, and a last-ditch effort to secure housing for all residents. 

None of this happened with the encampment beside CRAB Park. Instead of cooperating to make the camp as safe as practicable during the pandemic while seeking sustainable housing solutions, the Vancouver Fraser Port Authority went straight to court for an injunction. 

It acted as if it were an ordinary private landowner and the campers were mere trespassers. The court agreed and issued an injunction to clear the camp. 

This eviction set a terrible precedent for dealing with the homelessness crisis during Canada's worst public health emergency. 

Normally, the courts issue an interlocutory injunction only if satisfied that the applicant would be irreparably harmed without it, and the benefits and harms to interested parties favour issuing it.

In the case of homeless encampments, this involves examining the reasons for the camp, the relative risks and benefits of letting it stay versus evicting it, and the campers' constitutional rights. 

But in this case, the court applied a lower standard. It said the port authority was entitled to an injunction simply because the campers appeared to be trespassing on its land. It ruled that this unused, wide open and publicly owned land was in effect "private property and not intended for public use."

This standard effectively lowers the bar for evicting homeless camps from public land in Canada, because authorities can almost always make the case that such camps are technically trespassing. 

The court also rejected evidence of the health and safety benefits of encampments, merely because the experts who described them had not examined this particular camp. This puts an unrealistic burden on indigent camp residents to procure case-specific expert evidence to counter the evidence of health and safety risks that police and fire services invariably put forward. 

That is not all. The campers swore in affidavit after affidavit that they had no alternative to sheltering on public property. Some of them wanted to take up the offer of housing extended to Oppenheimer Park residents but were denied or ignored. Vancouver's enforcement of "no camping" bylaws in public parks meant there was nowhere else for them to go. 

The court uncritically accepted the province's assertion that adequate accommodation was offered to all Oppenheimer Park residents, and concluded that none of the campers really needed to be in the encampment. 

The port authority and the court relied on the COVID-19 crisis to justify the eviction, saying this camp defied the province's emergency order to clear Oppenheimer Park and defeated its public health purpose.  

On the contrary, this case accentuates the public health risk of evicting homeless camps during COVID-19. Public authorities knew that the clearance of Oppenheimer Park would leave some people unhoused. These people were pushed farther away from public health facilities and services. And they have now been displaced again. 

Some of them moved to Vancouver's Strathcona Park. Others went who knows where. One said he planned to sleep between dumpsters near some warehouses in east Vancouver. 

Time for a reset

One would have been hard-pressed to find a better location in Vancouver for homeless people to shelter in place during the pandemic than this federally owned parking lot and open field next to CRAB Park. If this camp did not deserve to stay in place during the pandemic, it is hard to imagine what camp would. 

As Vancouver Mayor Kennedy Stewart said after the eviction, clearing a homeless camp without any plan for where the campers go next makes no sense. It ignores the impact of the COVID-19 pandemic and accentuates the unfairness of a legal system that condones continual displacement. 

Courts must recognize that COVID-19 changes the legal equation. It represents an opportunity to rethink the unsatisfactory legal compromise between governments' property rights and homeless people's right to survive.

It is time for courts to accept the need for stable, day and night encampments on suitable public lands when accessible housing options are unavailable, and the duty of governments to support these camps with adequate facilities and resources.

And the owners of public lands -- including the City of Vancouver, on whose land the CRAB Park campers now find themselves -- must act more responsibly than the port authority did. They must heed public health advice and work with community agencies and homeless campers to make camps as safe as practicable during the pandemic while seeking acceptable housing solutions. 

Fortunately, there are signs that the City of Vancouver may be open to rethinking the current approach. It is providing some support to the Strathcona Park encampment. It is considering amending its bylaws to allow overnight camping in some city parks. More importantly, some city officials support the creation of an approved tent city that would stay in place 24/7.

The situation is unstable. Opposition to the camp is brewing. But the COVID-19 crisis might just be the catalyst that gets public authorities and Canadian society to realize that the policy of continual, forcible decampment of homeless people is unsustainable and inhuman.

Stepan Wood is professor of law and the Canada research chair in law, society and sustainability at the University of British Columbia.

Disclosure: The author filed an affidavit in support of the homeless campers in the Port Authority's injunction application but did not receive any compensation for this work.

Image: Paul Sableman/Flickr

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