Vancouver's Oppenheimer Park in 2019. Image: Paul Sableman/Flickr

For a moment this spring it seemed as if the COVID-19 crisis might lead governments to ease the relentless cycle of displacement of homeless people from the parks, streets, ravines and underpasses of Canadian cities. Some made efforts to secure housing where homeless people could follow COVID-19 guidelines. Others, including in Edmonton, Toronto, and Victoria announced suspensions of evictions of some homeless camps during the emergency. 

But the respite was short-lived. Edmonton and Toronto resumed clearances in May. British Columbia cleared Oppenheimer Park in Vancouver and the Topaz and Pandora camps in Victoria. Other camps were cleared from Winnipeg to Barrie, Ontario. 

In mid-June, the cycle of continual displacement hit a new low with the forcible eviction of a homeless encampment from government-owned land next to CRAB Park in Vancouver. This eviction badly misjudged public health risks and lowered the bar for evicting homeless camps from public land.

It highlighted the urgency of rethinking Canada’s basic approach to homelessness, in which governments doggedly pursue and courts effectively condone a failed policy of continual displacement of homeless people. 

The encampment beside CRAB Park

When the province cleared Vancouver’s Oppenheimer Park in early May, a significant number of the park’s homeless residents were left unsheltered. Some were ineligible for housing; some had difficulty navigating the process; and some declined the housing offered to them because they had pets, bad experiences in shelters, or a fear of contracting COVID-19. 

These people had to go somewhere. Some moved to a large, unfenced area next to CRAB Park in an industrial part of the Vancouver waterfront. They set up camp on a parking lot and open field owned by the port authority, a federal government agency. 

The lot is used intermittently. It was not in use when the campers arrived and is unlikely to be used any time soon, given the cancellation of the cruise ship season. It is not somewhere people go for rest and recreation. It is not surrounded by homes and businesses. On the other hand, it is close to social services and easily accessed by outreach workers.

The health and safety problems at the camp amounted to improper disposal of trash and sharps; going to the bathroom in bushes and the ocean; drug use and some overdoses; and inadequate social distancing. These problems could have been managed with appropriate interventions. 

As camp organizer Chrissy Brett asked, “What harm would it have really done the federal government to leave people in an unused, paved parking lot that wasn’t taking up a neighbourhood’s green space?”

The risks and benefits of homeless encampments

The health and safety risks of homeless camps are well known, including fire, human waste, sharps, garbage, overdoses, violence and crime. These are genuine concerns, but they are often sensationalized and there is evidence that encampments do not so much cause them as heighten their visibility. 

The benefits of homeless camps are much less familiar. Camps provide residents stability, safety, autonomy, community, overdose prevention, access to services, and storage for personal belongings. 

Appropriate supports in the form of running water, toilets, washing facilities, waste collection, tents, sleeping bags, naloxone kits, fire safety equipment, safe cooking and heating facilities, outreach services and so on, can enable encampments to deliver these benefits while mitigating many of the problems identified above. 

Instead, authorities often prevent homeless people from camping altogether or force them to move every morning. This deprives them of these benefits and pushes them into what one judge called “a relentless series of daily moves to the streets, doorways and parks” of Canadian cities, where they often face greater health and safety risks than they would in camps. 

Even when shelter spaces are available, they are often simply not accessible to many homeless people. Restrictions on pets, guests, partners or belongings preclude some. Prohibitions on using substances inside or returning after using outside after hours preclude others. Yet others are deterred by experiences of violence or theft, or by conditions like claustrophobia, anxiety or PTSD. 

These barriers to housing accessibility are accentuated for women, transgender persons, Indigenous peoples and other vulnerable and oppressed groups, for whom available shelter options perpetuate experiences of exclusion, dispossession or incarceration. 

In short, many homeless people simply cannot access the spaces that do exist, for a variety of valid reasons.

Homeless encampments and the law

Years of homeless encampment litigation in Canada have produced an unstable legal compromise between governments’ power to manage public property as they see fit and homeless people’s right to engage in activities necessary for survival. 

It has been 12 years since courts ruled that prohibiting homeless people from camping overnight in certain public places when adequate housing is unavailable violates their right to life, liberty and security of the person. They have also recognized that having stable shelter day and night is essential for homeless people’s well-being and that continual displacement causes them serious harm and pushes them to more isolated, remote locations. 

On the other hand, Canadian courts have insisted that there is no right to housing in Canada, even though customary international law (which is part of Canadian common law) and international human rights treaties binding on Canada include a right to adequate housing. 

The UN Special Rapporteur on the Right to Housing recently warned that forcible eviction of homeless campers without offering housing they find acceptable violates their human rights, even if they are camping without legal authority.

The courts have nevertheless ruled that governments may require homeless campers to remove their tents every day from the few areas where overnight camping is allowed. Meanwhile, camping is prohibited on most public and all private property. 

As a result, it remains illegal almost everywhere in Canada for homeless people to erect even the most rudimentary shelter from the elements, such as a box, tarp or tent. “You just can’t do that,” Ontario Premier Doug Ford recently warned homeless people camping in Toronto parks during the COVID-19 pandemic.

Most homeless encampment cases are decided at the interlocutory injunction stage and never get to a trial where the issues are examined fully. On rare occasions, homeless campers have successfully defended injunction applications, but they usually lose when authorities produce evidence of deteriorating health and safety conditions. 

What’s more, aesthetics and recreation are often prioritized over homeless people’s health and survival. One judge, for example, found that a homeless encampment’s interference with shortcuts, dog walking and “natural green belt views” constituted “irreparable harm” to the public.

Homeless encampments and COVID-19

COVID-19 worsened this already untenable situation. 

Homeless people are highly vulnerable to COVID-19. Many have chronic disease, disability and compromised immune systems, or belong to groups that already face barriers to accessing health services. Homeless camps are often crowded and lack adequate facilities for sanitation and disinfection, making it difficult to follow COVID-19 precautions. 

The number of people in, and the strains on, encampments increased as public washrooms were closed and shelter spaces and social services scaled back in response to COVID-19. 

Governments worked to secure housing where homeless people could observe COVID-19 precautions, but COVID-19 outbreaks in shelters made many homeless people understandably fearful of moving into emergency housing. 

Evicting homeless campers from public property without securing housing that they can accept is irresponsible at the best of times. During this pandemic, it is downright dangerous. 

Early in the COVID-19 outbreak, the U.S. Centers for Disease Control and Prevention urged governments to let homeless camps stay where they are during the pandemic if individual housing is not available. They warned: “Clearing encampments can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread.”

They noted that leaving camps in place facilitates health monitoring, testing, contact tracing and service delivery. They encouraged governments to cooperate with community agencies and camp leaders to provide sanitation facilities and ensure physical distancing.

State and local authorities in California, Arizona, Washington and Wisconsin acted on this advice, suspending evictions and even authorizing socially distanced camps. 

A week before the camp beside CRAB Park was evicted, the B.C. Centre for Disease Control finally joined the chorus. It issued guidelines warning: 

“clearing or moving encampments without providing shelter or housing immediately can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread and may lead to isolation, which also poses health and safety risks to vulnerable people.”

It encouraged governments to consider allowing homeless encampments to stay in place during the pandemic, provided they do not pose immediate health and safety threats and are in locations that are safe for camping. 

However, instead of acting on this public health advice, governments across the country have basically used COVID-19 as an excuse to continue their policies of forcible decampment.

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​