IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: And British Columbia v. Adamson, 2016 BCSC 1245 Date: Docket: Registry: Victoria Her Majesty The Queen in right of the Province of British Columbia, and The Attorney General of British Columbia Plaintiffs Hugh Adamson, Donna Aumbus, Ollie Aux, Adam Baker, Michael (Magnus) Bjornson, Christine Brett, Shane Enns, Jorge Gome, Russell Lloyd-Jones, Sean M. Manley, Audrey Moffatt, Carl Montgomery, Rose Mullin, Kristel Oertel, Chris Parent, AmanDa Paska, Ricky Perreault, Joseph Reville, Andrea Robinson, Vincent Robinson, Norman Ruble, Rathborne Smallwood, Dough Swait, William Wale, Mitchell Wallace, Jane Doe, John Doe and Other Unknown Persons Defendants Restriction on publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as [M.G.] may not be published, broadcasted, or transmitted in any manner. Before: The Honourable Chief Justice Hinkson Reasons for Judgment Counsel for the Plaintiffs: Counsel for the Defendants: Adamson, Aumbus, Bjornson, Brett, Gome, Oertel, Mullin, Reville, A. Robinson, Ruble, Smallwood, Lattinore, Henning, Dan, Brett, Saari, Roy, Gabriel, Greenipes, Hawkings, Bridge, Ruble, Pongtacz, Lemay, Rees, Higgins, Swait, Prowse, Fortune, Mckinnon, Green, Elder, Emslie, Roseborough, Weavers, Swieringa, Speck, Wood, Balrov, McBee, Thacyk, Fyfe, Somerville, Grieve, and Balitti W. Milman and T.A. Mason C.J. Boies Parker and J.L. MacAdam

2 British Columbia v. Adamson Page 2 Place and Date of Hearing: Place and Date of Judgment: Victoria, B.C. June 27 and 28, 2016 Victoria, B.C. July 5, 2016

3 British Columbia v. Adamson Page 3 Introduction [1] This is the second application by the plaintiffs for injunctive relief with respect to an encampment at the Victoria Courthouse ( the Encampment ), the first application having been dismissed by me for the reasons set out in my reasons for judgment indexed at British Columbia v. Adamson, 2016 BCSC 584. [2] Following the dismissal of that application, the plaintiffs have endeavoured to address the housing needs of those at the Encampment. They have agreed to make available, for those presently living at the Encampment who do not have access to housing elsewhere and who agree to cooperate as set out in the proposed form of order sought by the plaintiffs, spaces at the following facilities (the Alternative Housing Facilities ) in the following amounts and by the following dates: i) Choices Transitional Home, operated by Our Place Society ( CTH ): 28 spaces available immediately; ii) iii) The former Central Care Home at 844 Johnson Street, Victoria ( CCH ): 140 spaces by August 8, 2016; and Atira Women s Resource Society in Vancouver ( Atira ): 11 spaces for those, females only, who are willing to relocate to Metro Vancouver, available immediately. [3] The plaintiffs have further agreed to make available for others who require housing in Victoria those spaces not taken by those presently living at the Encampment who do not have access to housing elsewhere and who agree to cooperate as set out in the proposed form of order sought by the plaintiffs, at the Alternative Housing Facilities and in an additional 51 units in the former Super 8 Hotel located at 2915 Douglas Street, Victoria by November 30, [4] The plaintiffs have also agreed to make reasonable efforts through their designated representative or representatives to meet by July 4, 2016 with those presently living at the Encampment who do not have access to housing elsewhere

4 British Columbia v. Adamson Page 4 and who agree to cooperate as set out in the proposed form of order sought by the plaintiffs, and offer to each of them, to a maximum of 168 persons, a space in one of the Alternative Housing Facilities on the following terms: i) Each such person may elect to transition to the Alternative Housing Facility of their choice, as space permits; ii) iii) Those who opt for an early transition to CTH may also receive, at their election, first priority to transition later into a space at CCH, as such spaces become available; and Up to 11 such persons may elect a space at Atira if they wish to do so, but no such person will be required to transition to Atira if they do not wish to do so. [5] The plaintiffs further agreed to compile a list of those who opted to take one of the spaces by July 4, [6] On those bases, the plaintiffs seek interim interlocutory relief against the defendants and others who are presently living in tents and other structures on property owned by the Her Majesty the Queen in right of the Province of British Columbia ( the Province ). The relief sought on this application differed from the relief sought in the Notice of Application. In their submissions, counsel for the plaintiffs modified the relief sought to: 1. An order requiring the Defendants a) To forthwith remove all tarpaulins from the lands legally described Lot 1, Section 88, Plan (the Courthouse Property ); b) Clear at least one meter around each tent at the Courthouse Property; c) Ensure all tents have access to a clear path of egress off the Courthouse Property; d) Clear all fences and obstructions at the Courthouse Property; e) Remove trip hazards from pathways at the Courthouse Property;

5 British Columbia v. Adamson Page 5 f) Remove combustible materials (including pallets, and wood) and all wooden structures at the Courthouse property; g) Remove cooking appliances from tents at the Courthouse Property; h) Centralize cooking to one area at the Courthouse Property and keep it clear of combustible material other than reasonable quantities of fuels, safely stored, for heating or cooking food; and i) Remove all fuels (including propane tanks, butane cylinders and gas tanks) at the Courthouse Property other than those kept in the centralized cooking area as contemplated in the previous subparagraph. 2. Within 3 days following the order sought being made, the Defendants residing on the Courthouse Property at the date of the order, who do not have access to housing elsewhere and who wish to transition to new housing from the Courthouse Property must identify themselves to the plaintiffs representative or representatives by showing picture identification, or if they have no picture identification by agreeing to be photographed and providing their name Qualifying Defendants (and any photographs taken for that purpose are to be kept only for the purpose of verifying the identity of the Qualifying Defendants and are to be destroyed following their transition to alternative housing). 3. The Defendants must identify to representatives of the plaintiffs which tents, shelters, objects and things located on the Courthouse Property belong to them. 4. The plaintiffs, their employees or agents are hereby authorized to prevent any person who is not a Qualifying Defendant, from taking up residence or continuing to reside at the Courthouse Property. 5. As housing becomes available, and by not later than August 8, 2016, the defendants shall remove all structures, tents, shelters, objects and things owned, constructed, maintained, placed or occupied by them which are located at the Courthouse Property, and otherwise cease to occupy or reside at the Courthouse property. 6. For the purpose of ensuring compliance with paragraph 1 of the order, employees or agents of the plaintiffs are hereby authorized to remove or cause to be removed from the Courthouse Property such structures, tents, shelters, objects or things as are: a) Not claimed by any of the defendants in the course of the process contemplated in the preceding paragraph; or b) Causing or contributing to a violation of paragraph 1 of the order or an outstanding order of the Fire Commissioner of British Columbia issued pursuant to s. 22 of the Fire Services Act, R.B.C. 1996, c. 144, and the owner has refused, on request, to remove it themselves.

6 British Columbia v. Adamson Page 6 [7] The parties and the basis for the plaintiffs application were set out in my earlier reasons for judgment at paras. 1 4, and 6 7 which I will repeat for the sake of convenience: [1] The first named plaintiff, Her Majesty the Queen in right of the Province of British Columbia (the "Province"), is the owner of the lands and premises of the Victoria Law Courts at 850 Burdett Avenue, Victoria, British Columbia, occupying the city block bounded by Blanshard Street on the west, Quadra Street on the east, Courtney Street on the north and Burdett Avenue on the south (the "Courthouse Property"). These lands are more particularly described as Lot 1, Section 88, Victoria District Plan 12886, Parcel Identifier [2] The second named plaintiff, the Attorney General of British Columbia, is the legal advisor to the Lieutenant Governor of British Columbia, and the legal member of the Executive Council for British Columbia. She asserts parens patriae jurisdiction to apply to this Court for injunctive relief based upon private law causes of action in trespass, under the Trespass Act, R.S.B.C. 1996, c. 462 and nuisance, public nuisance and breaches of public law, and to preserve the rule of law, pursuant to the Attorney General Act, R.S.B.C. 1996, c. 22. [3] At least some of the named defendants and other individuals have been camping at the green space that occupies roughly the eastern third of the Courthouse Property (the "Courthouse Green Space") since in or about November [4] On February 29, 2016, the plaintiffs filed a notice of civil claim seeking an injunction to restrain the defendants from trespassing upon the Courthouse Green Space and from continuing various activities thereon. [6] The Courthouse Property, including the Courthouse Green Space, was formerly held by the British Columbia Buildings Corporation and is "administered land" under the Public Agency Accommodation Act, S.B.C. 2006, c. 7. As such, no provision of the Land Act, R.S.B.C. 1996, c. 245, except s. 50, applies to the Courthouse Property. Nor is the Courthouse Green Space a "park" within the meaning of the Parks Regulation Bylaw passed by the City of Victoria under the Community Charter, S.B.C. 2003, c. 26. [7] The Province, as landowner, has permitted members of the public to enter upon and use the Courthouse Green Space for recreation activities, but has never formally authorized the establishment of an encampment at the site. [8] The history of the Encampment was also discussed at paras. 8 9 of my earlier reasons for judgment, which I will set out here, for the sake of convenience:

7 British Columbia v. Adamson Page 7 [8] On numerous dates since about November 2015, the defendants have erected and maintained tents and other structures, stored objects in and around the structures, and inhabited the structures, thereby establishing an encampment that occupies most or all of the area in the Courthouse Green Space (the "Encampment", referred to in some submissions as "SuperIntent City", "SIC", or "Tent City"), to the exclusion of most other uses. The defendants have maintained the Encampment throughout the day and night, without limiting their activities to overnight sheltering. [9] The plaintiffs contend that the Encampment has become unsustainable and unacceptable, but also state that following a brief period of some weeks to permit remediation of the site, they will not seek to enjoin overnight sheltering by homeless individuals on the Courthouse Green Space between the hours of 7:00 pm and 7:00 am. [9] In March of this year, the plaintiffs asserted that there was alternative accommodation available to the residents of the Encampment, but that some of the residents had declined to move to these new spaces despite efforts to assist them with relocation. They asserted that from November 2015, the defendants, by maintaining the Encampment, had damaged the Courthouse Green Space, impeded operations at the Victoria Law Courts, affected the quiet enjoyment of individuals residing in the neighborhood, disrupted the operation of businesses in the neighborhood, and created health and safety hazards for themselves and members of the surrounding community, and that a cross-section of the public residing, working, accessing services, or carrying on business in the surrounding area, had suffered annoyance, discomfort, loss of enjoyment, damage, and expense. [10] I found that although there is no right to housing under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter], the inconvenience caused by the defendants' activities, the difficulty involved in lessening or avoiding the risk to the defendants, the utility of their activities, the general practice of others, and the character of the neighbourhood did not warrant a finding that a public nuisance had been clearly established. [11] I further found that the three part test for interim injunctive relief articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney

8 British Columbia v. Adamson Page 8 General), [1994] 1 S.C.R. 311 at [RJR-MacDonald] was the applicable test for the plaintiffs application. That test requires the Court to consider: a) Has the applicant demonstrated there is a fair question to be tried? a) Will the applicant suffer irreparable harm if an injunction is not granted? and; b) Does the balance of convenience favour the granting of an injunction? [12] I answered the first two questions in RJR-MacDonald in the affirmative, but qualified my answer to the second question on the basis that most of the damages alleged by the plaintiffs had already crystallized and any further costs or damage that would be occasioned by the ongoing presence of the Encampment would simply take place somewhere else in the City of Victoria if the injunction sought were issued. [13] At paras of my earlier reasons for judgment I concluded that: [180] The defendants in this case appear to benefit from responsible leadership and organization, and have established effective lines of communication between themselves and police, fire and public health authorities, in a way that prior homeless individuals whose activities have been discussed in the previous decisions of this Court were unable to do. While the Encampment has not been without its difficulties and challenges, it is an improvement over its predecessors. [181] It is inappropriate at this stage for me to determine whether the defendants will be permitted to maintain a permanent encampment on the Courthouse Green Space in the future. It may well be that they are unable to make out such a case. [182] I acknowledge that some legitimate concerns have been raised by the plaintiffs in relation to the availability of Courthouse Green Space for other uses; health, general safety, and fire safety concerns; and the allocation of police resources. However, many of the plaintiffs' contentions are in dispute and cannot be resolved on affidavit evidence alone. Further, the plaintiffs' concerns must be weighed against the potential problems that might arise were I to issue the requested injunction. [183] Ultimately, in determining whether or not to grant an interim injunction at this time, I find that the balance of convenience is overwhelmingly in favour of the defendants, who simply have nowhere to move to, if the injunction were to issue, other than shelters that are incapable of meeting the needs of some of them, or will result in their constant disruption and a perpetuation of a relentless series of daily moves to the streets, doorways, and parks of the City of Victoria.

9 British Columbia v. Adamson Page 9 [184] In addition, many of the homeless cannot access those spaces which do exist for variety of reasons. While the new options provided by the Province address some of the identified barriers, they do not make the spaces available to everyone. Individuals who have high needs, or who have had problematic relationships with the staff at the other shelters run by the agencies administering the new options, will not be able to access these spaces even if they do become available. Many of the current residents of the Encampment have had extremely negative experiences in the current shelter system, where large groups of high needs individuals are crowded together with minimal support, and rigid rules regarding attendance make it difficult to secure or maintain a spot. [185] Further, I am not satisfied on the evidence before me that many of the problems alleged by the plaintiffs are the unique result of the existence of the Encampment, and are not simply part of the reality of homelessness. If I were to issue the injunction at this point, I am concerned that the problems would simply migrate to other areas in the City of Victoria. [186] An injunction at this juncture may well cause greater disruption to the public and greater expense to the City of Victoria than the disruption and expense presently endured by the Province. There is at least an overlap between the provincial taxpayers and the taxpayers in the City of Victoria, and I am not prepared to displace one's expenses to impose them on the other. [187] I have already impressed upon the parties that I expect the trial of this matter to be expedited by the abridgment of various time limits for examinations for discovery, if pursued by the parties, and the shortening of notice periods for expert evidence. A trial date commencing September 7, 2016 has now been set. Should circumstances degenerate between now and the trial date, the plaintiffs are given liberty to renew their application for injunctive relief based upon proof of such degeneration. [Emphasis added.] Discussion a) Housing Options for the Residents of the Encampment [14] Ms. Boies Parker contended that there remains insufficient housing for the homeless in the City of Victoria, but I am no longer persuaded that that is correct. The plaintiffs have commendably responded to the needs of those residing in the Encampment, and those who have resided there in the past. [15] Gertrude Hanlon is the acting Executive Director of the Housing Policy Branch of the British Columbia Ministry of Natural Gas Development and the Minister Responsible for Housing. Her duties include attempting to provide

10 British Columbia v. Adamson Page 10 supportive housing to those who need it. She undertook the task of determining the number of people in need of housing who were at the Encampment in May and June of this year. She concluded that as of June 16, 2016, there were approximately 87 people residing at the Encampment, 31 of whom are on waitlists for supportive housing. [16] In response to the Courthouse Encampment, BC Housing provided funding for a number of additional temporary housing facilities. On January 5, 2016, Our Place Society began operating My Place Transitional Home ( My Place ), a shelter with 40 spaces in indoor tents. The plaintiffs contend that My Place offers the privacy of a tent, along with three daily meals, outreach services, laundry, showers, and art and music rooms. While originally scheduled to operate only until April 30, 2016, BC Housing has provided funding for My Place to continue operations until September 30, [17] Our Place Society also began operating CTH in February CTH is said by the plaintiffs to offer a mixture of indoor living as well as tent space in a building courtyard. CTH apparently has space for 50 residents, but BC Housing and Our Place Society have collaborated to add 28 additional spaces to the facility beginning July 4, BC Housing has extended the funding for CTH to March 31, [18] Don Evans, the Executive Director of Our Place Society deposed that there is a current waitlist of 104 people who wish to get into CTH and 92 people wishing to get into My Place, and that there are 19 people from those totals who are on both waitlists. He estimated that some 25 of the present residents of the Encampment are on the waitlists. [19] The Province of British Columbia has recently purchased CCH in downtown Victoria, and is in the process of converting the property into 140 housing units for the use of the residents of the Encampment. [20] The plaintiffs contend that the combination of completed and future additional housing has sufficiently increased the capacity of Victoria s temporary housing

11 British Columbia v. Adamson Page 11 system such that all of the Encampment s residents will have the option of transitioning to at least one of these options in the near future. The expected date for available occupancy at the former Central Care Home in downtown Victoria is on or before August 8, [21] I do not propose to decide this application on the basis of the housing options that the Province proposes to provide to residents of the Encampment, some of which are not yet available. In determining whether the Encampment should be allowed to continue until the scheduled trial, I will consider whether conditions at the Encampment and in the surrounding area have significantly deteriorated. b) The Circumstances in March of this Year [22] In order to determine whether the circumstances of the Encampment have degenerated, it is necessary to review the circumstances that I found to exist in March of this year when the plaintiffs first application was heard. [23] In my earlier reasons for judgment, I weighed the evidence on the plaintiffs first application concerning the inconvenience caused by the defendants activities, the difficulty involved in lessening or avoiding the risk to the defendants, the utility of their activities, the general practices of others, and the character of the neighbourhood, and concluded that I could not find that a public nuisance had been clearly established by the plaintiffs. i) Health and Safety [24] On the plaintiffs initial application, I reviewed the evidence then before me with respect to health and safety issues, which included the reported presence of garbage and used condoms, much of which was hearsay and double hearsay, as well as the evidence of syringes and human feces. I found that I was unable to conclude that the feces, garbage, syringes, condoms or used clothing had been left by residents of the Encampment or were continuing at the time of the hearing. [25] The evidence on the hearing of the plaintiffs first application for injunctive relief was, in part, that Dr. Richard Stanwick, the Chief Medical Health Officer for the

12 British Columbia v. Adamson Page 12 Vancouver Island Health Authority, and his staff regularly attended the Encampment, and his staff had participated in a weekly safety committee meeting that was attended by representatives of other authorities. The evidence further indicated that Dr. Stanwick s staff had provided harm reduction supplies to residents of the Encampment with drug addictions, and had also trained approximately 20 campers in the use of Narcan kits, which, when used effectively, can reverse the symptoms of opiate overdose that cause breathing suppression and death. [26] I found that the evidence of the conditions at the Encampment did not show that the residents of the Encampment were at an increased health risk. ii) Fire Risks [27] The evidence on the plaintiffs first application for injunctive relief also included evidence that Robert Cooper, a Fire Services Advisor with the Office of the Fire Commissioner, had attended a safety committee meeting held on February 29, 2016, and had given Ms. Brett, as a representative of the campers, a copy of an order issued under the Fire Services Act, R.S.B.C. 1996, c. 144 on February 27, That order directed the residents of the Encampment to: i. Position all tents and structures separated to prevent the rapid spread of fire; ii. iii. iv. Position tents and structures such that entrances face a path of egress and ensure paths of egress maintained clear of obstructions for all tents and structures; Have all cooking separated from any areas with combustible materials; Do not use any open flame heating near combustible structures; v. No open fires within the Encampment area; and vi. Provide non-combustible receptacles for smoking materials. [28] The evidence also disclosed that Inspector Cooper had returned to the Encampment on March 3, 2016, and found that some progress had been made to comply with the Fire Services Act order, but significant fire hazards remained.

13 British Columbia v. Adamson Page 13 [29] By March 10, 2016, there had been three fire safety complaints, one related to the Encampment s ceremonial fire, one open fire complaint, and one tent fire complaint, but the defendants provided evidence of a good working relationship between the campers and local fire services, and evidence that progress had been made to respond to fire safety concerns. In her affidavit "sworn (or affirmed)" March 8, 2016, Ms. Brett deposed to her interactions with Deputy Fire Chief Carey, and to the work done by the safety committee: Deputy Chief Carey and I met and he told me that the Province had asked him to document fire and safety concerns at SIC with a view to demonstrating that these were serious enough that SIC should be shut down. He told me that he told the Province that he wouldn't do that because he was of the view that the fire and safety concerns were manageable and could be addressed. He told me that he told the Province that the SIC was a homeless issue, not a fire safety issue - it had been in existence for several months and there were no fire or health concerns that required it to be shut down. Deputy Chief Carey said that he wanted to be part of a Fire and Safety Committee where we could meet and discuss concerns and that this would give SIC a chance to succeed. [30] I held that while there were fire safety risks associated with the Encampment, I could not resolve the differences in the evidence as to the extent of the fire safety risks, and there was evidence that the residents were taking steps to address those concerns. iii) Criminal Activity [31] In terms of thefts in the area of the Encampment, I was not persuaded by the evidence then before me on the plaintiffs first application that the thefts reported in the neighbourhood were committed by those at the Encampment. [32] It was clear at the time of the plaintiffs first application for an interim injunction that illicit drug use was taking place at or near the Encampment. I concluded that the evidence did not support the conclusion that that drug use was caused by the presence of the Encampment and found that the reality was that many of those who then lived at the Encampment were drug users long before they

14 British Columbia v. Adamson Page 14 came to the Courthouse Green Space, and that if they were not there, their drug use would likely be unchanged, but arguably more dangerous. [33] At paras of my earlier reasons for judgment I discussed policing issues at that time and found: [120] Constable Darling deposed that since November 2015, he has frequently attended the Encampment in a proactive capacity to provide a visible police presence in the area, and also in response to serious calls for service. He referred to 13 calls for service to the Courthouse Green Space in 2014, which increased to 65 calls for service during the first 10 months of These calls included two serious assaults with weapons and two drug overdoses. He described the report of a small contained fire at the Encampment on December 19, 2015, which was deemed by attending police and Fire Department members to be spiritual and ceremonial in nature. [121] He described his belief that there has been a change to the level of risk to public safety since December 2015, noting that between November 1, 2015 and February 25, 2016, there have been a number of serious incidents, including four common assaults, one assault causing bodily harm, two assaults with weapons, one aggravated assault, 13 drug overdoses, one sudden death due to a drug overdose, and one fire inside an unoccupied make-shift structure. He stated that although the campers have not overtly obstructed police investigations, the level of cooperation has ranged from not being forthcoming with information to trying to regulate access to the Encampment. [122] He also deposed that based on his review of his Division's records, including criminal analysis reports for the time period from November 1, 2015 to January 28, 2016, he is unable to identify any significant increase in reported criminal activity in the immediate area around the Encampment, but that his Division is now proceeding on the basis that an informal police presence is no longer adequate to sufficiently maintain public safety. [123] Constable Darling summarized the concerns that have been identified by police officers attending the Encampment as including garbage in and around the tents and structures; the obvious difficulty in accessing and navigating through the Encampment due to the density of the tents and structures; the accumulated property, debris, shopping carts and bicycles; the presence of numerous weapons of opportunity including axes and knives that are readily accessible; and fire safety concerns due to open burning, the accumulation of combustibles, and campers burning candles and smoking inside tents and structures. He deposed that as a result, his Division recently established a safety committee at the encampment which is chaired by the Division and includes representatives from the Encampment and the Victoria Fire Department. The purpose of the safety committee is to ensure that safety concerns are addressed in a timely and organized fashion, and to continue to build rapport and maintain open lines of communication between all stakeholders.

15 British Columbia v. Adamson Page 15 [124] Like the plaintiffs' evidence on the issues of health and safety and fire safety, the evidence on the issue of the need for increased police resources does not satisfy me that these conditions are any worse than they would be if the residents of the Encampment were displaced. It is far from clear that the need for police resources at the Courthouse Green Space is a product of the existence of the Encampment, rather than a product of the fact that many of the Encampment's residents are homeless and have pre-existing mental health and other issues. There is also some evidence that positive steps have been taken to make connections and build trust between the police and the residents of the Encampment. I will therefore weigh this factor accordingly. [34] I accepted that the expenses faced by the Province as a result of the Encampment would almost certainly be unrecoverable from the defendants, but I concluded that most of the damages alleged by the plaintiffs had already crystallized, and that further costs or damage that would be occasioned by the ongoing presence of the Encampment would simply take place somewhere else in the City of Victoria if the injunction sought was issued. [35] I also found that it was unnecessary for me to determine the actual numbers of homeless and the numbers of beds and shelters then available to them because I was satisfied that the number of homeless in Victoria continued to exceed the available beds and shelters in the city by a considerable amount, and that that disparity would only worsen when some of the then available beds were closed as planned. c) The Present Circumstances [36] The plaintiffs contend that the evidence adduced on their present application establishes that the presence and condition of the Encampment has affected those working and living near the Courthouse Green Space and the rights of the general public to the use and enjoyment of that green space in a manner sufficient to support a finding of a public nuisance, and that the continuation of that nuisance outweighs the harm faced by the residents of the Encampment, and would bring the administration of justice into disrepute if allowed. [37] Ms. Boies Parker contends that the plaintiffs second application for injunctive relief is premature, as there is, at present, no housing for the residents of the

16 British Columbia v. Adamson Page 16 Encampment, and because the conditions at the Encampment have not deteriorated. She argues in the alternative that even if the conditions have deteriorated, there is no basis upon which to conclude that the conditions will remain as they presently are for the next six weeks. [38] While I concluded on the evidence before me on the plaintiffs first application that most of the damages alleged by the plaintiffs had already crystallized, this is no longer the case. I accept the evidence which I will set out below. i) Expense to the Province and the City of Victoria [39] Inspector McGregor, a member of the Victoria Police Department ( VICPD ) deposed that: 8. As a result of our experience, the VICPD has continually adapted our approach to policing the community within and surrounding the Encampment with the resources we have, a process that will be described in greater detail throughout this affidavit. That approach has had its successes, but also has limitations given the available resources; as a result, the Acting Chief of VICPD recently sought and received additional financial resources from the city on behalf of the police board to add another regular, visible patrol presence in the community surrounding the Encampment until the trial of this proceeding. We continue to seek additional funding directly from the Province to provide more resources directly on the site, as we persist in our efforts to maintain public safety and order. 17. For the preceding 5 years the VICPD has a practice of maintaining an operations council made up of managers who meet every 28 days to prioritize the allocation of police resources around the city. I am a member of that operations council. Beginning in approximately February, 2016, a larger proportion of resources were being sent to address issues surrounding the Encampment. 18. In helping to manage the delivery of police services throughout the city as the Encampment has grown, I have recognized that this reallocation was not as simple as redistributing resources and expenses that would otherwise have been dispersed throughout the city. The rest of the city still needs policing; the hours displaced from other locations in the city have resulted in my receiving complaints from other areas of the city of the pressure this is putting on their communities, including areas where homelessness, mental health and substance use were traditionally and remain prime issues of concern,

17 British Columbia v. Adamson Page 17 and, such as near Rock Bay Landing in the 500 block of Ellice Street and the 900-block of Pandora Street. 19. Our gradual allocation of resources to the Encampment reflects a change in our policing approach from the more traditionally reactive (responding to calls for service) to a more proactive/preventative approach in the form of a public safety plan. The evolution was necessary in light of the nature and number of calls we were getting in the area. 23. The police presence was being provided not just to supervise the residents of the Encampment, but also to make policing services available to them. In the course of my experience and that reported to me by officers under my supervision, I have observed that when the homeless population needs to engage with policing services, they often do not call for service but instead report when the opportunity arises (i.e, when they come into contact with an officer). Officers attending the Encampment were expected to engage with the residents and respond to any reports made to them while they were on the site. 7. As I deposed in my second affidavit, since June 11, 2016 the Victoria Police Department has assigned officers on a regular basis to the Encampment. This involves two officers being present at the Encampment from 1500 hours to 0300 hours. We decided on two officers present at all time[s] because it is not safe to have an officer alone on the site at night. In my second affidavit at paragraph 8 I gave my subjective belief that the presence of the police at the encampment from 1500 to 0300 would have a positive impact on decreasing the level [of] violence on the site. This is in fact the reason why we deployed the officers to be present on the site for 12 hours a day. Following the deployment of the static police presence, the Victoria Police Department were able to arrest a number of individuals from the site. While it is my expectation and hope that the presence of police officers on site for 12 hours a day will reduce the violence on the site, this static police presence is unprecedented and is a tremendous strain on police resources. It is simply not sustainable; on the site, or in the community surrounding the site, in the long term. 8. In the 26 years that I have been a member of the Victoria Police Department, there has no other place in Victoria where we dedicate police resources on a static shift at one location other than at a special event such as Canada Day. 9. Further, I am concerned that if the police presence [is] reduced at the Encampment it will continue to attract a criminal element and the site will further deteriorate. Since the static shifts have begun I have not received any reports of serious violence on the site although as I indicate below I continue to get reports of altercations. The creation of

18 British Columbia v. Adamson Page 18 a static shift on the site has strained Victoria Police Department s resources and budget to such degree that it is currently having a negative effect on police operations and deployment. [40] Del Manak, the acting chief of the Victoria Police Department deposed that: 8. The Courthouse Encampment places an increasingly significant strain on VicPD s resources, since the department is trying to manage the call load relating to the Courthouse Encampment in addition to calls in the rest of Victoria and Esquimalt. I am advised by the VicPD Analysis and Intelligence Section that there has been a 46% increase in calls for police service in the 3 blocks around the Courthouse Encampment over a 6-month period since November, I have sought extra funding from the Victoria City Council to approve up to $113, for dedicated police presence of 2 officers in a 3 to 5 block radius of the Courthouse Encampment. The plan is for these officers to be there for 6 hours per day, 7 days per week from now until June 11, 2016, and for 6 hours per day, 5 days per week from June 12 to September 30, Attached to this affidavit and marked as EXHIBIT A is the PowerPoint presentation I prepared for the Victoria City Council regarding funding, entitled Funding Request: Additional Police Resources for Tent City. [41] I find that the Province has incurred and continues to incur greater than anticipated costs due to the ongoing presence of the Encampment than it would if the residents of the Encampment were located elsewhere. The City of Victoria has similarly incurred and will incur greater expense in the future, which is straining the budget for the city police and compromising their ability to perform needed duties elsewhere in the city, and for which they have sought and continue to seek additional funding from the Province. As I stated on the plaintiffs first application, the expenses attributable to the Encampment will almost certainly be unrecoverable from the defendants. In the result, while I still answer the second question in RJR- MacDonald in the affirmative, I no longer qualify that answer as I did on the plaintiffs first application.

19 British Columbia v. Adamson Page 19 ii) Leadership and Composition of the Encampment [42] While I also concluded on the evidence before me on the plaintiffs first application that the residents of the Encampment appeared to benefit from responsible leadership and organization, and had established effective lines of communication between themselves and police, fire and public health authorities, in a way that prior homeless individuals whose activities have been discussed in the previous decisions of this Court had been unable to do, I no longer consider that to be the case. [43] I do not fault those who have endeavoured to provide leadership at the Encampment. Indeed, I consider that they should be commended for their significant efforts. Unfortunately they have been unable to sustain that leadership, in part due to the changing nature of the Encampment. [44] The plaintiffs contend, and I accept, that the demographic nature of the residents at the Encampment has changed since March of this year, and that the leadership that was present at that time has become less effective. [45] Ashley Mollison is a project coordinator with the Institute on Aging and Lifelong Health at the University of Victoria and is familiar with the residents at the Encampment. She deposed that: Since my first Affidavit there has been a shift in the population at [the Encampment]. [The Encampment] has from its inception been a home for the more marginalized members of the homeless population, but this has become more pronounced with the opening of temporary shelter at the former Boys and Girls Club ( My Place ), the temporary transitional space at the youth custody centre ( Choices ) and the housing facility at Mount Edwards ( Mount Edwards ). With some former residents of [the Encampment] having left the camp to access these services, there have been vacant tents and shelters within [the Encampment] for other homeless people to move into. What I have observed is that [the Encampment] is now populated primarily by people who have been homeless for many years and are the most marginalized, excluded, and criminalized people in the homeless population. [46] One witness, who described himself as homeless in the City of Victoria for many years, deposed that:

20 British Columbia v. Adamson Page In the course of my visits, I have personally noticed a shift in the population of the Courthouse Encampment. In or around the fall of 2015, I observed that the majority of campers were local individuals whom I recognized from my time living on the streets. 8. Currently, I observe that the Courthouse Encampment population is comprised mostly of individuals whom I do not recognize. I am informed by some of these campers and believe that these campers have come to Victoria from other communities specifically to live in the Courthouse Encampment. Another reason I chose not to stay at the Courthouse Encampment was because there were too many strangers with mental health issues and drug addictions there. Many of my homeless friends have left the Courthouse Encampment. [47] Neighbours of the Encampment deposed to the changes in the residents of the Encampment. One neighbour deposed that: 18. Because my apartment at the Norwood Arms is so close to the Courthouse Encampment, and because I walk through the surrounding area at least twice per day when going to the YMCA or to run errands or to work, I have been able to observe the evolution of the Courthouse Encampment and its residents. Due to the increase in frequency of negative incidents that I have experienced on the Courtney Street Staircase and in other areas, my belief is that the population of the Courthouse Encampment has changed to a younger, more negative and aggressive demographic. I have never actually entered the Courthouse Encampment, but I am concerned about my safety when I am in the surrounding areas. [48] Another neighbour similarly deposed that: 18. As the Courthouse Encampment has evolved, I have noticed a shift in its population. The first campers in the summer of 2015 were not bad neighbours. Most of the campers looked older than many of the current residents. They looked like the kind of people I have seen struggling with chronic homelessness in Victoria over the years. However, particularly since in or around January 2016, I have noticed an increase in younger male campers. I find many of these younger campers to be intimidating and aggressive looking. For example, in late May 2016 while walking past the Courthouse Encampment, I noticed a group of about four young men standing at the entrance to the Courthouse Encampment on Quadra Street. They watched me in an intimidating manner as I walked by. On another occasion several days later, while walking down Burdett Avenue, I saw a man standing in the grass next to the sidewalk adjacent to the Courthouse Encampment. He stared at me in an aggressive and hostile way as I walked past. The way he watched me made me feel threatened.

21 British Columbia v. Adamson Page 21 Because of the apparent change in the population of the Courthouse Encampment, I generally try to give the Courthouse Encampment a wide berth when possible. Since December 2015 or January 2016, I have also heard an increase in the frequency of loud profanities in the vicinity of the Courthouse Encampment. [49] Scott McGregor has been a member of the Victoria Police Department for 26 years and served in a variety of capacities. He deposed that: a. When dispersed throughout the city, even when overnight camping in parks, homeless people congregate in smaller groups of like-minded people, sometimes referred to as their street family. While the composition of a street family is by nature quite fluid, the open nature of it leads to less frequent predation and direct conflict among individual homeless than we have observed occurring in the relatively cramped and permanent setting of the Encampment. In the Encampment, people who didn t typically choose to group together are encamped with one another, which I have observed, has been reported to me by attending police officers including Staff Sgt. Brown and I believe has resulted in some conflicts. b. In the course of enforcing the overnight sheltering bylaws, police officers come into nearly daily contact with many of the homeless people dispersed throughout the city. In the course of so doing, CSD officers are able to recognize and intervene in some problems they see in the moment. That can include making basic health assessments; including exposure, drug overdose, injuries and mental health status and in some cases providing services, calling ambulances or getting a mental health team involved. In addition, in some cases officers have been successful in getting homeless persons fast tracked into shelters or housing. Officers are present to provide information requested of them, seeking information from various individuals, or locating contraband such as stolen property. The same dynamic does not exist in managing the Encampment. c. I myself have observed a large and apparently changing variety of bikes within the bounds of the Encampment. If it were operating within the bounds of the Encampment, an active bicycle chop shop would be harder to detect than it would if the operators needed to pack up and move their affairs frequently. [50] Colin Brown has been a police officer with the Victoria City Police for 17 years. He is presently a Sergeant in the Crime Reduction Unit of the force, and responsible for four sections within the unit, including the Bike Section. In his affidavit he deposed that:

22 British Columbia v. Adamson Page Further, since in or around mid-april 2016 I have observed a large influx of young males in their early to mid-20s. As a former Sergeant of the Patrol Division and the Crime Reduction Unit, some of these individuals are known to me for their prior criminal activity, drug dealing or their association with the Nortenos gang. 14. I have attempted to build a rapport with the young males living in the Courthouse Encampment; however, I have found some of these individuals challenging to engage with, explicitly hostile and difficult upon approaching them. For example, in or about mid-april, 2016, I said to a young male individual How are things going today? and he replied, Really bad. I asked him why and he responded Because you are here - get the [expletive deleted] out!. I was taken aback by this interaction because for the first time since the formation of the Courthouse Encampment I felt unwelcome on the site. [51] It is also apparent that the support of the neighbouring Christ Church Cathedral for the Encampment, so evident at the time of the plaintiffs first application for injunctive relief, has waned. M. Ansley Tucker, the Rector of the Cathedral, deposed that: 16. I believe that Canon Ford s affidavit is no longer an accurate representation of the current relationship between the Courthouse Encampment and the Cathedral. I have discussed the matter with the Bishop, the Cathedral staff (including Canon Ford), and the Cathedral parishioners, and my thoughts on the issue were encapsulated in a sermon I gave on May 15, An excerpt of this sermon was published in the Times Colonist newspaper on May 17, Attached to this affidavit and marked as Exhibit A is a true copy of that published excerpt. 17. I am informed by the parishioners who periodically visited the Courthouse Encampment, and believe, that they no longer do so because they fear some residents of the Courthouse Encampment. These parishioners have informed me and I believe that this fear is caused by increased reports of violence in the media and increased unprovoked yelling and aggressive erratic behaviour from some residents of the Courthouse Encampment. 18. Since late March and early April of 2016, I have observed the destabilization of the Courthouse Encampment which appears to have coincided with a change of leadership, as I no longer observe them on the site. 19. I have observed that many of the residents with whom the Cathedral had a respectful relationship have moved on, and I have observed that Cathedral parishioners have not maintained the same relationship with some of the newer residents.