HOMELESSNESS AND THE USE OF PUBLIC SPACE

Transcription

1 HOMELESSNESS AND THE USE OF PUBLIC SPACE Kathleen Higgins Elizabeth Anderson September 11, 2018

2 WHERE DO CITIES COME IN?

3 Cities have some tools to address urban homelessness: Permitting secondary suites Granting density bonuses for affordable rental units Contributing land or $ for the provision of emergency shelters or non-market housing

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5 Nonetheless: Cities do not have the tools or capacity to comprehensively address urban homelessness (this will require buy-in from, and cooperation between, all levels of governments) Cities are left reacting to a problem (widespread urban homelessness) that they cannot independently solve

6 Widespread urban homelessness means that some homeless people need to use public space: to obtain income (by panhandling) to perform basic human activities (urinating, washing, cooking) to sleep

7 The difficulty is that: Public spaces are not generally designed to be used for such activities City bylaws often prohibit people from undertaking such activities in public spaces without the express authorization or consent of city officials (through the issuance of a permit or otherwise)

8 This has led to conflicts between: Cities which regulate public spaces, and Homeless people who use public spaces

9 In such conflicts, non-homeless people: May be in the background (as the general public ) May act as mediators between city officials and homeless people May publicly support/oppose city officials/ homeless people

10 In recent years, BC courts have been asked to mediate conflicts arising in respect of tent cities on public property

11 Vancouver Board of Parks and Recreation v. Mickelson, 2003 BCSC 1271 Vancouver Board of Parks and Recreation v. Sterritt, 2003 BCSC 1421 Homeless people erected encampments in City parks in violation of the City s Parks Control Bylaw, which prohibited the erection of shelters in parks without the permission of the General Manager of the Parks Board The Parks Board applied for interim injunctions requiring the removal of encampments from City parks

12 Homeless people conceded bylaw violation, argued bylaw violated their s.2(b), 7 and 15 Charter rights Court issued injunctions, expressed considerable doubt as to whether Charter rights were engaged

13 Victoria (City) v. Adams, 2008 BCSC 1363, substantially upheld on appeal 2009 BCCA 563 Homeless people set up a tent city in Cridge Park, in violation of the City s Parks Regulation Bylaw and Street and Traffic Bylaw (the Bylaws), which prohibited the erection of temporary shelter in City parks and on City streets Homeless people argued that the Bylaws unjustifiably infringed their s.7 Charter rights to life, liberty and security of the person

14 At trial, Justice Ross made several key findings of fact: The number of homeless in Victoria (1,000) greatly exceeded the number of shelter beds in Victoria ( ), so homeless people had no choice but to sleep in public spaces Exposure to the elements without adequate protection is associated with a number of significant risks to health including the risk of hypothermia, a potentially fatal condition Some form of overhead protection is necessary for adequate protection from the elements

15 Justice Ross concluded that: The prohibition on erecting shelter was a deprivation of homeless persons s.7 Charter rights to life, liberty and security of the person The deprivation was not in accordance with the PoFJ because it was overbroad and arbitrary The violation of homeless persons s.7 Charter rights was not justified under s.1 of the Charter: The preservation of parks was an important bylaw objective, but the means chosen by the City to advance this objective were not reasonable or minimally impairing

16 Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC tents set up in Oppenheimer Park, in defiance of Parks Control Bylaw prohibition on being in park between 10 pm and 6 am Evidence established: Interference with use of space for community activities Significant fire hazards Escalation of problematic and criminal behavior : fights, public drunkenness, drug use, firearms Contrast with real difficulties of park residents in finding other shelter

17 The City of Vancouver is in the position of being able, with provincial funding, to provide housing to those in need, unlike the circumstance in Victoria (City) v. Adams Injunction granted largely on terms sought: Closure to be delayed until mid-october when City had attested more housing would be coming available Prohibited only between 10 pm and 6 am City authorized to remove any materials remaining after deadline No police enforcement order

18 Abbotsford (City) v. Shantz, 2015 BCSC 1909 Homeless people set up a tent city in Jubilee Park, in violation of the City s Parks Bylaw, Street and Traffic Bylaw and Good Neighbour Bylaw (the Bylaws), which collectively prohibited the erection of shelters in public spaces The City took action to enforce the Bylaws

19 Homeless people argued (through DWS) that the Bylaws unjustifiably infringed their Charter rights to: freedom of expression, peaceful assembly and association life, liberty and security of the person equality

20 Chief Justice Hinkson concluded that : Rights to freedom of expression, peaceful assembly and association were not at issue Rights to life, liberty and security of the person were violated, for much the same reasons set out in Adams Right to equality was not violated because: the Bylaws did not make a formal distinction between homeless people and non-homeless people the Bylaws did not subject homeless people to differential treatment based on an enumerated or analogous ground (i.e. an immutable trait) notably, homelessness is not an analogous ground

21 Chief Justice Hinkson declared portions of the City s Parks Bylaw and Good Neighbour Bylaw to be of no force and effect insofar as they prohibit sleeping or being in a City park, or erecting a temporary shelter, without permits between 7:00 p.m. and 9:00 a.m.

22 Notably: Chief Justice Hinkson s declaration was not limited to people without accessible shelter options (i.e. it was not limited to homeless people) Chief Justice Hinkson refused to grant a declaration that homeless people have a s.7 Charter right to exist and to obtain the basic necessities of life: To date, courts have been reluctant to interpret s. 7 of the Charter as granting positive rights to life, liberty and security of the person The SCC has stated that s.7 may be interpreted this way in a future case the Charter is a living tree capable of growth and expansion within its natural limits

23 British Columbia v. Adamson, 2016 BCSC 584 homeless camp on Courthouse Green space in Victoria provincially owned land arguments: trespass, statutory breach, public nuisance Hours of Occupation Residents maintained the Encampment throughout the day and night, without limiting their activities to overnight sheltering Injunction application: Province sought complete removal for weeks to remediate, after which it would not stop homeless individuals from sheltering on Courthouse Green between 7 pm and 7 am

24 Alternative Options/Necessity Province contended that alternative accommodation was available to house homeless individuals currently living in the Encampment Since December 2015, the Province, through the British Columbia Housing Management Commission, had funded the following new facilities and programs in the City of Victoria: a. three new 24/7 transitional housing facilities providing accommodation for a total of 128 homeless individuals, including indoor and outdoor tent spaces; b. 75 new nighttime shelter spaces for homeless individuals; and c. 40 new rent supplements specifically targeted to homeless persons from the Encampment Some of the homeless defendants declined to move to these new spaces despite efforts to assist them with relocation

25 Legal Test Province argued that RJR Macdonald test doesn t apply to trespass cases: breach of property right à entitled to injunction Chief Justice Hinkson found they had some entitlement to use this public space, so trespass fails RJR MacDonald applies again

26 Still no Charter right to housing But: Weighing, as I must, 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, I am unable to find that a public nuisance has been clearly established. I am satisfied that the number of homeless in Victoria continues to exceed the available beds and shelters in the city by a considerable amount, and this disparity will only worsen when some of the presently available beds are closed.

27 British Columbia v. Adamson, 2016 BCSC 584 Second attempt at an injunction Alternative Housing Facilities made available i) Choices Transitional Home, 28 spaces available immediately; ii) Central Care Home : 140 spaces by August 8, 2016; and iii) Atira Women s Resource Society in Vancouver: 11 spaces for those, females only, who are willing to relocate to Metro Vancouver, available immediately.

28 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. Increasing policing expenses straining City budget Change in demographic at camp: leadership less effective Garbage problems and hoarding Aggressive dogs Fire risks: 5 accidental fires since last application Increased crime: organized street gang

29 Vancouver (City) v Wallstam, 2017 BCSC 937 Tent city at 950 Main Street in Vancouver s Downtown East Side City needed access to site immediately to permit development with a significant social housing component Occupants claimed removal would interfere with rights to life, liberty and security of the person: no specific Charter claim, but Madam Justice Sharma took as such Affidavits attesting to fire safety measures, community benefit of tent city

30 City required to prove irreparable harm for entitlement to injunction Arguments based on interference with public good, blocking of social housing project Recurring problem with hearsay evidence, as in Adamson Madam Justice Sharma did not accept that there was no flexibility in the development timeline because a discretionary decision of Director of Waste Management was required Only 26 units planned and only 1/3 available for low income housing

31 I also acknowledge the City s argument that the cases thus far have been decided on the basis of a potential or real violation to s. 7 of the Charter when people are prohibited from having overnight shelter. The occupants here are speaking about more than shelter: they are relying on what they say is their safety and survival, which they submit can only come from having a stable place to sleep and live. This may be an expanded notion of what is protected by s. 7 that has not yet been litigated, but I am unable to say that it is an issue unworthy of consideration. In any event, the balance I must examine is between the evidence of the occupants about their safety and security, versus the City s position that an organization in charge of a social housing project may have its development timeline interrupted.

32 British Columbia Housing Management Commission v Doe, 2017 BCSC 2387 City of Vancouver and BCHMC applied for injunction to prevent protestors from blocking access to building site for temporary modular housing for the homeless Vancouver s west side Construction needed to commence immediately so that shelters would be available for winter City notified the defendants that their loitering and protesting on the street near the Lands violated the City's bylaws, but the defendants continued to block the main entrance to the lands in an attempt to prevent construction

33 RJR MacDonald test was argued by BCMHC Marpole residents argued development permit was improperly issued; proximity to schools, inadequate consultation Judicial review petition is the appropriate way to bring forward that argument The arguments in support of putting a stop work order on the Project should not be raised indirectly on this injunction application. This is not a commercial project. It is a public project to provide temporary housing for the homeless, and the interests of the public are engaged.

34 Caring Citizens of Vancouver Society v Vancouver (City), 2018 BCSC 72 (upheld on appeal, 2018 BCCA 87). Reasonable basis for issuance of DP: a) There is an urgent need for housing particularly for the most vulnerable elements of Vancouver's population who are currently experiencing street homelessness; b) The development is temporary and will not permanently alter the nature of the neighbourhood; c) Marpole TMH Site is appropriate for the size and nature of the property and neighbourhood context; d) The development is consistent with the Pearson Dogwood Policy statement which envisions a mix of market and affordable housing options, including provision for social housing units; e) The potential impacts on the neighbouring community could be adequately addressed by: i. Appropriate, neighbourhood sensitive, decisions in tenant selection; ii. A rigorous Operations Management Plan administered by an experienced operator; and iii. The ongoing dialogue facilitated by the enhanced Community Advisory Committee

35 CONCLUDING THOUGHTS

36 Questions?