B.C. courts have overwhelmingly sided with governments seeking injunctions against homeless encampments, raising the question from University of B.C. law professor Stepan Wood whether judges are adequately weighing the risks and consequences of their orders.
“They seldom weigh the dangers of encampments against the dangers of dismantling encampments and dispersing the occupants,” said Wood, who published a white paper titled Rush to Judgment: BC Homeless Encampment Injunctions, which examines 24 injunction applications since 2000, at the Supreme Court of B.C.
Of those two-dozen applications, 20 were for interim (interlocutory) orders, 17 of which were granted; and four were for final orders, of which one as granted.
“The underlying problem,” said Wood, “is that up until now, more or less, the courts have operated as the big stick that governments can carry around to thump people when the political outcry gets too great. I think the solution is the courts need to stop playing that role.”
Encampments are when homeless people band together to form a makeshift community, typically in a park, such as Crab Park in Vancouver, or green space. A result of homelessness — driven by cost-of-living pressures, toxic drug abuse, mental health problems, racism and colonialism — the encampments arise out of a need for people to seek mutual support, Wood stated.
But the encampments have stirred discontent from people living in nearby homes and those operating businesses. Some members of the public cite concerns about open fires, drug use and crime.
In recent years, several court decisions in B.C. have established that it is unconstitutional for governments to prevent homeless people from sheltering overnight in public places if there are inadequate spaces to house everyone in need of shelter, Wood wrote. However, the interim injunctions have failed to test the evidence when it comes to assertions that either the encampments are dangerous or moving people elsewhere is viable and more safe for them.
“Safety risks are exaggerated,” asserted Wood, a Harvard-educated, New York-licensed lawyer and Canada Research Chair in Law, Society and Sustainability.
“Although there are a few exceptions, the courts often uncritically accept government claims of safety and security risks and availability of alternative shelter while discounting evidence of the benefits of encampments for unhoused people, the practical inaccessibility of shelter and the harms of continual displacement,” wrote Wood.
For example, Wood noted, courts seldom weigh the practical conditions of single-occupancy rooms (SRO), such as poor building conditions, lack of privacy, limited storage, curfews and no pets policies.
“Courts need to take a more careful look at the risks and benefits of the encampments and alternatives,” said Wood, in an interview with Glacier Media.
This is not happening, in part, because the interim injunctions do not require what’s called a “strong prima facie” case, or that which provides fact-tested evidence.
Wood said while there's no evidence of encampments creating more crime (rather, they may condense it in one spot, making it more visible), fire risks are however a chief concern.
Furthermore, in three cases judges have shown a proclivity to favour statutory breaches (of bylaws or trespass laws, for example) without any consideration of “irreparable harm or balance of convenience.”
Court decisions have established that it is unconstitutional to deny a person overnight shelter; however, they’ve yet to establish the human right of continuous shelter. And this, said Wood, is vital as homeless individuals require a place to keep their belongings.
“The law has gone part way but not all the way,” asserted Wood.
“When assessing interlocutory injunction applications [judges] can’t look at constitutional issues in any depth,” he said.
Wood suggests the judges take any contested application to a full trial, allowing them to “look at those issues in full, on a full evidentiary record.” — ie. what exactly is the risk of a fire? Do shelters actually have spare beds, as the government asserts?
This also raises the question: who defends the occupants in presenting evidence?
Wood said what typically happens is the government (provincial, municipal or park board) applies to the court and a process server then goes to the encampment and hands out the application to “whoever accepts it.”
In some cases, occupants will go to court themselves; in other cases, they may have a lawyer representing them for free (pro bono). Neither option tends to promote a truly viable defence, said Wood.
Wood's research shows injunction applications are more numerous since 2010. In the decade prior, there were just five such applications but since the year of the Winter Olympics there have been 19, including three in 2018 — the most of any year.
Wood signals there is a glimmer of change on the horizon as the past three applications have not been granted wherein the defendants’ evidence of the benefits of the encampments and the harms of continual displacement have been weighed.
In October 2021, an encampment injunction application by the City of Prince George was denied by Chief Justice Christopher Hinkson, as Wood described that the judge was “skeptical toward government assertions of the harms of encampments and the availability of alternative shelter.”
Hinkson noted the city’s assertions of crime and drug use at the Moccasin Flats encampment were hearsay and lacked evidence.
“Importantly, [Hinkson] recognized the intersections between the homelessness crisis and colonialism to a degree not seen in earlier decisions. He accepted defence evidence that a disproportionate number of homeless people in Prince George were Indigenous and that discrimination, racism, direct and intergenerational trauma from residential schools have serious impacts on the health and well-being of Indigenous peoples,” wrote Wood.
The professor said these more recent recognitions and inquiries into evidence could pave the way for lawsuits against the government for not providing adequate housing options; however, so far, “the courts have been fairly unreceptive by efforts of unhoused people to actually sue the government.”
Of course, asserted Wood, much of this matter can be avoided if Canadian society and governments “genuinely commit to effective implementation of a right to housing, a robust social safety net and genuine reconciliation with Indigenous peoples.”
Until then Wood suggests governments end these applications and work with homeless people by, at the very least, ensuring they're equipped with supplies and sanitation.
