Super InTent City Wins Against Injunction

Court ruling: Super InTent City staying for now 

APRIL 9, 2016 / INTENTCITYVIC

On February 29, 2016, the BC government filed for an injunction to order the eviction of residents of Super InTent City. If granted the injunction would authorize government officials to remove people’s shelters and belongings from the site, and grant police the authority to arrest and remove Super InTent CityZens not complying with the requested court order. This case will be heard in September 2016.

As part of the process the government requested an interim injunction to remove residents and their belongings immediately, while the broader case was under consideration.

The hearing for the interim injunction took place on March 11-15 and the judge, BC Supreme Court judge Chief Justice Christopher Hinkson, released his decision on April 5. Chief Justice Hinkson ruled against the government and in favour of Super InTent City, refusing to grant an interim injunction to remove the camp’s residents. The decision is an important victory for people living in tent cities and for people experiencing poverty generally.

Video: Super InTent City celebrates the decision

Highlights of the court decision

The BC government did not clearly establish that the camp is a “public nuisance” as that term is defined by law, and there was not sufficient evidence that the BC government would experience irreparable harm if the camp was allowed to remain.

Balance of convenience

The central issue that the judge considered was which party (the BC government or Super InTent City residents) experienced a greater “inconvenience” as that term is defined by law. In previous cases where governments have applied for injunctions to remove tent cities, judges in BC have consistently found that the balance of convenience supported evicting tent cities because the impacts that the tent cities caused to local governments was greater than the impacts that would be caused to tent city residents by displacing them. These previous decisions in part reflect what evidence was presented by government as the harms being caused by tent cities, and also what evidence was listened to in terms of the harm that would be caused by displacement. Another key issue is that previous cases have been related to tent cities on municipally controlled land whereas in this case the provincial government controls the land.

In previous cases, judges ruled that tent cities created negative impacts by preventing public use of the land and by concentrating density of fire hazards, noise, drug use, and illegal activity to such a degree that hazards were created for tent city residents and also members of the public. In this case, Chief Justice Hinkson noted that there was insufficient evidence to conclude that nuisances reported by neighbours or police were caused by residents of Super InTent City or to conclusively establish that there are health and safety risks specific to the camp compared to that experienced by homeless people in other locations in Victoria. Instead, the judge held that many of the allegations about hazards at Super InTent City are caused by homelessness itself: “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”.

Chief Justice Hinkson acknowledged that for some people who had used the courthouse lawn prior to the establishment of Super InTent City, the camp had diminished its aesthetic and recreational value. However, he also found that these impacts were a minor inconvenience compared to the harm that would be caused to the residents of the camp if the camp were disbanded. The judge stated that residents “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”.

Benefits of Super InTent City

As the previous quote indicates, the judgment recognized the extensive harm caused by the daily displacement of people who are homeless, and contrasted this with the benefits of Super InTent City as noted by its residents and community supporters. Specific benefits of the camp noted in the ruling were:

  • physical and mental health improvements (e.g., better sleep, reduction of drug-related harm, access to regular meals)
  • improved access to services
  • improved physical safety due to the strong community at Super InTent City and resulting on-site conflict resolution and crisis de-escalation
  • safe storage for people’s belongings
  • opportunities for relationship building between government authorities and Super InTent CityZens
  • opportunities for homeless and housed people to learn from each other, strengthened sense of community or “neighbourliness,” and connectedness between Super InTent CityZens and housed neighbours
  • leadership development within the camp

The judge praised the “responsible leadership and organization” at the camp, and the camp’s efforts to establish effective lines of communication with police, fire and public health authorities.

In recognizing the beneficial effects of Super InTent City on its residents, Chief Justice Hinkson took an important step away from previous litigation on tent cities which held, despite evidence to the contrary, that tent cities were harmful to their residents. Instead, the judge listened to the oral testimony and evidence put forward by Super InTent City residents and supporters and created an important precedent that in certain circumstances the courts recognize that tent cities alleviate harms to homeless people. This is a unique and historic gesture of support for tent cities from the BC court.

Inadequacy of mainstream shelters

Another key finding is that Chief Justice Hinkson disagreed with the BC government’s assertion that alternative shelters are available for everyone living at Super InTent City. The judge ruled that in Victoria the number of people who are homeless continues to exceed available beds and shelters “by a considerable amount”, and also that the existing shelters are not appropriate for some unhoused people.

In previous rulings the right to set up temporary shelter outside was conditional on there being insufficient numbers of shelter beds — in other words if a shelter bed is available there is no legal right to seek your own alternative, even if that shelter bed doesn’t meet your needs. In this case Chief Justice Hinkson didn’t explicitly define why existing shelters are not accessible to everyone but he identified many barriers to accessing shelters including noise, overcrowding, concerns about safety of self or belongings, past trauma being triggered by shelter location (e.g., in a youth jail), stigma faced by shelter users, and restrictive rules including curfews that don’t work for everyone and end up resulting in individuals being banned or otherwise unable to meet access criteria. The judge specifically noted that “[m]any 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”.

In this finding, Justice Hinkson provided important content for what types of shelters and housing options need to be provided in order to be accessible for people with barriers to entry to the current shelter system and emphasized that it is not only the number of beds available that matters, it is also whether those beds meet existing needs.

Displacement is not a solution

Finally, Justice Hinkson recognized that displacement of Super InTent City is not a solution to homelessness and shifting people from the provincial courthouse lawn into city parks will not improve things for residents of Super InTent City, housed neighbours, or the different levels of government. In doing so, he held that the provincial government needs to take steps to provide housing and shelter and made a clear statement that the court will not just allow the provincial government to offload responsibility onto municipalities.

Despite this important positive precedent, the camp is still under threat of removal by a permanent injunction, to be heard in September. The judge specifically noted in his decision that “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”. With this legal uncertainty it is important that people continue to support Super InTent City and call on the BC government not to pursue an agenda of displacement.

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