What a B.C. court ruling could mean for Halifax park evictions

A British Columbia judge has overturned orders evicting people living at a homeless encampment in downtown Vancouver park, a decision law experts and advocates say could carry precedent and lessons for Halifax.

In a ruling delivered last week at the Supreme Court of British Columbia, Justice Matthew Kirchner concluded the Vancouver Park Board was not justified in issuing the eviction orders on July 8 and Sept. 7 of last year.

The judge's reasons included the board's lack of notice to park residents of the orders and their right to be heard on the issue, and the lack of evidence that "sufficient and appropriate indoor spaces" were available for those living in the park.

The decision means both orders have been sent back to the Vancouver Park Board for reconsideration, allowing people to stay in the park for now.

Wayne MacKay, professor emeritus of law with Dalhousie University, said the ruling would "certainly" have applications to Halifax Regional Municipality's Aug. 18 expulsion of people living in certain parks and municipal spaces, including in front of the old Spring Garden library where police pepper-sprayed protestors.

"What happened in B.C. was not even as extreme as what happened in Halifax, because there the people in the encampment weren't evicted yet — whereas they were certainly evicted very quickly in Halifax," MacKay said in a recent interview.

He said the parallels between both cases include the decision on evictions being made by unelected staff (in Vancouver's case the general manager of the park board, and in Halifax by CAO Jacques Dubé), the lack of warning on an exact eviction date, and lack of concrete evidence suitable spaces were immediately available for people forced to leave the parks.

"These cases are almost certainly going to be in debate if and when that challenge comes forward," MacKay said.

He added a judicial review, or a challenge that the eviction violated people's Canadian Charter of Rights and Freedoms, is very expensive and out of reach for most people, let alone those dealing with homelessness.

"It is always better from a justice point of view, if you like, if the authorities would react in advance and they are not forcing people to challenge these," MacKay said. 

Although the evictions have already taken place in Halifax, people experiencing homelessness are still living on municipal land in areas like Chebucto Road's Meagher Park, dubbed the People's Park by those living and volunteering there.

MacKay said any court challenge of Halifax's Aug. 18 decision might not allow people to return to the places where they had been staying. But, it could lead to a ruling that discusses what must take place before people are removed from homeless encampments, he said, which is especially pressing given the province's housing crisis and COVID-19 closing or limiting shelters.

City says August enforcement 'legally defensible'

Halifax municipal spokesperson Brynn Budden said in an email Thursday that the city is not aware of any judicial review, charter challenge or other court challenge filed against the municipality around the Aug.18 enforcement, or the general removal of people living on municipal land.

Budden said the municipality has reviewed the cases involving encampments in both British Columbia and Toronto.

"Given the support and options being made available to occupants of homeless encampments by the province, the actions taken by the municipality are legally defensible and will not serve to deprive these individuals of their Section 7 charter rights," Budden said.

Coun. Shawn Cleary said a major difference between the Vancouver and Halifax cases is that Halifax only cleared areas where there were public safety issues, including in his district at Horseshoe Island Park.

He said police were called to the small park multiple times for issues including trespassing and vandalism on nearby private properties, and there was "harassment" of people passing through.

"It was presenting a very dangerous situation for residents nearby and folks using the park facility," Cleary said.

Halifax Regional Police said in August they cleared three of the "highest risk" encampments after dealing with months of calls for service in these areas related to assaults, domestic disputes, thefts and more.

In the Vancouver case, Kirchner noted that despite the park board citing general concerns about park safety, they had presented no evidence from police that the encampment posed a "serious health or safety risk" to camp residents or the public. 

Cleary also said city staff believed assurances from the province that there would be the proper housing or emergency shelter supports ready for people removed on Aug.18.

However, at the time, street navigators scrambled to find space on such short notice and many of those living in the encampments told CBC they were left with nowhere to go.

"I guess we should have made the minister, and the deputy and the senior civil servant who was working with us, pinky swear that they were offering all of those spaces. I mean, we have to take people at their word," Cleary said.

Documents have since shown that prior to the evictions the municipality's administration deliberately withheld information from groups that advocate for homeless people. Those advocates say the chaos that broke out in downtown Halifax could have been prevented if they had been informed of the plans.

Cleary said the city has not removed tents and shelters from Meagher Park over the past few months because "there's nowhere for them to go" and the site has not raised public safety issues.

But Campbell McClintock, a spokesperson for Halifax Mutual Aid, said the city's actions still have people in parks worried police could remove them at any time. 

McClintock said it was "heartening" to see the B.C. court ruling support the rights of people living on the streets at such a high level.

Mutual Aid, which builds wooden emergency shelters for people dealing with homelessness, has called for the city to remove the threat of eviction from public parks and allow people to set up tents or shelters anywhere. 

Some people have moved into modular units sets up by the city in Dartmouth, but a Halifax location won't be ready until March and won't have room to help everyone sleeping rough in the city. The latest estimate of the number of people experiencing homelessness in the city is 472.

"This B.C. case … does put all levels of government across the country on notice," McClintock said.

McClintock said when it comes to mounting a legal challenge, Mutual Aid has not taken that step yet but it's "one of the avenues" it might consider.

When asked whether the city would revisit it's enforcement of the bylaw preventing people from erecting shelters on public land, Budden said HRM continues to "balance its obligation to enforce its by-laws with its commitment to an empathy-based approach to homeless encampments." 

She said HRM's approach has been to allow occupants of homeless encampments to remain "until adequate housing has been identified and offered, or until the health and safety of the occupants or public are at risk."  

Homelessness is a provincial issue, and the Nova Scotia government has promised just over $10 million to help support people in this situation, coinciding with an affordable housing strategy to create 1,100 new spaces.