A constitutional home for the homeless – the Oppenheimer Park decision misses the mark

Madam Justice Duncan of the Supreme Court of British Columbia was recently faced with a difficult decision – to evict scores of homeless who had occupied Oppenheimer Park in Vancouver’s Downtown Eastside or to let them stay in their informal tent city. The City’s Park Board bylaws prohibited any one to stay in a park after its posted hours and prohibited the erection of tents without permission of the City. Moreover, the bylaws prohibited what one might term disorderly conduct. The posted hours for Oppenheimer Park were from 6:00 am to 10:00 pm. In other words, the park was closed from 10:00 pm to 6:00 am. While I will not suggest that, in the end, Justice Duncan came to the wrong result (Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC 1926), I will argue that she missed an extremely important element of the whole purpose of the tent city.

Vancouver’s housing costs are infamously known to be expensive. A lack of low cost housing or shelters coupled with what someday consider insufficient social assistance led a number of people to start camping in Oppenheimer Park starting in July 2014. Although asked to leave, the initial tenters refused and were joined by others such that, by September, somewhere between 100 and 200 people occupied the park.

Madam Justice Duncan outlined the evidence before her. She noted the somewhat desperate circumstances of some of the people who chose to live in the tent city [para. 19]:

“The Park is currently home to people who find themselves without a residence or shelter for a variety of reasons. The affidavit evidence from residents and service providers alike collectively paints a picture of a population living in troubling circumstances of poverty and despair with no ability to extricate themselves from their situations without patient and consistent outreach.”

A number of the tent city residents represented themselves. A lawyer came and presented evidence and arguments for three of them. He noted that many of the residents were so marginalized that they could not concentrate long enough to provide affidavit evidence. Some evidence was given that a number of the residents actually had jobs but could not afford to pay for housing.

The City Parks Board advanced evidence of disorderly conduct, of fires near combustible materials such as tents, of fights and aggressive behaviour and of unsanitary conditions.

Those of us who live in Vancouver know of Oppenheimer Park. It occupies a single city block in the poorest neighbourhood of the City. It almost always has some people sleeping overnight, often on benches or under the trees or overhangs of the washroom buildings. Injunctions are not sought against these people on a regular (if ever) basis. The tent city was a qualitatively different type of occupation. What was different about it was that it was a form of protest, a public statement about the lack of affordable housing, and about the inadequacy of social assistance. The news leading up to the application before Duncan J. made it abundantly clear that those occupying the park were doing so to make a point.

The constitutional arguments advanced before Duncan J. in support of the tent city residents were quite limited, or at least it seems so based upon a review of her reasons for judgment. The tent city residents based their objections to the bylaws prohibiting their erection of tents in the park on s. 7 of the Charter, alleging that their right to life, liberty and security of the person was being infringed in a manner that was not in accordance with the principles of fundamental justice. There was no mention in her reasons for judgment about peaceful assembly, freedom of expression, or freedom of association.

The limit of constitutional analysis was respecting the nature of the test to be applied in granting an injunction in a case where Charter arguments are to be advanced.

Madam Justice Duncan ruled that, in cases like this, where the governmental body seeks injunctive relief against a party who claims that the legal authority relied upon by the governmental body is invalid due to the application of the Charter, a different test should be applied by the. Court in determining whether the inductive relief should issue or not.

Duncan J. observed that, in normal cases, the law is as set forth in Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 47 M.P.L.R. (2d) 249 (BCCA). The “normal” or “ordinary” legal test has two main parts:

1. Is there a breach of the bylaw?

2. Are there exceptional circumstances that should prevent enforcement of the bylaw?

For Charter cases, however, Duncan J. accepted that the test is as set forth by the Court in RJR-MacDonald. She noted that that test consists of three questions:

1. Has the applicant demonstrated there is a fair question to be tried?

2. Will the applicant suffer irreparable harm if an injunction is not granted?

3. Does the balance of convenience favour the granting of an injunction?

In this case, the respondents argued that, since there were insufficient places either in social housing or shelters to accommodate all of the people residing in the park, there was a prima facie breach of their s. 7 Charter rights. They argued that the strength of their constitutional arguments should be considered in the balance in determining whether to issue the injunctive relief:

“While Mr. Pontin concedes I cannot make a decision in this context on the constitutional validity of the bylaw, he urges me to find the strength of the defendants’ constitutional case weighs heavily in the balance, particularly since the defendants are only seeking a suspension of the bylaw’s enforcement until provisions can be made to address their housing needs. They will suffer harm if they are enjoined from staying at the Park until such a gap can be addressed. He asserts that fire and safety concerns can be managed at the Park pending the location of sufficient housing.”

These arguments did not hold sway and Duncan J. issued the injunctive relief, requiring that all tents and other structures be removed from the Park.

While I do not want to suggest that the decision was wrong, what I found concerning was the complete absence of discussion of the whole point of the tent city: it was a form of political expression by some of the most marginalized part of our society. They were trying to say something important in the only way they knew how: by standing together and, by their tents and makeshift structures, saying that the system of housing in Vancouver does not work – at least not for them.

The Canadian Charter of Rights and Freedoms should be an instrument for the poor and down-trodden to change their circumstances. When they appear in our courts in cases like this, we must be vigilant in ensuring that we capture the intent and spirit of their complaints. I think that the Oppenheimer Park tent city decision missed one of the most essential elements to the case. This was a case of freedom of expression, freedom of association, freedom of assembly. It was a fundamental freedoms case, not just a s. 7 case. And when one weighs the exercise of fundamental freedoms by some of the most impoverished members of our society against the right of the collective to have a park empty by 10 pm, the balancing exercise is a very different exercise indeed.

I remain,

Constitutionally yours,

Arthur Grant

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