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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: British Columbia v. Adamson, 2016 BCSC 584

Date: 20160405 Docket: 16 0861

Registry: Victoria

Between:

Her Majesty The Queen in right of the Province of British Columbia, and The Attorney General of British Columbia

Plaintiffs

And

Hugh Adamson, Donna Aumbus, Ollie Aux, Adam Baker, Michael (Magnus) Bjornson, Christine Brett, Shane Enns, Jorge Gome,

Russell Lloyd-Jones, Sean M. Manley, Audrey Moffatt, Carl Montgomery, Rose Mullin, Kristel Oertel, Chris Parent, AmanDa Paska, Ricky Perreault, Joseph

Reville, Andrea Robinson, Vincent Robinson, Norman Ruble, Rathborne Smallwood, Dough Swait, William Wale, Mitchell Wallace, Jane Doe, John Doe

and Other Unknown Persons Defendants

Restriction on publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this

judgment as [M.G.] may not be published, broadcasted, or transmitted in any manner.

Before: The Honourable Chief Justice Hinkson

Reasons for Judgment

Counsel for the Plaintiffs: T.A. Mason and S.A. Bevan

Counsel for the Defendants: Adamson, Aumbus, Bjornson, Brett, Gome, Oertel, Mullin, Reville, A. Robinson, Ruble, and Smallwood

C.J. Boies Parker and J.L. MacAdam

Place and Date of Hearing: Victoria, B.C. March 11, 14 and 15, 2016

Place and Date of Judgment:

Victoria, B.C. April 5, 2016

British Columbia v. Adamson

Introduction

[1] The first named plaintiff, Her Majesty the Queen in right of the Province of British

Columbia (the “Province”), is the owner of the lands and premises of the Victoria Law

Courts at 850 Burdett Avenue, Victoria, British Columbia, occupying the city block

bounded by Blanshard Street on the west, Quadra Street on the east, Courtney Street

on the north and Burdett Avenue on the south (the “Courthouse Property”). These lands

are more particularly described as Lot 1, Section 88, Victoria District Plan 12886, Parcel

Identifier 004-673-646.

[2] The second named plaintiff, the Attorney General of British Columbia, is the legal

advisor to the Lieutenant Governor of British Columbia, and the legal member of the

Executive Council for British Columbia. She asserts parens patriae jurisdiction to apply

to this Court for injunctive relief based upon private law causes of action in trespass,

under the Trespass Act, R.S.B.C. 1996, c. 462 and nuisance, public nuisance and

breaches of public law, and to preserve the rule of law, pursuant to the Attorney General

Act, R.S.B.C. 1996, c. 22.

[3] At least some of the named defendants and other individuals have been camping

at the green space that occupies roughly the eastern third of the Courthouse Property

(the “Courthouse Green Space”) since in or about November 2015.

[4] On February 29, 2016, the plaintiffs filed a notice of civil claim seeking an

injunction to restrain the defendants from trespassing upon the Courthouse Green

Space and from continuing various activities thereon.

[5] Although service of all of the named defendants may be incomplete, the plaintiffs

nonetheless seek an interlocutory injunction in the terms set out in Appendix A to these

reasons for judgment.


Background

The Courthouse Property

[6] The Courthouse Property, including the Courthouse Green Space, was formerly

held by the British Columbia Buildings Corporation and is “administered land” under the

Public Agency Accommodation Act, S.B.C. 2006, c. 7. As such, no provision of the Land

Act, R.S.B.C. 1996, c. 245, except s. 50, applies to the Courthouse Property. Nor is the

Courthouse Green Space a “park” within the meaning of the Parks Regulation Bylaw

passed by the City of Victoria under the Community Charter, S.B.C. 2003, c. 26.

[7] The Province, as landowner, has permitted members of the public to enter upon

and use the Courthouse Green Space for recreation activities, but has never formally

authorized the establishment of an encampment at the site.

The Encampment

[8] On numerous dates since about November 2015, the defendants have erected

and maintained tents and other structures, stored objects in and around the structures,

and inhabited the structures, thereby establishing an encampment that occupies most

or all of the area in the Courthouse Green Space (the “Encampment”, referred to in

some submissions as “SuperIntent City”, “SIC”, or “Tent City”), to the exclusion of most

other uses. The defendants have maintained the Encampment throughout the day and

night, without limiting their activities to overnight sheltering.

[9] The plaintiffs contend that the Encampment has become unsustainable and

unacceptable, but also state that following a brief period of some 10 – 12 weeks to

permit remediation of the site, they will not seek to enjoin overnight sheltering by

homeless individuals on the Courthouse Green Space between the hours of 7:00 pm

and 7:00 am.

[10] The plaintiffs contend that alternative accommodation is available to house

homeless individuals who are currently living in the Encampment. Since December

2015, the Province, through the British Columbia Housing Management Commission,

has 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.

[11] Some of the defendants remaining at the Courthouse Green Space who are

homeless have declined to move to these new spaces despite efforts to assist them

with relocation.

[12] On January 8, 2016, representatives of the Province read aloud, distributed, and

posted at the Courthouse Green Space a notice requesting the defendants and others

camping there to leave the Courthouse Property. Some of the campers left in response

to the January 8, 2016 notice, but most did not.

[13] On February 4, 2016, representatives of the Province read aloud, distributed, and

posted at the Courthouse Green Space a notice under s. 4 of the Trespass Act to

require all camping at the Courthouse Green Space to cease and all tents and other

personal property to be removed by no later than February 25, 2016.

[14] By February 26, 2016, only some 50 of the Encampment occupants had

apparently removed themselves and their belongings from the Courthouse Green

Space, while a significant number of individuals and approximately 60 to 70 structures

remained in the Encampment. The Encampment occupants or some of them - who are

continuing to maintain the Encampment despite the February 25, 2016 deadline -

threaten and intend to continue to reside in the Encampment unless they are restrained

from doing so.

[15] On February 27, 2016, the Encampment occupants were issued an order

pursuant to s. 22 of the Fire Services Act, R.S.B.C. 1996, c. 144 to eliminate the fire

hazards at the Encampment.


Discussion

[16] The plaintiffs contend that the Attorney General of British Columbia has

jurisdiction under statute to seek an interlocutory injunction based on the alleged

interference with court access, the effects of the Encampment that amount to public

nuisance and breaches of the public law, or in the alternative, the Province’s rights as

landowner.

[17] While the Attorney General’s jurisdiction is undisputed by the defendants, the

parties disagree as to the test to be applied on this application for interim relief.

Evidentiary Issues

[18] I am not persuaded that the admissible evidence before me on this application

supports many of the plaintiffs’ allegations. As recently confirmed by the Court of Appeal

in Premium Weatherstripping Inc. v. Ghassemi, 2016 BCCA 20 at paras. 5 – 8:

[5] Rule 22-2 of the Supreme Court Rules limits the evidence in an affidavit to that which is admissible at trial, unless excepted, in these terms:

(12) Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at a trial.

(13) An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if

(a) the source of the information and belief is given, and

(b) the affidavit is made

(i) in respect of an application that does not seek a final order, or

(ii) by leave of the court under Rule 12-5 (71) (a) or 22-1 (4) (e).

[6] By these sub-rules, hearsay evidence (not permitted at trial) generally may not be included in an affidavit unless sub-rule (13) is met. An interlocutory injunction, of course comes within the words of sub-rule (13), "an application that does not seek a final order".

[7] [An] interlocutory injunction is well understood to be a special sort of non-final order in that, by its very nature, it restricts the freedom of the party against whom it is made, without the applicant having had to prove any allegation beyond the standard of an arguable case. An interlocutory injunction often becomes the entire remedy in an action, and can endure for a very long time unless temporal limits are placed upon it. For that reason, assiduous care in preparation of the application is the standard, including strict compliance with the requirements for


all hearsay evidence that would not be permitted to be stated at trial to be on information and belief, with the source identified. There is no room in interlocutory injunction practice for relaxation of that requirement, in my view.

[8] In this case the affidavits did not comply with this requirement; the order appealed must be set aside as having been obtained on the basis of inadmissible evidence.

[19] I am troubled by the form of many of the affidavits tendered by the defendants.

For example, the individual who took the affidavit of Hugh Adamson, one of the named

defendants in this action, inappropriately described his March 7, 2016 affidavit to be

“sworn (or affirmed)”. A number of other affidavits filed by the defendants were also in

this form. This improper form of jurat caused me pause in considering the evidence

contained in such affidavits, but I have decided that the fault for the form of the jurat lies

with counsel for the defendants, rather than with the deponents. As no objection to the

form of jurat was taken by counsel for the plaintiffs, I will consider the evidence in these

forms of affidavits, rather than force counsel for the defendants to go through the

exercise of having the affidavits properly commissioned. I would not do so if this were

not an interim application.

[20] However, I am unable to give any weight to the evidence in the affidavit affirmed

by a person identified only as “D.A.”. D.A. indicated that he did not want to give his full

name because he feared reprisal from the government. Nevertheless, like witnesses in

a trial, affiants must either obtain an order from the Court to identify themselves by

initials, which D.A. did not do, or identify themselves by full name for their evidence to

be considered admissible in any court proceedings.

Legal Framework

[21] The traditional three-part test for granting an injunction was set out by the

Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994]

1 S.C.R. 311 at 347-8 [RJR-MacDonald]:

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

b) Will the applicant suffer irreparable harm if an injunction is not granted? and


c) Does the balance of convenience favour the granting of an injunction?

[22] The Province argues that, for a number of reasons, the RJR-MacDonald

framework does not apply in this case. In the alternative, the Province contends that for

an injunction to be granted in these circumstances, the plaintiffs must only satisfy the

first criterion of the RJR-MacDonald test.

1. Does the RJR-MacDonald test apply?

[23] The plaintiffs contend that the three-part test in RJR-MacDonald does not apply

to trespass cases. The plaintiffs argue that once they have shown that their property

rights are being wrongfully interfered with, and the defendants intend to continue to

commit the wrong, they have established their entitlement to an injunction.

[24] Some support for this argument can be found in the reasons for judgment of

Madam Justice Allen in The Sol Sante Club v. Biefeld et al, 2005 BCSC 1908 at

paras. 18 – 20 [Sol Sante Club]:

[18] However, the general test [in RJR – Macdonald] does not apply in trespass cases. Many cases support the proposition that once an applicant establishes a prima facie case that his or her property rights are being wrongfully interfered with by another and the other party intends to continue the wrong, an injunction should issue without regard to the remaining parts of the general test.

[19] Two such cases are Terbasket and Harmony Co-ordination Services Limited, (2003), 28 C.P.C. (5th) 364, and Paul et al v. Canadian Pacific Limited, (1983), 2 D.L.R. (4th) 22, where a temporary injunction was imposed and an appeal to the Supreme Court of Canada, [1988] 2 S.C.R. 654, resulted in a permanent injunction being imposed.

[20] In my opinion, there is a robust triable issue as to whether the Board of Directors can terminate Mr. Grenier's probationary status or whether his membership can only be terminated by a special resolution of the members.

[25] But as Allen J. declined to follow the exception to the general test, Sol Sante

Club is of limited assistance.

[26] Nor is this a case like Board of School Trustees of School District No. 27

(Cariboo-Chilcotin) v. Van Osch et al, 2004 BCSC 1827, where the landowner school

district proved that it was unable to access its property because of the actions of the


defendants. In the present case, it cannot be said that the defendants have no right to

the use of the Courthouse Green Space. Indeed, as I have discussed above, the

plaintiffs concede that following a brief period of some 10 – 12 weeks to permit

remediation of the site, they will not seek to enjoin overnight sheltering on the

Courthouse Green Space by homeless individuals.

[27] Even if the trespass exception to RJR-MacDonald applies in this case, the

plaintiffs still bear the burden of establishing that the defendants are wrongfully

interfering with the Province’s property rights. In that regard, the Province alleges that

the defendants have violated s. 4 of the Trespass Act. Sections 4 and 4.1 of the

Trespass Act provide the following:

4. (1) Subject to section 4.1, a person commits an offence if the person does any of the following:

(a) enters premises that are enclosed land;

(b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;

(c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.

(2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there.

(3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to

(a) leave the premises, or

(b) stop engaging in an activity on or in the premises,

commits an offence if the person

(c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or

(d) re-enters the premises or resumes the activity on or in the premises.

4.1. A person may not be convicted of an offence under section 4 in relation to premises if the person's action or inaction, as applicable to the offence, was with

(a) the consent of an occupier of the premises or an authorized person,


(b) other lawful authority, or

(c) colour of right.

[28] The Province asserts that in maintaining the Encampment despite the February

25, 2016 deadline, the defendants, or some of them, have been openly and

continuously committing the offence of trespass defined in s. 4 of the Trespass Act.

Because of the scale on which the offence is being committed and the densely

populated nature of the Encampment, law enforcement officials have been unable or

unwilling to exercise the power of arrest under s. 10 of the Trespass Act.

[29] But s. 4 of the Trespass Act is, as set out above, subject to s. 4.1, which exempts

from conviction those who act on other lawful authority, or have some colour of right,

which the defendants here contend that they enjoy. That is not an issue to be resolved

on this application for interim relief.

[30] If the trespass exception to RJR-MacDonald does not apply, the plaintiffs further

assert that they are seeking a statutory remedy as opposed to an equitable one, and

that therefore their application to restrain the continued breach of public law should

result in the injunctive relief that they seek, absent exceptional circumstances.

[31] The alternative test advocated for by the plaintiffs comes from the Court of

Appeal’s decision in Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 109

B.C.A.C. 188, leave to appeal to SCC ref’d [1998] S.C.C.A. No. 407 [Thornhill]. Under

this two-part test, an injunction is granted once it has been established that there has

been a breach of a bylaw and there are no exceptional circumstances that should

prevent enforcement of the bylaw.

[32] Madam Justice Duncan considered the question of whether to follow RJR-

MacDonald or Thornhill in very similar circumstances in Vancouver Board of Parks and

Recreation v. Williams, 2014 BCSC 1926 [Williams]. In that case homeless individuals

erected 200 tents in Oppenheimer Park, which was closed from 10:00 p.m. to 6:00 a.m.,

without permission from the City of Vancouver. The Vancouver Board of Parks and


Recreation sought an interlocutory injunction requiring the individuals who were

camping in Oppenheimer Park to remove all tents and other structures from the park.

[33] Duncan J. found that the City of Vancouver had canceled several community

events because of the presence of the tents, that there were numerous fire hazards,

and that many fights and incidents of public drunkenness had taken place. She also

found that policing costs attributable to the park were close to $100,000, and that

outreach workers estimated that about 150 people were living in the park.

[34] At paras. 46 – 59, Duncan J. considered the test to be applied for the injunction

sought, and reviewed the tests that had been applied in similar cases concerning

encampments of homeless persons in municipal parks not only in Vancouver and

Victoria, but in other British Columbia cities. Ultimately, at para. 60, she concluded that

she should follow RJR-MacDonald in the circumstances:

[60] I am inclined to the view that the RJR-MacDonald test is the appropriate one to be applied in the circumstances before me. The evolution of the type of litigation in question here favours an approach which takes into account Charter issues rather than the consideration of a pure statutory breach approach to injunctive relief.

[35] This Court has repeatedly opined that the Thornhill analysis is not appropriate in

cases where Charter issues are raised: Williams at para. 60; Abbotsford (City) v. Shantz

(20 December 2013), New Westminster S156820 at para. 20 (B.C.S.C.); Vancouver

Parks Board v. Mickelson, 2003 BCSC 1271 at para. 20. I therefore agree with Duncan

J.’s analysis and her view that RJR-MacDonald is the proper test to follow in

applications such as this one.

2. Must the plaintiffs satisfy all of the RJR-MacDonald criteria?

[36] The plaintiffs assert that while the Court has occasionally been reluctant to grant

injunctive relief where other avenues of relief are open to the Attorney General, once a

clear breach of public law or ongoing flagrant violation of public rights is established, the

Court will not require any further steps in the analysis, or if applying the ordinary test for

injunctive relief, will consider that the elements of irreparable harm and the balance of

convenience are satisfied. In support of this contention, the plaintiffs rely upon three


authorities: Attorney General for Ontario v. Grabarchuck et al, [1976] O.J. No. 2074 (H.

Ct. J. (Div. Ct.)) [Grabarchuck]; In the Matter of Access to the Courts of Justice, 2011

BCSC 1815 [The Matter of Access]; and C. Jones, “The Attorney General’s Standing to

Seek Relief in the Public Interest; The Evolving Doctrine of Parens Patriae” (2007) 86

Can. Bar Rev. 121.

[37] In Grabarchuck, the Ontario Divisional Court dealt with an application by the

Attorney-General for Ontario to enjoin the defendants from carrying on business without

a licence contrary to the provisions of the Public Commercial Vehicles Act, R.S.O. 1970,

c. 375. Mr. Justice Reid found that there was little room for doubt about the material

facts of the case, and no doubt that defendants had persistently flouted the law. At

para. 33, Reid J. observed:

[33] In my opinion, there is no basis for the application of the usual criteria. If, however, they were applicable I would think that the justice and convenience of the matter lie on the Attorney-General's side. He has a strong prima facie case. If irreparable damage to the public interest must be shown I agree with and apply the following. In Attorney-General v. Harris, [1961] 1 Q.B. 74 at p. 95, Pearce, L.J., observed:

... a breach with impunity by one citizen leads to a breach by other citizens, or to a general feeling that the law is unjustly partial to those who have the persistence to flout it.

[38] Thus, despite the Court’s apparent rejection of the application of the usual criteria

for injunctive relief, the case was ultimately decided by the application of those very

criteria.

[39] Moreover, the application of Grabarchuk was restricted by McPherson J., as he

then was in, Ontario (Attorney General) v. Ontario Teacher’s Federation, [1997] O.J.

No. 4361 (Ct. J. (Gen. Div.)) where he stated at paras. 34 – 35 that:

[34] In Bear Island O'Leary J., and in Grabarchuk Reid J., both used the word 'flout' to describe the defendants' conduct, and linked the flouting of the law to their conclusion that the Attorney General need not demonstrate irreparable harm in order to obtain an interlocutory injunction. The New Shorter Oxford English Dictionary defines 'flout' as follows, at p. 981:

flout: (verb) Treat or behave with disdain; mock; jeer; express contempt (for) by action or speech. Now usually denoting indirect expression: openly disregard (a law, an opinion, etc.)


[35] The conduct of the teachers does not, in my view, come close to this definition of flout, or to the conduct of the defendants in Bear Island Foundation or Grabarchuk. The teachers' decision was not made with disdain. They had never engaged in a province-wide strike before last week. The record demonstrates that they made their decision in a careful, concerned and reluctant fashion. Moreover, there is not a hint of mocking or jeering in their conduct since the strike began. The strike has been remarkably peaceful, especially in light of the fact that approximately 126,000 teachers are involved. Finally, the teachers do not believe that they are openly disregarding the law. As I described above, their legal position is that they are engaged in a lawful strike.

[40] The Matter of Access was an application by the Attorney General for an ex parte

injunction to restore and preserve unimpeded public access to the Vancouver Law

Courts and courthouses in the province, and to prevent any interference with the

operation of the courts. As I will explain below, the plaintiffs concede that there is no

evidence in this case that public access to the Victoria Law Courts has been impeded.

As Associate Chief Justice MacKenzie pointed out in The Matter of Access, at para. 26:

To use the Court's jurisdiction to issue an ex parte injunction to control activity on public lands that may not happen is speculative. There already exists a remedy for trespass, so such speculative relief is not required.

[41] Those parts of the Canadian Bar Review article relied upon by the plaintiffs

essentially summarize the principles set out in the Grabarchuk and The Matter of

Access.

[42] The breaches of public law alleged by the plaintiffs include interference with

those working and living near the Courthouse Green Space; interference with the rights

of the general public to the use and enjoyment of that green space, unaffected by

inconvenience, discomfort or other forms of interference; and breaches of s. 4 of the

Trespass Act and s. 22 of the Fire Services Act.

[43] As I discussed above, I am not satisfied that the plaintiffs have established a

clear breach of the Trespass Act. I have also rejected their submissions that the

statutory breaches alleged in this case justify a departure from the application of the full

RJR-MacDonald framework.


[44] The remaining breaches of public law alleged by the plaintiffs essentially amount

to claims of public nuisance. The doctrine of public nuisance has been explained both

by the Court of Appeal and the Supreme Court of Canada. In Susan Heyes Inc. (Hazel

& Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77 at para. 39,

Madam Justice Neilson, for the Court, commented on the appeal from the finding that

means of construction of the Canada Line tunnel through Vancouver substantially

interfered with Hazel & Co.'s use and enjoyment of its premises, and that the extent of

the interference was sufficiently unreasonable to constitute a nuisance. The trial judge

found that the nature, severity and duration of the impact on Hazel & Co. resulting from

cut and cover construction outweighed the social or public utility of that construction.

Neilson J.A. held:

[39] In considering the factors relevant to nuisance, the court must recognize the inevitability of competing interests and the need for give and take. As Professor Klar observes in Tort Law, 4th ed. (Toronto: Carswell, 2008) at 715, nuisance "is principally concerned with regulating the conflicting uses of land which invariably arise in an increasingly urbanized and crowded society". A certain degree of inconvenience and interference is inevitable to ensure peaceful co-existence. The task is to determine at what point the process of give and take becomes sufficiently unbalanced to create unreasonable harm that is deserving of compensation: Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993), 102 D.L.R. (4th) 12, 62 O.A.C. 202 at 18-19 (C.A.).

[Emphasis added.]

[45] In Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at paras. 52 – 53, Mr. Justice

Major, for a unanimous Court, stated:

[52] The doctrine of public nuisance appears as a poorly understood area of the law. "A public nuisance has been defined as any activity which unreasonably interferes with the public's interest in questions of health, safety, morality, comfort or convenience": see Klar, supra, at p. 525. Essentially, "[t]he conduct complained of must amount to . . . an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference": See G. H. L. Fridman, The Law of Torts in Canada, vol. I (1989), at p. 168. An individual may bring a private action in public nuisance by pleading and proving special damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982), 22 C.C.L.T. 89 (N.B.C.A.). Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. See ibid., at p. 94.

[53] Whether or not a particular activity constitutes a public nuisance is a question of fact. Many factors may be considered, including the inconvenience


caused by the activity, the difficulty involved in lessening or avoiding the risk, the utility of the activity, the general practice of others, and the character of the neighbourhood. See Chessie, supra, at p. 94. The trial judge found, at p. 206, that "the configuration and design of the railway tracks on Store Street constituted an unreasonable interference to the public of its right of access". He noted that Store Street was a mixed retail, industrial, and commercial area, and that the Railways should have foreseen the hazard posed by the flangeways to riders of two-wheeled vehicles. He found, at p. 207, that the cost of that hazard should be borne by the Railways as a matter of policy:

In this case, the defendant Railways clearly installed that particular flange-rail system without regard to vehicular traffic. It was chosen because it cost less, and it was longer lasting and better suited to the needs of the rail traffic. However, the result of this choice of flange-rail, which created an almost 4-inch gap, was to effectively increase the risks to vehicle traffic. The cost of that increased risk to others must fall on the defendant Railways. It is a "cost of running the system."

[Emphasis added.]

[46] The Province asserts that from November 2015 to the present time, the

defendants, by maintaining the Encampment, have damaged the Courthouse Green

Space, impeded operations at the Victoria Law Courts, affected the quiet enjoyment of

individuals residing in the neighborhood, disrupted the operation of businesses in the

neighborhood, and created health and safety hazards for themselves and members of

the surrounding community. Particulars of the nuisance and breaches of public law are

alleged to include:

a. Impeding or dissuading the public use of the Courthouse building and interfering with access to justice services at the Justice Access Centre located within the Victoria Law Courts building. Members of the public are currently reluctant to attend the Courthouse precinct;

b. displacing other members of the public, including Courthouse staff and participants in legal proceedings at the Victoria Law Courts, from use of the Courthouse Green Space for respite and recreation;

c. impeding or dissuading public use of sidewalks adjacent to the Courthouse Green Space;

d. denuding the lawn and altering the grade profile of the ground at the Courthouse Green Space such that the site will no longer usable for the enjoyment of the public as a green space unless and until significant remediation steps are taken;

e. impeding access to the Justice Access Centre located within the Victoria Law Courts building;


f. burning wood, garbage, and other substances in open fires, creating smoke that has entered nearby buildings and sickened individuals in those buildings;

g. creating fire hazards, including burning candles within tents and storing combustible materials within the Encampment;

h. defecating on the ground at locations in and around the Encampment, including at locations at or in front of entrances to the Victoria Law Courts;

i. depositing garbage and debris in and around the Encampment, including biohazardous materials such as used needles and syringes;

j. engaging in criminal activity in and around the Encampment, including assaults and drug trafficking; and

k. creating noise, disturbance, and a general air of discomfort that has affected residents and businesses in the neighbourhood, as well as discouraged or impeded members of the public from seeking access to justice within the courthouse building.

[47] I do not propose to deal with each of the allegations enumerated above

individually; however, I will address the substance of the allegations in the reasons that

follow.

[48] The Province further asserts that by reason of the nuisance, which it contends is

substantial and unreasonable, the Province as landowner, together with a cross-section

of the public residing, working, accessing services, or carrying on business in the

surrounding area, have suffered annoyance, discomfort, loss of enjoyment, damage,

and expense.

[49] The Province contends that ongoing measures required to mitigate sanitation

and public order issues at the Encampment have consumed significant public

resources. The plaintiffs assert that the strain on public resources that the Encampment

has created at its location in close proximity to the Victoria Law Courts may detract from

the resources available for operation of the Victoria Law Courts and ultimately affect the

public interest in access to justice.

[50] In Abbotsford (City) v. Shantz, 2015 BCSC 1909 [Shantz] at para. 174, I found

that there is no right to housing under the Charter. Despite the lack of any such Charter

right, the other rights discussed in Shantz must be considered on this application.


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.

[51] It is clear that many of the plaintiff’s factual assertions are contested by the

defendants. I am unable to resolve many of these factual disagreements on affidavit

evidence alone.

[52] I am not persuaded that the plaintiffs have established a basis for the application

of an exception to the general test in RJR-Macdonald, and I therefore turn to the three

questions to be addressed using that test.

Application of the Legal Framework

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

[53] I am satisfied that the plaintiffs have established that their pleadings and the

evidence on this application raise more than one fair question, including the question of

the application of the Trespass Act; the question of the entitlement and need for the use

of the Courthouse Green Space by members of the public other than the homeless; and

the questions of health, general safety, fire safety, and the safety of the public who are

attempting to deal with the encampment.

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

[54] The definition of irreparable harm is set out by the Supreme Court of Canada in

RJR-MacDonald at 341:

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. … The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).


[55] While I accept that the Encampment is considered by many to be an eyesore at

best, much of the harm complained of by the plaintiffs has now been done.

[56] The plaintiffs provided affidavits setting out the ongoing cost and expense

associated with the Encampment. One such affidavit was provided by Brian Cooper, a

superintendent of property services in the Facilities Management Services Branch of the

Real Property Division of the Ministry of Technology, Innovation and Citizens’ Services

(“MTICS”). In his affidavit affirmed February 26, 2016, Mr. Cooper deposed that, as a

result of the Encampment, MTICS has had to engage additional security staff and

arrange for additional sanitation services to be provided at the Courthouse Property.

[57] Mr. Cooper further attested that the Encampment has caused significant

damage to the Courthouse Green Space lawn, and possibly to the underlying irrigation

system. He attested that MTICS had recently estimated that it would cost $300,000 to

$350,000 to clean up and rehabilitate the site.

[58] Graeme Sykes is a real estate manager in the Asset Management Branch of the

Real Property Division of MTICS. In his affidavit sworn February 29, 2016, Mr. Sykes

deposed that, since 2013 or 2014, MTICS has been developing plans to upgrade the

electrical service at the Courthouse Property. The timeline of this project requires

contractors with BC Hydro to have access to a large section of the Courthouse Green

Space in summer 2016 so that they can install new transformers for the Courthouse

Property. Mr. Sykes has been informed and believes that if the project proceeds while

the Encampment remains standing, the contractors will require MTICS to provide or pay

for additional security services for their trucks and equipment.

[59] The plaintiffs permitted the Encampment to exist for many months before seeking

injunctive relief. The expenses detailed above can all be quantified. While I accept

without reservation the reality that the expenses will almost certainly be unrecoverable

from the defendants, I note that the Supreme Court of Canada remarked in RJR-

MacDonald that one party’s impecuniosity does not automatically decide the application

in the opposing party’s favour. The fact remains that most of the damages alleged by

the plaintiffs have already crystallized. Any further costs or damage that would be


occasioned by the ongoing presence of the Encampment would, as I will discuss below,

simply take place somewhere else in the City or Victoria if the injunction sought were

issued.

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

[60] Even if the damages alleged by the plaintiffs satisfy the criterion of irreparable

harm, I must still consider whether the balance of convenience favours granting the

remedy that the Province seeks.

[61] The plaintiffs submit that the balance of convenience favours granting the

injunction because of the health and safety concerns that they say are caused by the

Encampment. The plaintiffs say that the Encampment results in the increased presence

of biohazard waste and garbage in the area; prevents other members of the public from

using the Courthouse Green Space and discourages them from using nearby

resources; creates fire safety concerns; and results in an increased need for policing

resources to be deployed in the area.

[62] On the other hand, the defendants contend that there are not enough shelter

spaces to house Victoria’s homeless population. They say that if they are removed from

the Courthouse Green Space, the Encampment’s homeless residents will have to camp

somewhere else, and could very well be subject to greater health and safety risks as a

result. The defendants also submit that remaining at the Encampment has permitted

them to develop a community, and to begin to build positive relationships with

authorities and others in the surrounding area.

[63] I will consider the various points raised by the parties in the sections below.

a) The Number of Homeless and the Number of Beds and Shelters in Victoria

[64] These numbers are far from clear.

[65] To provide estimates of the number of available beds and shelters in the City of

Victoria, the Province filed affidavits from Roger Butcher, the regional director at the


offices of B.C. Housing in Victoria. In his affidavit sworn February 26, 2016, he deposed

that there are approximately 270-550 temporary housing spaces available in the City of

Victoria for the homeless or those at risk of homelessness. The number and type of

spaces available varies depending on weather conditions and the time of year. Some

spaces are only made available for nighttime sheltering during extreme weather

conditions and/or the winter months (November to March).

[66] Mr. Butcher also attested to the new shelter options that have recently been

made available by the Province. He deposed that the My Place transitional housing

shelter opened on January 5, 2016, and is scheduled to continue operating until April

30, 2016. The Mount Edwards transitional housing shelter opened on February 23,

2016, and will provide 38 spaces for a minimum of 12 months. The View Royal shelter

has indoor and outdoor facilities, and will operate for six months. Its 22 outdoor spaces

were opened on February 23, 2016, and Mr. Butcher attested that its 28 indoor spaces

were scheduled to open in the next week. Mr. Butcher attested that it might be possible

to keep some of the winter-only shelter spaces open beyond their originally scheduled

closing dates.

[67] The defendants relied upon a report prepared by Dr. Bernadette M. Pauly, an

Associate Professor in the School of Nursing at the University of Victoria and scientist at

the Centre for Addictive Research in British Columbia. In her report, Dr. Pauly

commented on what in her view are the causes of homelessness and its prevalence in

Victoria, estimating that there were as many as 1725 homeless individuals in the city in

the years 2014/2015. She reported that there are presently up to 140 transitional beds

in addition to the previously available 376 transitional beds and 146 transitional units

available in Greater Victoria, as well as 320 shelter beds in winter months, which will be

reduced to 160 by March 31 – April 2016.

[68] In his subsequent affidavit sworn March 10, 2016, Mr. Butcher deposed that he

had been in contact with the various organizations that were providing additional

transitional housing at the My Place, Mount Edwards, and View Royal shelters. Mr.

Butcher attested that he had been informed that the majority of spaces were now open


at those shelters, but some were still under renovation. He was informed that most of

the individuals staying at the Mount Edwards transitional housing had come from the

Encampment, and not from other locations.

[69] Mr. Butcher challenged Dr. Pauly’s estimates of the number of homeless

individuals in Victoria, saying that the most recent count of the homeless in Victoria had

identified only 300-400 individuals. Mr. Butcher also attested that he was working on

preparing a budget for keeping the transitional spaces open for longer periods than

originally scheduled.

[70] Mr. Butcher further deposed that the three new transitional housing shelters were

low-barrier, in that they would admit active drug users and permit them to continue

using their drug of choice while staying in the shelter. According to Mr. Butcher, the

shelters operate on a harm reduction model and provide health and addictions services

to residents with addictions.

[71] Dr. Pauly responded to these further affidavits of Mr. Butcher with her own

affidavit “sworn (or affirmed)” March 13, 2016. In that affidavit, she deposed that she

was a member of the team that conducted the homeless count referred to by Mr.

Butcher, for which the data has not yet been fully entered, analyzed, or released. She

thus attested that the numbers provided by Mr. Butcher were inaccurate, and

maintained that her best estimate of the number of homeless in Victoria was presently

1500-1700 individuals.

[72] Both Dr. Pauly and Mr. Butcher attested to the inherent difficulty in determining

the number of homeless individuals at any point in time, given the fluidity of the state of

homelessness. Nevertheless, it is clear that the residents of the Encampment are not

the only individuals who are homeless in Victoria, nor are they the only individuals

competing for the limited bed and shelter space in Victoria. There are numbers of

homeless individuals in Victoria that do not live in the Encampment.

[73] It is unnecessary for me to resolve the actual numbers of homeless and the

numbers of beds and shelters presently available to them. 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.

b) Public Use of the Courthouse Green Space and its Environs

[74] The plaintiffs concede that the Encampment has not directly impeded access to

those portions of the Victoria Law Courts where the Registry and the courtrooms are

located. They also concede that there is no evidence that the Encampment has directly

impeded access to court services within the Victoria Law Courts.

[75] In his affidavit sworn February 29, 2016, Mr. Sykes deposed that, to his

knowledge, the Courthouse Green Space had always been open to the public to enjoy

for aesthetic and recreational purposes. In addition to activities such as children’s play

and fitness classes, Mr. Sykes attested that he has seen individuals using the

Courthouse Green Space as a place to take a break during court proceedings. In his

view, the Courthouse Green Space provides a restful area where participants involved

in stressful legal proceedings can find respite. Mr. Sykes has also been informed that

the Courthouse Green Space is used as an emergency muster location for workers in

nearby office buildings.

[76] Don Allen and his wife Laurie are the resident managers of an apartment building

across the street from the Courthouse Green Space. Each provided affidavits deposing

to their feelings of vulnerability due to the presence of the relatively permanent

structures that have been erected and maintained on the Courthouse Green Space

since November 2015.

[77] Mrs. Allen deposed to her observation that the Courthouse Green Space had

previously been used regularly by members of the public for a variety of activities

including yoga, children’s play activities, students lying on the grass to read, and

badminton. She also deposed that the space was used as a pathway for tenants of her

apartment walking to the YMCA on Courtney Street.


[78] Peter Wharton is an inspector with the British Columbia Sheriff Services and has

worked out of the Victoria Courthouse for the past 8 years. He and his colleagues

provide for the safety and security of the courts throughout British Columbia and for the

participants in the judicial system. In his affidavit sworn February 29, 2016, Inspector

Wharton deposed that before the development of the Encampment, there had

occasionally been individuals sleeping in the Courthouse Green Space, almost all of

whom had readily packed up their belongings and moved along when requested to do

so.

[79] Inspector Wharton further stated that throughout 2015, the number of campers in

the Courthouse Green Space gradually grew and the presence of the Encampment

increasingly gave rise to security concerns. To address these concerns, Inspector

Wharton attempted to liaise with the Victoria Police Department, but the Encampment

continued to grow. He deposed that, despite the passing of the Province’s February 25,

2016 deadline, the sheriffs did not have the resources to make arrests pursuant to the

Trespass Act and were not equipped to deal with a situation as large as the one created

by the Encampment.

[80] Nicola Storr is the office manager at the Victoria Justice Access Centre. The

centre is located on the Courthouse Property, and its entrance faces the Courthouse

Green Space. The Centre provides free or low cost legal information, services, and

referrals for the public with respect to family and civil law issues, with certain services

provided exclusively to individuals with low incomes.

[81] Ms. Storr has maintained a log of incidents, staff concerns, and client complaints

respecting the camp on the Courthouse Green Space since November 2015. In her

affidavit sworn February 24, 2016, Ms. Storr attested to several alleged incidents, citing

them as examples of how that the presence of the Encampment had impeded access to

the centre.

[82] The four examples provided by Ms. Storr, all based on hearsay, and in three of

the four cases, unattributed double hearsay, primarily amount to minor inconveniences,

none of which appear to have actually prevented any clients or staff members from


accessing the centre. The one example that was not based on unattributed double

hearsay involved an individual who may or may not have been from the Encampment

sleeping in the centre’s accessible doorway. The person moved along once requested

to do so by the sheriffs and security personnel.

[83] The evidence tendered by the plaintiffs does not establish that public access to

the Justice Access Centre has been impeded by the existence of the Encampment.

However, I accept that, for some users of the Courthouse Green Space, the

Encampment has diminished its aesthetic and recreational value, and will weigh this

factor in my analysis of the balance of convenience.

c) Health and Safety

[84] In her affidavit, Ms. Storr also described health and safety concerns as follows:

8. A number of incidents have raised health and safety concerns for our clients and staff. These include:

…

b. Garbage. On or around 15 December 2015, I observed that the large metal garbage container in the parking lot was full and garbage was spilling out. On or around 29 December 2015, I observed that access to the outside stairway from the parking lot leading down to Courtenay Street was nearly blocked with garbage and that garbage was strewn in the parking lot. On 16 February 2016, I observed that even though the garbage containers in the parking lot were not quite full, garbage was strewn in the surrounding parking lot and nearby bushes,

c. Used condoms. On or around 20 January 2016, Denise Neigel, a family justice counsellor with the Victoria Justice Access Centre, advised me, and I do verily believe, that she had observed used condoms on the outside stairway leading down to Courtenay Street. I called Workplace Solutions Incorporated to dispose of the condoms.

[85] Ms. Storr deposed to other incidents involving the presence of syringes and

human feces, however, these incidents were based on unattributed hearsay and double

hearsay.


[86] Mr. Allen also deposed to finding syringes and used clothes in the parking lot of

his building, and used condoms and human excrement on the property of his apartment

building.

[87] In her affidavit sworn March 14, 2016, Angela Ray, the Tape Management

Transcript Clerk with the Court Services Branch, Ministry of Justice, located in Victoria,

deposed that:

2. On March 11, 2016 at approximately 8am, I discovered drug paraphernalia on the front steps of the Victoria Court House located at the comer of Blanshard Street and Burdett Street, across from the Sandy Merriman House. These items included a number of syringes and a blue strap. A copy of two photographs of the drug paraphernalia are attached to my affidavit and collectively marked as Exhibit “A”.

3. I do not recall previously ever discovering drug paraphernalia to that extent being left on the court house steps since I began my current position at the Victoria Law Courts in 1997.

[88] The defendants dispute these descriptions of the presence of human feces,

syringes, and used condoms in the Courthouse Green Space and surrounding area. In

her affidavit “sworn (or affirmed)” March 8, 2016, defendant Christine Brett, who is a

part-time resident at the Encampment and a member of the Nuxalk Nation, deposed in

part that:

30. In response to paragraph 19 of the Peter Wharton affidavit, Christ Church Cathedral has made its washrooms available to SIC residents during working hours, and has provided an outdoor hose that we can use so that we have 24 hour water access. As a result, there should be no need for SIC residents to use the Courthouse for this purpose.

31. I have never seen human feces at the SIC, and the place is not strewn with needles and used condoms. As I have said above garbage can be a problem and we are trying to find creative way to address that. Sometimes there are needles left around but we try to be sure everyone uses the sharps containers. I have never seen a rat at SIC, but I understand that rats might have been attracted by the hay which we put down to absorb the moisture when it was raining heavily. We have not spread hay for some time.

[89] Similar comments were made by Kirsten Andersson, who is a retired elementary

school teacher who has lived in an apartment near the Courthouse Property since July

2015. She and a companion walk through the Courthouse Green Space on a regular


basis. In her affidavit, which is also inappropriately stated to be “sworn (or affirmed)”

March 9, 2016, she deposed that:

16. Many of the residents put in extra effort to keep things clean. Over the course of walking through the camp daily for the last many months, I have never seen feces or drug supplies (including needles) or rats or used condoms. I have never seen anyone blocking the entrance to the Justice Access Centre. Once there were two young men loitering, drinking and blocking the stairs between the camp and Broughton Street, but they were not disrespectful or difficult when we indicated we wanted to get past. I did not recognize them as residents of SIC and have not seen them since. To the best of my recollection this was not during business hours.

[90] While I do not question the credibility of Ms. Storr or Mr. Allen, it does not

persuade me that the feces, garbage, syringes, condoms, or used clothes previously

found on their property were left by residents of the Encampment, or that these

biohazards continue at the present time.

[91] David Wales is a tenant in an apartment building across the street from the

Courthouse Green Space. He resides there with his wife and son. Mr. Wales has a

respiratory disorder. In his affidavit affirmed February 24, 2016, Mr. Wales described

seeing rats amongst the tents on more than one occasion when he walked past the

Encampment in early February 2016.

[92] Mr. Wales deposed that since December 2015, he believes the Encampment

poses an increasing threat to himself and his family due to smoke from the fire that is

permanently lit in the midst of the Encampment, which drifts into his apartment unit

when the windows are open and, to a lesser extent, when the windows are closed;

noise from residents in the Encampment; noise from emergency responders arriving at

all hours of the night; and the refuse, portable toilets and dumpsters installed on the

western side of the Encampment.

[93] In his affidavit sworn February 29, 2016, Mr. Sykes deposed that on February 25,

2016, he observed a good deal of smoke around the Encampment and also a large rat

which ran behind the dumpster in the parking lot beside the Encampment.


[94] James Bryce is the Senior Legal Risk Analyst with British Columbia Emergency

Health Services. In his affidavit affirmed March 9, 2016, he deposed that between

December 1, 2015 and February 28, 2016, the B.C. Ambulance Service received 12

calls related to the camp on the Courthouse Green Space. Four were for apparent

assaults, one for a head injury, three for apparent drug overdoses, one for a death

resulting from an apparent overdose, and three for other health issues.

[95] Mr. Bryce also deposed that B.C. Ambulance Services paramedics have

responded to many calls related to the camp on the Courthouse Green Space where

patients could not be located, refused treatment entirely, or accepted treatment but

refused transportation to hospital.

[96] Dr. Richard Stanwick is the Chief Medical Health Officer for the Vancouver Island

Health Authority. He swore an affidavit dated February 26, 2016, in which he deposed

that he and his staff have regularly attended the Encampment, and his staff have

participated in a weekly safety committee meeting that is attended by representatives of

other authorities and the camp.

[97] Dr. Stanwick indicated that his staff has provided harm reduction supplies to

residents of the Encampment who have drug addictions, and have also trained

approximately 20 campers in the use of Narcan kits. When used effectively, Narcan kits

can reverse the symptoms of opiate overdose that cause breathing suppression and

death. To Dr. Stanwick’s knowledge, 17 Narcan kits have been distributed at the

Encampment, two of which were replacements for kits that had been deployed.

[98] Dr. Stanwick also deposed that due to concerns about wood smoke from the

Encampment’s ceremonial fire, his staff had taken air quality readings at the

Courthouse Green Space. He attested that the air quality readings fell within a range

that would pose a health risk to individuals with underlying breathing conditions such as

bronchitis and asthma. In Dr. Stanwick’s view, this level of air quality would be a

potential health risk to such individuals if it was an average reading over a 24-hour

period.


[99] Finally, Dr. Stanwick suggested that the risk of violence and exploitation of young

persons was a possible health concern related to the Encampment. However, in Ms.

Brett’s affidavit, she indicated that the Encampment’s approach to young persons who

come to the Courthouse Green Space is to advise them that the Encampment is not the

right place for them to stay, and suggest other social services.

[100] At this juncture, I find that the evidence is not sufficient to establish that there is a

health and safety risk associated with the possible presence of at-risk youth the

Encampment. Mr. Bryce’s evidence does not establish that the conditions at the

Courthouse Green Space, compared to the conditions elsewhere on the streets or in the

parks of Victoria, put the residents of the Encampment at an increased health risk. I

accept that, like other persons, the residents of the Encampment who are competent to

refuse treatment are entitled to do so.

[101] Excess noise from the Encampment, while being a possible irritant, has also not

been shown by the plaintiffs to be a health risk. I accept that there is some evidence

showing that the air quality at the Encampment may pose a risk to some individuals with

underlying breathing conditions, although that evidence is not conclusive. I will weigh

this factor accordingly.

d) Fire Safety

[102] Gordon Anderson is the Fire Commissioner for the Province of British Columbia.

In his affidavit sworn February 29, 2016, Commissioner Anderson deposed that he had

made a site visit to the Encampment on February 26, 2016, and had identified

numerous fire hazards and concerns, including:

3. … an open fire in a short bum barrel located under a tent canopy, makeshift structures composed of a mixture of combustible and other materials, overcrowded placement of tents and structures, inadequate means of egress from both individual tents as well as from the site overall, widespread debris and trip hazards, discarded disposable propane cylinders, straw covered pathways and evidence of the use of smoking materials. Observations were also made of excessive storage of combustible materials visible in plain sight in some tents.

…

7. I as well as OFC Inspector Cooper are concerned about the potential threat to life safety resulting from the continued existence of the described fire


hazards at the Encampment. Specifically the presence of multiple potential ignition sources, the volume of combustible materials, lack of effective egress for the occupants in an emergency and close proximity of tents to one another creating potential for a rapid and unchecked spread of fire. This concern is compounded by the limited access for firefighters to effectively respond to emergencies throughout site and the apparent inability of the occupiers to address the fire hazards.

[103] Commissioner Anderson also deposed to having been informed by Deputy Fire

Chief Douglas Carey of the Victoria Fire Department that the department had

responded to two calls for tent fires at the Encampment. Deputy Fire Chief Carey

acknowledged to Commissioner Anderson that a safety committee had been

established at the Encampment but said that the committee had not made much

progress in addressing the fire hazards on site.

[104] In his second affidavit sworn March 4, 2016, Commissioner Anderson deposed in

part that Inspector Robert Cooper had attended the safety committee meeting held on

February 29, 2016, and had given Ms. Brett, as a representative of the campers, a copy

of the Fire Services Act order issued on February 27, 2016.

[105] Inspector Cooper advised Commissioner Anderson that he returned to the

Encampment on March 3, 2016, and found that some progress had been made to

comply with the Fire Services Act order, but significant fire hazards remained.

[106] The records of the Victoria Fire Department relating to the Courthouse Green

Space were summarized by and appended to the March 10, 2016 affidavit of Nancy

Reimer, an employee of the Ministry of Justice assisting counsel for the plaintiffs. The

portions of her summary that are relevant to fire safety issues include three complaints

related to the ceremonial fire, one open fire complaint, and one tent fire complaint.

[107] In contrast, the defendants provided evidence that a good working relationship

has developed between the campers and local fire services, and progress has been

made to respond to fire safety concerns. In her affidavit “sworn (or affirmed)” March 8,

2016, Ms. Brett deposed to her interactions with Deputy Fire Chief Carey, and to the

work done by the safety committee:


16. Deputy Chief Carey and I met and he told me that the Province had asked him to document fire and safety concerns w at SIC with a view to demonstrating that these were serious enough that SIC should be shut down. He told me that he told the Province that he wouldn’t do that because he was of the view that the fire and safety concerns were manageable and could be addressed. He told me that he told the Province that the SIC was a homeless issue, not a fire safety issue - it had been in existence for several months and there were no fire or health concerns that required it to be shut down. Deputy Chief Carey said that he wanted to be part of a Fire and Safety Committee where we could meet and discuss concerns and that this would give SIC a chance to succeed.

…

22. On February 27, 2016, Office of the Fire Commissioner (“OFC”) Inspector Robert Cooper attended at the Superintent City site along with the Fire Commissioner. I had never met either of them before, and when they arrived they interrupted an Ojibway man who was preparing to share a song of great significance. The officials tried to serve me with the Order found at Exhibit “B” of Mr. Anderson’s affidavit. I explained to them that the protocol that had been established by the VicPD, the VFD and the SIC was that concerns, unless they urgent, were to be brought to the morning meeting held at the camp each weekday at 10:00 am, or to the Safety Committee. I did not accept the order and I do not believe that anyone else did either.

23. After they left, I texted Deputy Chief Carey, and then spoke to him on the phone. He informed me that he had been unaware that the Fire Commissioner was going to come to SIC. He also me that the Province had asked him to swear an affidavit that would say that SIC needed to be shut down because of fire safety concerns, but that he declined to do so. We affirmed the mutual commitment of SIC and the VFD to work collaboratively together to address any concerns.

24. OFC Inspector Cooper attended the Safety Committee meeting that was held on March 1st, 2016, He apologized that he had not been aware of the protocol for addressing concerns about SIC. At that meeting we discussed the need for pathways and the possibility of obtaining a different source for heat, as VFD believed that propane would be safer than an open fire. OFC Inspector Cooper stated that there would be a significant fire risk when the weather gets drier and warmer. He noted that there should be buckets with sand for cigarette butts. He suggested the establishment of a fire watch and that combustibles not be stored by the fore. We agreed that he would do a walk through and identify any concerns on Thursday, March 3, 2016…

…

26. The latest Safety Committee took place at 11:30 March 8, 2016. I do not yet have the minutes from Constable O’Connor. In attendance were Constables O’Connor and Brown, Megan Sabell, Lieutenant Inspector form Victoria Fire Department, OFC Inspector Cooper, Ms. Yehia and Wendy Stark, a street nurse from Island Health, and myself, James Carmichael and Jorge Francisco Gomes from SIC.

27. Fire related concerns addressed at that meeting include the need for 3 feet in the aisles between the tents, and the need for safe cigarette disposal. We


talked about options for keeping the sacred fire and warming fire in other types of containers which would reduce the possibility of sparks flying out.

[108] No affidavit was provided by Deputy Fire Chief Carey to clarify his evidence

about the fire safety hazards that may be present at the Encampment. While I accept

that there are some fire safety risks associated with the Encampment, and will weigh

that factor in the analysis, I also note that there are conflicts in the evidence relating to

the fire hazards at the Encampment and the steps that residents have taken to address

those concerns. These conflicts cannot all be resolved on the basis of the affidavit

evidence before me.

e) Policing Concerns

[109] Mr. Allen deposed to the theft of a number of items from just outside his unit, and

a man carrying a gun who was outside his apartment at approximately 4:30 am on

February 9, 2016, who, when confronted by Mr. Allen, went across the road into the

Encampment.

[110] While I do not question the evidence of Mr. Allen, it does not persuade me that

the thefts of which he complains were committed by those camping in the Courthouse

Green Space.

[111] Mrs. Allen also deposed to personally threatening experiences she attributed to

residents from the camp on the Courthouse Green Space, and to smoke wafting into

her apartment building from the fire that was being maintained on the Courthouse

Green Space, the significant noise that emanates from the Encampment, and thefts

from her apartment property.

[112] The owner of the Allens’ apartment building, Peter Kerr, swore an affidavit on

February 24, 2016, in which he deposed that he has incurred various expenditures

totalling some $14,000 since in or around November 2015, most of which he attributes

to the presence of the Encampment and its occupants. I accept the amounts spent by

Mr. Kerr and his motivation for the spending as a factor to be weighed in determining

the balance of convenience.


[113] James Nelson is the owner of a unit in a building on Burdett Avenue across from

the Courthouse Green Space. He purchased the unit in 1996, and has lived there since

1999. He affirmed an affidavit dated February 24, 2016, in which he deposed that from

approximately 1999 to the fall of 2015, he used the Courthouse Green Space on a

casual basis, primarily in the summer, but that since the fall of 2015, the Encampment

has caused him a sense of discomfort and that he has modified aspects of his life in

order to avoid the area.

[114] Mr. Wales deposed that the residents of the Encampment had previously been

quiet and conscientious, but that he noticed a definitive negative change to the

atmosphere of the area in December 2015. He described noticing a number of syringes

on the sidewalk in front of his building, and along the eastern side of the Encampment

on Quadra Street, between Courtney Street and Burdett Street.

[115] Inspector Wharton deposed that on November 24, 2016, an incident occurred at

the back entrance of the courthouse building where the Justice Access Centre is

located. Someone was sleeping in front of the door and blocking access for clients.

When he attended with another sheriff, they were confronted by a violent individual who

was a known resident of the Encampment. He was verbally confrontational and

threatening and appeared to be under the influence of drugs and would not leave. The

sheriff’s officers were able to de-escalate the situation and were eventually able to

convince the man to leave. After he left, used needles and drug paraphernalia were left

in the doorway.

[116] I am not persuaded that the drug use that occurs at or near the Encampment is

caused by its presence. The reality is that many of those who presently live at the

Encampment are and were drug users long before they came to the Courthouse Green

Space. If they were not there, their drug use would likely be unchanged, but arguably

more dangerous than at present.

[117] Michael Darling is a constable with the Victoria Police Department. In his affidavit

sworn February 26, 2016, Constable Darling deposed that since January 2015, he has

been assigned to the Victoria Police Department’s Patrol Division, responsible for


attending calls for service, conducting the initial investigation of reported crimes,

maintaining public order, and engaging in proactive policing duties with responsibility for

oversight and risk management of all calls for service initially attended by the Division.

He also deposed that throughout his career, he has engaged extensively with persons

who are homeless, and with persons with significant substance use and mental health

issues.

[118] Constable Darling deposed that since the decision of the Court of Appeal in

Victoria (City) v. Adams, 2009 BCCA 563, and the consequent amendment of the City

of Victoria Parks Regulation Bylaw to allow overnight sheltering by homeless persons in

parks, his Division has assisted City of Victoria Bylaw Enforcement Officers with daily

“wake-ups” of homeless persons engaged in overnight sheltering in city parks, city

streets, and other public spaces under the administration of the City of Victoria. He

notes that generally, the homeless persons engaged in overnight sheltering voluntarily

comply with the wake-ups, packing up their belongings and moving along without

incident.

[119] Constable Darling also deposed that since November 2015, he has observed,

and been informed by other members of his Division, that the Courthouse Green Space

has been occupied by an encampment of increasing numbers of persons living in tents

and other structures on the site not only at night but also through the day, including

many chronic homeless persons with severe substance use and mental health issues.

[120] Constable Darling deposed that since November 2015, he has frequently

attended the Encampment in a proactive capacity to provide a visible police presence in

the area, and also in response to serious calls for service. He referred to 13 calls for

service to the Courthouse Green Space in 2014, which increased to 65 calls for service

during the first 10 months of 2015. These calls included two serious assaults with

weapons and two drug overdoses. He described the report of a small contained fire at

the Encampment on December 19, 2015, which was deemed by attending police and

Fire Department members to be spiritual and ceremonial in nature.


[121] He described his belief that there has been a change to the level of risk to public

safety since December 2015, noting that between November 1, 2015 and February 25,

2016, there have been a number of serious incidents, including four common assaults,

one assault causing bodily harm, two assaults with weapons, one aggravated assault,

13 drug overdoses, one sudden death due to a drug overdose, and one fire inside an

unoccupied make-shift structure. He stated that although the campers have not overtly

obstructed police investigations, the level of cooperation has ranged from not being

forthcoming with information to trying to regulate access to the Encampment.

[122] He also deposed that based on his review of his Division’s records, including

criminal analysis reports for the time period from November 1, 2015 to January 28,

2016, he is unable to identify any significant increase in reported criminal activity in the

immediate area around the Encampment, but that his Division is now proceeding on the

basis that an informal police presence is no longer adequate to sufficiently maintain

public safety.

[123] Constable Darling summarized the concerns that have been identified by police

officers attending the Encampment as including garbage in and around the tents and

structures; the obvious difficulty in accessing and navigating through the Encampment

due to the density of the tents and structures; the accumulated property, debris,

shopping carts and bicycles; the presence of numerous weapons of opportunity

including axes and knives that are readily accessible; and fire safety concerns due to

open burning, the accumulation of combustibles, and campers burning candles and

smoking inside tents and structures. He deposed that as a result, his Division recently

established a safety committee at the encampment which is chaired by the Division and

includes representatives from the Encampment and the Victoria Fire Department. The

purpose of the safety committee is to ensure that safety concerns are addressed in a

timely and organized fashion, and to continue to build rapport and maintain open lines

of communication between all stakeholders.

[124] Like the plaintiffs’ evidence on the issues of health and safety and fire safety, the

evidence on the issue of the need for increased police resources does not satisfy me


that these conditions are any worse than they would be if the residents of the

Encampment were displaced. It is far from clear that the need for police resources at

the Courthouse Green Space is a product of the existence of the Encampment, rather

than a product of the fact that many of the Encampment’s residents are homeless and

have pre-existing mental health and other issues. There is also some evidence that

positive steps have been taken to make connections and build trust between the police

and the residents of the Encampment. I will therefore weigh this factor accordingly.

f) Potential Benefits of Maintaining the Encampment

[125] The defendants filed many affidavits, both from current and former residents of

the Encampment, and from various supporters. Many of those who provided affidavits

have lived at the Courthouse Green Space since November 2015 or earlier. A number

of defendants and interested persons also provided oral submissions during the hearing

of this matter. Several themes relating to the potential benefits of maintaining the

encampment emerged from the affidavits and submissions. I have summarized these

below.

i. Physical and Mental Health

[126] Several affidavits attested to the physical and mental health benefits of remaining

at the Encampment, including the residents’ ability to get better sleep, mitigate the

negative effects of drug addiction, and consume regular meals.

[127] Many residents of the Encampment attested to getting better sleep and, as a

result, feeling better while living at the Courthouse Green Space. Emily Bridge is a 21-

year-old woman who has been homeless in Victoria for the past two years, sleeping

outside in doorways or in parks. She currently resides at the camp on the Courthouse

Green Space. In her affidavit “sworn (or affirmed)” March 7, 2016, Ms. Bridge explained

that staying at the Encampment has improved her sleep and reduced her drug use:

10. As a homeless person I typically had a very late schedule. I wouldn’t sleep much, would often stay up most of the night and then, if I found somewhere safe to sleep, would get woken up at 7 AM. I didn’t have anywhere to go sleep in the day. Our Place doesn’t allow that, so I would take drugs to stay up and frequently stay up for 2-3 days at a time and then crash hard. Typically, I would


be very sleep deprived as are most people I know who live on the streets. This had a huge effect on my ability to function and take care of myself.

…

15. Sleeping in tent city I am a lot warmer because me and Norm have been able to set up and maintain a comfortable tent with a heat source and covered room for our belongings. When I slept outside I would wake up with blue fingers and wouldn’t be able to help taking the tent down because I was too cold.

16. It has been very humanizing for me to stay at tent city, I am way less stressed out, am using drugs less and have a safe home place with a community of people around to watch out for me and Norm if we need it. Carrying my stuff around all day and facing harassment from law enforcement was incredibly stressful.

17. My mental health has been a lot better at camp because I have a secure place where I can lie down and sleep for 8-9 hours if I want to. I am thinking clearer and making better decisions.

[128] Several other defendants also attested to getting better sleep while staying at the

Encampment and the resulting benefits to their mental and physical health. Cheyanne

Fox lived at the camp at the Courthouse Green Space, from the middle of October 2015

until early March 2016. Ms. Fox described the benefit of sleeping at the Encampment as

follows in her affidavit, affirmed March 8, 2016:

11. I slept better at tent city than living on the street or in a shelter. When I was living on the streets it would be stressful to be woken by cops at 7 am and to be displaced. Sleeping in a shelter is also hard. Sleep is really important. When I don't get enough sleep I am prone to psychosis.

[129] Likewise, James Walker, a resident of the Encampment who is presently 39

years of age and has been homeless since he was 18, attested in an affidavit “sworn (or

affirmed)” March 7, 2016, that the sleeping space he has been able to build at the

Courthouse Green Space has helped with his pre-existing back issues.

[130] Norman Eliot Ruble is another resident of the camp at the Courthouse Green

Space, and has lived there since October 2015. Although he did not indicate that he had

been homeless before October 2015, he did state in his affidavit, said to be “sworn (or

affirmed)” March 7, 2016 that:

10. There is a huge difference between being on the street and being in Tent City. When on the street the cops will wake you up at 7:00 AM no matter where you are, even if you are in a park. You have to have your tent hidden. Having to


move constantly, always having to have a different place to sleep, and trying to find a place where you can sleep is very difficult. Having to lug around a cart or all your gear all the time is a huge challenge.

11. It was very challenging to get to sleep. Finding a place to sleep is difficult.

12. In my experience with sleep deprivation it has made me short tempered and angry. It has made me paranoid. It is hard to make choices when I have not had any sleep. When sleep deprivation gets really bad I have experienced auditory hallucinations, I think I hear my name being called and there is no one around. I have experienced extreme mood swings from lack of sleep. Prior to living in Tent City the longest I went without sleep because of being on the street was eight or nine days.

13. In Tent City I am able to sleep every night and I rarely go more than two days without sleep. I am able to sleep because I do not have to worry about my stuff being stolen.

[131] The residents’ statements accord with the affidavit of Shane Calder, who is the

coordinator of client education of the AIDS Vancouver Island Society, a community

health organization providing services across Vancouver Island to marginalized

populations, including persons using illicit drugs, Aboriginal people, sex trade workers,

those in custody, those with mental health issues, street-involved youth and adults, and

many infected with HIV and HCV. In his affidavit affirmed March 8, 2016, Mr. Calder

explained that his organization provides basic survival support for the homeless in

Victoria such as bus passes, socks and other personal care items. He expressed the

view that obtaining secure housing is the single most important factor in lessening the

risks associated with drug use, and in lessening the frequency of drug use by an

individual. He also explained the negative consequences of sleep deprivation in the

homeless population:

25. A very significant stressor for the homeless clients of AVI is sleep deprivation. In my experience, sleep deprivation is a major cause of instability and chaos in the lives of many homeless people. This can lead to (or exacerbate) many negative health consequences, including drug use to stay awake and/or deal with the physical and mental symptoms that result from sleep-deprivation, missed medical appointments, and/or missed medications.

[132] As mentioned above, Dr. Stanwick deposed that his staff have provided Narcan

kits and training to some 20 campers. Dr. Stanwick also attested to his staff having

provided harm reduction kits to those struggling with addiction at the Encampment.


[133] Mr. Calder also deposed that his organization has provided harm reduction

supplies to residents of the Encampment. He noted that to his knowledge, there had

been 11 fatal drug overdoses in Victoria between December 1, 2015 and March 8,

2016, only one of which occurred at the Encampment. He expressed the view that this

was a low rate of overdose, which he attributed in part to the availability of harm

reduction supplies and Narcan kits, several of which were deployed during that time

period. Mr. Calder also opined that not needing to rush reduced the risks associated

with drug use:

44. While some overdoses have occurred, the fact that users have a private space in which to inject drugs has made it much easier for them to do safely, and there would likely have been more overdoses if the same users were still on the street. Injecting drugs in a hurried manner in a city doorway, or in a shelter bathroom, greatly increases the risk of harm.

45. In addition, the ability to access a private space during the day makes it possible for people to rest and recover from trauma, including health related trauma associated with drug use.

[134] Ron Crossman is a 39-year-old veteran of the Canadian Armed Forces who was

a resident of the camp on the Courthouse Green Space for a period of some four

months until he moved to the Mount Edwards shelter. In his affidavit affirmed March 7,

2016, he deposed that he is a recipient of disability benefits, and came to Victoria in

2008 a few years after he was discharged from the army. He stated that he has been

mostly homeless since that time. He stated that in the winter he would usually sleep in

doorways downtown because they are covered and sort of sheltered. In the summer

when it was warmer he would usually camp in parks.

[135] Mr. Crossman explained that shelters did not work well for him as he suffers from

insomnia, PTSD and anxiety, and prefers sleeping on the streets to being in shelters

because of his disabilities. He deposed that:

9. Since coming to the camp I slept better and felt safer than I did on the street because I had my street family at the camp. Me and my street family had our tents together at tent city and I felt safer knowing who was sleeping near me.

10. I also benefited physically from staying in one place, on the street it took a lot of effort to have to move my stuff around - having arthritis made it very difficult to tear my camp down every morning and carry it around all day just to set it up again.


…

14. The camp has good support services at the camp for people who use drugs - there are clean rigs, naloxone kits and safe drug use supplies in general.

[136] Some residents who are dealing with drug addiction, attested that the

Encampment provides a supportive environment. Joseph Reville is a resident of the

camp at the Courthouse Green Space who has lived on the streets since he was 16

years of age. He has struggled with drug use, and suffers from bronchial asthma. He

stated in his affidavit “sworn (or affirmed)” March 7, 2016, that:

14. This is a dangerous place for me, being a recovering drug addict. So what we’ve done is that we have a comer of the camp where people who are struggling can support each other and be talked down and distract you from the addiction. I am on the edge daily. This city is very difficult for amphetamines.

[137] Residents and support workers explained that meals are regularly brought in to

the Encampment for the campers to eat or reheat. In his affidavit, described as “sworn

(or affirmed)” March 7, 2016, Paul Gower described himself as a support worker at the

camp at the Courthouse Green Space, visiting the camp each day, performing practical

tasks such as taking people to hospital, helping with laundry, getting firewood, making

meals and providing sleeping bags and warm clothing. Mr. Gower compared his

experiences engaging in these activities before and after the creation of the

Encampment:

5. I have seen the resident’s health improve. People have told me specifically that this is the first time in four years that they have put on any weight. These guys have been consistently fed for months. It is huge for the majority of them to have consistent meals.

ii. Access to Services

[138] Several affiants deposed that staying at the Encampment has improved their

ability to access services, and the defendants submitted that service providers are able

to offer their services more efficiently because the campers stay in one centralized

location.

[139] Jamie Green, a resident of the camp at the Courthouse Green Space since

November 2015, attested to the benefit of being close to downtown services while living


at the Encampment. In her affidavit affirmed March 7, 2016, she deposed that prior

thereto she had been without stable housing for five years. She stated:

22. It’s also nice to be near the services downtown including the Mustard Seed and Sandy Merriman. Also I find that I am more able to access these services, particularly the weekly food hamper at the Mustard Seed. Before living in the camp I didn’t usually have the time or energy to make it over there but now I have been getting it every week.

[140] Joseph Jean Noel Berthelet, a former homeless person who supports the

Encampment, attested in his affidavit affirmed March 7, 2016 to the challenges that

homeless individuals face when trying to access programs while constantly relocating.

He stated that:

13. There are so many government programs, including retraining, that homeless people cannot take advantage of because they are literally living out of a suitcase. They have to drag all their belongings with them everywhere or they will be stolen. This also keeps them from getting work.

[141] Ashley Mollison, a project coordinator with the Centre on Aging at the University

of Victoria, provided an affidavit described as “sworn (or affirmed)” March 9, 2016, in

which she described the involvement of social services at the Encampment. Ms.

Mollison has been attending the camp at the Courthouse Green Space every two to

three days since November 2015. She has work experience with the homeless

community, as a harm reduction worker for AIDS Vancouver Island, and as a staff

member at the Society of Living Illicit Drug Users.

[142] In her affidavit, Ms. Mollison indicated that the Encampment enables health

outreach workers to coordinate their services and provide better assistance to those at

the camp. She deposed that street nurses from the local health authority had partnered

with other agencies to provide services to the campers, some of whom previously could

not have been found by the workers because they were camping in parks and relocating

frequently.

[143] Mr. Gower similarly deposed that it was practically easier and less expensive to

check up on people in the Encampment, as compared to when they were spread out

throughout the city. Likewise, Mr. Calder deposed:


39. The existence of SuperIntent City has enabled AVI to provide much more consistent services to the people residing there than would have been possible if they had been dispersed on the street. The services we can provide are also more effective. Because people have a place where they can sit and meet with us on a regular basis in a relatively stable environment, we are able to provide much more meaningful crisis intervention and health services and support work than we could do if individuals were on the street.

iii. Physical Safety

[144] Several individuals living in the Courthouse Green Space noted that the

presence of other residents nearby gives them an increased sense of physical safety.

While admitting that disputes do occur at the Encampment, these residents explained

that their physical safety was enhanced by the ability of other residents to hear and

respond quickly to such situations.

[145] For example, Ana McBee is a current resident of the camp at the Courthouse

Green Space, having lived there since November 2015. In her affidavit of March 7,

2016, said to be “sworn (or affirmed)”, she commented, in part, as follows:

17. Tent city has built a strong and supportive community. Everyone can hear other people all the time, if people get loud, the people close-by hear and respond. People can also respond to fires if there is one in someone’s tent and provide help for an overdose within seconds. There is no quicker response to the kinds of immediate challenges that homeless people and drug users experience than having a close community around you like we have here.

18. The response network is especially strong because people, here don’t have walls so we can hear everything. Also, many people are up in the night when it is quieter so we can hear and respond very effectively. The security here at night time is spot on - people are up late responding, dealing with things when none of the other support services are around.

[146] In the same vein, Ms. Green attested to the sense of safety she feels living at the

Encampment. She stated that:

13. Here at the camp I feel much less vulnerable. Even when I'm here by myself I’m not here by myself because there are people around and we are looking out for each other.

[147] A deponent, M.G., whose name and identity are the subject of a publication ban

that I ordered, is a 16-year-old resident of the camp at the Courthouse Green Space. In


her affidavit, which is stated to be “sworn (or affirmed)” on March 7, 2016, she indicated

that she had many challenges that led her to become more or less homeless since she

was 13 years of age, and that she has lived at the camp since October 2015. She has

medical health issues. She deposed in part as follows:

30. I do feel much safer in Tent City than I did when I was sleeping on the streets or in an isolated area where I have had experience with sexual assault and other forms of violence.

31. In Tent City, although there is occasional crime, it is dealt with quickly by the community in an understanding and compassionate way. If a person commits an act of violence in this community, both that person and the victim are given a voice. The violent person is then removed from the community, but we work together to find them an appropriate place to go instead of simply turning them out.

[148] Mr. Reville similarly deposed that:

19. I have witnessed people’s health improving in the camp. We can provide first aid to each other. I sleep better because I know that I have my community within earshot if a situation arises. I have peace of mind because if there is a situation people will help me. I have a hernia and if I call out at least people will hear me. No one would hear me when I was living in the woods and I was at risk of being assaulted or had trouble getting up because of my hernia.

[149] Mikey Henning, another resident of the Encampment who has lived at the

Courthouse Green Space since late November 2015, attested to how he assists with

resolving disputes at the camp. Mr. Henning experienced a disadvantaged youth, has

an adult criminal record, and has had periods of incarceration as a result thereof. In his

affidavit affirmed March 7, 2016, he stated that:

21. In the camp, I can hear everything, I can hear if there’s people in trouble or a fight starting. We can all hear.

22. When there’s disputes, I can step in, and if people want to stay, they have to listen. They have to work with me, and others in the community, to solve these problems. Because we all live here, we can make sure that disputes actually get resolved because we can check in with them regularly.

23. Being in the community allows me to stand up to any one person and confront them with what they did wrong, or what they’ve been accused of doing.

24. Other respected people here can help, can force people to confront each other and solve their problems right away, so that things don’t degenerate.


[150] Mr. Gower explained that the residents’ self-policing practices were more

effective at de-escalating conflicts than the staff and police interventions at other

institutions where he has worked. He expressed the view that the situation at the

Encampment was less volatile than the situation at other shelters, primarily because of

the community that has been built at the Courthouse Green Space.

iv. Safety of Possessions

[151] When homeless persons are required to vacate park spaces every morning, they

must take their property with them. Mr. Calder deposed:

22. Homeless individuals need to transport their entire life on their back or in a cart wherever they need to travel to and they often have to travel significant distances in a day to simply access survival services like food and medical care. They must often walk to obtain all of their needs and usually wait in lines for significant periods. They must carry with them, and guard fiercely, all of their possessions.

[152] Almost all of the residents of the Encampment attested to the enormous benefit

of being able to leave their possessions in one place during the day. Rory Duff, who has

resided at the Encampment since late October 2015, has lived in poverty for most of his

24 years and has experienced mental health challenges that have made it difficult for

him to maintain employment. He deposed in an affidavit affirmed March 7, 2016, that

prior to living at the Encampment, he had to carry all of his possessions with him during

the day or risk losing them. He stated that:

9. On many occasions, I had my belongings thrown out by bylaw enforcement. This would happen when the bylaw officers found my camps during the day time. When this happened, I would have to start again from zero, find new clothes and buy or steal new hygiene products.

[153] He went on to say that he feels safe leaving his belongings at the Encampment

because the residents look out for one another and make sure that no one is stealing

anyone else’s property.

[154] This sentiment was echoed in Mr. Henning’s affidavit:


26. Your stuff isn’t safe on the street, but here, when something goes missing, I can find out who did it. I can confront them, and they know that if they want to be able to be in the camp, they can’t get away with that kind of thing.

[155] Mr. Adamson, the first named defendant in this action, is 45 years of age, and

has lived in Victoria for most of his life. He has been homeless off and on since he was

17, and has lived on the Courthouse Green Space since November 2015.

Mr. Adamson’s affidavit sets out that he suffers from clinical depression and takes anti-

depressants. He lost his last job when he was 43 years old and began staying in the

Rock Bay Landing thereafter. He states that he came from a broken home, and has

been using drugs since his teens, and that he has been banned from some services for

alleged drug use. He explained that his tent has remained intact longer because he is

not required to pack it up each day:

19. Having my tent up all the time allows it to air out. When they woke us up every morning and they made us pack up right away I had to pack up my tent while it was soaking wet. This destroys the tent. I went through about four or five tents in four months. I do not have that problem in Tent City.

[156] Both Mr. Adamson and Ms. Mollison attested to the limited options that the

homeless in Victoria have for storing their possessions during the day. Mr. Adamson

said that prior to living at the Encampment, when would leave his personal property at

the Our Place facility for the day, he would return to find that much of it had been stolen.

v. Sense of Community

[157] Many of the affiants discussed the growing sense of community that has

developed at the Encampment. Residents attest to taking on various roles to support

the maintenance of the Encampment, and having developed an informal leadership

structure. Regular meetings are conducted at the camp and with various authorities and

stakeholders, many of whom the campers have struggled to interact peaceably with in

the past. Residents of the Encampment also depose to building relationships with the

broader community, including neighbours and the local church.

[158] Residents deposed to feeling like they are becoming members of a community,

in some cases for the first time. Jorge Gomes has lived at the Encampment since


November 2015. In his affidavit, affirmed March 8, 2016, he deposed to having a

lengthy criminal record that led to considerable periods of incarceration. He described

the inclusive sense of community that has developed at the Encampment:

11. Here people look out for each other. There is a comradery regardless of our differences. We tolerate each other and make sure each of us is safe and looked after. I feel accepted regardless of how I dress and what my background is.

[159] Reverend Al Tysick of the United Church of Canada has worked with the

homeless in Victoria for almost 30 years. He served as the Executive Director of Our

Place Society in Victoria until 2011. Other affiants attested that he regularly attends at

the Encampment. In his affidavit, stated to be “sworn (or affirmed)” March 8, 2016, he

attached an affidavit that he swore in prior litigation involving the homeless in Victoria

and the City of Victoria. It is fair to say that Rev. Tysick sees many of the same issues

arising with respect to the camp at the Courthouse Green Space and the difficulties

experienced by those who were the subject of the litigation involving the homeless in

Victoria and the City of Victoria. However, he also attested that the Encampment has

built a community, one which is moving towards developing rules and addressing

concerns that have been raised by the authorities.

[160] In an affidavit described as “sworn (or affirmed)” March 7, 2016, Kim A. Hines

stated that he or she (his or her gender is not apparent from the affidavit), is a 54-year-

old disability recipient who described a difficult upbringing and experience with workers

in the sex trade, and experience with drug use. The affidavit described the following:

8. A lot of the residents here are people I have known for years. They have been criminalized and stigmatized and moved around and it just breaks my heart. But what I have seen here is that they are starting to feel love and have the sense they are being watched over. Homeless people I know who get walked around with a wide berth on the street are starting to be touched and hugged and said hello to by more folks. As a result they are starting to care for themselves.

[161] There is ample evidence that the residents of the Encampment have taken on

various roles to maintain and support their developing community at the Courthouse

Green Space. The defendants described taking care of the ceremonial fire through a


24-hour fire-watch, cleaning up the Encampment, providing practical services such as

bike repair, representing the Encampment at safety meetings, and providing emotional

support to one another through an informal crisis response team.

[162] Ms. Brett is one of the residents at the Encampment who appears to have taken

on a leadership role. Her affidavit was extensive, and discussed the role of the sacred

fire and the fire-keepers. She also attested to the role of the morning meetings in

maintaining a safe camp environment:

17. The Safety Committee now meets every Tuesday at 11:30 am. It includes representatives from the VicPD, the VFD, Island Health, MCFD and representatives from SIC.

18. The Safety Committees has given us an opportunity to address numerous issues. Jade Yehia from Island Health provided bleach for water storage and cleaning supplies for the food service area. Constables O’ Connor and Brown were able to get hand sanitizers installed in the washrooms which had been provided. I have worked collaboratively with Patricia Patterson to address concerns about youth in the camp.

…

28. [At the latest Safety committee meeting] We also discussed concerns about garbage in the area. This is a complex problem because some of the SIC residents have strong attachments to things that might be considered garbage by others. We talked about possibilities such as trade for pay, where campers would agree to dispose of garbage and receive a benefit such as a Tim Horton’s card from one of the charitable organizations who have been supporting SIC. The police would then assist by- ensuring that the items were immediately removed before they could be reclaimed We discussed the need for food safety, and I assured them that we do not cook meals in the camp - they are cooked elsewhere and brought in and warmed up.

29. Everyone on the Safety Committee is committed to ensuring that the SIC can operate as safely as possible, and we are actively seeking long term solutions to all the concerns that have been identified. We have been advised that the fire concerns wall increase when the weather get drier and we are discussing way to continue to address them.

[163] Ms. Brett’s evidence shows that, by and large, the residents of the Encampment

have not been hostile with local authorities. Rather, through the informal leadership

structure they have developed, they have attempted to build bridges with the Victoria

Police Department, Victoria Fire Department, and other service providers. They have

made efforts to respond to the legitimate concerns of those authorities. Ms. Brett

attested that:


3. I have created protocol with government officials to ensure the integrity and self-governance for and by the residents of SIC over the affairs of their daily lives. I have a good working relationship with members of the Victoria Police Department (“VicPD”), the Victoria Fire Department (“VFD”), the Ministry of Children and Families (“MCFD”), and Island Health Authority ("Island Health”). We all work together to address the issues faced by the residents of SIC. These agencies have agreed to deal with SIC through senior, experienced, designated employees, who have been able to build positive working relationships with some of the residents. This has been an enormously important experience for SIC residents who invariably have had, in their past, very significant conflicts with those in authority.

…

13. Local authorities from the fire department came to SIC after we lit the sacred fire. Staff and members of the local Victoria Fire Department (VFD) have always been friendly and cooperative with camp protocols and over the course of the encampment were seen to be keenly aware of the struggles of the homeless residents. They asked for a permit and as the fire is a sacred tradition I advised that we would not be seeking a permit. The staff of the VFD then permitted the sacred fire to continue unhindered. We kept a schedule of firewatchers and made every effort to ensure safety around fire concerns.

14. On or about January 8, 2016, VFD about the warming fire. I told the VFD representative that it was important that we have a fire at that time to keep people warm, and provide them with something warm to drink. In response to the concerns raised, however, we reduced the size of the warming barrel by half.

[164] Ms. Andersson, as mentioned above, is a retired elementary school teacher who

lives near the Encampment and walks with a companion through the Courthouse Green

Space on a regular basis. She does not believe the Encampment is an appropriate

long-term solution, but she has made an effort to connect with the residents. She

remarked on the leadership and neighbourliness that has developed amongst the

residents at the Courthouse Green Space. Ms. Andersson deposed that:

12. The SIC residents were receptive to us and actually made us a path through the area. The path evolved over time. At one point they even put lights along it. The lights did not stay but this struck us as a neighbourly attempt.

13. I am not afraid to be in or around SIC. Many of the people I have met in SIC I would be very happy to have as neighbours if they were in real housing.

14. As a former school teacher, I have been impressed by the leadership of many of the residents, and not only the leadership of people who are part of the SIC formal leadership, or council, but also those who have been at the camp the longest and provide more informal leadership. I would love to see these people provided with the resources to allow them could become true leaders in their community.


[165] Some residents of the Encampment, including Terry Emsile and Ken Prowse,

attested to having developed bonds with members of the Christ Church Cathedral of the

Anglican Diocese of British Columbia. The Cathedral is located across Quadra Street,

adjacent the Courthouse Green Space. Mr. Prowse deposed that the church has really

helped the campers, particularly by leaving the Cathedral open at night so that residents

can go in to warm up. Mr. Emsile deposed as follows:

23. In my perspective, the Tent City gives people hope, unity. People are able to see that there are people who care for them in the form of their neighbours and from community. A lot of people haven’t felt that before. For me the fact that the church has taken part in our sacred fire and had that burning on their alter for the past two weeks is a very moving and important thing.

[166] The connections that have developed between the residents of the Encampment

and the church are strikingly described in the affidavit of Reverend Canon Nancy Ford,

who serves as the Deacon to the City of Victoria from the Christ Church Cathedral. In

her affidavit “sworn (or affirmed)” March 7, 2016, Rev. Ford deposed that:

4. In all the times that I have attended the camp I have been welcomed. I have been welcomed to sit at the sacred fire and have, through individual conversations, grown to admire and respect the capacities SIC residents. I have learned and been gently taught about the realities of being homeless from the perspective of those who have been homeless for a long time and those who have become recently homeless. I have been invited into the community, into their personal lives and struggles, and through this process gained insight and deepening awareness with respect to the hardships and diversity of needs found in the camp.

5. The Christ Church Cathedral (CCC) parish was initially concerned about what it meant to have a tent city across the street from our place of worship. Over the past four months CCC and SIC have learned a great deal about each other. People who have been unable to come through the cathedral doors now come in to participate in prayer, to get warm, and to find peace and quiet. The Church has responded to the needs of SIC with a Christmas dinner which we organized and prepared in concert with the residents of SIC. Members of our parish began providing drinking water to the camp in December 2015 and strong relationships have developed between our faith community and the residents of SIC through these interactions.

6. Various parishioners further arranged to provide coffee and hot chocolate approximately 3 days per week from January 2016 forward. This service was offered from within CCC where residents of SIC would come into the Cathedral. Our parishioners gave generously of their own volition through food and clothing donations. Importantly, parishioners provided foot and hand warmers through-out the encampment during especially cold nights. Seeing the struggles brought on


by the cold through the winter, the Cathedral provided an out-door heater to be used on an as needed basis. As a faith community we have worked diligently to meet some of the basic needs of the residents of SIC who have been living through challenging survival conditions.

…

8. I have witnessed the growth of leadership that has developed within the camp and within SIC as the population has grown to provide basic services to themselves such as safe drug use practise, naxolone treatments, emotional and physical support, and security for personal property and safety. SIC has designed systems to help welcome newcomers to the camp to ensure that the people seeking refuge there have the basic survival equipment needed such as a tents, sleeping bags, food, and clothing. The residents of SIC frequently cook together and look after, to the best of their capacity, the nutritional needs of the camp. SIC has brought together diverse groups of people from off the streets that do not normally connect and this has been an asset to the SIC and larger community.

9. I have witnessed numerous health benefits from the camp, notably the reduction and cessation of alcohol and narcotic dependency. People have been supported to access detox and other drug related services in the community that were previously out of reach. The fact that local service providers can locate the same individual on an ongoing basis has made a great deal of difference in the efficacy of important health related service delivery. There is no judgement with respect to drug use in the camp and this has allowed for some members to work at being sober. Seeing themselves as accepted within SIC has allowed and fostered a crucial space for this development that is difficult to replicate through traditional service provision.

10. Many of the residents of SIC have become healthier as a result of more readily accessible health related services, food, washrooms, and community to look after one another. People have been more capable of seeking stabilization as a result of the camp.

…

12. If the camp is displaced people’s physical, spiritual, and psychological wellness will be deeply impacted. The poor would be moved back into city parks, doorways and alleys. These spaces provide for far less security and rest. I believe the most physically vulnerable would experience significant hardship as a result of any displacement.

…

14. The parish has come to view those residing in the camp as our neighbours. In this relationship we have been transformed and now possess a deeper awareness of the complex needs and stories of the more vulnerable members of our community. As a parish we have grown closer to each other at the same time as we have been brought closer to the residents of SIC.


g) Alternatives to Living at the Encampment

[167] Although there is clear evidence that some former residents of the Encampment

have moved from the Courthouse Green Space to transitional housing or other shelters,

including the three new shelters that have opened at My Place, Mount Edwards, and

View Royal, many of the defendants attested to various barriers that would make it

difficult or impossible for them to make such a move.

[168] Other defendants explained that they had tried to live in the shelters provided but

ultimately returned to the Encampment. Mr. Gomes described living in a shelter as akin

to living in jail. He moved to the My Place shelter but did not stay for long because he

felt more comfortable at the Encampment. Some residents of the Encampment disliked

the communal sleeping arrangements at the shelters and described the available

shelters as overcrowded, noisy, and unsafe.

[169] Some of the affiants attested to feeling stigmatized when living in shelters. Mr.

Reville stated:

10. Shelters make people feel less than. We already feel less than. We already get looks from people on the street that make us feel that way.

[170] Several residents attested to having been kicked out or banned from shelters and

transitional housing spaces. Rose Mullin, who identified herself as a Cree woman and

current resident of the Encampment, described her negative experiences with the

shelter system in detail in her affidavit “sworn/affirmed” March 8, 2016, as follows:

11. I have been turned away from shelters because they are full or the worker spoke down to me at intake. I pointed it out and the person got defensive and barred me from the Sobering Center. They are used to being people being drunk or belligerent, it doesn't justify them being overly aggressive - it makes you feel worthless.

12. I was living in Our Place transitional housing up until October of 2015. Because I said no to the Addiction Worker, I was kicked out. I did not follow their transitional program. They wanted me to go to a meeting, I forgot to make the meeting - my AD HD/ADD makes it hard to remember things.

…

14. One of the reasons I was kicked out because of a recent break up with an abusive partner. Another guy would be abusive to people on the floor, he would kick on my door and the staff would do nothing about it. I got verbally aggressive.


He kept bugging me and went to the staff about me. I was also voicing concerns about peoples possessions going missing. I got kicked out.

15. I had my own room at Our Place, but living at Our Place left me disillusioned. I wanted to start a crystal-meth discussion group, the councilor was on board with this - this didn't end up happening once I got kicked out. I think they were setting an example of me. They only gave me ten minutes to pack my belongings. They offered to pack my stuff, but I was worried about it going missing.

16. I came to this homeless camp with a friend and because I was sick and tired of shelters. Shelters always have a lot of noise, I was not able to sleep properly.

17. I could stay outside in a cubby on the street but this is dangerous. Especially for a women. When living on the street I have had to carry around knives and weapons. I am always aware of my surroundings. I have to be aware of my surroundings when I am sleeping, anywhere - even if it is a shelter.

[171] Stephen Somerville is another resident of the camp at the Courthouse Green

Space. He described why none of the three new shelter options would work for him in

an affidavit, stated to be “sworn (or affirmed)” on March 7, 2016:

14. I have been at tent city since near when it started. I had a tent at My Place for a while but I found the regular check-ins invasive. It felt like harassment. Staff were young and weren’t well-trained and they didn’t have experience working with the street community. It felt insulting living there and being watched by these young kids who have no idea what’s going on with you.

…

16. I wanted to go to Mount Edwards, was told by my 713 team that my name was on their list but then I heard that it was full and no one talked to me. This made me upset because everyone knows where I am at tent city and I go to AVI regularly. I’m not hard to find.

17. I don’t want to go to the youth jail, I have too much trauma from being in jail before and don’t want to rely on a shuttle service for transportation.

[172] Like Ms. Mullin, other residents of the Encampment attested that due to mental

health problems, they are unable to follow the rules and regulations at the shelters and

thus risked being removed or banned. Ms. Fox explained in her affidavit that as a result

of negative experiences that she has had with authority figures in the past, she has

trouble at shelters because she does not trust the authorities there.

[173] Some of the Encampment’s residents explained that they disliked the feeling of

lacking independence that staying at a shelter gave them. Several affiants, including Mr.


Duff, said that they struggled to abide by the limitations on guests that are imposed by

many of the shelters and transitional housing spaces.

[174] Critically, many of the affiants, including Ms. McBee, Ms. Mullin, and Mr. Ruble,

attested that when staying at shelters, they risk losing their property because items get

stolen by other shelter users or cannot be kept at the shelter during the day. This is

especially concerning because, as discussed above, the ability to keep their property

safe and in a consistent location has been critical for residents of the Encampment.

[175] Some of the participants in the hearing indicated that many of the people who

have taken spaces at the new Mount Edwards shelter are not from the Encampment. As

discussed above, Mr. Butcher attests that the majority of those staying at Mount

Edwards are from the Encampment. Raymond Bailey was a resident of the camp on the

Courthouse Green Space from early December 2015 until February 23, 2016 when he

moved to the shelter at Mount Edwards. In his affidavit, also inappropriately stated to be

“sworn (or affirmed)”, dated March 7, 2016, Mr. Bailey set out his belief of the prior living

situations of a number of those presently at the Mount Edwards shelter, but did not

provide the names of those individuals. His evidence is thus, for the most part,

unattributed hearsay.

[176] Nevertheless, the difficulties for some campers in accessing spaces at the Mount

Edwards shelter were expressed in the affidavit of Stephen Portman. Mr. Portman

describes himself as a lay advocate employed by the non-profit Together Against

Poverty Society in his affidavit sworn March 9, 2016. The society advocates for those

with issues concerning residential tenancy, income assistance, disability benefits,

employment standards, and income tax for low-income earners. In his affidavit, Mr.

Portman explained that Mount Edwards and My Place are now full, and residents of

Mount Edwards must pay monthly rent of $375 and meal costs of $100. He also

deposed that:

30. There is a hierarchy of access to shelter spaces for chronically homeless people in Victoria. Homeless individuals who have been banned by shelter service providers have difficulty in accessing the insufficient number of shelter spaces that become available. The majority of residents at Mt. Edwards are comprised of individuals who already have access to and are able to function


well in the current shelter system, and this is consistent with how I have witnessed shelter space allocated in the past. This is a significant problem for chronically homeless individuals that are experiencing a higher threshold of barriers to accessing shelter due to health and addictions concerns like many of the residents of SIC who were unable to secure a shelter space at Mt. Edwards.

[177] Rev. Tysick attested to his belief that if the Encampment were removed from the

Courthouse Green Space, the displaced campers would once again take up overnight

shelter in the city’s other parks and green spaces.

[178] This view was shared by Melissa Ann Moroz, a labour relations officer, who lives

in the City of Victoria across from a municipal park where homeless individuals have set

up camps in the past. She described the results from those camps and the change she

has noted since the autumn of 2015 in her affidavit sworn March 9, 2016. She attested

to having discovered human feces, hypodermic needles, garbage, and uninvited

persons in her backyard while there was a significant camping presence in the nearby

Kings Park. There are no washroom facilities there, and insufficient sanitation. She also

stated that she experienced significant disruption during the daily 7:00 AM “wake-ups”.

Ms. Moroz said that since the fall of 2015, overnight sheltering has stopped completely

in Kings Park, and she has not seen a single tent there since December 2015. She

believes that this change is due to the development of the Encampment. She is

concerned that if the Encampment is removed, overnight sheltering will resume at Kings

Park, along with the negative impacts on her and her neighbours.

[179] Ms. Moroz’s beliefs find support in the March 7, 2016 affidavit sworn by Benjamin

Isitt, an elected member of the Council for the City of Victoria. In his affidavit, Mr. Isitt

described himself variously as an historian, legal scholar and former housing support

worker. He addressed what might be described in general terms as the recent history of

homelessness in the parks in the City of Victoria, and the City’s efforts to deal with

homelessness. He indicated that City Council had been advised that the existence of

the Encampment had reduced the burden on the City to provide services relating to

sheltering in municipal parks. In his view, the reported problems associated with the

Encampment were the result of homelessness generally, and not specifically due to the

presence of the camp at the Courthouse Green Space.


Summary

[180] The defendants in this case appear to benefit from responsible leadership and

organization, and have established effective lines of communication between

themselves and police, fire and public health authorities, in a way that prior homeless

individuals whose activities have been discussed in the previous decisions of this Court

were unable to do. While the Encampment has not been without its difficulties and

challenges, it is an improvement over its predecessors.

[181] 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.

[182] I acknowledge that some legitimate concerns have been raised by the plaintiffs in

relation to the availability of Courthouse Green Space for other uses; health, general

safety, and fire safety concerns; and the allocation of police resources. However, many

of the plaintiffs’ contentions are in dispute and cannot be resolved on affidavit evidence

alone. Further, the plaintiffs’ concerns must be weighed against the potential problems

that might arise were I to issue the requested injunction.

[183] Ultimately, in determining whether or not to grant an interim injunction at this

time, I find that the balance of convenience is overwhelmingly in favour of the

defendants, who 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.

[184] In addition, many of the homeless cannot access those spaces which do exist for

variety of reasons. While the new options provided by the Province address some of the

identified barriers, they do not make the spaces available to everyone. Individuals who

have high needs, or who have had problematic relationships with the staff at the other

shelters run by the agencies administering the new options, will not be able to access

these spaces even if they do become available. Many 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.

[185] Further, 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. If I were to issue the injunction at this

point, I am concerned that the problems would simply migrate to other areas in the City

of Victoria.

[186] An injunction at this juncture may well cause greater disruption to the public and

greater expense to the City of Victoria than the disruption and expense presently

endured by the Province. There is at least an overlap between the provincial taxpayers

and the taxpayers in the City of Victoria, and I am not prepared to displace one’s

expenses to impose them on the other.

[187] I have already impressed upon the parties that I expect the trial of this matter to

be expedited by the abridgment of various time limits for examinations for discovery, if

pursued by the parties, and the shortening of notice periods for expert evidence. A trial

date commencing September 7, 2016 has now been set. Should circumstances

degenerate between now and the trial date, the plaintiffs are given liberty to renew their

application for injunctive relief based upon proof of such degeneration.

Conclusion

[188] I find that the plaintiffs have not met the criteria for an interim injunction as set out

in RJR-MacDonald. Although the plaintiffs have established that there is a fair question

to be tried in this case, they have not demonstrated that they will suffer irreparable harm

if an injunction is not granted. Further, I find that the balance of convenience weighs


overwhelmingly in favour of the defendants. I therefore decline at this time to grant an

injunction removing the individuals who are currently residing at the Encampment from

the Courthouse Green Space.

_______________________________ The Honourable Chief Justice Hinkson


Appendix A

In the Supreme Court of British Columbia

Between

Her Majesty the Queen in right of the Province of British Columbia, and the Attorney General of British Columbia

Plaintiffs

Hugh Adamson, Donna Aumbus, Ollie Aux, Adam Baker, Michael (Magnus) Bjornson, Christine Brett, Shane Enns, Jorge Gome, Russell Lloyd-Jones, Sean

M. Manley, Audrey Moffatt, Carl Montgomery, Rose Mullin, Kristel Oertel, Chris Parent, AmanDa Paska, Ricky Perreault, Joseph Reville,

Andrea Robinson, Vincent Robinson, Norman Ruble, Rathborne Smallwood, Dough Swait, William Wale, Mitchell Wallace, Jane Doe, John Doe,

and Other Unknown Persons

Defendants

ORDER MADE AFTER APPLICATION

) THE HONOURABLE JUSTICE ) BEFORE ) ) March 11, 2016 ) )

ON THE APPLICATION of Her Majesty the Queen in right of the Province of British Columbia, and the Attorney General of British Columbia coming on for hearing at the Victoria Law Courts, 850 Burdett Avenue, Victoria on March 11, 2016 and on hearing, counsel for the applicants (plaintiffs), and ___________, counsel for the defendants ________________;

THIS COURT ORDERS that:

1. By 5 pm on March 14, 2016, the defendants, and all other persons having knowledge of this Order, shall remove all structures, tents, shelters, objects, and things owned, constructed, maintained, placed, or occupied by them that are located on the grounds of the Victoria Law Courts at civic address 850 Burdett Avenue, Victoria, British Columbia, occupying the city block bounded by Blanshard Street on the west, Quadra Street on the east, Courtney Street on the north, and Burdett Avenue on the south, and more particularly described as Lot 1

Section 88 Victoria District Plan 12886, Parcel Identifier 004-673-646 (the “Courthouse Property”) and including the green space at the eastern end of the grounds (the “Courthouse Green Space”).

2. Subject to the exception for overnight sheltering by homeless persons on the Courthouse Green Space specified in paragraph 3 of this Order, after 5 pm on March 14, 2016, the defendants, and all other persons having knowledge of this Order, shall cease:

a. constructing, placing, or maintaining structures, tents, shelters, objects, and things upon the Courthouse Property, without having first obtained the written permission of Her Majesty the Queen in right of the


Province of British Columbia (the “Province”) as represented by the Ministry of Technology, Innovation and Citizens’ Services or such other Ministry or Crown agency as may have management of the Courthouse Property in future;

b. burning materials, setting fires, or using heating devices on the Courthouse Property;

c. depositing garbage, litter, or refuse on the Courthouse Property; and

d. occupying or residing on the Courthouse Property.

3. Notwithstanding paragraphs 2(a) and (d) above, on or after April 11, 2016 or such other date within the two months following the date of this Order on which the Province considers remediation of the Courthouse Green Space to its former condition to be complete, a homeless person may place, secure, erect, use, or maintain in an area designated by the Province on the Courthouse Green Space a structure, improvement, or overhead shelter, including a tent, lean-to, or other form of overhead shelter constructed from a tarpaulin, plastic, cardboard, or other rigid or non-rigid material during the hours of:

a. 7:00 o’clock p.m. of one day and 7:00 o’clock a.m. of the next day when Daylight Saving time is not in effect; and

b. 8:00 o’clock p.m. of one day and 7:00 o’clock a.m. of the next day when Daylight Saving time is in effect,

unless and until the Province chooses to use the Courthouse Green Space for a purpose incompatible with such overnight sheltering by homeless persons, and provided the homeless persons comply with the prohibitions specified in paragraphs 2(b) and (c).

4. Subject to paragraph 3 of this Order, all employees or agents of Court Services Branch in the Ministry of Justice and Attorney General, and of the Ministry of Technology, Innovation and Citizens’ Services are hereby authorized to remove all structures, tents, shelters, objects, and things constructed, maintained, placed or occupied that are located on the Courthouse Property that remain after the time set out in paragraph 1 above.

5. Any member of the Victoria Police Department, a municipal police force, or the R.C.M.P. (the “Police”) is hereby authorized to arrest and remove from the Courthouse Property any person who that peace officer has reasonable grounds to believe has had notice of this Order and has not complied with it.

6. The Police retain discretion as to timing and manner of enforcement of this Order and specifically retain discretion as to the timing and manner of arrest and removal of any person pursuant to this Order.

7. Any peace officer and any member of the Police who arrests or arrests and removes any person pursuant to this Order is authorized to:


a. release that person from arrest upon the person agreeing in writing to abide by this Order;

b. release that person from arrest upon that person agreeing in writing to abide by this Order and require that person to appear before this Court at such place as may be directed by this Court, on a date to be fixed by this Court;

c. bring that person forthwith before this Court at the Supreme Court Registry at 850 Burdett Avenue, Victoria, British Columbia, or such other place as may be directed by this Court; and/or

d. detain that person until such time as it is possible to bring that person before this Court.

8. This Order shall remain in force until this matter is tried, or until further Order of this Court.

9. Notice of this Order may be given to the defendants by posting of this Order in and around the Courthouse Green Space.

10. Approval of the form of this Order by unrepresented defendants is hereby dispensed with.

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