July 13, 2020

Sent via email

Commissioner Camil Dumont
Commissioner Dave Demers
Commissioner Gwen Giesbrecht
Commissioner Tricia Barker
Commissioner John Coupar
Commissioner John Irwin
Commissioner Stuart Mackinnon

Re: Submission on “Parks Control By-law Updates – Temporary Shelter in Parks”

Dear Vancouver Park Board Commissioners,

On behalf of the British Columbia Civil Liberties Association (“BCCLA”), the Union of BC Indian Chiefs (“UBCIC”), and Pivot Legal Society, we are writing to you regarding the Vancouver Park Board’s proposed updates to the Parks Control By-law Section 3(b), Section 10, and Section 11, hereinafter referred to as the “shelter in parks prohibition”, which disallow overnight park usage and the erection of any tents or sheltering structures. 

These proposed updates are detailed in the General Manager’s report to the Park Board Chair and Commissioners issued on July 7, 2020: “Parks Control By-Law Updates – Temporary Shelter in Parks” (“General Manager’s Report”). Amendments include the addition of definitions of “homelessness”, “natural areas”, and “temporary shelter”; revisions to Section 3(b) and 10; and the addition of two temporary shelter sections, Section 11A and Section 11B, hereinafter collectively referred to as the “proposed by-law amendments”.

We support the recommendation to reconsider the prohibition on sheltering in parks, and are encouraged by the General Manager’s report’s attention to the housing crisis and the constitutional rights of homeless people to safeguard their own health and safety on public lands in circumstances where there is inadequate housing options. These recognitions are a start, but the proposed by-law updates do not facilitate safe and sustainable access to parks as sites of shelter, and we call on the Park Board to collaborate with people who have experienced homelessness as a foundational measure to inform any subsequent by-law updates.

With ever-rising homelessness and the disproportionate levels of Indigenous people in British Columba experiencing unstable housing, we must push for transformation, reconciliation, and community action that leads to substantive and concrete change.

Substantive Issues with the Proposed By-law Updates

While the proposed by-law updates move the Park Board toward arguable constitutional compliance, they reify the violence and human rights violations of sheltering prohibitions by placing further unliveable restrictions on people experiencing homelessness.

      a) Increased Support for Daily Displacement

The first substantive issue with the proposed updates is their enabling and entrenchment of displacement. In the status quo, while the Park Control By-Laws technically prohibit any sheltering in parks, Park Rangers generally do not displace homeless people overnight. Based on conversations with both people sheltering outside and Park Rangers, homeless people are generally allowed to set up starting around 7:00 p.m. and not displaced until approximately 10:00 a.m. in the morning – roughly aligning with the BC Supreme Court’s ruling in Abbotsford (City) v. Shantz (2015 BCSC 1909) (“Shantz”).

In addition, where tent cities have formed, the Park Board has at times abstained from seeking an injunction, intermittently recognizing the need for daytime shelter (e.g. recently Oppenheimer Park, and currently Strathcona Park) and choosing instead to focus on pressuring the municipal and provincial governments for housing solutions.

The proposed updates not only justify and enable the daily displacement of homeless people sheltering in parks, they actually reduce the time available to shelter by restricting the window from dusk to 7 am.  Dusk currently occurs at approximately 10:00 p.m. in Vancouver – an inhumane hour to “permit” homeless people to start setting up their beds. “Dusk” is also an impossibly vague and variable distinction – shifting daily by increments of a few minutes. This is nearly impossible to comply with as any homeless person would have explained had they been consulted with during the drafting of this proposal.  

More simply, with no alternative sites becoming available at 7am, the by-law continues to propagate the myth that homeless people and their possessions only need to be inside during the night. The by-law will foster a climate of increased instability, and mental and physical turmoil for homeless people who would subsequently face repeated, daily displacement.

A brief overview of existing by-laws and legislation makes clear that there is no location in the entire City of Vancouver where homeless people can rest on more than an overnight basis. Every space is barred by various pieces of legislation – whether federal (such as the Port), provincial, municipal, regional, or parks. The City and the Province have absolutely no alternative housing or shelter plans in place for homeless people and their possessions during the day. Even if it is raining or there are other extreme weather conditions, and all the indoor spaces are at full capacity (which has been true for years, but is even more frequent due to COVID-19 closures), you are violating by-laws if you set up a tent to shelter yourself and your belongings from the elements.

The by-law as proposed is just one piece in a web of intersecting government legislation which collectively act to prohibit homeless people from safeguarding their own health and safety. Furthermore, the by-law as proposed only does the bare minimum to be arguably constitutionally compliant. As many recent tent city cases demonstrate, overnight sheltering by-laws are far from constitutionally watertight, and they certainly are inadequate to meet the health and safety needs of people forced to live outside. Why is the Park Board aiming for plausible constitutional validity alone?

There is virtually no homeless person who will tell you that being permitted to shelter on an overnight basis alone is adequate to safeguard their health and safety. Even in Shantz, the case these proposed amendments rest upon, the court acknowledged that daily displacement causes immense harm: "the result of repeated displacement often leads to the migration of homeless individuals towards more remote, isolated locations as a means to avoid detection. This not only makes supporting people more challenging, but also results in adverse health and safety risks.” These health and safety risks include “impaired sleep and serious psychological pain and stress.”^[1] 

In addition – we now know based on the evidence of countless homeless people that encampments function to save lives during the overdose crisis. The overdose emergency continues unabated and compounds the risk of harm faced by vulnerable people in Vancouver. The total deaths in May 2020 represent the highest number of illicit drug toxicity deaths ever recorded in a month in B.C. – 170. More people died from fatal overdoses in May than all the COVID-19 deaths combined to that date (167).^[2] In the Coroners Service May 2020 report, Fraser and Vancouver Coastal Health Authority were listed as having had the highest number of year-to-date illicit drug toxicity deaths (176 and 151 deaths, respectively) in 2020, representing 59% of all such deaths in this period, and Vancouver, Surrey, and Victoria were the townships with the highest number of deaths.^[3]

On June 8, 2020, Provincial Health Officer Bonnie Henry issued encampment guidelines in relation to COVID-19: “Response to Homeless Encampment Health Issues in the Context of COVID-19: Guidelines and Best Practices” (“the Guidelines”).^[4] The Guidelines note that harm reduction supplies and services have been impacted by COVID-19 and reiterate that “[u]sing drugs alone puts people at a greater risk of opioid overdose harms and death.” The Guidelines further suggest that government actors can use encampments to provide overdose-related information to residents.^[5]

Creating by-law provisions that cause displacement and push people toward more isolated, remote sheltering sites puts people at increased risk of fatal overdoses in a time where Vancouver is already dealing with all-time high numbers of deaths. ‘Tent cities’, which these by-laws implicitly prohibit, can be sites of community safety and support that reduce the likelihood of an overdose being fatal.

Finally, we have noted an increasing trend of government actors justifying the eviction of tent cities through reference to their crowded conditions (see for example, Preamble to Ministerial Order No. 150 used to evict Oppenheimer tent city along with two other encampments in Victoria). This strategy bellies the role government actors, including the Park Board, play in creating crowded conditions. By resting on a baseline of daily eviction, the Park Board ensures that any location where a tent city manages to survive for a time inevitably becomes the only place homeless people can rest for more than a single night, which is the reason they can become overcrowded in the first place. Were government agencies to cease displacing people sheltering in other locations, the risk of over-crowding in tent cities would be diminished as there would be more available shelter alternatives.

We urge you to therefore not impose a daily timeline for sheltering in parks, and work instead in consultation and collaboration with homeless people to determine more liveable parameters for by-law updates. Creating further instability and grounds for daily displacement only worsens the physical and psychological consequences of housing insecurity, and risks criminalizing survival efforts for homeless people.

     b) Untenable Location Restrictions

The second substantive issue with the proposed updates is their infeasible locational constraints. Under proposed Section 11B, locational sheltering constraints include maintaining a 25-metre radius around playgrounds and schools, avoiding ‘natural areas’ and forested areas, keeping an undefined distance from all forms of pathways, facilities, gardens, and recreational amenities including sports fields or off-leash dog areas. It is extremely unclear where a person can camp, given all the places they cannot. The vagueness of these provisions is entirely unmanageable; how is an individual seeking shelter meant to interrogate what a ‘natural area’ might include? By whose standard is ‘impeding public use’ of a park measured?

By creating these unreasonable exclusionary zones within parks, the Park Board further deprives homeless people of access to their constitutionally enshrined right to shelter, while sustaining the colonial practice of dispossessing people of access to land with arbitrary justifications. The Park Board must not place unnecessary constraints on where shelter can be erected; by doing so, the very impossibility of compliance forces people to break the restrictions. Infeasible constraints invite policing and, in turn, further risks violence and displacement for people whose lives are all too often already criminalized.

     c) Untenable Sheltering Restrictions

The third substantive issue with the proposed updates is the parameters for allowed shelter sites. The proposed amendments would prohibit the use of any in-tent heating device. As Pivot Legal Society has repeatedly explained to government actors: zero options results in zero compliance because it is physically impossible for homeless people to safeguard their health and safety without access to indoor heat during cold and wet weather. This is inhumane knowing people in Vancouver rely on outdoor sheltering year-round, with no alternatives for surviving the winter.

As well, suggesting shelters should not be left unattended ignores the realities of living outdoors and places impossible restrictions on doing so. Not every homeless person has a “buddy” to watch their possessions when they go to the bathroom, attend a meal program, or, as is frequently the case, attend to a friend who is overdosing. The daily displacement foundational to these proposed amendments actively undermine the building of this kind of community care. As drafted, a homeless person could have all their possessions seized and destroyed as a result of temporarily leaving their tent to attend to their basic needs. Again, the impracticability and inhumanity of this proposal would have been readily apparent had the General Manger actually discussed these provisions with any homeless people.

     d) Inadequate Definition of Homelessness

The fourth issue is that the proposed definition of “homelessness” is out of line with existing caselaw concerning the right to shelter and also with the definition of “adequate housing” as outlined in the recently passed National Housing Strategy Act.

The proposed definition names the state of homelessness as “no access to permanent or temporary housing, accommodation, or shelter.”

Caselaw concerning encampments has made clear that the assessment of whether there is sufficient shelter is both quantitative and qualitative. The existence of shelter beds alone is insufficient. Shelter must not only be available but also “accessible”.^[6] While some homeless people may be able to access existing shelter beds in the absence of other housing alternatives, these spaces are simply not “accessible” for many people. Many shelters have rules which act as barriers for some members of the homeless population. These rules include no pets allowed, no sleeping with partners, no substance use, no storage of belongings. In addition, many of these spaces are not trans-inclusive and have inadequate supports for people with disabilities.

The recently passed National Housing Strategy Act further illuminates the right to housing as recognized in Canada, namely the right to “adequate housing” as defined in international law.^[7] Canada Without Poverty has carefully summarized the components of “adequate housing”, which includes: security of tenure, availability of services, accessibility and cultural adequacy.^[8] A by-law predicated on enforcing people out of existing public space into housing which does not actually fulfil the substantive right to housing actively undermines the “progressive realization” of that right as required by the Act.  

This is a non-exhaustive response to the proposed amendments. The General Manager’s report was only issued recently and there has been no time to provide this proposal to people with lived experience. Updates to the by-laws should be as open and as reflective of the lived realities of homelessness as possible, and rectify the failure to include people who have experienced homelessness in the drafting of the recommendations

These three issues together demonstrate the proposed by-law updates to be not only infeasible, but actively harmful, and in several cases unconstitutional as they actively undermine homeless people safeguarding their own health and safety.

Reducing Harm in the Context of Dual Public Health Emergencies

As you are aware, the COVID-19 pandemic currently poses a significant and ongoing risk to the health, safety, and welfare of all people in British Columbia, and “threatens to disproportionately impact the most vulnerable segments of society.”^[9] This increased vulnerability is compounded by the concurrent opioid overdose public health emergency that continues to persist, and the Park Board has an opportunity to mitigate these consequences in Vancouver.

We recommend the Park Board consider an interim policy of non-displacement while working to update the Parks Control By-laws, following the lead of the City of Victoria in responding to the COVID-19 pandemic.

The Encampment Guidelines recently issued by PHO Dr. Bonnie Henry specifically advise that displacing encampments “without providing shelter or housing immediately can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread and may lead to isolation, which also poses health and safety risks to vulnerable people.” The Guidelines call on government actors to mitigate the harms faced by people living in tent cities through the provision of resources such as running water and health information not through displacement.^[10]

The City of Victoria recently adopted such a policy. This policy and the impact is is currently having are more fully set out in a separate submission from Joshua Goldberg of Poverty Kills which you should have received on July 12, 2020 and which we urge you to review carefully. I reference the motion content here for ease of referral:

On June 25, 2020 Council passed the following motion:

That Council reaffirms the existing direction, consistent with advice of Public Health Officials to reduce the risk of transmission of COVID-19, of sheltering-in-place through deferred enforcement of the 7am - 7pm by-law provision in locations where overnight sheltering is permitted until advice is received from the Provincial Health Office or Island Medical Health Officer that updates or changes the direction from the June 8th guidance from the BC Centre for Disease Control, “Response to Homeless Encampment Health Issues in the Context of COVID- 19”.Direct the staff to report back on July 9, on access to basic needs such as clean water, hygiene, and basic services.The city manager report back if more budget is needed for sheltering in parks. (Council verbally clarified that “more budget” could include anything – cleaning, outreach, etc – and verbally directed staff to interpret this as budget for shelter in parks and public places, not just parks)

The letter from Poverty Kills clearly sets out the positive impact of this interim policy.

By adopting this interim policy of non-displacement, the Park Board would enable people to feel secure in establishing overnight shelters and attempting to follow health guidance to mitigate the spread of COVID-19. By taking this position publicly, the Park Board could set an example for being responsive to community needs in a time of heightened vulnerability and crisis, and create the opportunity for more fulsome dialogue on by-law updates.

Finally, by clearly adopting a policy of non-displacement across multiple locations for the first time in Park Board history, the Park Board could cease creating the conditions which keep resulting in large, crowded camps: namely only ever having one space in the entire City of Vancouver where homeless people feel they can avoid constant displacement.

Opportunity for a Community-Informed Approach

We encourage the Park Board to forgo the proposed approach that aims to make the minimum changes necessary to be plausibly constitutionally viable and continues to treat homeless people as a nuisance to be managed. Any proposed by-law updates affecting homeless people should have been community-led, and there remains an opportunity for them to be community-informed. The notion that the Park Board can remedy this by consulting with homeless people at the implementation stage is completely inadequate.

We recommend the Park Board adjourn the consideration of proposed by-law updates until such time as meaningful work has been done with people who have experienced homelessness to ensure any revisions are liveable and not a “one-size fits all” model for the communities they affect. This work must take an anti-colonial approach and ensure Indigenous rights are upheld, acknowledging that while Indigenous people represent 2.2% of Vancouver’s total population, they compose approximately 39% of people experiencing homelessness.^[11] To update the by-laws and consult with people after their operationalization negates the value of the community’s contributions and denies them the opportunity to advocate for necessary conditions.

We call on the Park Board to reconsider the proposed by-law updates, implement a temporary policy of non-displacement, and embark on a pathway to community collaboration in order to support the right of all people to shelter.

Sincerely,

Meghan McDermott
Senior Staff Counsel – Policy

Anna Cooper
Staff Lawyer – Pivot Legal Society

On behalf of the Union of BC Indian Chiefs:

Grand Chief Stewart Phillip      
President

Chief Don Tom             
Vice President

Kukpi7 Judy Wilson
Secretary-Treasurer

CC:
Mayor Kennedy Stewart
Honourable Selina Robinson, Minister of Municipal Affairs and Housing
Honourable Shane Simpson, Minister of Social Development and Poverty Reduction
Honourable Adrian Dix, Minister of Health

[1] Abbotsford (City) v. Shantz, 2015 BCSC 1909 at paras. 213 and 219. 

[2] https://www.cbc.ca/news/canada/british-columbia/overdose-deaths-bc-1.5607792

[3] https://www2.gov.bc.ca/assets/gov/birth-adoption-death-marriage-and-divorce/deaths/coroners-service/statistical/illicit-drug.pdf

[4] https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincial-health-officer/covid-19/pho_homeless_encampment_responses_resource.pdf

[5] Supra at pp. 3 and 6.

[6] Abbotsford (City) v. Shantz, 2015 BCSC 1909 at paras. 81 – 83.

[7] https://laws-lois.justice.gc.ca/eng/acts/N-11.2/FullText.html

[8] https://cwp-csp.ca/poverty/human-rights-violation/the-right-to-housing/

[9] Preamble to Ministerial Order 150, http://www.bclaws.ca/civix/document/id/mo/mo/2020_m150, May 8, 2020. 

[10] The Guidelines at pp. 3 and 6.

[11] https://vancouver.ca/files/cov/vancouver-homeless-count-2019-final-report.pdf