Pivot Legal and the BCCLA Send Letter to Victoria City Council over its Treatment of the Unhoused Community

The Pivot Legal Society and the BC Civil Liberties Association have sent a joint letter to the Victoria city council warning it of legal jeopardy over its recent amendments to the Parks Regulation Bylaw, which by August 1st bars all but three parks to overnight sheltering, in the midst of a housing crisis and acute scarcity of available shelter space.

Multiple community advocates, including myself, have reached out to legal advocates and lawyers on the mainland, sounding the alarm over the council’s intent to crack down on the Pandora encampment while it knew hundreds of unhoused residents had nowhere to go by design. And despite their huge workloads, Pivot Legal and the BCCLA have agreed to help.

At the core of this dispute is a longstanding legal precedent set in this very city. In Victoria (city) v. Adams in 2008, the BC Supreme Court decided that the sheltering bylaw prohibiting overnight sheltering in all city parks violated Article 7 of the Canadian Charter of Rights and Freedoms, and enshrined both the right to sleep and the right to erect shelter to protect oneself against the elements. The judgement held on appeal. Notably, both Pivot Legal and the BCCLA intervened in the case.

Recently the council has been intent on revisiting this precedent in its bylaw to crack down on the Pandora encampment. Councillor Stephen Hammond’s spurious rationale for introducing the motion was that the self-manufactured crisis on the 900-block of Pandora Avenue justified invoking Article 1 of the Charter, thus overruling any decision to the contrary. This rationale has been invoked before, such as for removing the East Hastings encampment in Vancouver as the fire hazard threatened entire blocks.

In their letter to the Victoria city council, Pivot Legal and the BCCLA argue that closing nearly every park to overnight sheltering without providing sufficient and accessible shelter is unconscionable and runs counter to court precedents, including Bamberger v. Vancouver (Board of Parks and Recreation) , 2022 BCSC 49, Prince George (City) v. Stewart, 2021 BCSC 2089, and Abbotsford (City) v. Shantz, 2015 BCSC 1909:

While a City has some authority to restrict locations for sheltering outdoors, it is decidedly
not a City’s legal prerogative to remove nearly all spaces accessible to the local homeless
population, as the City of Victoria has done. The list of prohibited sheltering spaces
demonstrates that the City is moving to prohibit sheltering in nearly all parks in the district,
and the few remaining parks are significantly further from the resources unhoused people
rely upon to survive. In Bamberger v. Vancouver (Board of Parks and Recreation) , 2022 BCSC 49, the Supreme Court of B.C. stopped the Vancouver Park Board from shutting a third park
to overnight sheltering near the Downtown Eastside of Vancouver. The Honourable Justice
Kirchner cautioned that “Simply assuming that those sheltering in CRAB Park [tent city] can
find “another place to go” fails to accord the necessary priority to their s. 7 rights and ensure
minimal impairment of those rights.” —Anna Cooper, Staff Lawyer, Pivot Legal Society

The full text of the letter is available here.