New Paths Toward the Right to Housing Forged by Tent City Litigation


New Paths Toward the Right to Housing Forged  by Tent City Litigation

COVID-19 caused homelessness to soar while service and shelter access shrank. Many unhoused people were forced to shelter outdoors and fill service gaps with mutual aid, in some cases forming “tent cities.” Defences against “decampment” catalyzed progress in the jurisprudence following Victoria (City) v. Adams, 2008 BCSC 1209 [Adams]. Prince George (City) v. Stewart, 2021 BCSC 2089 [Stewart], and Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49 [Bamberger] offer promising avenues for advancing the right to safe shelter, and ultimately, the right to stable housing.

In August 2021, the City of Prince George sought an injunction to displace people sheltering on vacant city property. They asserted that shelter space was available, and sought declarations that the respondents contravened the Trespass Act and a zoning bylaw. Days later, the city adopted the Safe Streets Bylaw, which prohibited sitting or lying on a street or erecting structures — such as a tent — that impede pedestrian traffic.

Chief Justice Hinkson dismissed the statutory injunction targeting the main encampment, citing “exceptional circumstances” that justified its refusal despite a clear breach of a bylaw, as per the Thornhill test. These included the insufficiency of accessible, low-barrier shelter spaces (Stewart, para. 74), life-threatening cold temperatures (para. 91), and high proportion of Indigenous residents (para. 69-71). Further, the respondents argued that they could not comply with the injunction without breaching the Safe Streets Bylaw (para. 72).

Interestingly, Chief Justice Hinkson refused declaratory relief stating that “absent other suitable housing and daytime facilities” (emphasis added), residents must be permitted to stay. (para. 115). While not purporting to expand the Adams right, Chief Justice Hinkson noted that COVID-19 left many without shelter “in either the daytime or the nighttime” (para. 73) and that survival required finding ways to keep warm (para. 64).

In July 2021, the General Manager of the Vancouver Park Board (“GM”) sought to displace a Downtown Eastside park encampment that formed after another was dismantled. She issued an order pursuant to the Parks Control By-Law closing the park to overnight sheltering, then another in September 2021 to the same effect. Both cited the Park Board’s commitment to prevent encampments when “suitable spaces [were] available for unsheltered people to move indoors” (Bamberger, para. 38).

Park residents sought judicial review of the orders. In response, the Park Board sought injunctions to enforce the orders and the bylaw’s daytime sheltering prohibition. Justice Kirchner found that reasonableness required the GM to confirm that suitable spaces were available for all residents, which she had not done (Bamberger, para. 89). The evidence revealed that purportedly available beds were occupied or subject to restrictive conditions, and that residents’ “suitability” needs were significant and varied. Justice Kirchner also concluded that the orders failed to proportionately balance the residents’ Charter rights with their stated objectives (para. 150).

Justice Kirchner determined that residents were owed procedural fairness, including notice and an opportunity to be heard. Residents’ section 7 Charter rights were at stake, elevating their interest and right to be heard above other park users (para. 63). The orders were quashed and remitted, and the associated injunction was dismissed. Applying Thornhill, Justice Kirchner adjourned the injunction application to enforce the bylaw, finding that, as in Stewart, the facts demonstrated “exceptional circumstances.” (Bamberger, para. 176).

Ultimately, tent city litigation aims not to advance just the right to shelter in a park, but the right to live in stable, dignified housing. These developments have broken ground on the path to this goal. With new demands for procedural fairness and Charter considerations, judicial review offers novel tools for housing justice, while overcoming Thornhill and hints at daytime sheltering rights foretell progress in injunction and Charter jurisprudence. The turn toward considering suitability and accessibility is a turn away from using shelter bed numbers alone to justify displacement, and brings meaningful protection of unhoused people’s section 7 rights one step closer.