Supreme court decision affirms the value of homeless people lives over the City’s property rights
On May 17th, a group of residents from the Ten Year Tent City trekked to the Supreme Court to defend their charter rights against the City’s application for emergency injunction, a court-order to displace the camp with police force. Homeless people and activists launched the Ten Year Tent City a week before the 2017 BC election to expose the crisis of homelessness that the Parties were trying to ignore, and to create a lifesaving space for homeless people, over a thousand of whom live under the constant threat of violence, police harassment, and displacement in the Downtown Eastside alone. The City of Vancouver’s attempt to get a court injunction to remove the camp callously undermined this effort of homeless people to survive together. Ten Year Tent City residents went to Court dutifully, but expecting to lose. They were surprised by the result.
Judge Neena Sharma sided with the homeless residents , agreeing that an injunction would jeopardize homeless people’s charter right to life, liberty and security. She said the City of Vancouver had failed to prove that the tent city would cause irreparable harm. She denied the City their application for an injunction to displace the camp; Ten Year Tent City will not go! The meaning of Judge Sharma’s historic decision is that the BC Supreme Court has found that homeless people’s lives and well being are part of the public good, and that harm done to their lives must be weighed against the City’s private property rights.
Sharma’s decision does not change homeless people’s rights under Canadian law, but it is is part of a trend of Court decisions that are recognizing homeless people as human beings. These legal decisions are turning slightly against the general and fundamental colonial rule of Canadian law that private property is more important than people’s lives. These court decisions give homeless and other people who don’t own significant private property more tools to fight against our displacement by corporate and colonial powers, but they are not the only threat we face.
Remembering the pathbreaking Super InTent City of 2015-16
Lessons from Super InTent City
The decision on Wednesday is the second time a Canadian court refused a state injunction to displace homeless people. The first time it happened was about a year ago when the BC Government requested an interim injunction to displace Super InTent City from the lawn of the Victoria court house. Similarly to the Ten Year Tent City case, Chief Justice Christopher Hinkson found that there was not sufficient evidence that the BC government would experience irreparable harm if the camp was allowed to remain. Instead, the judge found that many of the government’s allegations about hazards at Super InTent City were caused by homelessness itself.
The judge also found that the provincial government’s concerns were minor concerns compared to the harm that would be caused to the residents of the camp if the camp were displaced. The judge stated that residents “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”.
Hinkson’s decision put pressure on the Provincial government to provide the tent city residents with actual housing. Following the Hinkson decision, in Spring and Summer 2016, Victoria’s Together Against Poverty Society estimates that the Province was pressed to spend $86 million; creating 714 units of welfare-rate housing for homeless people that would not have otherwise existed. In late June 2016 after having announced these new housing projects, the Province was finally successful in getting an injunction. Hinkson’s decision set a strong precedent for future tent city court cases and it means that now when a government seeks an injunction against a tent city, the judge has to consider the benefits of tent cities to homeless people as well as the harms that would be caused by displacing tent cities.
However, the decision also showed the limits of tent city legal victories. In a reflection on the Super InTent City fight, activists writing in The Volcano wrote: When the law failed to police and displace residents of SIC, the Provincial government hired the Portland Hotel Society, a non-profit housing and social service provider, to manage the camp. The danger posed by social service management is that rather than being temporary, politicized spaces to fight to end homelessness, tent cities could become government-funded, open-air, ‘lowest-barrier’ shelters that modify and manage homelessness. Finally, almost all the housing that was won through the tent city resistance was supportive and institutional housing, and the struggle of former Super InTent city residents to get independent and dignified housing continues to this day.
Benefits of tent city trumps the development of 8 social housing units
The recent decision in Vancouver, builds on Hinkson’s decision in Victoria. Similar to the Super InTent City case, the City was unable to prove that irreparable harm would be caused if Ten Year Tent City remained on the site. But the specific “harms” that the judges considered in each case were different. In Victoria the judge had to decide whether the camp should stay or go based on whether the government’s claims of public safety harms were more important than the camp’s claims of homeless health and safety benefits. In Vancouver the lawyer representing the City even said that there were no safety or fire concerns about Ten Year Tent City. The harms the Vancouver judge had to weigh were between the City’s claim that the camp was interfering with their private property rights and the health and safety claims made by homeless people. The Supreme Court decision to reject the City of Vancouver’s injunction application directly supports low-income people’s lives against the City’s private property rights.
The site at 950 Main Street has been owned by the City of Vancouver since 1998 and has been vacant ever since. In 2016, the City announced they were finally planning to build social housing on the site. The 26 unit development would be managed by Lu’ma Native Housing Society and funded through BC Housing, Services Canada, and allegedly an anonymous German foundation. Social housing sounds good, but only 8 units would be guaranteed to rent at the shelter rate of welfare ($375), which is the maximum rent that homeless people can afford.
In her decision to not grant the injunction, Judge Sharma questioned the City’s sudden urgency to develop the site. The City argued that the anonymous German foundation would pull their $500,000 donation if the development did not start right away; Judge Sharma found that the City failed to provide sufficient evidence that this was in fact the case. With this decision, Sharma supported homeless people’s access to safety and security over the City’s arbitrary use of its private property.
Judge Sharma’s decision to not grant the City its injunction to displace the camp does not change Canadian law because it is not a Charter challenge, but it does help homeless people’s fight for power against some of the dehumanizing and dangerous conditions of homelessness. Sharma’s decision will make it harder for governments to displace tent cities on the grounds of their private property right to use the site for other uses; this decision immediately adds strength to the legal claim made by homeless people in Maple Ridge’s Anita Place tent city. As with Super InTent City’s injunction victory, Sharma’s decision also makes it harder for governments to secure injunctions without providing actual housing alternatives for the homeless residents on site.
Tent cities, however, are not the the end-goal of the anti-displacement movement; they are a tactic in the fight. The legal victory represented by Sharma’s decision to not allow the City of Vancouver to break up Ten Year Tent City gives homeless people and anti-displacement activists more power against police and bylaw officers; it lets us stay in place and create an exception to the rule of daily indignity, police violence, bylaw theft, and displacement that homeless people face in every city and town in BC. But what will we do with that exceptional space? One danger is that we could settle into these spaces and allow tent cities to be another place where low-income people are contained and isolated in our cities, managed by social workers in an open-air, low-cost shelter.
We can avoid that danger by gathering our communities around these exceptional spaces, organize to defend and expand them, and use them as low-income community political spaces from where we can launch a broader struggle against poverty, housing insecurity, and the systematic displacement and dispossession of our communities by for-profit, land grabbing corporations and landlords. The legal victory of Ten Year Tent City against the City of Vancouver should not be interpreted as securing justice – winning some security in our tent cities is the beginning of a new stage of struggle that rises outwards and upwards from the leadership of our most vulnerable communities, to transform every corner of our world.
By: Maria Wallstam
Initially published in the The Volcano Newsletter.