The Vancouver Park Board’s 2021 orders barring campers from CRAB Park and closing the park have been set aside by B.C. Supreme Court.
The board’s manager issued the orders but Justice Matthew Kirchner said she had a responsibility to ensure closing the parks to campers would not adversely affect their ability to access services and facilities they needed to survive.
“There is nothing in the record to show that she turned her mind to this question or that she reasonably addressed it,” Kirchner said in the Jan. 13 ruling released Jan. 14.
Kirchner said there was a lack of evidence the encampment posed a serious health or safety risk or harm to the public. She said there was no admissible evidence of significant complaints from members of the public about the camp or substantial concerns about serious risks to the lives or the safety of persons in and around the camp.
Kirchner declined to make a decision on a board application to have its orders enforced.
In a statement to Glacier Media, the board said next steps would include reaching out to city and provincial partners to determine a path forward.
“Our primary focus will continue to be working to support individuals sleeping in CRAB Park by helping connect them with indoor spaces and the other services they need to get back on their feet,” the statement said.
In sending the case back to the board, Kirchner said the issue of homeless people using parks has led to a series of court battles highlighting tensions between government and the homeless.
In between those issues, Kirchner said, is the need to strike a balance between the Charter of Rights and Freedoms protection of right to shelter and municipal efforts to protect public access to parks.
It was encampment residents Jason Hebert and Kerry Bamberger who petitioned the court for a judicial review of the orders.
The camp emerged in May and June of 2021 after the Strathcona Park encampment was disbanded that March.
It was as the Strathcona situation was winding down that the board, the province and the City of Vancouver signed a memorandum of understanding (MOU) acknowledging that homelessness continues to grow.
“Despite efforts by various levels of government to create affordable housing and sheltering options, the park board concedes there are insufficient indoor shelter spaces in Vancouver to accommodate the city’s homeless population,” Kirchner said. “However, it maintains there is adequate indoor space for those camping at CRAB Park.”
The board had a slightly different take in its statement.
“As a signatory of a Memorandum of Understanding (MOU) with the city and province, the Vancouver Park Board has committed to preventing encampments in Vancouver parks and is responsible for enforcing bylaws when suitable spaces are available for people to move indoors,” the statement said.
The court heard testimony from multiple park residents about the difficulties of obtaining clean, safe and affordable housing.
“Ms. Bamberger lived for a time in some [single resident occupancy rooms] but states they were infested with pests, including bed bugs, rats, mice, and cockroaches, and they were 'too violent' for her,” Kirchner said. “She states people were being assaulted on a frequent basis, and there are always guns or other weapons in the building.”
The camp at times had more than 50 people in it, Kirchner said.
But, the board manager said in a deposition, she had seen needles, feces, debris, damage to property, and small fires on site visits in August and September.
The manager issued a July 8, 2021 order barring overnight camping.
Then, a Sept 7, 2021 order closed a portion of CRAB Park to the public for the purposes of rehabilitating the park from the damage alleged to have been caused by the encampment. The closed area included the only park area where overnight sheltering was permitted prior to the July 8 order.
In Victoria, Kirchner said, “the city’s bylaw prohibited anyone from erecting temporary shelters, including tents, tarps, or even cardboard boxes, in public parks, leaving them exposed to serious and life-threatening conditions and depriving them of their dignity, independence, and ability to protect themselves.”
Kirchner cited a 2009 decision of the same court dealing with homeless encampments in Victoria. The judge there found a Victoria bylaw prohibiting the homeless from erecting temporary shelters in city parks infringed their right to life, liberty, and security of the person.