IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: British Columbia v. Adamson, 2016 BCSC 584

Date: 20160405

Docket: 16 0861

Registry: Victoria

Between:

Her Majesty The Queen in right of the Province of British Columbia,

and The Attorney General of British Columbia

Plaintiffs

And

Hugh Adamson, Donna Aumbus, Ollie Aux, Adam Baker,

Michael (Magnus) Bjornson, Christine Brett, Shane Enns, Jorge Gome,

Russell Lloyd-Jones, Sean M. Manley, Audrey Moffatt, Carl Montgomery,

Rose Mullin, Kristel Oertel, Chris Parent, AmanDa Paska, Ricky Perreault, Joseph Reville, Andrea Robinson, Vincent Robinson, Norman Ruble, Rathborne Smallwood, Dough Swait, William Wale, Mitchell Wallace, Jane Doe, John Doe and Other Unknown Persons

Defendants

Restriction on publication: By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as [M.G.] may not be published, broadcasted, or transmitted in any manner.

Before: The Honourable Chief Justice Hinkson

Reasons for Judgment

Counsel for the Plaintiffs: T.A. Mason and S.A. Bevan Counsel for the Defendants: Adamson, Aumbus, Bjornson, Brett, Gome, Oertel, Mullin, Reville, A. Robinson, Ruble, and Smallwood C.J. Boies Parker and J.L. MacAdam Place and Date of Hearing: Victoria, B.C. March 11, 14 and 15, 2016 Place and Date of Judgment: Victoria, B.C. April 5, 2016

Introduction

[1] The first named plaintiff, Her Majesty the Queen in right of the Province of British Columbia (the “Province”), is the owner of the lands and premises of the Victoria Law Courts at 850 Burdett Avenue, Victoria, British Columbia, occupying the city block bounded by Blanshard Street on the west, Quadra Street on the east, Courtney Street on the north and Burdett Avenue on the south (the “Courthouse Property”). These lands are more particularly described as Lot 1, Section 88, Victoria District Plan 12886, Parcel Identifier 004-673-646.

[2] The second named plaintiff, the Attorney General of British Columbia, is the legal advisor to the Lieutenant Governor of British Columbia, and the legal member of the Executive Council for British Columbia. She asserts parens patriae jurisdiction to apply to this Court for injunctive relief based upon private law causes of action in trespass, under the Trespass Act, R.S.B.C. 1996, c. 462 and nuisance, public nuisance and breaches of public law, and to preserve the rule of law, pursuant to the Attorney General Act, R.S.B.C. 1996, c. 22.

[3] At least some of the named defendants and other individuals have been camping at the green space that occupies roughly the eastern third of the Courthouse Property (the “Courthouse Green Space”) since in or about November 2015.

[4] On February 29, 2016, the plaintiffs filed a notice of civil claim seeking an injunction to restrain the defendants from trespassing upon the Courthouse Green Space and from continuing various activities thereon.

[5] Although service of all of the named defendants may be incomplete, the plaintiffs nonetheless seek an interlocutory injunction in the terms set out in Appendix A to these reasons for judgment.

Background

The Courthouse Property

[6] The Courthouse Property, including the Courthouse Green Space, was formerly held by the British Columbia Buildings Corporation and is “administered land” under the Public Agency Accommodation Act, S.B.C. 2006, c. 7. As such, no provision of the Land Act, R.S.B.C. 1996, c. 245, except s. 50, applies to the Courthouse Property. Nor is the Courthouse Green Space a “park” within the meaning of the Parks Regulation Bylaw passed by the City of Victoria under the Community Charter, S.B.C. 2003, c. 26.

[7] The Province, as landowner, has permitted members of the public to enter upon and use the Courthouse Green Space for recreation activities, but has never formally authorized the establishment of an encampment at the site.

The Encampment

[8] On numerous dates since about November 2015, the defendants have erected and maintained tents and other structures, stored objects in and around the structures, and inhabited the structures, thereby establishing an encampment that occupies most or all of the area in the Courthouse Green Space (the “Encampment”, referred to in some submissions as “SuperIntent City”, “SIC”, or “Tent City”), to the exclusion of most other uses. The defendants have maintained the Encampment throughout the day and night, without limiting their activities to overnight sheltering.

[9] The plaintiffs contend that the Encampment has become unsustainable and unacceptable, but also state that following a brief period of some 10 – 12 weeks to permit remediation of the site, they will not seek to enjoin overnight sheltering by homeless individuals on the Courthouse Green Space between the hours of 7:00 pm and 7:00 am.

[10] The plaintiffs contend that alternative accommodation is available to house homeless individuals who are currently living in the Encampment. Since December 2015, the Province, through the British Columbia Housing Management Commission, has funded the following new facilities and programs in the City of Victoria:

a. three new 24/7 transitional housing facilities providing accommodation for a total of 128 homeless individuals, including indoor and outdoor tent spaces;

b. 75 new nighttime shelter spaces for homeless individuals; and

c. 40 new rent supplements specifically targeted to homeless persons from the Encampment.

[11] Some of the defendants remaining at the Courthouse Green Space who are homeless have declined to move to these new spaces despite efforts to assist them with relocation.

[12] On January 8, 2016, representatives of the Province read aloud, distributed, and posted at the Courthouse Green Space a notice requesting the defendants and others camping there to leave the Courthouse Property. Some of the campers left in response to the January 8, 2016 notice, but most did not.

[13] On February 4, 2016, representatives of the Province read aloud, distributed, and posted at the Courthouse Green Space a notice under s. 4 of the Trespass Act to require all camping at the Courthouse Green Space to cease and all tents and other personal property to be removed by no later than February 25, 2016.

[14] By February 26, 2016, only some 50 of the Encampment occupants had apparently removed themselves and their belongings from the Courthouse Green Space, while a significant number of individuals and approximately 60 to 70 structures remained in the Encampment. The Encampment occupants or some of them - who are continuing to maintain the Encampment despite the February 25, 2016 deadline - threaten and intend to continue to reside in the Encampment unless they are restrained from doing so.

[15] On February 27, 2016, the Encampment occupants were issued an order pursuant to s. 22 of the Fire Services Act, R.S.B.C. 1996, c. 144 to eliminate the fire hazards at the Encampment.

Discussion

[16] The plaintiffs contend that the Attorney General of British Columbia has jurisdiction under statute to seek an interlocutory injunction based on the alleged interference with court access, the effects of the Encampment that amount to public nuisance and breaches of the public law, or in the alternative, the Province’s rights as landowner.

[17] While the Attorney General’s jurisdiction is undisputed by the defendants, the parties disagree as to the test to be applied on this application for interim relief.

Evidentiary Issues

[18] I am not persuaded that the admissible evidence before me on this application supports many of the plaintiffs’ allegations. As recently confirmed by the Court of Appeal in Premium Weatherstripping Inc. v. Ghassemi, 2016 BCCA 20 at paras. 5 – 8:

[5] Rule 22-2 of the Supreme Court Rules limits the evidence in an affidavit to that which is admissible at trial, unless excepted, in these terms:

(12) Subject to subrule (13), an affidavit must state only what a person swearing or affirming the affidavit would be permitted to state in evidence at a trial.

(13) An affidavit may contain statements as to the information and belief of the person swearing or affirming the affidavit, if

(a) the source of the information and belief is given, and

(b) the affidavit is made

(i) in respect of an application that does not seek a final order, or

(ii) by leave of the court under Rule 12-5 (71) (a) or 22-1 (4) (e).

[6] By these sub-rules, hearsay evidence (not permitted at trial) generally may not be included in an affidavit unless sub-rule (13) is met. An interlocutory injunction, of course comes within the words of sub-rule (13), "an application that does not seek a final order".

[7] [An] interlocutory injunction is well understood to be a special sort of non-final order in that, by its very nature, it restricts the freedom of the party against whom it is made, without the applicant having had to prove any allegation beyond the standard of an arguable case. An interlocutory injunction often becomes the entire remedy in an action, and can endure for a very long time unless temporal limits are placed upon it. For that reason, assiduous care in preparation of the application is the standard, including strict compliance with the requirements for all hearsay evidence that would not be permitted to be stated at trial to be on information and belief, with the source identified. There is no room in interlocutory injunction practice for relaxation of that requirement, in my view.

[8] In this case the affidavits did not comply with this requirement; the order appealed must be set aside as having been obtained on the basis of inadmissible evidence.

[19] I am troubled by the form of many of the affidavits tendered by the defendants. For example, the individual who took the affidavit of Hugh Adamson, one of the named defendants in this action, inappropriately described his March 7, 2016 affidavit to be “sworn (or affirmed)”. A number of other affidavits filed by the defendants were also in this form. This improper form of jurat caused me pause in considering the evidence contained in such affidavits, but I have decided that the fault for the form of the jurat lies with counsel for the defendants, rather than with the deponents. As no objection to the form of jurat was taken by counsel for the plaintiffs, I will consider the evidence in these forms of affidavits, rather than force counsel for the defendants to go through the exercise of having the affidavits properly commissioned. I would not do so if this were not an interim application.

[20] However, I am unable to give any weight to the evidence in the affidavit affirmed by a person identified only as “D.A.”. D.A. indicated that he did not want to give his full name because he feared reprisal from the government. Nevertheless, like witnesses in a trial, affiants must either obtain an order from the Court to identify themselves by initials, which D.A. did not do, or identify themselves by full name for their evidence to be considered admissible in any court proceedings.

Legal Framework

[21] The traditional three-part test for granting an injunction was set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at 347-8 [RJR-MacDonald]:

a) Has the applicant demonstrated there is a fair question to be tried?

b) Will the applicant suffer irreparable harm if an injunction is not granted? and

c) Does the balance of convenience favour the granting of an injunction?

[22] The Province argues that, for a number of reasons, the RJR-MacDonald framework does not apply in this case. In the alternative, the Province contends that for an injunction to be granted in these circumstances, the plaintiffs must only satisfy the first criterion of the RJR-MacDonald test.

1. Does the RJR-MacDonald test apply?

[23] The plaintiffs contend that the three-part test in RJR-MacDonald does not apply to trespass cases. The plaintiffs argue that once they have shown that their property rights are being wrongfully interfered with, and the defendants intend to continue to commit the wrong, they have established their entitlement to an injunction.

[24] Some support for this argument can be found in the reasons for judgment of Madam Justice Allen in The Sol Sante Club v. Biefeld et al, 2005 BCSC 1908 at paras. 18 – 20 [Sol Sante Club]:

[18] However, the general test [in RJR – Macdonald] does not apply in trespass cases. Many cases support the proposition that once an applicant establishes a prima facie case that his or her property rights are being wrongfully interfered with by another and the other party intends to continue the wrong, an injunction should issue without regard to the remaining parts of the general test.

[19] Two such cases are Terbasket and Harmony Co-ordination Services Limited, (2003), 28 C.P.C. (5th) 364, and Paul et al v. Canadian Pacific Limited, (1983), 2 D.L.R. (4th) 22, where a temporary injunction was imposed and an appeal to the Supreme Court of Canada, [1988] 2 S.C.R. 654, resulted in a permanent injunction being imposed.

[20] In my opinion, there is a robust triable issue as to whether the Board of Directors can terminate Mr. Grenier's probationary status or whether his membership can only be terminated by a special resolution of the members.

[25] But as Allen J. declined to follow the exception to the general test, Sol Sante Club is of limited assistance.

[26] Nor is this a case like Board of School Trustees of School District No. 27 (Cariboo-Chilcotin) v. Van Osch et al, 2004 BCSC 1827, where the landowner school district proved that it was unable to access its property because of the actions of the defendants. In the present case, it cannot be said that the defendants have no right to the use of the Courthouse Green Space. Indeed, as I have discussed above, the plaintiffs concede that following a brief period of some 10 – 12 weeks to permit remediation of the site, they will not seek to enjoin overnight sheltering on the Courthouse Green Space by homeless individuals.

[27] Even if the trespass exception to RJR-MacDonald applies in this case, the plaintiffs still bear the burden of establishing that the defendants are wrongfully interfering with the Province’s property rights. In that regard, the Province alleges that the defendants have violated s. 4 of the Trespass Act. Sections 4 and 4.1 of the Trespass Act provide the following:

4. (1) Subject to section 4.1, a person commits an offence if the person does any of the following:

(a) enters premises that are enclosed land;

(b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;

(c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.

(2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there.

(3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to

(a) leave the premises, or

(b) stop engaging in an activity on or in the premises,

commits an offence if the person

(c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or

(d) re-enters the premises or resumes the activity on or in the premises.

4.1. A person may not be convicted of an offence under section 4 in relation to premises if the person's action or inaction, as applicable to the offence, was with

(a) the consent of an occupier of the premises or an authorized person,

(b) other lawful authority, or

(c) colour of right.

[28] The Province asserts that in maintaining the Encampment despite the February 25, 2016 deadline, the defendants, or some of them, have been openly and continuously committing the offence of trespass defined in s. 4 of the Trespass Act. Because of the scale on which the offence is being committed and the densely populated nature of the Encampment, law enforcement officials have been unable or unwilling to exercise the power of arrest under s. 10 of the Trespass Act.

[29] But s. 4 of the Trespass Act is, as set out above, subject to s. 4.1, which exempts from conviction those who act on other lawful authority, or have some colour of right, which the defendants here contend that they enjoy. That is not an issue to be resolved on this application for interim relief.

[30] If the trespass exception to RJR-MacDonald does not apply, the plaintiffs further assert that they are seeking a statutory remedy as opposed to an equitable one, and that therefore their application to restrain the continued breach of public law should result in the injunctive relief that they seek, absent exceptional circumstances.

[31] The alternative test advocated for by the plaintiffs comes from the Court of Appeal’s decision in Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 109 B.C.A.C. 188, leave to appeal to SCC ref’d [1998] S.C.C.A. No. 407 [Thornhill]. Under this two-part test, an injunction is granted once it has been established that there has been a breach of a bylaw and there are no exceptional circumstances that should prevent enforcement of the bylaw.

[32] Madam Justice Duncan considered the question of whether to follow RJR-MacDonald or Thornhill in very similar circumstances in Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC 1926 [Williams]. In that case homeless individuals erected 200 tents in Oppenheimer Park, which was closed from 10:00 p.m. to 6:00 a.m., without permission from the City of Vancouver. The Vancouver Board of Parks and Recreation sought an interlocutory injunction requiring the individuals who were camping in Oppenheimer Park to remove all tents and other structures from the park.

[33] Duncan J. found that the City of Vancouver had canceled several community events because of the presence of the tents, that there were numerous fire hazards, and that many fights and incidents of public drunkenness had taken place. She also found that policing costs attributable to the park were close to $100,000, and that outreach workers estimated that about 150 people were living in the park.

[34] At paras. 46 – 59, Duncan J. considered the test to be applied for the injunction sought, and reviewed the tests that had been applied in similar cases concerning encampments of homeless persons in municipal parks not only in Vancouver and Victoria, but in other British Columbia cities. Ultimately, at para. 60, she concluded that she should follow RJR-MacDonald in the circumstances:

[60] I am inclined to the view that the RJR-MacDonald test is the appropriate one to be applied in the circumstances before me. The evolution of the type of litigation in question here favours an approach which takes into account Charter issues rather than the consideration of a pure statutory breach approach to injunctive relief.

[35] This Court has repeatedly opined that the Thornhill analysis is not appropriate in cases where Charter issues are raised: Williams at para. 60; Abbotsford (City) v. Shantz (20 December 2013), New Westminster S156820 at para. 20 (B.C.S.C.); Vancouver Parks Board v. Mickelson, 2003 BCSC 1271 at para. 20. I therefore agree with Duncan J.’s analysis and her view that RJR-MacDonald is the proper test to follow in applications such as this one.

2. Must the plaintiffs satisfy all of the RJR-MacDonald criteria?

[36] The plaintiffs assert that while the Court has occasionally been reluctant to grant injunctive relief where other avenues of relief are open to the Attorney General, once a clear breach of public law or ongoing flagrant violation of public rights is established, the Court will not require any further steps in the analysis, or if applying the ordinary test for injunctive relief, will consider that the elements of irreparable harm and the balance of convenience are satisfied. In support of this contention, the plaintiffs rely upon three authorities: Attorney General for Ontario v. Grabarchuck et al, [1976] O.J. No. 2074 (H. Ct. J. (Div. Ct.)) [Grabarchuck]; In the Matter of Access to the Courts of Justice, 2011 BCSC 1815 [The Matter of Access]; and C. Jones, “The Attorney General’s Standing to Seek Relief in the Public Interest; The Evolving Doctrine of Parens Patriae” (2007) 86 Can. Bar Rev. 121.

[37] In Grabarchuck, the Ontario Divisional Court dealt with an application by the Attorney-General for Ontario to enjoin the defendants from carrying on business without a licence contrary to the provisions of the Public Commercial Vehicles Act, R.S.O. 1970, c. 375. Mr. Justice Reid found that there was little room for doubt about the material facts of the case, and no doubt that defendants had persistently flouted the law. At para. 33, Reid J. observed:

[33] In my opinion, there is no basis for the application of the usual criteria. If, however, they were applicable I would think that the justice and convenience of the matter lie on the Attorney-General's side. He has a strong prima facie case. If irreparable damage to the public interest must be shown I agree with and apply the following. In Attorney-General v. Harris, [1961] 1 Q.B. 74 at p. 95, Pearce, L.J., observed:

... a breach with impunity by one citizen leads to a breach by other citizens, or to a general feeling that the law is unjustly partial to those who have the persistence to flout it.

[38] Thus, despite the Court’s apparent rejection of the application of the usual criteria for injunctive relief, the case was ultimately decided by the application of those very criteria.

[39] Moreover, the application of Grabarchuk was restricted by McPherson J., as he then was in, Ontario (Attorney General) v. Ontario Teacher’s Federation, [1997] O.J. No. 4361 (Ct. J. (Gen. Div.)) where he stated at paras. 34 – 35 that:

[34] In Bear Island O'Leary J., and in Grabarchuk Reid J., both used the word 'flout' to describe the defendants' conduct, and linked the flouting of the law to their conclusion that the Attorney General need not demonstrate irreparable harm in order to obtain an interlocutory injunction. The New Shorter Oxford English Dictionary defines 'flout' as follows, at p. 981:

flout: (verb) Treat or behave with disdain; mock; jeer; express contempt (for) by action or speech. Now usually denoting indirect expression: openly disregard (a law, an opinion, etc.)

[35] The conduct of the teachers does not, in my view, come close to this definition of flout, or to the conduct of the defendants in Bear Island Foundation or Grabarchuk. The teachers' decision was not made with disdain. They had never engaged in a province-wide strike before last week. The record demonstrates that they made their decision in a careful, concerned and reluctant fashion. Moreover, there is not a hint of mocking or jeering in their conduct since the strike began. The strike has been remarkably peaceful, especially in light of the fact that approximately 126,000 teachers are involved. Finally, the teachers do not believe that they are openly disregarding the law. As I described above, their legal position is that they are engaged in a lawful strike.

[40] The Matter of Access was an application by the Attorney General for an ex parte injunction to restore and preserve unimpeded public access to the Vancouver Law Courts and courthouses in the province, and to prevent any interference with the operation of the courts. As I will explain below, the plaintiffs concede that there is no evidence in this case that public access to the Victoria Law Courts has been impeded. As Associate Chief Justice MacKenzie pointed out in The Matter of Access, at para. 26:

To use the Court's jurisdiction to issue an ex parte injunction to control activity on public lands that may not happen is speculative. There already exists a remedy for trespass, so such speculative relief is not required.

[41] Those parts of the Canadian Bar Review article relied upon by the plaintiffs essentially summarize the principles set out in the Grabarchuk and The Matter of Access.

[42] The breaches of public law alleged by the plaintiffs include interference with those working and living near the Courthouse Green Space; interference with the rights of the general public to the use and enjoyment of that green space, unaffected by inconvenience, discomfort or other forms of interference; and breaches of s. 4 of the Trespass Act and s. 22 of the Fire Services Act.

[43] As I discussed above, I am not satisfied that the plaintiffs have established a clear breach of the Trespass Act. I have also rejected their submissions that the statutory breaches alleged in this case justify a departure from the application of the full RJR-MacDonald framework.

[44] The remaining breaches of public law alleged by the plaintiffs essentially amount to claims of public nuisance. The doctrine of public nuisance has been explained both by the Court of Appeal and the Supreme Court of Canada. In Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority, 2011 BCCA 77 at para. 39, Madam Justice Neilson, for the Court, commented on the appeal from the finding that means of construction of the Canada Line tunnel through Vancouver substantially interfered with Hazel & Co.'s use and enjoyment of its premises, and that the extent of the interference was sufficiently unreasonable to constitute a nuisance. The trial judge found that the nature, severity and duration of the impact on Hazel & Co. resulting from cut and cover construction outweighed the social or public utility of that construction. Neilson J.A. held:

[39] In considering the factors relevant to nuisance, the court must recognize the inevitability of competing interests and the need for give and take. As Professor Klar observes in Tort Law, 4th ed. (Toronto: Carswell, 2008) at 715, nuisance "is principally concerned with regulating the conflicting uses of land which invariably arise in an increasingly urbanized and crowded society ". A certain degree of inconvenience and interference is inevitable to ensure peaceful co-existence. The task is to determine at what point the process of give and take becomes sufficiently unbalanced to create unreasonable harm that is deserving of compensation: Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993), 102 D.L.R. (4th) 12, 62 O.A.C. 202 at 18-19 (C.A.).

[Emphasis added.]

[45] In Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at paras. 52 – 53, Mr. Justice Major, for a unanimous Court, stated:

[52] The doctrine of public nuisance appears as a poorly understood area of the law. "A public nuisance has been defined as any activity which unreasonably interferes with the public's interest in questions of health, safety, morality, comfort or convenience": see Klar, supra, at p. 525. Essentially, "[t]he conduct complained of must amount to . . . an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference": See G. H. L. Fridman, The Law of Torts in Canada, vol. I (1989), at p. 168. An individual may bring a private action in public nuisance by pleading and proving special damage. See, e.g., Chessie v. J. D. Irving Ltd. (1982), 22 C.C.L.T. 89 (N.B.C.A.). Such actions commonly involve allegations of unreasonable interference with a public right of way, such as a street or highway. See ibid., at p. 94.

[53] Whether or not a particular activity constitutes a public nuisance is a question of fact. Many factors may be considered, including the inconvenience caused by the activity, the difficulty involved in lessening or avoiding the risk, the utility of the activity, the general practice of others, and the character of the neighbourhood . See Chessie, supra, at p. 94. The trial judge found, at p. 206, that "the configuration and design of the railway tracks on Store Street constituted an unreasonable interference to the public of its right of access". He noted that Store Street was a mixed retail, industrial, and commercial area, and that the Railways should have foreseen the hazard posed by the flangeways to riders of two-wheeled vehicles. He found, at p. 207, that the cost of that hazard should be borne by the Railways as a matter of policy:

In this case, the defendant Railways clearly installed that particular flange-rail system without regard to vehicular traffic. It was chosen because it cost less, and it was longer lasting and better suited to the needs of the rail traffic. However, the result of this choice of flange-rail, which created an almost 4-inch gap, was to effectively increase the risks to vehicle traffic. The cost of that increased risk to others must fall on the defendant Railways. It is a "cost of running the system."

[Emphasis added.]

[46] The Province asserts that from November 2015 to the present time, the defendants, by maintaining the Encampment, have damaged the Courthouse Green Space, impeded operations at the Victoria Law Courts, affected the quiet enjoyment of individuals residing in the neighborhood, disrupted the operation of businesses in the neighborhood, and created health and safety hazards for themselves and members of the surrounding community. Particulars of the nuisance and breaches of public law are alleged to include:

a. Impeding or dissuading the public use of the Courthouse building and interfering with access to justice services at the Justice Access Centre located within the Victoria Law Courts building. Members of the public are currently reluctant to attend the Courthouse precinct;

b. displacing other members of the public, including Courthouse staff and participants in legal proceedings at the Victoria Law Courts, from use of the Courthouse Green Space for respite and recreation;

c. impeding or dissuading public use of sidewalks adjacent to the Courthouse Green Space;

d. denuding the lawn and altering the grade profile of the ground at the Courthouse Green Space such that the site will no longer usable for the enjoyment of the public as a green space unless and until significant remediation steps are taken;

e. impeding access to the Justice Access Centre located within the Victoria Law Courts building;

f. burning wood, garbage, and other substances in open fires, creating smoke that has entered nearby buildings and sickened individuals in those buildings;

g. creating fire hazards, including burning candles within tents and storing combustible materials within the Encampment;

h. defecating on the ground at locations in and around the Encampment, including at locations at or in front of entrances to the Victoria Law Courts;

i. depositing garbage and debris in and around the Encampment, including biohazardous materials such as used needles and syringes;

j. engaging in criminal activity in and around the Encampment, including assaults and drug trafficking; and

k. creating noise, disturbance, and a general air of discomfort that has affected residents and businesses in the neighbourhood, as well as discouraged or impeded members of the public from seeking access to justice within the courthouse building.

[47] I do not propose to deal with each of the allegations enumerated above individually; however, I will address the substance of the allegations in the reasons that follow.

[48] The Province further asserts that by reason of the nuisance, which it contends is substantial and unreasonable, the Province as landowner, together with a cross-section of the public residing, working, accessing services, or carrying on business in the surrounding area, have suffered annoyance, discomfort, loss of enjoyment, damage, and expense.

[49] The Province contends that ongoing measures required to mitigate sanitation and public order issues at the Encampment have consumed significant public resources. The plaintiffs assert that the strain on public resources that the Encampment has created at its location in close proximity to the Victoria Law Courts may detract from the resources available for operation of the Victoria Law Courts and ultimately affect the public interest in access to justice.

[50] In Abbotsford (City) v. Shantz, 2015 BCSC 1909 [Shantz] at para. 174, I found that there is no right to housing under the Charter. Despite the lack of any such Charter right, the other rights discussed in Shantz must be considered on this application. Weighing, as I must, the inconvenience caused by the defendants’ activities, the difficulty involved in lessening or avoiding the risk to the defendants, the utility of their activities, the general practice of others, and the character of the neighbourhood, I am unable to find that a public nuisance has been clearly established.

[51] It is clear that many of the plaintiff’s factual assertions are contested by the defendants. I am unable to resolve many of these factual disagreements on affidavit evidence alone.

[52] I am not persuaded that the plaintiffs have established a basis for the application of an exception to the general test in RJR-Macdonald, and I therefore turn to the three questions to be addressed using that test.

Application of the Legal Framework

1. Has the applicant demonstrated there is a fair question to be tried?

[53] I am satisfied that the plaintiffs have established that their pleadings and the evidence on this application raise more than one fair question, including the question of the application of the Trespass Act; the question of the entitlement and need for the use of the Courthouse Green Space by members of the public other than the homeless; and the questions of health, general safety, fire safety, and the safety of the public who are attempting to deal with the encampment.

2. Will the applicant suffer irreparable harm if an injunction is not granted?

[54] The definition of irreparable harm is set out by the Supreme Court of Canada in RJR-MacDonald at 341:

"Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. … The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).

[55] While I accept that the Encampment is considered by many to be an eyesore at best, much of the harm complained of by the plaintiffs has now been done.

[56] The plaintiffs provided affidavits setting out the ongoing cost and expense associated with the Encampment. One such affidavit was provided by Brian Cooper, a superintendent of property services in the Facilities Management Services Branch of the Real Property Division of the Ministry of Technology, Innovation and Citizens’ Services (“MTICS”). In his affidavit affirmed February 26, 2016, Mr. Cooper deposed that, as a result of the Encampment, MTICS has had to engage additional security staff and arrange for additional sanitation services to be provided at the Courthouse Property.

[57] Mr. Cooper further attested that the Encampment has caused significant damage to the Courthouse Green Space lawn, and possibly to the underlying irrigation system. He attested that MTICS had recently estimated that it would cost $300,000 to $350,000 to clean up and rehabilitate the site.

[58] Graeme Sykes is a real estate manager in the Asset Management Branch of the Real Property Division of MTICS. In his affidavit sworn February 29, 2016, Mr. Sykes deposed that, since 2013 or 2014, MTICS has been developing plans to upgrade the electrical service at the Courthouse Property. The timeline of this project requires contractors with BC Hydro to have access to a large section of the Courthouse Green Space in summer 2016 so that they can install new transformers for the Courthouse Property. Mr. Sykes has been informed and believes that if the project proceeds while the Encampment remains standing, the contractors will require MTICS to provide or pay for additional security services for their trucks and equipment.

[59] The plaintiffs permitted the Encampment to exist for many months before seeking injunctive relief. The expenses detailed above can all be quantified. While I accept without reservation the reality that the expenses will almost certainly be unrecoverable from the defendants, I note that the Supreme Court of Canada remarked in RJR-MacDonald that one party’s impecuniosity does not automatically decide the application in the opposing party’s favour. The fact remains that most of the damage s alleged by the plaintiffs have already crystallized. Any further costs or damage that would be occasioned by the ongoing presence of the Encampment would, as I will discuss below, simply take place somewhere else in the City or Victoria if the injunction sought were issued.

3. Does the balance of convenience favour the granting of an injunction?

[60] Even if the damages alleged by the plaintiffs satisfy the criterion of irreparable harm, I must still consider whether the balance of convenience favours granting the remedy that the Province seeks.

[61] The plaintiffs submit that the balance of convenience favours granting the injunction because of the health and safety concerns that they say are caused by the Encampment. The plaintiffs say that the Encampment results in the increased presence of biohazard waste and garbage in the area; prevents other members of the public from using the Courthouse Green Space and discourages them from using nearby resources; creates fire safety concerns; and results in an increased need for policing resources to be deployed in the area.

[62] On the other hand, the defendants contend that there are not enough shelter spaces to house Victoria’s homeless population. They say that if they are removed from the Courthouse Green Space, the Encampment’s homeless residents will have to camp somewhere else, and could very well be subject to greater health and safety risks as a result. The defendants also submit that remaining at the Encampment has permitted them to develop a community, and to begin to build positive relationships with authorities and others in the surrounding area.

[63] I will consider the various points raised by the parties in the sections below.

a) The Number of Homeless and the Number of Beds and Shelters in Victoria

[64] These numbers are far from clear.

[65] To provide estimates of the number of available beds and shelters in the City of Victoria, the Province filed affidavits from Roger Butcher, the regional director at the offices of B.C. Housing in Victoria. In his affidavit sworn February 26, 2016, he deposed that there are approximately 270-550 temporary housing spaces available in the City of Victoria for the homeless or those at risk of homelessness. The number and type of spaces available varies depending on weather conditions and the time of year. Some spaces are only made available for nighttime sheltering during extreme weather conditions and/or the winter months (November to March).

[66] Mr. Butcher also attested to the new shelter options that have recently been made available by the Province. He deposed that the My Place transitional housing shelter opened on January 5, 2016, and is scheduled to continue operating until April 30, 2016. The Mount Edwards transitional housing shelter opened on February 23, 2016, and will provide 38 spaces for a minimum of 12 months. The View Royal shelter has indoor and outdoor facilities, and will operate for six months. Its 22 outdoor spaces were opened on February 23, 2016, and Mr. Butcher attested that its 28 indoor spaces were scheduled to open in the next week. Mr. Butcher attested that it might be possible to keep some of the winter-only shelter spaces open beyond their originally scheduled closing dates.

[67] The defendants relied upon a report prepared by Dr. Bernadette M. Pauly, an Associate Professor in the School of Nursing at the University of Victoria and scientist at the Centre for Addictive Research in British Columbia. In her report, Dr. Pauly commented on what in her view are the causes of homelessness and its prevalence in Victoria, estimating that there were as many as 1725 homeless individuals in the city in the years 2014/2015. She reported that there are presently up to 140 transitional beds in addition to the previously available 376 transitional beds and 146 transitional units available in Greater Victoria, as well as 320 shelter beds in winter months, which will be reduced to 160 by March 31 – April 2016.

[68] In his subsequent affidavit sworn March 10, 2016, Mr. Butcher deposed that he had been in contact with the various organizations that were providing additional transitional housing at the My Place, Mount Edwards, and View Royal shelters. Mr. Butcher attested that he had been informed that the majority of spaces were now open at those shelters, but some were still under renovation. He was informed that most of the individuals staying at the Mount Edwards transitional housing had come from the Encampment, and not from other locations.

[69] Mr. Butcher challenged Dr. Pauly’s estimates of the number of homeless individuals in Victoria, saying that the most recent count of the homeless in Victoria had identified only 300-400 individuals. Mr. Butcher also attested that he was working on preparing a budget for keeping the transitional spaces open for longer periods than originally scheduled.

[70] Mr. Butcher further deposed that the three new transitional housing shelters were low-barrier, in that they would admit active drug users and permit them to continue using their drug of choice while staying in the shelter. According to Mr. Butcher, the shelters operate on a harm reduction model and provide health and addictions services to residents with addictions.

[71] Dr. Pauly responded to these further affidavits of Mr. Butcher with her own affidavit “sworn (or affirmed)” March 13, 2016. In that affidavit, she deposed that she was a member of the team that conducted the homeless count referred to by Mr. Butcher, for which the data has not yet been fully entered, analyzed, or released. She thus attested that the numbers provided by Mr. Butcher were inaccurate, and maintained that her best estimate of the number of homeless in Victoria was presently 1500-1700 individuals.

[72] Both Dr. Pauly and Mr. Butcher attested to the inherent difficulty in determining the number of homeless individuals at any point in time, given the fluidity of the state of homelessness. Nevertheless, it is clear that the residents of the Encampment are not the only individuals who are homeless in Victoria, nor are they the only individuals competing for the limited bed and shelter space in Victoria. There are numbers of homeless individuals in Victoria that do not live in the Encampment.

[73] It is unnecessary for me to resolve the actual numbers of homeless and the numbers of beds and shelters presently available to them. I am satisfied that the number of homeless in Victoria continues to exceed the available beds and shelters in the city by a considerable amount, and this disparity will only worsen when some of the presently available beds are closed.

b) Public Use of the Courthouse Green Space and its Environs

[74] The plaintiffs concede that the Encampment has not directly impeded access to those portions of the Victoria Law Courts where the Registry and the courtrooms are located. They also concede that there is no evidence that the Encampment has directly impeded access to court services within the Victoria Law Courts.

[75] In his affidavit sworn February 29, 2016, Mr. Sykes deposed that, to his knowledge, the Courthouse Green Space had always been open to the public to enjoy for aesthetic and recreational purposes. In addition to activities such as children’s play and fitness classes, Mr. Sykes attested that he has seen individuals using the Courthouse Green Space as a place to take a break during court proceedings. In his view, the Courthouse Green Space provides a restful area where participants involved in stressful legal proceedings can find respite. Mr. Sykes has also been informed that the Courthouse Green Space is used as an emergency muster location for workers in nearby office buildings.

[76] Don Allen and his wife Laurie are the resident managers of an apartment building across the street from the Courthouse Green Space. Each provided affidavits deposing to their feelings of vulnerability due to the presence of the relatively permanent structures that have been erected and maintained on the Courthouse Green Space since November 2015.

[77] Mrs. Allen deposed to her observation that the Courthouse Green Space had previously been used regularly by members of the public for a variety of activities including yoga, children’s play activities, students lying on the grass to read, and badminton. She also deposed that the space was used as a pathway for tenants of her apartment walking to the YMCA on Courtney Street.

[78] Peter Wharton is an inspector with the British Columbia Sheriff Services and has worked out of the Victoria Courthouse for the past 8 years. He and his colleagues provide for the safety and security of the courts throughout British Columbia and for the participants in the judicial system. In his affidavit sworn February 29, 2016, Inspector Wharton deposed that before the development of the Encampment, there had occasionally been individuals sleeping in the Courthouse Green Space, almost all of whom had readily packed up their belongings and moved along when requested to do so.

[79] Inspector Wharton further stated that throughout 2015, the number of campers in the Courthouse Green Space gradually grew and the presence of the Encampment increasingly gave rise to security concerns. To address these concerns, Inspector Wharton attempted to liaise with the Victoria Police Department, but the Encampment continued to grow. He deposed that, despite the passing of the Province’s February 25, 2016 deadline, the sheriffs did not have the resources to make arrests pursuant to the Trespass Act and were not equipped to deal with a situation as large as the one created by the Encampment.

[80] Nicola Storr is the office manager at the Victoria Justice Access Centre. The centre is located on the Courthouse Property, and its entrance faces the Courthouse Green Space. The Centre provides free or low cost legal information, services, and referrals for the public with respect to family and civil law issues, with certain services provided exclusively to individuals with low incomes.

[81] Ms. Storr has maintained a log of incidents, staff concerns, and client complaints respecting the camp on the Courthouse Green Space since November 2015. In her affidavit sworn February 24, 2016, Ms. Storr attested to several alleged incidents, citing them as examples of how that the presence of the Encampment had impeded access to the centre.

[82] The four examples provided by Ms. Storr, all based on hearsay, and in three of the four cases, unattributed double hearsay, primarily amount to minor inconveniences, none of which appear to have actually prevented any clients or staff members from accessing the centre. The one example that was not based on unattributed double hearsay involved an individual who may or may not have been from the Encampment sleeping in the centre’s accessible doorway. The person moved along once requested to do so by the sheriffs and security personnel.

[83] The evidence tendered by the plaintiffs does not establish that public access to the Justice Access Centre has been impeded by the existence of the Encampment. However, I accept that, for some users of the Courthouse Green Space, the Encampment has diminished its aesthetic and recreational value, and will weigh this factor in my analysis of the balance of convenience.

c) Health and Safety

[84] In her affidavit, Ms. Storr also described health and safety concerns as follows:

8. A number of incidents have raised health and safety concerns for our clients and staff. These include:

…

b. Garbage. On or around 15 December 2015, I observed that the large metal garbage container in the parking lot was full and garbage was spilling out. On or around 29 December 2015, I observed that access to the outside stairway from the parking lot leading down to Courtenay Street was nearly blocked with garbage and that garbage was strewn in the parking lot. On 16 February 2016, I observed that even though the garbage containers in the parking lot were not quite full, garbage was strewn in the surrounding parking lot and nearby bushes,

c. Used condoms. On or around 20 January 2016, Denise Neigel, a family justice counsellor with the Victoria Justice Access Centre, advised me, and I do verily believe, that she had observed used condoms on the outside stairway leading down to Courtenay Street. I called Workplace Solutions Incorporated to dispose of the condoms.

[85] Ms. Storr deposed to other incidents involving the presence of syringes and human feces, however, these incidents were based on unattributed hearsay and double hearsay.

[86] Mr. Allen also deposed to finding syringes and used clothes in the parking lot of his building, and used condoms and human excrement on the property of his apartment building.

[87] In her affidavit sworn March 14, 2016, Angela Ray, the Tape Management Transcript Clerk with the Court Services Branch, Ministry of Justice, located in Victoria, deposed that:

2. On March 11, 2016 at approximately 8am, I discovered drug paraphernalia on the front steps of the Victoria Court House located at the comer of Blanshard Street and Burdett Street, across from the Sandy Merriman House. These items included a number of syringes and a blue strap. A copy of two photographs of the drug paraphernalia are attached to my affidavit and collectively marked as Exhibit “A”.

3. I do not recall previously ever discovering drug paraphernalia to that extent being left on the court house steps since I began my current position at the Victoria Law Courts in 1997.

[88] The defendants dispute these descriptions of the presence of human feces, syringes, and used condoms in the Courthouse Green Space and surrounding area. In her affidavit “sworn (or affirmed)” March 8, 2016, defendant Christine Brett, who is a part-time resident at the Encampment and a member of the Nuxalk Nation, deposed in part that:

30. In response to paragraph 19 of the Peter Wharton affidavit, Christ Church Cathedral has made its washrooms available to SIC residents during working hours, and has provided an outdoor hose that we can use so that we have 24 hour water access. As a result, there should be no need for SIC residents to use the Courthouse for this purpose.

31. I have never seen human feces at the SIC, and the place is not strewn with needles and used condoms. As I have said above garbage can be a problem and we are trying to find creative way to address that. Sometimes there are needles left around but we try to be sure everyone uses the sharps containers. I have never seen a rat at SIC, but I understand that rats might have been attracted by the hay which we put down to absorb the moisture when it was raining heavily. We have not spread hay for some time.

[89] Similar comments were made by Kirsten Andersson, who is a retired elementary school teacher who has lived in an apartment near the Courthouse Property since July 2015. She and a companion walk through the Courthouse Green Space on a regular basis. In her affidavit, which is also inappropriately stated to be “sworn (or affirmed)” March 9, 2016, she deposed that:

16. Many of the residents put in extra effort to keep things clean. Over the course of walking through the camp daily for the last many months, I have never seen feces or drug supplies (including needles) or rats or used condoms. I have never seen anyone blocking the entrance to the Justice Access Centre. Once there were two young men loitering, drinking and blocking the stairs between the camp and Broughton Street, but they were not disrespectful or difficult when we indicated we wanted to get past. I did not recognize them as residents of SIC and have not seen them since. To the best of my recollection this was not during business hours.

[90] While I do not question the credibility of Ms. Storr or Mr. Allen, it does not persuade me that the feces, garbage, syringes, condoms, or used clothes previously found on their property were left by residents of the Encampment, or that these biohazards continue at the present time.

[91] David Wales is a tenant in an apartment building across the street from the Courthouse Green Space. He resides there with his wife and son. Mr. Wales has a respiratory disorder. In his affidavit affirmed February 24, 2016, Mr. Wales described seeing rats amongst the tents on more than one occasion when he walked past the Encampment in early February 2016.

[92] Mr. Wales deposed that since December 2015, he believes the Encampment poses an increasing threat to himself and his family due to smoke from the fire that is permanently lit in the midst of the Encampment, which drifts into his apartment unit when the windows are open and, to a lesser extent, when the windows are closed; noise from residents in the Encampment; noise from emergency responders arriving at all hours of the night; and the refuse, portable toilets and dumpsters installed on the western side of the Encampment.

[93] In his affidavit sworn February 29, 2016, Mr. Sykes deposed that on February 25, 2016, he observed a good deal of smoke around the Encampment and also a large rat which ran behind the dumpster in the parking lot beside the Encampment.

[94] James Bryce is the Senior Legal Risk Analyst with British Columbia Emergency Health Services. In his affidavit affirmed March 9, 2016, he deposed that between December 1, 2015 and February 28, 2016, the B.C. Ambulance Service received 12 calls related to the camp on the Courthouse Green Space. Four were for apparent assaults, one for a head injury, three for apparent drug overdoses, one for a death resulting from an apparent overdose, and three for other health issues.

[95] Mr. Bryce also deposed that B.C. Ambulance Services paramedics have responded to many calls related to the camp on the Courthouse Green Space where patients could not be located, refused treatment entirely, or accepted treatment but refused transportation to hospital.

[96] Dr. Richard Stanwick is the Chief Medical Health Officer for the Vancouver Island Health Authority. He swore an affidavit dated February 26, 2016, in which he deposed that he and his staff have regularly attended the Encampment, and his staff have participated in a weekly safety committee meeting that is attended by representatives of other authorities and the camp.

[97] Dr. Stanwick indicated that his staff has provided harm reduction supplies to residents of the Encampment who have drug addictions, and have also trained approximately 20 campers in the use of Narcan kits. When used effectively, Narcan kits can reverse the symptoms of opiate overdose that cause breathing suppression and death. To Dr. Stanwick’s knowledge, 17 Narcan kits have been distributed at the Encampment, two of which were replacements for kits that had been deployed.

[98] Dr. Stanwick also deposed that due to concerns about wood smoke from the Encampment’s ceremonial fire, his staff had taken air quality readings at the Courthouse Green Space. He attested that the air quality readings fell within a range that would pose a health risk to individuals with underlying breathing conditions such as bronchitis and asthma. In Dr. Stanwick’s view, this level of air quality would be a potential health risk to such individuals if it was an average reading over a 24-hour period.

[99] Finally, Dr. Stanwick suggested that the risk of violence and exploitation of young persons was a possible health concern related to the Encampment. However, in Ms. Brett’s affidavit, she indicated that the Encampment’s approach to young persons who come to the Courthouse Green Space is to advise them that the Encampment is not the right place for them to stay, and suggest other social services.

[100] At this juncture, I find that the evidence is not sufficient to establish that there is a health and safety risk associated with the possible presence of at-risk youth the Encampment. Mr. Bryce’s evidence does not establish that the conditions at the Courthouse Green Space, compared to the conditions elsewhere on the streets or in the parks of Victoria, put the residents of the Encampment at an increased health risk. I accept that, like other persons, the residents of the Encampment who are competent to refuse treatment are entitled to do so.

[101] Excess noise from the Encampment, while being a possible irritant, has also not been shown by the plaintiffs to be a health risk. I accept that there is some evidence showing that the air quality at the Encampment may pose a risk to some individuals with underlying breathing conditions, although that evidence is not conclusive. I will weigh this factor accordingly.

d) Fire Safety

[102] Gordon Anderson is the Fire Commissioner for the Province of British Columbia. In his affidavit sworn February 29, 2016, Commissioner Anderson deposed that he had made a site visit to the Encampment on February 26, 2016, and had identified numerous fire hazards and concerns, including:

3. … an open fire in a short bum barrel located under a tent canopy, makeshift structures composed of a mixture of combustible and other materials, overcrowded placement of tents and structures, inadequate means of egress from both individual tents as well as from the site overall, widespread debris and trip hazards, discarded disposable propane cylinders, straw covered pathways and evidence of the use of smoking materials. Observations were also made of excessive storage of combustible materials visible in plain sight in some tents.

…

7. I as well as OFC Inspector Cooper are concerned about the potential threat to life safety resulting from the continued existence of the described fire hazards at the Encampment. Specifically the presence of multiple potential ignition sources, the volume of combustible materials, lack of effective egress for the occupants in an emergency and close proximity of tents to one another creating potential for a rapid and unchecked spread of fire. This concern is compounded by the limited access for firefighters to effectively respond to emergencies throughout site and the apparent inability of the occupiers to address the fire hazards.

[103] Commissioner Anderson also deposed to having been informed by Deputy Fire Chief Douglas Carey of the Victoria Fire Department that the department had responded to two calls for tent fires at the Encampment. Deputy Fire Chief Carey acknowledged to Commissioner Anderson that a safety committee had been established at the Encampment but said that the committee had not made much progress in addressing the fire hazards on site.

[104] In his second affidavit sworn March 4, 2016, Commissioner Anderson deposed in part that Inspector Robert Cooper had attended the safety committee meeting held on February 29, 2016, and had given Ms. Brett, as a representative of the campers, a copy of the Fire Services Act order issued on February 27, 2016.

[105] Inspector Cooper advised Commissioner Anderson that he returned to the Encampment on March 3, 2016, and found that some progress had been made to comply with the Fire Services Act order, but significant fire hazards remained.

[106] The records of the Victoria Fire Department relating to the Courthouse Green Space were summarized by and appended to the March 10, 2016 affidavit of Nancy Reimer, an employee of the Ministry of Justice assisting counsel for the plaintiffs. The portions of her summary that are relevant to fire safety issues include three complaints related to the ceremonial fire, one open fire complaint, and one tent fire complaint.

[107] In contrast, the defendants provided evidence that a good working relationship has developed between the campers and local fire services, and progress has been made to respond to fire safety concerns. In her affidavit “sworn (or affirmed)” March 8, 2016, Ms. Brett deposed to her interactions with Deputy Fire Chief Carey, and to the work done by the safety committee:

16. Deputy Chief Carey and I met and he told me that the Province had asked him to document fire and safety concerns w at SIC with a view to demonstrating that these were serious enough that SIC should be shut down. He told me that he told the Province that he wouldn’t do that because he was of the view that the fire and safety concerns were manageable and could be addressed. He told me that he told the Province that the SIC was a homeless issue, not a fire safety issue - it had been in existence for several months and there were no fire or health concerns that required it to be shut down. Deputy Chief Carey said that he wanted to be part of a Fire and Safety Committee where we could meet and discuss concerns and that this would give SIC a chance to succeed.

…

22. On February 27, 2016, Office of the Fire Commissioner (“OFC”) Inspector Robert Cooper attended at the Superintent City site along with the Fire Commissioner. I had never met either of them before, and when they arrived they interrupted an Ojibway man who was preparing to share a song of great significance. The officials tried to serve me with the Order found at Exhibit “B” of Mr. Anderson’s affidavit. I explained to them that the protocol that had been established by the VicPD, the VFD and the SIC was that concerns, unless they urgent, were to be brought to the morning meeting held at the camp each weekday at 10:00 am, or to the Safety Committee. I did not accept the order and I do not believe that anyone else did either.

23. After they left, I texted Deputy Chief Carey, and then spoke to him on the phone. He informed me that he had been unaware that the Fire Commissioner was going to come to SIC. He also me that the Province had asked him to swear an affidavit that would say that SIC needed to be shut down because of fire safety concerns, but that he declined to do so. We affirmed the mutual commitment of SIC and the VFD to work collaboratively together to address any concerns.

24. OFC Inspector Cooper attended the Safety Committee meeting that was held on March 1st, 2016, He apologized that he had not been aware of the protocol for addressing concerns about SIC. At that meeting we discussed the need for pathways and the possibility of obtaining a different source for heat, as VFD believed that propane would be safer than an open fire. OFC Inspector Cooper stated that there would be a significant fire risk when the weather gets drier and warmer. He noted that there should be buckets with sand for cigarette butts. He suggested the establishment of a fire watch and that combustibles not be stored by the fore. We agreed that he would do a walk through and identify any concerns on Thursday, March 3, 2016…

…

26. The latest Safety Committee took place at 11:30 March 8, 2016. I do not yet have the minutes from Constable O’Connor. In attendance were Constables O’Connor and Brown, Megan Sabell, Lieutenant Inspector form Victoria Fire Department, OFC Inspector Cooper, Ms. Yehia and Wendy Stark, a street nurse from Island Health, and myself, James Carmichael and Jorge Francisco Gomes from SIC.

27. Fire related concerns addressed at that meeting include the need for 3 feet in the aisles between the tents, and the need for safe cigarette disposal. We talked about options for keeping the sacred fire and warming fire in other types of containers which would reduce the possibility of sparks flying out.

[108] No affidavit was provided by Deputy Fire Chief Carey to clarify his evidence about the fire safety hazards that may be present at the Encampment. While I accept that there are some fire safety risks associated with the Encampment, and will weigh that factor in the analysis, I also note that there are conflicts in the evidence relating to the fire hazards at the Encampment and the steps that residents have taken to address those concerns. These conflicts cannot all be resolved on the basis of the affidavit evidence before me.

e) Policing Concerns

[109] Mr. Allen deposed to the theft of a number of items from just outside his unit, and a man carrying a gun who was outside his apartment at approximately 4:30 am on February 9, 2016, who, when confronted by Mr. Allen, went across the road into the Encampment.

[110] While I do not question the evidence of Mr. Allen, it does not persuade me that the thefts of which he complains were committed by those camping in the Courthouse Green Space.

[111] Mrs. Allen also deposed to personally threatening experiences she attributed to residents from the camp on the Courthouse Green Space, and to smoke wafting into her apartment building from the fire that was being maintained on the Courthouse Green Space, the significant noise that emanates from the Encampment, and thefts from her apartment property.

[112] The owner of the Allens’ apartment building, Peter Kerr, swore an affidavit on February 24, 2016, in which he deposed that he has incurred various expenditures totalling some $14,000 since in or around November 2015, most of which he attributes to the presence of the Encampment and its occupants. I accept the amounts spent by Mr. Kerr and his motivation for the spending as a factor to be weighed in determining the balance of convenience.

[113] James Nelson is the owner of a unit in a building on Burdett Avenue across from the Courthouse Green Space. He purchased the unit in 1996, and has lived there since 1999. He affirmed an affidavit dated February 24, 2016, in which he deposed that from approximately 1999 to the fall of 2015, he used the Courthouse Green Space on a casual basis, primarily in the summer, but that since the fall of 2015, the Encampment has caused him a sense of discomfort and that he has modified aspects of his life in order to avoid the area.

[114] Mr. Wales deposed that the residents of the Encampment had previously been quiet and conscientious, but that he noticed a definitive negative change to the atmosphere of the area in December 2015. He described noticing a number of syringes on the sidewalk in front of his building, and along the eastern side of the Encampment on Quadra Street, between Courtney Street and Burdett Street.

[115] Inspector Wharton deposed that on November 24, 2016, an incident occurred at the back entrance of the courthouse building where the Justice Access Centre is located. Someone was sleeping in front of the door and blocking access for clients. When he attended with another sheriff, they were confronted by a violent individual who was a known resident of the Encampment. He was verbally confrontational and threatening and appeared to be under the influence of drugs and would not leave. The sheriff’s officers were able to de-escalate the situation and were eventually able to convince the man to leave. After he left, used needles and drug paraphernalia were left in the doorway.

[116] I am not persuaded that the drug use that occurs at or near the Encampment is caused by its presence. The reality is that many of those who presently live at the Encampment are and were drug users long before they came to the Courthouse Green Space. If they were not there, their drug use would likely be unchanged, but arguably more dangerous than at present.

[117] Michael Darling is a constable with the Victoria Police Department. In his affidavit sworn February 26, 2016, Constable Darling deposed that since January 2015, he has been assigned to the Victoria Police Department’s Patrol Division, responsible for attending calls for service, conducting the initial investigation of reported crimes, maintaining public order, and engaging in proactive policing duties with responsibility for oversight and risk management of all calls for service initially attended by the Division. He also deposed that throughout his career, he has engaged extensively with persons who are homeless, and with persons with significant substance use and mental health issues.

[118] Constable Darling deposed that since the decision of the Court of Appeal in Victoria (City) v. Adams, 2009 BCCA 563, and the consequent amendment of the City of Victoria Parks Regulation Bylaw to allow overnight sheltering by homeless persons in parks, his Division has assisted City of Victoria Bylaw Enforcement Officers with daily “wake-ups” of homeless persons engaged in overnight sheltering in city parks, city streets, and other public spaces under the administration of the City of Victoria. He notes that generally, the homeless persons engaged in overnight sheltering voluntarily comply with the wake-ups, packing up their belongings and moving along without incident.

[119] Constable Darling also deposed that since November 2015, he has observed, and been informed by other members of his Division, that the Courthouse Green Space has been occupied by an encampment of increasing numbers of persons living in tents and other structures on the site not only at night but also through the day, including many chronic homeless persons with severe substance use and mental health issues.

[120] Constable Darling deposed that since November 2015, he has frequently attended the Encampment in a proactive capacity to provide a visible police presence in the area, and also in response to serious calls for service. He referred to 13 calls for service to the Courthouse Green Space in 2014, which increased to 65 calls for service during the first 10 months of 2015. These calls included two serious assaults with weapons and two drug overdoses. He described the report of a small contained fire at the Encampment on December 19, 2015, which was deemed by attending police and Fire Department members to be spiritual and ceremonial in nature.

[121] He described his belief that there has been a change to the level of risk to public safety since December 2015, noting that between November 1, 2015 and February 25, 2016, there have been a number of serious incidents, including four common assaults, one assault causing bodily harm, two assaults with weapons, one aggravated assault, 13 drug overdoses, one sudden death due to a drug overdose, and one fire inside an unoccupied make-shift structure. He stated that although the campers have not overtly obstructed police investigations, the level of cooperation has ranged from not being forthcoming with information to trying to regulate access to the Encampment.

[122] He also deposed that based on his review of his Division’s records, including criminal analysis reports for the time period from November 1, 2015 to January 28, 2016, he is unable to identify any significant increase in reported criminal activity in the immediate area around the Encampment, but that his Division is now proceeding on the basis that an informal police presence is no longer adequate to sufficiently maintain public safety.

[123] Constable Darling summarized the concerns that have been identified by police officers attending the Encampment as including garbage in and around the tents and structures; the obvious difficulty in accessing and navigating through the Encampment due to the density of the tents and structures; the accumulated property, debris, shopping carts and bicycles; the presence of numerous weapons of opportunity including axes and knives that are readily accessible; and fire safety concerns due to open burning, the accumulation of combustibles, and campers burning candles and smoking inside tents and structures. He deposed that as a result, his Division recently established a safety committee at the encampment which is chaired by the Division and includes representatives from the Encampment and the Victoria Fire Department. The purpose of the safety committee is to ensure that safety concerns are addressed in a timely and organized fashion, and to continue to build rapport and maintain open lines of communication between all stakeholders.

[124] Like the plaintiffs’ evidence on the issues of health and safety and fire safety, the evidence on the issue of the need for increased police resources does not satisfy me that these conditions are any worse than they would be if the residents of the Encampment were displaced. It is far from clear that the need for police resources at the Courthouse Green Space is a product of the existence of the Encampment, rather than a product of the fact that many of the Encampment’s residents are homeless and have pre-existing mental health and other issues. There is also some evidence that positive steps have been taken to make connections and build trust between the police and the residents of the Encampment. I will therefore weigh this factor accordingly.

f) Potential Benefits of Maintaining the Encampment

[125] The defendants filed many affidavits, both from current and former residents of the Encampment, and from various supporters. Many of those who provided affidavits have lived at the Courthouse Green Space since November 2015 or earlier. A number of defendants and interested persons also provided oral submissions during the hearing of this matter. Several themes relating to the potential benefits of maintaining the encampment emerged from the affidavits and submissions. I have summarized these below.

i. Physical and Mental Health

[126] Several affidavits attested to the physical and mental health benefits of remaining at the Encampment, including the residents’ ability to get better sleep, mitigate the negative effects of drug addiction, and consume regular meals.

[127] Many residents of the Encampment attested to getting better sleep and, as a result, feeling better while living at the Courthouse Green Space. Emily Bridge is a 21-year-old woman who has been homeless in Victoria for the past two years, sleeping outside in doorways or in parks. She currently resides at the camp on the Courthouse Green Space. In her affidavit “sworn (or affirmed)” March 7, 2016, Ms. Bridge explained that staying at the Encampment has improved her sleep and reduced her drug use:

10. As a homeless person I typically had a very late schedule. I wouldn’t sleep much, would often stay up most of the night and then, if I found somewhere safe to sleep, would get woken up at 7 AM. I didn’t have anywhere to go sleep in the day. Our Place doesn’t allow that, so I would take drugs to stay up and frequently stay up for 2-3 days at a time and then crash hard. Typically, I would be very sleep deprived as are most people I know who live on the streets. This had a huge effect on my ability to function and take care of myself.

…

15. Sleeping in tent city I am a lot warmer because me and Norm have been able to set up and maintain a comfortable tent with a heat source and covered room for our belongings. When I slept outside I would wake up with blue fingers and wouldn’t be able to help taking the tent down because I was too cold.

16. It has been very humanizing for me to stay at tent city, I am way less stressed out, am using drugs less and have a safe home place with a community of people around to watch out for me and Norm if we need it. Carrying my stuff around all day and facing harassment from law enforcement was incredibly stressful.

17. My mental health has been a lot better at camp because I have a secure place where I can lie down and sleep for 8-9 hours if I want to. I am thinking clearer and making better decisions.

[128] Several other defendants also attested to getting better sleep while staying at the Encampment and the resulting benefits to their mental and physical health. Cheyanne Fox lived at the camp at the Courthouse Green Space, from the middle of October 2015 until early March 2016. Ms. Fox described the benefit of sleeping at the Encampment as follows in her affidavit, affirmed March 8, 2016:

11. I slept better at tent city than living on the street or in a shelter. When I was living on the streets it would be stressful to be woken by cops at 7 am and to be displaced. Sleeping in a shelter is also hard. Sleep is really important. When I don't get enough sleep I am prone to psychosis.

[129] Likewise, James Walker, a resident of the Encampment who is presently 39 years of age and has been homeless since he was 18, attested in an affidavit “sworn (or affirmed)” March 7, 2016, that the sleeping space he has been able to build at the Courthouse Green Space has helped with his pre-existing back issues.

[130] Norman Eliot Ruble is another resident of the camp at the Courthouse Green Space, and has lived there since October 2015. Although he did not indicate that he had been homeless before October 2015, he did state in his affidavit, said to be “sworn (or affirmed)” March 7, 2016 that:

10. There is a huge difference between being on the street and being in Tent City. When on the street the cops will wake you up at 7:00 AM no matter where you are, even if you are in a park. You have to have your tent hidden. Having to move constantly, always having to have a different place to sleep, and trying to find a place where you can sleep is very difficult. Having to lug around a cart or all your gear all the time is a huge challenge.

11. It was very challenging to get to sleep. Finding a place to sleep is difficult.

12. In my experience with sleep deprivation it has made me short tempered and angry. It has made me paranoid. It is hard to make choices when I have not had any sleep. When sleep deprivation gets really bad I have experienced auditory hallucinations, I think I hear my name being called and there is no one around. I have experienced extreme mood swings from lack of sleep. Prior to living in Tent City the longest I went without sleep because of being on the street was eight or nine days.

13. In Tent City I am able to sleep every night and I rarely go more than two days without sleep. I am able to sleep because I do not have to worry about my stuff being stolen.

[131] The residents’ statements accord with the affidavit of Shane Calder, who is the coordinator of client education of the AIDS Vancouver Island Society, a community health organization providing services across Vancouver Island to marginalized populations, including persons using illicit drugs, Aboriginal people, sex trade workers, those in custody, those with mental health issues, street-involved youth and adults, and many infected with HIV and HCV. In his affidavit affirmed March 8, 2016, Mr. Calder explained that his organization provides basic survival support for the homeless in Victoria such as bus passes, socks and other personal care items. He expressed the view that obtaining secure housing is the single most important factor in lessening the risks associated with drug use, and in lessening the frequency of drug use by an individual. He also explained the negative consequences of sleep deprivation in the homeless population:

25. A very significant stressor for the homeless clients of AVI is sleep deprivation. In my experience, sleep deprivation is a major cause of instability and chaos in the lives of many homeless people. This can lead to (or exacerbate) many negative health consequences, including drug use to stay awake and/or deal with the physical and mental symptoms that result from sleep-deprivation, missed medical appointments, and/or missed medications.

[132] As mentioned above, Dr. Stanwick deposed that his staff have provided Narcan kits and training to some 20 campers. Dr. Stanwick also attested to his staff having provided harm reduction kits to those struggling with addiction at the Encampment.

[133] Mr. Calder also deposed that his organization has provided harm reduction supplies to residents of the Encampment. He noted that to his knowledge, there had been 11 fatal drug overdoses in Victoria between December 1, 2015 and March 8, 2016, only one of which occurred at the Encampment. He expressed the view that this was a low rate of overdose, which he attributed in part to the availability of harm reduction supplies and Narcan kits, several of which were deployed during that time period. Mr. Calder also opined that not needing to rush reduced the risks associated with drug use:

44. While some overdoses have occurred, the fact that users have a private space in which to inject drugs has made it much easier for them to do safely, and there would likely have been more overdoses if the same users were still on the street. Injecting drugs in a hurried manner in a city doorway, or in a shelter bathroom, greatly increases the risk of harm.

45. In addition, the ability to access a private space during the day makes it possible for people to rest and recover from trauma, including health related trauma associated with drug use.

[134] Ron Crossman is a 39-year-old veteran of the Canadian Armed Forces who was a resident of the camp on the Courthouse Green Space for a period of some four months until he moved to the Mount Edwards shelter. In his affidavit affirmed March 7, 2016, he deposed that he is a recipient of disability benefits, and came to Victoria in 2008 a few years after he was discharged from the army. He stated that he has been mostly homeless since that time. He stated that in the winter he would usually sleep in doorways downtown because they are covered and sort of sheltered. In the summer when it was warmer he would usually camp in parks.

[135] Mr. Crossman explained that shelters did not work well for him as he suffers from insomnia, PTSD and anxiety, and prefers sleeping on the streets to being in shelters because of his disabilities. He deposed that:

9. Since coming to the camp I slept better and felt safer than I did on the street because I had my street family at the camp. Me and my street family had our tents together at tent city and I felt safer knowing who was sleeping near me.

10. I also benefited physically from staying in one place, on the street it took a lot of effort to have to move my stuff around - having arthritis made it very difficult to tear my camp down every morning and carry it around all day just to set it up again.

…

14. The camp has good support services at the camp for people who use drugs - there are clean rigs, naloxone kits and safe drug use supplies in general.

[136] Some residents who are dealing with drug addiction, attested that the Encampment provides a supportive environment. Joseph Reville is a resident of the camp at the Courthouse Green Space who has lived on the streets since he was 16 years of age. He has struggled with drug use, and suffers from bronchial asthma. He stated in his affidavit “sworn (or affirmed)” March 7, 2016, that:

14. This is a dangerous place for me, being a recovering drug addict. So what we’ve done is that we have a comer of the camp where people who are struggling can support each other and be talked down and distract you from the addiction. I am on the edge daily. This city is very difficult for amphetamines.

[137] Residents and support workers explained that meals are regularly brought in to the Encampment for the campers to eat or reheat. In his affidavit, described as “sworn (or affirmed)” March 7, 2016, Paul Gower described himself as a support worker at the camp at the Courthouse Green Space, visiting the camp each day, performing practical tasks such as taking people to hospital, helping with laundry, getting firewood, making meals and providing sleeping bags and warm clothing. Mr. Gower compared his experiences engaging in these activities before and after the creation of the Encampment:

5. I have seen the resident’s health improve. People have told me specifically that this is the first time in four years that they have put on any weight. These guys have been consistently fed for months. It is huge for the majority of them to have consistent meals.

ii. Access to Services

[138] Several affiants deposed that staying at the Encampment has improved their ability to access services, and the defendants submitted that service providers are able to offer their services more efficiently because the campers stay in one centralized location.

[139] Jamie Green, a resident of the camp at the Courthouse Green Space since November 2015, attested to the benefit of being close to downtown services while living at the Encampment. In her affidavit affirmed March 7, 2016, she deposed that prior thereto she had been without stable housing for five years. She stated:

22. It’s also nice to be near the services downtown including the Mustard Seed and Sandy Merriman. Also I find that I am more able to access these services, particularly the weekly food hamper at the Mustard Seed. Before living in the camp I didn’t usually have the time or energy to make it over there but now I have been getting it every week.

[140] Joseph Jean Noel Berthelet, a former homeless person who supports the Encampment, attested in his affidavit affirmed March 7, 2016 to the challenges that homeless individuals face when trying to access programs while constantly relocating. He stated that:

13. There are so many government programs, including retraining, that homeless people cannot take advantage of because they are literally living out of a suitcase. They have to drag all their belongings with them everywhere or they will be stolen. This also keeps them from getting work.

[141] Ashley Mollison, a project coordinator with the Centre on Aging at the University of Victoria, provided an affidavit described as “sworn (or affirmed)” March 9, 2016, in which she described the involvement of social services at the Encampment. Ms. Mollison has been attending the camp at the Courthouse Green Space every two to three days since November 2015. She has work experience with the homeless community, as a harm reduction worker for AIDS Vancouver Island, and as a staff member at the Society of Living Illicit Drug Users.

[142] In her affidavit, Ms. Mollison indicated that the Encampment enables health outreach workers to coordinate their services and provide better assistance to those at the camp. She deposed that street nurses from the local health authority had partnered with other agencies to provide services to the campers, some of whom previously could not have been found by the workers because they were camping in parks and relocating frequently.

[143] Mr. Gower similarly deposed that it was practically easier and less expensive to check up on people in the Encampment, as compared to when they were spread out throughout the city. Likewise, Mr. Calder deposed:

39. The existence of SuperIntent City has enabled AVI to provide much more consistent services to the people residing there than would have been possible if they had been dispersed on the street. The services we can provide are also more effective. Because people have a place where they can sit and meet with us on a regular basis in a relatively stable environment, we are able to provide much more meaningful crisis intervention and health services and support work than we could do if individuals were on the street.

iii. Physical Safety

[144] Several individuals living in the Courthouse Green Space noted that the presence of other residents nearby gives them an increased sense of physical safety. While admitting that disputes do occur at the Encampment, these residents explained that their physical safety was enhanced by the ability of other residents to hear and respond quickly to such situations.

[145] For example, Ana McBee is a current resident of the camp at the Courthouse Green Space, having lived there since November 2015. In her affidavit of March 7, 2016, said to be “sworn (or affirmed)”, she commented, in part, as follows:

17. Tent city has built a strong and supportive community. Everyone can hear other people all the time, if people get loud, the people close-by hear and respond. People can also respond to fires if there is one in someone’s tent and provide help for an overdose within seconds. There is no quicker response to the kinds of immediate challenges that homeless people and drug users experience than having a close community around you like we have here.

18. The response network is especially strong because people, here don’t have walls so we can hear everything. Also, many people are up in the night when it is quieter so we can hear and respond very effectively. The security here at night time is spot on - people are up late responding, dealing with things when none of the other support services are around.

[146] In the same vein, Ms. Green attested to the sense of safety she feels living at the Encampment. She stated that:

13. Here at the camp I feel much less vulnerable. Even when I'm here by myself I’m not here by myself because there are people around and we are looking out for each other.

[147] A deponent, M.G., whose name and identity are the subject of a publication ban that I ordered, is a 16-year-old resident of the camp at the Courthouse Green Space. In her affidavit, which is stated to be “sworn (or affirmed)” on March 7, 2016, she indicated that she had many challenges that led her to become more or less homeless since she was 13 years of age, and that she has lived at the camp since October 2015. She has medical health issues. She deposed in part as follows:

30. I do feel much safer in Tent City than I did when I was sleeping on the streets or in an isolated area where I have had experience with sexual assault and other forms of violence.

31. In Tent City, although there is occasional crime, it is dealt with quickly by the community in an understanding and compassionate way. If a person commits an act of violence in this community, both that person and the victim are given a voice. The violent person is then removed from the community, but we work together to find them an appropriate place to go instead of simply turning them out.

[148] Mr. Reville similarly deposed that:

19. I have witnessed people’s health improving in the camp. We can provide first aid to each other. I sleep better because I know that I have my community within earshot if a situation arises. I have peace of mind because if there is a situation people will help me. I have a hernia and if I call out at least people will hear me. No one would hear me when I was living in the woods and I was at risk of being assaulted or had trouble getting up because of my hernia.

[149] Mikey Henning, another resident of the Encampment who has lived at the Courthouse Green Space since late November 2015, attested to how he assists with resolving disputes at the camp. Mr. Henning experienced a disadvantaged youth, has an adult criminal record, and has had periods of incarceration as a result thereof. In his affidavit affirmed March 7, 2016, he stated that:

21. In the camp, I can hear everything, I can hear if there’s people in trouble or a fight starting. We can all hear.

22. When there’s disputes, I can step in, and if people want to stay, they have to listen. They have to work with me, and others in the community, to solve these problems. Because we all live here, we can make sure that disputes actually get resolved because we can check in with them regularly.

23. Being in the community allows me to stand up to any one person and confront them with what they did wrong, or what they’ve been accused of doing.

24. Other respected people here can help, can force people to confront each other and solve their problems right away, so that things don’t degenerate.

[150] Mr. Gower explained that the residents’ self-policing practices were more effective at de-escalating conflicts than the staff and police interventions at other institutions where he has worked. He expressed the view that the situation at the Encampment was less volatile than the situation at other shelters, primarily because of the community that has been built at the Courthouse Green Space.

iv. Safety of Possessions

[151] When homeless persons are required to vacate park spaces every morning, they must take their property with them. Mr. Calder deposed:

22. Homeless individuals need to transport their entire life on their back or in a cart wherever they need to travel to and they often have to travel significant distances in a day to simply access survival services like food and medical care. They must often walk to obtain all of their needs and usually wait in lines for significant periods. They must carry with them, and guard fiercely, all of their possessions.

[152] Almost all of the residents of the Encampment attested to the enormous benefit of being able to leave their possessions in one place during the day. Rory Duff, who has resided at the Encampment since late October 2015, has lived in poverty for most of his 24 years and has experienced mental health challenges that have made it difficult for him to maintain employment. He deposed in an affidavit affirmed March 7, 2016, that prior to living at the Encampment, he had to carry all of his possessions with him during the day or risk losing them. He stated that:

9. On many occasions, I had my belongings thrown out by bylaw enforcement. This would happen when the bylaw officers found my camps during the day time. When this happened, I would have to start again from zero, find new clothes and buy or steal new hygiene products.

[153] He went on to say that he feels safe leaving his belongings at the Encampment because the residents look out for one another and make sure that no one is stealing anyone else’s property.

[154] This sentiment was echoed in Mr. Henning’s affidavit:

26. Your stuff isn’t safe on the street, but here, when something goes missing, I can find out who did it. I can confront them, and they know that if they want to be able to be in the camp, they can’t get away with that kind of thing.

[155] Mr. Adamson, the first named defendant in this action, is 45 years of age, and has lived in Victoria for most of his life. He has been homeless off and on since he was 17, and has lived on the Courthouse Green Space since November 2015. Mr. Adamson’s affidavit sets out that he suffers from clinical depression and takes anti-depressants. He lost his last job when he was 43 years old and began staying in the Rock Bay Landing thereafter. He states that he came from a broken home, and has been using drugs since his teens, and that he has been banned from some services for alleged drug use. He explained that his tent has remained intact longer because he is not required to pack it up each day:

19. Having my tent up all the time allows it to air out. When they woke us up every morning and they made us pack up right away I had to pack up my tent while it was soaking wet. This destroys the tent. I went through about four or five tents in four months. I do not have that problem in Tent City.

[156] Both Mr. Adamson and Ms. Mollison attested to the limited options that the homeless in Victoria have for storing their possessions during the day. Mr. Adamson said that prior to living at the Encampment, when would leave his personal property at the Our Place facility for the day, he would return to find that much of it had been stolen.

v. Sense of Community

[157] Many of the affiants discussed the growing sense of community that has developed at the Encampment. Residents attest to taking on various roles to support the maintenance of the Encampment, and having developed an informal leadership structure. Regular meetings are conducted at the camp and with various authorities and stakeholders, many of whom the campers have struggled to interact peaceably with in the past. Residents of the Encampment also depose to building relationships with the broader community, including neighbours and the local church.

[158] Residents deposed to feeling like they are becoming members of a community, in some cases for the first time. Jorge Gomes has lived at the Encampment since November 2015. In his affidavit, affirmed March 8, 2016, he deposed to having a lengthy criminal record that led to considerable periods of incarceration. He described the inclusive sense of community that has developed at the Encampment:

11. Here people look out for each other. There is a comradery regardless of our differences. We tolerate each other and make sure each of us is safe and looked after. I feel accepted regardless of how I dress and what my background is.

[159] Reverend Al Tysick of the United Church of Canada has worked with the homeless in Victoria for almost 30 years. He served as the Executive Director of Our Place Society in Victoria until 2011. Other affiants attested that he regularly attends at the Encampment. In his affidavit, stated to be “sworn (or affirmed)” March 8, 2016, he attached an affidavit that he swore in prior litigation involving the homeless in Victoria and the City of Victoria. It is fair to say that Rev. Tysick sees many of the same issues arising with respect to the camp at the Courthouse Green Space and the difficulties experienced by those who were the subject of the litigation involving the homeless in Victoria and the City of Victoria. However, he also attested that the Encampment has built a community, one which is moving towards developing rules and addressing concerns that have been raised by the authorities.

[160] In an affidavit described as “sworn (or affirmed)” March 7, 2016, Kim A. Hines stated that he or she (his or her gender is not apparent from the affidavit), is a 54-year-old disability recipient who described a difficult upbringing and experience with workers in the sex trade, and experience with drug use. The affidavit described the following:

8. A lot of the residents here are people I have known for years. They have been criminalized and stigmatized and moved around and it just breaks my heart. But what I have seen here is that they are starting to feel love and have the sense they are being watched over. Homeless people I know who get walked around with a wide berth on the street are starting to be touched and hugged and said hello to by more folks. As a result they are starting to care for themselves.

[161] There is ample evidence that the residents of the Encampment have taken on various roles to maintain and support their developing community at the Courthouse Green Space. The defendants described taking care of the ceremonial fire through a 24-hour fire-watch, cleaning up the Encampment, providing practical services such as bike repair, representing the Encampment at safety meetings, and providing emotional support to one another through an informal crisis response team.

[162] Ms. Brett is one of the residents at the Encampment who appears to have taken on a leadership role. Her affidavit was extensive, and discussed the role of the sacred fire and the fire-keepers. She also attested to the role of the morning meetings in maintaining a safe camp environment:

17. The Safety Committee now meets every Tuesday at 11:30 am. It includes representatives from the VicPD, the VFD, Island Health, MCFD and representatives from SIC.

18. The Safety Committees has given us an opportunity to address numerous issues. Jade Yehia from Island Health provided bleach for water storage and cleaning sup