A woman takes shelter from the rain behind the park sign in Oppenheimer Park. (Canadian Press)

Some people call Oppenheimer Park the backyard of Vancouver’s Downtown Eastside.

The one-block park is a welcome island of green space in a low-income district where grass and trees are at a premium compared with other parts of the city.

But local residents can’t use their backyard right now. It’s become a legal battleground pitting their rights with those of Vancouver’s homeless, who say they have nowhere else to go.

Nowhere safe, that is.

Advocates for the homeless are fighting a City of Vancouver injunction application that would force clearance of a sprawling tent city at Oppenheimer Park for safety reasons. The parties head back to B.C. Supreme Court on Monday.

A similar case involving homeless in Abbotsford, a city of 140,000 about an hour’s drive east of Vancouver, is expected to go to trial early next year.

Just like the sex trade, if you create zones where those people, those others, cannot be visible you are de facto insisting they be someplace more dangerous … We’re weighing discomfort against actual vulnerability. —Michael Vonn, policy director of the B.C. Civil Liberties Association

The cases have the potential to affect the rights of homeless people across Canada if, as their proponents hope, the issue ultimately reaches the Supreme Court of Canada.

“I think it’s fairly likely that regardless of the outcome it will probably go up to a higher level of court,” says lawyer DJ Larkin of the Pivot Legal Society, the advocacy group representing the homeless in both cases.

“We need to follow this challenge through to set a precedent that every city has to follow so that they stop using these laws to criminalize people.”

Legal implications aside, these cases are also about society’s willingness to deal with the visible evidence of its failure to solve the homelessness crisis.The problem makes us uncomfortable, but is harder to ignore if the homeless aren’t scattered in alleys and under bridges, but are setting up communities in our parks.

“The discomfort is not something that can really be argued with,” says Michael Vonn, policy director of the B.C. Civil Liberties Association, which is not an active participant in the cases.

“I think many people express that feeling. The question is, does their discomfort amount to a trump of other people’s right to be somewhere?

“Just like the sex trade, if you create zones where those people, those others, cannot be visible you are de facto insisting they be someplace more dangerous … We’re weighing discomfort against actual vulnerability.”

The most recent Vancouver homeless count found 538 people sleeping on the street, about double the previous year, while the regional homeless population was estimated at 2,770.

A 2008 B.C. Supreme Court decision, upheld by the Court of Appeal the following year, gave the homeless the right to camp overnight in parks or other public property and erect shelters – tents, tarps, cardboard boxes, whatever – if a city had no readily available shelter spaces for them. The Adams decision overturned a Victoria bylaw that was challenged by a group of homeless who’d set up camp in the city’s Cridge Park.

The court ruled the bylaw prohibiting temporary overnight shelters violated Section 7 of the Charter of Rights and Freedoms guaranteeing life, liberty and security of the person.

“The constitutional analysis is if there is no other shelter that is practicable, then the state cannot come in and insist that they not be there and that they not shelter themselves,” Vonn said in an interview.

That didn’t keep Abbotsford from winning a court injunction last December to remove a plywood-walled tent city from Jubilee Park a few days before Christmas. Pivot is now challenging the bylaw itself on constitutional grounds.

[ Related: Portland looks into micro homes for the homeless ]

The City of Vancouver, whose media office turned down Yahoo Canada News requests for comment, is trying to skirt the Adams decision by arguing the Oppenheimer Park encampment represents a health and safety risk, citing open drug use, discarded needles, buckets of human waste in tents, fights and numerous police calls.

“In addition to worsening weather condition, health and safety conditions at the camp have deteriorated such that it has become necessary for the City to take action in order to ensure the safety and well-being of those within the park and to return the park to its intended use for residents and local organizations,” the city said in a Sept. 25 news release.

Story continues