Chief Justice Hinkson, Re British Columbia v. Adamson, 07-05

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
British Columbia v. Adamson,

2016 BCSC 1245
Date: 20160705
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judgment as [M.G.] may not be published, broadcasted, or transmitted in any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:
Counsel for the Defendants: Adamson, Aumbus,
Bjornson, Brett, Gome, Oertel, Mullin, Reville, A.
Robinson, Ruble, Smallwood, Lattinore, Henning,
Dan, Brett, Saari, Roy, Gabriel, Greenipes,
Hawkings, Bridge, Ruble, Pongtacz, Lemay, Rees,
Higgins, Swait, Prowse, Fortune, Mckinnon, Green,
Elder, Emslie, Roseborough, Weavers, Swieringa,
Speck, Wood, Balrov, McBee, Thacyk, Fyfe,
Somerville, Grieve, and Balitti
W. Milman and T.A. Mason

C.J. Boies Parker and
J.L. MacAdam
British Columbia v. Adamson

Place and Date of Hearing:
Place and Date of Judgment:
Page 2
Victoria, B.C.
June 27 and 28, 2016
Victoria, B.C.
July 5, 2016
Page 3
Introduction
[1]
This is the second application by the plaintiffs for injunctive relief with respect
to an encampment at the Victoria Courthouse (the Encampment), the first

application having been dismissed by me for the reasons set out in my reasons for
judgment indexed at British Columbia v. Adamson, 2016 BCSC 584.
[2]
Following the dismissal of that application, the plaintiffs have endeavoured to
address the housing needs of those at the Encampment. They have agreed to make
available, for those presently living at the Encampment who do not have access to
housing elsewhere and who agree to cooperate as set out in the proposed form of
order sought by the plaintiffs, spaces at the following facilities (the Alternative
Housing Facilities) in the following amounts and by the following dates:
i)
Choices Transitional Home, operated by Our Place Society (CTH): 28

spaces available immediately;
ii)
The former Central Care Home at 844 Johnson Street, Victoria

(CCH): 140 spaces by August 8, 2016; and
iii)
Atira Womens Resource Society in Vancouver (Atira): 11 spaces for

those, females only, who are willing to relocate to Metro Vancouver,
available immediately.
[3]
The plaintiffs have further agreed to make available for others who require
housing in Victoria those spaces not taken by those presently living at the
Encampment who do not have access to housing elsewhere and who agree to
cooperate as set out in the proposed form of order sought by the plaintiffs, at the
Alternative Housing Facilities and in an additional 51 units in the former Super 8
Hotel located at 2915 Douglas Street, Victoria by November 30, 2016.
[4]
The plaintiffs have also agreed to make reasonable efforts through their
designated representative or representatives to meet by July 4, 2016 with those

presently living at the Encampment who do not have access to housing elsewhere
Page 4
and who agree to cooperate as set out in the proposed form of order sought by the
plaintiffs, and offer to each of them, to a maximum of 168 persons, a space in one of
the Alternative Housing Facilities on the following terms:
i)
Each such person may elect to transition to the Alternative Housing

Facility of their choice, as space permits;
ii)
Those who opt for an early transition to CTH may also receive, at their
election, first priority to transition later into a space at CCH, as such
spaces become available; and
iii)
Up to 11 such persons may elect a space at Atira if they wish to do so,

but no such person will be required to transition to Atira if they do not
wish to do so.
[5]
The plaintiffs further agreed to compile a list of those who opted to take one of
the spaces by July 4, 2016.

[6]
On those bases, the plaintiffs seek interim interlocutory relief against the
defendants and others who are presently living in tents and other structures on
property owned by the Her Majesty the Queen in right of the Province of British
Columbia (the Province). The relief sought on this application differed from the
relief sought in the Notice of Application. In their submissions, counsel for the
plaintiffs modified the relief sought to:
1.
An order requiring the Defendants

a)
To forthwith remove all tarpaulins from the lands legally

described Lot 1, Section 88, Plan 12886 (the Courthouse
Property);
b)
Clear at least one meter around each tent at the Courthouse

Property;
c)
Ensure all tents have access to a clear path of egress off the
Courthouse Property;
d)
Clear all fences and obstructions at the Courthouse Property;
e)
Remove trip hazards from pathways at the Courthouse

Property;
Page 5
f)
Remove combustible materials (including pallets, and wood)

and all wooden structures at the Courthouse property;
g)
Remove cooking appliances from tents at the Courthouse

Property;
h)
Centralize cooking to one area at the Courthouse Property and

keep it clear of combustible material other than reasonable
quantities of fuels, safely stored, for heating or cooking food;
and
i)
Remove all fuels (including propane tanks, butane cylinders

and gas tanks) at the Courthouse Property other than those
kept in the centralized cooking area as contemplated in the
previous subparagraph.
2.
Within 3 days following the order sought being made, the Defendants
residing on the Courthouse Property at the date of the order, who do
not have access to housing elsewhere and who wish to transition to
new housing from the Courthouse Property must identify themselves
to the plaintiffs representative or representatives by showing picture
identification, or if they have no picture identification by agreeing to be
photographed and providing their name Qualifying Defendants (and
any photographs taken for that purpose are to be kept only for the
purpose of verifying the identity of the Qualifying Defendants and are
to be destroyed following their transition to alternative housing).
3.
The Defendants must identify to representatives of the plaintiffs which

tents, shelters, objects and things located on the Courthouse Property
belong to them.
4.
The plaintiffs, their employees or agents are hereby authorized to

prevent any person who is not a Qualifying Defendant, from taking up
residence or continuing to reside at the Courthouse Property.
5.
As housing becomes available, and by not later than August 8, 2016,

the defendants shall remove all structures, tents, shelters, objects and
things owned, constructed, maintained, placed or occupied by them
which are located at the Courthouse Property, and otherwise cease to
occupy or reside at the Courthouse property.
6.
For the purpose of ensuring compliance with paragraph 1 of the order,

employees or agents of the plaintiffs are hereby authorized to remove
or cause to be removed from the Courthouse Property such
structures, tents, shelters, objects or things as are:
a) Not claimed by any of the defendants in the course of the
process contemplated in the preceding paragraph; or
b)
Causing or contributing to a violation of paragraph 1 of the

order or an outstanding order of the Fire Commissioner of
British Columbia issued pursuant to s. 22 of the Fire
Services Act, R.B.C. 1996, c. 144, and the owner has
refused, on request, to remove it themselves.

[7]
Page 6
The parties and the basis for the plaintiffs application were set out in my
earlier reasons for judgment at paras. 1 4, and 6 7 which I will repeat for the
sake of convenience:
[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.
[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.
[8]
The history of the Encampment was also discussed at paras. 8 9 of my
earlier reasons for judgment, which I will set out here, for the sake of convenience:
Page 7
[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.
[9]
In March of this year, the plaintiffs asserted that there was alternative
accommodation available to the residents of the Encampment, but that some of the
residents had declined to move to these new spaces despite efforts to assist them
with relocation. They asserted that from November 2015, the defendants, by
maintaining the Encampment, had 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, and that a cross-section of the public residing,
working, accessing services, or carrying on business in the surrounding area, had
suffered annoyance, discomfort, loss of enjoyment, damage, and expense.
[10]
I found that although there is no right to housing under the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (U.K.), 1982, c. 11 [Charter], 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 did not warrant a finding that a public nuisance had
been clearly established.
[11]
I further found that the three part test for interim injunctive relief articulated by
the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney
Page 8
General), [1994] 1 S.C.R. 311 at 3478 [RJR-MacDonald] was the applicable test for
the plaintiffs application. That test requires the Court to consider:
[12]
a)
Has the applicant demonstrated there is a fair question to be tried?
a)
Will the applicant suffer irreparable harm if an injunction is not

granted? and;
b)
Does the balance of convenience favour the granting of an injunction?
I answered the first two questions in RJR-MacDonald in the affirmative, but
qualified my answer to the second question on the basis that most of the damages
alleged by the plaintiffs had already crystallized and any further costs or damage
that would be occasioned by the ongoing presence of the Encampment would simply
take place somewhere else in the City of Victoria if the injunction sought were
issued.
[13]
At paras. 180 187 of my earlier reasons for judgment I concluded that:

[180] The defendants in this case appear to benefit from responsible
leadership and organization, and have established effective lines of
communication between themselves and police, fire and public health
authorities, in a way that prior homeless individuals whose activities have
been discussed in the previous decisions of this Court were unable to do.
While the Encampment has not been without its difficulties and challenges, it
is an improvement over its predecessors.
[181] It is inappropriate at this stage for me to determine whether the
defendants will be permitted to maintain a permanent encampment on the
Courthouse Green Space in the future. It may well be that they are unable to
make out such a case.
[182] I acknowledge that some legitimate concerns have been raised by the
plaintiffs in relation to the availability of Courthouse Green Space for other
uses; health, general safety, and fire safety concerns; and the allocation of
police resources. However, many of the plaintiffs' contentions are in dispute
and cannot be resolved on affidavit evidence alone. Further, the plaintiffs'
concerns must be weighed against the potential problems that might arise
were I to issue the requested injunction.
[183] Ultimately, in determining whether or not to grant an interim injunction
at this time, I find that the balance of convenience is overwhelmingly in favour
of the defendants, who simply have nowhere to move to, if the injunction
were to issue, other than shelters that are incapable of meeting the needs of
some of them, or will result in their constant disruption and a perpetuation of
a relentless series of daily moves to the streets, doorways, and parks of the
City of Victoria.
Page 9
[184] In addition, many of the homeless cannot access those spaces which
do exist for variety of reasons. While the new options provided by the
Province address some of the identified barriers, they do not make the
spaces available to everyone. Individuals who have high needs, or who have
had problematic relationships with the staff at the other shelters run by the
agencies administering the new options, will not be able to access these
spaces even if they do become available. Many of the current residents of the
Encampment have had extremely negative experiences in the current shelter
system, where large groups of high needs individuals are crowded together
with minimal support, and rigid rules regarding attendance make it difficult to
secure or maintain a spot.
[185] Further, I am not satisfied on the evidence before me that many of the
problems alleged by the plaintiffs are the unique result of the existence of the
Encampment, and are not simply part of the reality of homelessness. If I were
to issue the injunction at this point, I am concerned that the problems would
simply migrate to other areas in the City of Victoria.
[186] An injunction at this juncture may well cause greater disruption to the
public and greater expense to the City of Victoria than the disruption and
expense presently endured by the Province. There is at least an overlap
between the provincial taxpayers and the taxpayers in the City of Victoria,
and I am not prepared to displace one's expenses to impose them on the
other.
[187] I have already impressed upon the parties that I expect the trial of this
matter to be expedited by the abridgment of various time limits for
examinations for discovery, if pursued by the parties, and the shortening of
notice periods for expert evidence. A trial date commencing September 7,
2016 has now been set. Should circumstances degenerate between now and
the trial date, the plaintiffs are given liberty to renew their application for
injunctive relief based upon proof of such degeneration.
[Emphasis added.]
Discussion
a)
[14]
Housing Options for the Residents of the Encampment
Ms. Boies Parker contended that there remains insufficient housing for the
homeless in the City of Victoria, but I am no longer persuaded that that is correct.
The plaintiffs have commendably responded to the needs of those residing in the
Encampment, and those who have resided there in the past.
[15]
Gertrude Hanlon is the acting Executive Director of the Housing Policy
Branch of the British Columbia Ministry of Natural Gas Development and the
Minister Responsible for Housing. Her duties include attempting to provide
Page 10
supportive housing to those who need it. She undertook the task of determining the
number of people in need of housing who were at the Encampment in May and June
of this year. She concluded that as of June 16, 2016, there were approximately 87
people residing at the Encampment, 31 of whom are on waitlists for supportive
housing.
[16]
In response to the Courthouse Encampment, BC Housing provided funding
for a number of additional temporary housing facilities. On January 5, 2016, Our

Place Society began operating My Place Transitional Home (My Place), a shelter
with 40 spaces in indoor tents. The plaintiffs contend that My Place offers the privacy
of a tent, along with three daily meals, outreach services, laundry, showers, and art
and music rooms. While originally scheduled to operate only until April 30, 2016, BC
Housing has provided funding for My Place to continue operations until September
30, 2016.
[17]
Our Place Society also began operating CTH in February 2016. CTH is said
by the plaintiffs to offer a mixture of indoor living as well as tent space in a building
courtyard. CTH apparently has space for 50 residents, but BC Housing and Our
Place Society have collaborated to add 28 additional spaces to the facility beginning
July 4, 2016. BC Housing has extended the funding for CTH to March 31, 2017.
[18]
Don Evans, the Executive Director of Our Place Society deposed that there is
a current waitlist of 104 people who wish to get into CTH and 92 people wishing to
get into My Place, and that there are 19 people from those totals who are on both
waitlists. He estimated that some 25 of the present residents of the Encampment are
on the waitlists.
[19]
The Province of British Columbia has recently purchased CCH in downtown
Victoria, and is in the process of converting the property into 140 housing units for
the use of the residents of the Encampment.
[20]
The plaintiffs contend that the combination of completed and future additional
housing has sufficiently increased the capacity of Victorias temporary housing
Page 11
system such that all of the Encampments residents will have the option of
transitioning to at least one of these options in the near future. The expected date for
available occupancy at the former Central Care Home in downtown Victoria is on or
before August 8, 2016.
[21]
I do not propose to decide this application on the basis of the housing options
that the Province proposes to provide to residents of the Encampment, some of

which are not yet available. In determining whether the Encampment should be
allowed to continue until the scheduled trial, I will consider whether conditions at the
Encampment and in the surrounding area have significantly deteriorated.
b)
[22]
The Circumstances in March of this Year
In order to determine whether the circumstances of the Encampment have
degenerated, it is necessary to review the circumstances that I found to exist in

March of this year when the plaintiffs first application was heard.
[23]
In my earlier reasons for judgment, I weighed the evidence on the plaintiffs
first application concerning 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 practices of others, and the character of the
neighbourhood, and concluded that I could not find that a public nuisance had been
clearly established by the plaintiffs.
i)
[24]
Health and Safety
On the plaintiffs initial application, I reviewed the evidence then before me
with respect to health and safety issues, which included the reported presence of
garbage and used condoms, much of which was hearsay and double hearsay, as
well as the evidence of syringes and human feces. I found that I was unable to
conclude that the feces, garbage, syringes, condoms or used clothing had been left
by residents of the Encampment or were continuing at the time of the hearing.
[25]
The evidence on the hearing of the plaintiffs first application for injunctive
relief was, in part, that Dr. Richard Stanwick, the Chief Medical Health Officer for the
Page 12
Vancouver Island Health Authority, and his staff regularly attended the Encampment,
and his staff had participated in a weekly safety committee meeting that was
attended by representatives of other authorities. The evidence further indicated that
Dr. Stanwicks staff had provided harm reduction supplies to residents of the
Encampment with drug addictions, and had also trained approximately 20 campers
in the use of Narcan kits, which, when used effectively, can reverse the symptoms of
opiate overdose that cause breathing suppression and death.
[26]
I found that the evidence of the conditions at the Encampment did not show
that the residents of the Encampment were at an increased health risk.

ii)
[27]
Fire Risks
The evidence on the plaintiffs first application for injunctive relief also
included evidence that Robert Cooper, a Fire Services Advisor with the Office of the
Fire Commissioner, had attended a safety committee meeting held on February 29,
2016, and had given Ms. Brett, as a representative of the campers, a copy of an
order issued under the Fire Services Act, R.S.B.C. 1996, c. 144 on February 27,
2016. That order directed the residents of the Encampment to:
[28]
i.
Position all tents and structures separated to prevent the rapid spread
of fire;
ii.
Position tents and structures such that entrances face a path of

egress and ensure paths of egress maintained clear of obstructions
for all tents and structures;
iii.
Have all cooking separated from any areas with combustible

materials;
iv.
Do not use any open flame heating near combustible structures;
v.
No open fires within the Encampment area; and
vi.
Provide non-combustible receptacles for smoking materials.
The evidence also disclosed that Inspector Cooper had 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.

[29]
Page 13
By March 10, 2016, there had been three fire safety complaints, one related
to the Encampments ceremonial fire, one open fire complaint, and one tent fire
complaint, but the defendants provided evidence of a good working relationship
between the campers and local fire services, and evidence that progress had 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:
Deputy Chief Carey and I met and he told me that the Province had asked
him to document fire and safety concerns 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.
[30]
I held that while there were fire safety risks associated with the Encampment,
I could not resolve the differences in the evidence as to the extent of the fire safety
risks, and there was evidence that the residents were taking steps to address those
concerns.
iii)
[31]
Criminal Activity
In terms of thefts in the area of the Encampment, I was not persuaded by the
evidence then before me on the plaintiffs first application that the thefts reported in
the neighbourhood were committed by those at the Encampment.
[32]
It was clear at the time of the plaintiffs first application for an interim
injunction that illicit drug use was taking place at or near the Encampment. I
concluded that the evidence did not support the conclusion that that drug use was
caused by the presence of the Encampment and found that the reality was that
many of those who then lived at the Encampment were drug users long before they
Page 14
came to the Courthouse Green Space, and that if they were not there, their drug use
would likely be unchanged, but arguably more dangerous.
[33]
At paras. 120 124 of my earlier reasons for judgment I discussed policing
issues at that time and found:

[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.
Page 15
[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.
[34]
I accepted that the expenses faced by the Province as a result of the
Encampment would almost certainly be unrecoverable from the defendants, but I

concluded that most of the damages alleged by the plaintiffs had already
crystallized, and that further costs or damage that would be occasioned by the
ongoing presence of the Encampment would simply take place somewhere else in
the City of Victoria if the injunction sought was issued.
[35]
I also found that it was unnecessary for me to determine the actual numbers
of homeless and the numbers of beds and shelters then available to them because I
was satisfied that the number of homeless in Victoria continued to exceed the
available beds and shelters in the city by a considerable amount, and that that
disparity would only worsen when some of the then available beds were closed as
planned.
c)
[36]
The Present Circumstances
The plaintiffs contend that the evidence adduced on their present application
establishes that the presence and condition of the Encampment has affected those
working and living near the Courthouse Green Space and the rights of the general
public to the use and enjoyment of that green space in a manner sufficient to support
a finding of a public nuisance, and that the continuation of that nuisance outweighs
the harm faced by the residents of the Encampment, and would bring the
administration of justice into disrepute if allowed.
[37]
Ms. Boies Parker contends that the plaintiffs second application for injunctive
relief is premature, as there is, at present, no housing for the residents of the
Page 16
Encampment, and because the conditions at the Encampment have not

deteriorated. She argues in the alternative that even if the conditions have
deteriorated, there is no basis upon which to conclude that the conditions will remain
as they presently are for the next six weeks.
[38]
While I concluded on the evidence before me on the plaintiffs first application
that most of the damages alleged by the plaintiffs had already crystallized, this is no
longer the case. I accept the evidence which I will set out below.
i)
[39]
Expense to the Province and the City of Victoria
Inspector McGregor, a member of the Victoria Police Department (VICPD)
deposed that:
8.
As a result of our experience, the VICPD has continually adapted our

approach to policing the community within and surrounding the
Encampment with the resources we have, a process that will be
described in greater detail throughout this affidavit. That approach has
had its successes, but also has limitations given the available
resources; as a result, the Acting Chief of VICPD recently sought and
received additional financial resources from the city on behalf of the
police board to add another regular, visible patrol presence in the
community surrounding the Encampment until the trial of this
proceeding. We continue to seek additional funding directly from the
Province to provide more resources directly on the site, as we persist
in our efforts to maintain public safety and order.
17.
For the preceding 5 years the VICPD has a practice of maintaining an

operations council made up of managers who meet every 28 days to
prioritize the allocation of police resources around the city. I am a
member of that operations council. Beginning in approximately
February, 2016, a larger proportion of resources were being sent to
address issues surrounding the Encampment.
18.
In helping to manage the delivery of police services throughout the

city as the Encampment has grown, I have recognized that this
reallocation was not as simple as redistributing resources and
expenses that would otherwise have been dispersed throughout the
city. The rest of the city still needs policing; the hours displaced from
other locations in the city have resulted in my receiving complaints
from other areas of the city of the pressure this is putting on their
communities, including areas where homelessness, mental health and
substance use were traditionally and remain prime issues of concern,
Page 17
such as near Rock Bay Landing in the 500 block of Ellice Street and
the 900-block of Pandora Street.
19.
Our gradual allocation of resources to the Encampment reflects a

change in our policing approach from the more traditionally reactive
(responding to calls for service) to a more proactive/preventative
approach in the form of a public safety plan. The evolution was
necessary in light of the nature and number of calls we were getting in
the area.
23.
The police presence was being provided not just to supervise the
residents of the Encampment, but also to make policing services
available to them. In the course of my experience and that reported to
me by officers under my supervision, I have observed that when the
homeless population needs to engage with policing services, they
often do not call for service but instead report when the opportunity
arises (i.e, when they come into contact with an officer). Officers
attending the Encampment were expected to engage with the
residents and respond to any reports made to them while they were
on the site.
7.
As I deposed in my second affidavit, since June 11, 2016 the Victoria

Police Department has assigned officers on a regular basis to the
Encampment. This involves two officers being present at the
Encampment from 1500 hours to 0300 hours. We decided on two
officers present at all time[s] because it is not safe to have an officer
alone on the site at night. In my second affidavit at paragraph 8 I gave
my subjective belief that the presence of the police at the
encampment from 1500 to 0300 would have a positive impact on
decreasing the level [of] violence on the site. This is in fact the reason
why we deployed the officers to be present on the site for 12 hours a
day. Following the deployment of the static police presence, the
Victoria Police Department were able to arrest a number of individuals
from the site. While it is my expectation and hope that the presence of
police officers on site for 12 hours a day will reduce the violence on
the site, this static police presence is unprecedented and is a
tremendous strain on police resources. It is simply not sustainable; on
the site, or in the community surrounding the site, in the long term.
8.
In the 26 years that I have been a member of the Victoria Police

Department, there has no other place in Victoria where we dedicate
police resources on a static shift at one location other than at a
special event such as Canada Day.
9.
Further, I am concerned that if the police presence [is] reduced at the

Encampment it will continue to attract a criminal element and the site
will further deteriorate. Since the static shifts have begun I have not
received any reports of serious violence on the site although as I
indicate below I continue to get reports of altercations. The creation of
and,
Page 18
a static shift on the site has strained Victoria Police Departments

resources and budget to such degree that it is currently having a
negative effect on police operations and deployment.
[40]
Del Manak, the acting chief of the Victoria Police Department deposed that:
8.
The Courthouse Encampment places an increasingly significant strain

on VicPDs resources, since the department is trying to manage the
call load relating to the Courthouse Encampment in addition to calls in
the rest of Victoria and Esquimalt. I am advised by the VicPD Analysis
and Intelligence Section that there has been a 46% increase in calls
for police service in the 3 blocks around the Courthouse Encampment
over a 6-month period since November, 2015.
10.
[41]
I have sought extra funding from the Victoria City Council to approve
up to $113,000.00 for dedicated police presence of 2 officers in a 3 to
5 block radius of the Courthouse Encampment. The plan is for these
officers to be there for 6 hours per day, 7 days per week from now
until June 11, 2016, and for 6 hours per day, 5 days per week from
June 12 to September 30, 2016. Attached to this affidavit and marked
as EXHIBIT A is the PowerPoint presentation I prepared for the
Victoria City Council regarding funding, entitled Funding Request:
Additional Police Resources for Tent City.
I find that the Province has incurred and continues to incur greater than
anticipated costs due to the ongoing presence of the Encampment than it would if
the residents of the Encampment were located elsewhere. The City of Victoria has
similarly incurred and will incur greater expense in the future, which is straining the
budget for the city police and compromising their ability to perform needed duties
elsewhere in the city, and for which they have sought and continue to seek
additional funding from the Province. As I stated on the plaintiffs first application, the
expenses attributable to the Encampment will almost certainly be unrecoverable
from the defendants. In the result, while I still answer the second question in RJRMacDonald in the affirmative, I no longer qualify that answer as I did on the plaintiffs
first application.

ii)
[42]
Page 19
Leadership and Composition of the Encampment
While I also concluded on the evidence before me on the plaintiffs first
application that the residents of the Encampment appeared to benefit from

responsible leadership and organization, and had established effective lines of
communication between themselves and police, fire and public health authorities, in
a way that prior homeless individuals whose activities have been discussed in the
previous decisions of this Court had been unable to do, I no longer consider that to
be the case.
[43]
I do not fault those who have endeavoured to provide leadership at the
Encampment. Indeed, I consider that they should be commended for their significant
efforts. Unfortunately they have been unable to sustain that leadership, in part due to
the changing nature of the Encampment.
[44]
The plaintiffs contend, and I accept, that the demographic nature of the
residents at the Encampment has changed since March of this year, and that the
leadership that was present at that time has become less effective.
[45]
Ashley Mollison is a project coordinator with the Institute on Aging and
Lifelong Health at the University of Victoria and is familiar with the residents at the
Encampment. She deposed that:
Since my first Affidavit there has been a shift in the population at [the
Encampment]. [The Encampment] has from its inception been a home for the
more marginalized members of the homeless population, but this has
become more pronounced with the opening of temporary shelter at the former
Boys and Girls Club (My Place), the temporary transitional space at the
youth custody centre (Choices) and the housing facility at Mount Edwards
(Mount Edwards). With some former residents of [the Encampment] having
left the camp to access these services, there have been vacant tents and
shelters within [the Encampment] for other homeless people to move into.
What I have observed is that [the Encampment] is now populated primarily by
people who have been homeless for many years and are the most
marginalized, excluded, and criminalized people in the homeless population.
[46]
One witness, who described himself as homeless in the City of Victoria for
many years, deposed that:
[47]
Page 20
7.
In the course of my visits, I have personally noticed a shift in the

population of the Courthouse Encampment. In or around the fall of
2015, I observed that the majority of campers were local individuals
whom I recognized from my time living on the streets.
8.
Currently, I observe that the Courthouse Encampment population is

comprised mostly of individuals whom I do not recognize. I am
informed by some of these campers and believe that these campers
have come to Victoria from other communities specifically to live in the
Courthouse Encampment. Another reason I chose not to stay at the
Courthouse Encampment was because there were too many
strangers with mental health issues and drug addictions there. Many
of my homeless friends have left the Courthouse Encampment.
Neighbours of the Encampment deposed to the changes in the residents of
the Encampment. One neighbour deposed that:

18.
[48]
Because my apartment at the Norwood Arms is so close to the

Courthouse Encampment, and because I walk through the
surrounding area at least twice per day when going to the YMCA or to
run errands or to work, I have been able to observe the evolution of
the Courthouse Encampment and its residents. Due to the increase in
frequency of negative incidents that I have experienced on the
Courtney Street Staircase and in other areas, my belief is that the
population of the Courthouse Encampment has changed to a
younger, more negative and aggressive demographic. I have never
actually entered the Courthouse Encampment, but I am concerned
about my safety when I am in the surrounding areas.
Another neighbour similarly deposed that:

18.
As the Courthouse Encampment has evolved, I have noticed a shift in

its population. The first campers in the summer of 2015 were not bad
neighbours. Most of the campers looked older than many of the
current residents. They looked like the kind of people I have seen
struggling with chronic homelessness in Victoria over the years.
However, particularly since in or around January 2016, I have noticed
an increase in younger male campers. I find many of these younger
campers to be intimidating and aggressive looking. For example, in
late May 2016 while walking past the Courthouse Encampment, I
noticed a group of about four young men standing at the entrance to
the Courthouse Encampment on Quadra Street. They watched me in
an intimidating manner as I walked by. On another occasion several
days later, while walking down Burdett Avenue, I saw a man standing
in the grass next to the sidewalk adjacent to the Courthouse
Encampment. He stared at me in an aggressive and hostile way as I
walked past. The way he watched me made me feel threatened.
Page 21
Because of the apparent change in the population of the Courthouse

Encampment, I generally try to give the Courthouse Encampment a
wide berth when possible. Since December 2015 or January 2016, I
have also heard an increase in the frequency of loud profanities in the
vicinity of the Courthouse Encampment.
[49]
Scott McGregor has been a member of the Victoria Police Department for 26
years and served in a variety of capacities. He deposed that:
[50]
a.
When dispersed throughout the city, even when overnight camping in

parks, homeless people congregate in smaller groups of like-minded
people, sometimes referred to as their street family. While the
composition of a street family is by nature quite fluid, the open nature
of it leads to less frequent predation and direct conflict among
individual homeless than we have observed occurring in the relatively
cramped and permanent setting of the Encampment. In the
Encampment, people who didnt typically choose to group together
are encamped with one another, which I have observed, has been
reported to me by attending police officers including Staff Sgt. Brown
and I believe has resulted in some conflicts.
b.
In the course of enforcing the overnight sheltering bylaws, police

officers come into nearly daily contact with many of the homeless
people dispersed throughout the city. In the course of so doing, CSD
officers are able to recognize and intervene in some problems they
see in the moment. That can include making basic health
assessments; including exposure, drug overdose, injuries and mental
health status and in some cases providing services, calling
ambulances or getting a mental health team involved. In addition, in
some cases officers have been successful in getting homeless
persons fast tracked into shelters or housing. Officers are present to
provide information requested of them, seeking information from
various individuals, or locating contraband such as stolen property.
The same dynamic does not exist in managing the Encampment.
c.
I myself have observed a large and apparently changing variety of

bikes within the bounds of the Encampment. If it were operating within
the bounds of the Encampment, an active bicycle chop shop would be
harder to detect than it would if the operators needed to pack up and
move their affairs frequently.
Colin Brown has been a police officer with the Victoria City Police for 17
years. He is presently a Sergeant in the Crime Reduction Unit of the force, and
responsible for four sections within the unit, including the Bike Section. In his
affidavit he deposed that:
[51]
Page 22
13.
Further, since in or around mid-April 2016 I have observed a large

influx of young males in their early to mid-20s. As a former Sergeant
of the Patrol Division and the Crime Reduction Unit, some of these
individuals are known to me for their prior criminal activity, drug
dealing or their association with the Nortenos gang.
14.
I have attempted to build a rapport with the young males living in the
Courthouse Encampment; however, I have found some of these
individuals challenging to engage with, explicitly hostile and difficult
upon approaching them. For example, in or about mid-April, 2016, I
said to a young male individual How are things going today? and he
replied, Really bad. I asked him why and he responded Because
you are here - get the [expletive deleted] out!. I was taken aback by
this interaction because for the first time since the formation of the
Courthouse Encampment I felt unwelcome on the site.
It is also apparent that the support of the neighbouring Christ Church
Cathedral for the Encampment, so evident at the time of the plaintiffs first
application for injunctive relief, has waned. M. Ansley Tucker, the Rector of the
Cathedral, deposed that:
16.
I believe that Canon Fords affidavit is no longer an accurate

representation of the current relationship between the Courthouse
Encampment and the Cathedral. I have discussed the matter with the
Bishop, the Cathedral staff (including Canon Ford), and the Cathedral
parishioners, and my thoughts on the issue were encapsulated in a
sermon I gave on May 15, 2016. An excerpt of this sermon was
published in the Times Colonist newspaper on May 17, 2016.
Attached to this affidavit and marked as Exhibit A is a true copy of
that published excerpt.
17.
I am informed by the parishioners who periodically visited the

Courthouse Encampment, and believe, that they no longer do so
because they fear some residents of the Courthouse Encampment.
These parishioners have informed me and I believe that this fear is
caused by increased reports of violence in the media and increased
unprovoked yelling and aggressive erratic behaviour from some
residents of the Courthouse Encampment.
18.
Since late March and early April of 2016, I have observed the
destabilization of the Courthouse Encampment which appears to have
coincided with a change of leadership, as I no longer observe them on
the site.
19.
I have observed that many of the residents with whom the Cathedral
had a respectful relationship have moved on, and I have observed
that Cathedral parishioners have not maintained the same relationship
with some of the newer residents.
Page 23
28.
It was reported to me on or about May 9, 2016 by Stuart Hall, Head of

the School, and I believe, that an individual with a knife had been
seen injecting himself with a substance in the parking lot of the
School. This man was in very close proximity to students of the
School.
29.
In or around the week of May 9-13, 2016, it was reported to me by

Stuart Hall, and I believe, that an individual jumped the fence of the
School during school hours, behaving in an extremely agitated
manner, and when escorted off the School property, ran across the
Cathedral lawn, tearing a rhododendron, and then jumping a second
fence at least 6 feet high. He was finally subdued by police at the
encampment on the Courthouse lawn.
30.
In or around May 2016, it was reported to me by Mr. Jackson,

Cathedral custodian, and I believe, that a woman had been found
naked and sitting in the sink of the Cathedral's public, multi-stall
restroom.
[52]
32.
The mutually respectful relationship the Cathedral maintained with the

Courthouse Encampment has deteriorated beginning in late March
and early April, 2016. I have observed a deterioration in the apparent
physical, spiritual and community well-being that residents of the
Courthouse Encampment used to foster.
33.
I maintain my belief that permanent housing options are required for

the residents of the Courthouse Encampment, but I can no longer
support the continued use of the Courthouse Greenspace as a
daytime shelter site in its present form.
Other neighbours and business people provided affidavit evidence supporting
the plaintiffs position that the Encampment has had a serious and negative impact
on the area surrounding the Encampment that has only worsened over time.
iii)
[53]
Health and Safety
While some residents of the Encampment have responsibly endeavoured to
keep the Encampment clean, that is not the practice of all of the residents, with the
result that garbage has become a problem at and near the Encampment.
Notwithstanding the efforts of the Ministry of Technology, Innovation and Citizens
Services, who is responsible for maintaining the Courthouse Green Space, the
garbage problem has worsened and has been compounded by hoarders who
choose to keep items of questionable worth at the Encampment, including one
resident who has apparently installed sliding glass doors near his or her tent.

[54]
Page 24
Michael D. Blaschuk is a representative of the Real Property Division of the
B.C. Ministry of Technology, Innovation and Citizens Services. He deposed that:

3.
MTICS is responding to the concerns of the Office of the Fire
Commissioner (OFC). To improve health and safety on the site and to assist
with compliance with the OFC fire orders, MTICS also delivered more gravel
to the encampment within the last week. At my direction, MTICS delivered an
industrial garbage bin to the site on June 10, 2016. The garbage bin was to
remain on site for refuse related to clean up by residents of the encampment
to attempt to comply with fire orders until June 15, 2016. This was extended
to June 27, 2016. The bin is located on Quadra Street beside the
encampment. The Province is paying for the garbage bin and street parking
while the bin is in place: and it has been emptied twice. The Province has
been fined by the Capital Regional District (CRD) for having hazardous and
illegal material (needles and metal) in the bin. The garbage bin must now be
inspected 24 hours prior to disposal.
[55]
The evidence on this application establishes that there has been a significant
increase in the amount of garbage on the properties in the environs of the

Encampment, to the point that it impedes those with mobility aids from traversing the
area.
[56]
There is evidence, which I accept, of up to eight dogs that now live with their
owners at the Encampment, and at least some of the dogs are described as
aggressive.
[57]
The witness who described himself as homeless in the City of Victoria for
many years, that I have already referred to, deposed that:

On my visits to the Courthouse Encampment, I have noticed junk and
garbage around tents and it is difficult to access some tents because they are
covered and enclosed by tarps. I have seen completely enclosed living areas
in the camp that are inaccessible and not visible from the street.
[58]
Three of the police officers who provided affidavits in support of the plaintiffs
application also described difficulties with access and egress at the Encampment,
while one denied having difficulty accessing the main pathways.
[59]
Used needles and other drug paraphernalia have appeared in increasing
amounts in the neighbourhood and in particular on the school grounds behind the
Page 25
Christ Church Cathedral, across the street from the Encampment. Despite the
proximity of the newly opened Mount Edwards housing facility next to the school, it
would be nave to conclude other than that their genesis is at least in part
attributable to the residents of the Encampment. I conclude that the Encampment
residents have been careless, if not irresponsible, about discarding their used
needles and drug paraphernalia, and that where they have left them is both unsightly
and dangerous.
[60]
While Ms. Boies Parker argued that discarded syringes are not uncommon
near homeless encampments elsewhere in Victoria, they are a relatively new

experience for the neighbours of the Encampment, including the students and
parents at the nearby school.
[61]
The same is true of the discarding of used condoms which have proliferated
in their number and presence in the area, and again, it would be nave to conclude
other than that their genesis is at least in part attributable to the residents of the
Encampment. I conclude that the Encampment residents have been cavalier about
discarding their used condoms, that they are both unsightly and dangerous where
they have been discarded.
[62]
There is evidence of public urination and defecation at and around the
Encampment and human and canine feces have been found in increasing quantities
at and near the Encampment. I conclude that at least some of the human and canine
feces emanates from the residents of the Encampment and their pets.
[63]
While there was little evidence of the presence of rats at the Encampment on
the plaintiffs initial application, the evidence on the present application confirms that
rats are now present in numbers, and the use of rat traps to control them has been
unsuccessful. There is evidence of at least two rats nests at the Encampment.
[64]
I find that there has been considerable degeneration and deterioration in the
health and safety circumstances at the Encampment, and for those reasons
Page 26
conclude that the Encampment poses a health and safety risk to both its residents
and the residents and businesses in the area of the Encampment.
iv)
[65]
Fire Risks
Since the plaintiffs first application for an interim injunction was dismissed,
the Office of the Fire Commissioner has issued two further orders pursuant to s. 22
of the Fire Services Act. The first was dated May 11, 2016, and directed to the
Province of British Columbia as the owner of the property, and the second also
directed to the Province, dated June 13, 2016, requiring the dismantling and
evacuation of the Encampment. These orders apparently stem from five accidental
fires that have occurred at the Encampment, some requiring the use of fire
extinguishers.
[66]
While there have been efforts to address the concerns of the Fire
Commissioner, they have been at least in part the efforts of those assisting the
residents at the Encampment. The Province has incurred the expense of retaining
the Portland Hotel Society to assist with various issues that have arisen at the
Encampment. Regrettably, these efforts have failed to resolve the threat of fires and
their consequences to the satisfaction of the Fire Commissioner. In his affidavit
dated June 1, 2016, Mr. Cooper deposed that despite the apparent improvements to
the fire safety of the Encampment in and before April 2016, some of the areas of
improvement had reverted back to their state prior to the cleanup. Mr. Cooper
deposed that the leadership at the Encampment had less control over the residents,
some of whom were newer residents, and that the residents in general
demonstrated an unwillingness or inability to comply with the orders of the Fire
Commissioner. By May 25, 2016, Mr. Cooper concluded that:
a.
The spacing between tents was inadequate with the addition of more
tents and tarps on the site without the required one metre clearance
on all sides of each individual tent;
b.
The use of tarpaulins to cover multiple tents and structures was still
an issue and no visible progress has been made on removing these
fire hazards;
[67]
Page 27
c.
There has been a deterioration in the major egress on the site, which
was more congested in the middle of the site. The addition of more
tents since the last inspection has made egress more difficult. The
limited secondary egress that did exist has been further obstructed.
d.
Most shelters do not face a path of egress;
e.
There has been an increase in the storage of combustible material

throughout the camp.
Patricia Patterson is a social worker with the Aboriginal Protective Family
Services Team at the British Columbia Ministry of Children and Family Development
who has provided support services to youth at the Encampment. She deposed that
she has observed a significant increase in the number of tents at the Encampment
since early March of this year.
[68]
Jesika Marie Joy Knutson is a resident at the Encampment. She deposed
that:
People have worked hard to comply with fire safety protocols that we have
been told about. The reason we have not been better at making more
pathways is because there are so many people living here and tent crowding
makes it difficult to comply. Despite this we do are [sic] best to make sure that
peoples tents are open to exit paths.
[69]
Jennifer Ames, is an officer in the Victoria Police Department. She has visited
the Encampment a number of times and deposed that:

8.
By some point in January 2016, the Encampment had been arranged

around a couple of more or less consistent pathways. The grass along
those paths was worn away, and the path was muddy. In the
beginning, the central paths would sometimes be crowded or cluttered
by belongings or debris, but over time they became more established
and consistently passable. The paths were eventually covered by hay,
and more recently gravel, and have become more permanent and
respected, though at times property still encroaches on or crowds the
paths.
9.
Outside of the established paths, which only access a limited portion

of the Encampment, tents and other structures have been erected
without any pattern or organization I can recognize, and have become
increasingly close-set and congested over time.
Page 28
10.
In January 2016, I could make my way through the Encampment and

there was a defined pathway in regular use allowing people to move
into and around the Encampment. Some campers were quite tidy and
others werent, but there wasnt an overwhelming amount of debris
like there is now.
11.
Now there are drifts of garbage and piles of debris and personal
belongings among and between the tents and other structures. The
Encampment is very difficult to navigate and its not easy to determine
where the entrances to the tents are located. Some tents arent even
occupied; instead, they are full of bicycles, wood and other debris.
12.
At night it is particularly difficult to see where you are walking and

what you might be stepping on in the Encampment because the piles
of debris have moved onto the pathways. It is hard to walk safely
between tents at night, and nearly impossible to move quickly in any
emergent circumstances.
33.
[70]
In addition to the gas powered generator, I have observed propane

tanks among and inside of various tents. I expressed my concern over
the fire hazard but my concern was ignored. I have also observed
lanterns being hung from the interior roofs of various tents with
candles used as a light source.
Ms. Sabell is a Lieutenant Inspector with the Victoria Fire Department, and
has had repeated exposure to the Encampment. She deposed that:

18.
Notwithstanding many difficulties, through the work of the safety

committee, much progress had been made on the conditions at the
Tent City since my first visit on February 4, 2016. In particular, I have
observed the following positive changes over the last two months:
a.
The pallets lining the pathways, as well as pallets used as

bases for tents and other structures have been largely
removed;
b.
The straw that had been used to line pathways has also been
removed and the main pathways and other areas are now
lined with gravel;
c.
The two main pathways into the centre of the Tent City are
clearly demarcated and are largely free of obstructions;
d.
Fire extinguishers have been placed along the main pathway

on wooden posts; and
e.
The ceremonial fire - a source of open flame, has been

removed.

19.
Page 29
Despite the noticeable improvements noted above, there continue to

be numerous on-going problems at the Tent City from the fire safety
perspective. In particular:
a.
There were still lots of tarps covering multiple tents or

structures. This is a significant hazard as such tarps and
awnings increase the risk of fire (they trap heat and are
themselves flammable), can facilitate spread of fire and, most
critically, when they collapse in a fire, can trap occupants
making escape or rescue extremely unlikely;
b.
A number of tents are very close together and appear to be

linked together to make larger structures. This carries similar
risks to those posed by the tarps and described above;
c.
Wooden pallets, although mostly removed from the pathways,

continue to be used as part of make-shift structures and to
hold down tarps covering tents and stored material;
d.
Very large quantities of material in or near tents, frequently

covered by tarps together with the tents themselves.
Accumulation of such flammable material in proximity to
occupied tents greatly increases both the risk of fire and the
severity of a fire by providing fuel to make the fire burn hotter
and spread faster;
e.
Nylon tents and tarps used throughout the Tent City are highly
combustible and there is very little separation between then. If
there is enough heat from a nearby fire they can ignite even
without direct contact with the flame which makes sufficient
separation between them critical;
f.
Except for the two main paths, the pathways throughout the
Tent City are very narrow and winding - more in the nature of
deer trails than proper pathways. Navigating through them,
even without an emergency, can be quite difficult. Most are too
narrow to use a stretcher or for two persons to safely pass
each other. In the event of an emergency, these pathways
would be virtually impossible for emergency personnel to
navigate safely;
g.
Despite repeated requests, many of the tents and structures

openings are not facing an egress pathway. This would hinder
a quick evacuation or access to a particular structure by first
responders in an emergency;
h.
There are very few egress points, particularly, from the

northern side of the Tent City;
i.
Although I have been told that there are designated smoking

areas, I have not seen any. Instead, I observed evidence of
smoking throughout the Tent City, in the form of numerous
cigarette butts at multiple locations around it;
20.
[71]
Page 30
j.
Cooking in tents, smoking or using open flame as a source of

heat inside a tent can be very dangerous as it can easily
cause a fire. In the condition such as those that I observed at
the Tent City, such a fire could spread very quickly posing
danger not merely to the occupant of the particular tent but to
all occupants of the Tent City; and
k.
The conditions throughout the Tent City varied from one area
to another, however, the density of the tents and structures
was generally much higher than I observed previously.
There are no Fire Code standards directly applicable to tent cities

making it difficult to predict proper safe distances, acceptable
occupant loads or other issues normally considered during fire
inspections. However, based on my observations of the Tent City and
my experience as the fire prevention officer, I believe that the current
conditions at the Tent City do not meet minimum safety standards. In
particular, all the problems listed above, if they were discovered in a
building, would be a contravention of the Fire Code and would not be
acceptable on any fire safety inspection.
I find, as determined by the Fire Commissioner, that the residents of the
Encampment and their supporters have demonstrated that they are unable to
maintain appropriate fire safety standards at the Encampment, and for that reason
conclude that the Encampment poses a fire safety risk to both its residents and the
residents and businesses in the area of the Encampment.
v)
[72]
Criminal Activity
Ms. Boies Parker contended that there has not been a dramatic increase in
violent incidents or crime since the plaintiffs first application for injunctive relief. I find
that her contention is contrary to the evidence before me.
[73]
The plaintiffs contend that there has been an increase in the amount of thefts
in the area of the Encampment, and Leo Sun, an officer with the Victoria Police
Department has located stolen bicycles at the Encampment, as have some of his
colleagues.

[74]
[75]
Page 31
A former resident of the Encampment deposed that:

3.
I was one of the first 5 tents at the Courthouse Encampment. I lived

there for 5 months.
4.
As the Courthouse Encampment became more and more crowded, it

changed, and I became uncomfortable living there.
5.
The Courthouse Encampment stopped being a place where residents

trusted each other. For example, I had to pay people to watch my tent
if I left for a while.
6.
Also, I had my I.D. and some pieces of clothing stolen while I was
living at the Courthouse Encampment. I noticed one day that another
resident was wearing my jeans. I could not sleep comfortably at the
Courthouse Encampment because I worried about people stealing my
belongings.
This former residents evidence is in sharp contrast to the evidence given by
many of the Encampments residents on the first injunction application, namely, that
they felt safe leaving their possessions at the Encampment during the day.
[76]
Thomas Lacroix is a Security Officer with Paladin Security in Victoria, posted
to the Encampment. He deposed that nearly every male resident at [the

Encampment] wears a knife on his belt in plain view, and that some of those
residents have admitted to him that they carry the knives for general use and
protection.
[77]
There is evidence that members of an organized and criminal street gang
have been present at the Encampment, and at one point were resident there. Some
of these members are considered to be engaged in drug trafficking by the Victoria
City Police.
[78]
Several of the police affiants deposed that when violence occurs at the
Encampment, many residents are reluctant to give information to the police, and
suggest that a code of silence prevents the reporting of some violent incidents.
[79]
In terms of crime and violence at and around the Encampment, the following
incidents have occurred:
[80]
Page 32
a.
On March 15th, 2016, a Courthouse Encampment resident was

stabbed. Police found the victim outside the Courthouse Encampment
on Burdett Avenue.
b.
On April 2nd, 2016, Thomas Lacroix deposes that he observed a man

wielding a knife chasing another man with a wrench down Burdett
Avenue. Both men had just emerged from the Courthouse
Encampment among a group of arguing people.
c.
On April 24th, 2016, a Courthouse Encampment resident sustained

injuries after being beaten with a bat. Police found the victim beside a
tent in the Courthouse Encampment.
d.
During a visit to the Courthouse Encampment in or around late April

2016, a homeless man was punched in the jaw by a young man,
necessitating medical attention.
e.
On May 12th, 2016, Susan Pickard, a neighbourhood resident with

multiple sclerosis, was attacked near the Courthouse Encampment by
a man with dirty hands who smelled of campfire smoke. Approaching
her from behind and yelling, the man tried to force Pickard out of her
motorized scooter by grabbing her scarf and pulling. This pulling
choked her. Constable Barrie Cockle deposed that the man was likely
a Courthouse Encampment resident who experienced an episode of
excited delirium the same day.
f.
On or around May 16th, 2016, Marjorie Parent deposes that a woman

threw an object at a man in the course of a loud argument at the
Courthouse Encampment. The object appeared to be a hammer.
g.
On May 20th, 2016, Nicola Storr deposes that she observed a physical
altercation between three men on the western perimeter of the
Courthouse Encampment.
h.
On May 24th, 2016, Constable Jennifer Ames was bitten by a flailing,

kicking woman while making an arrest at the Courthouse
Encampment.
i.
On May 27th, 2016, a CTV news reporter was pushed and kicked at
the Courthouse Encampment by a male camper.
j.
Scott McGregor deposed that a female youth was assaulted by

another youth while she was at the Courthouse Encampment.
Ms. Boies Parker submitted that the level of violence at and near the
Encampment is no greater than that experienced by those with challenges similar to

those faced by the residents of the Encampment who are homeless and reside in
other areas in the City of Victoria. She pointed to the number of police call outs in
two areas of the City where homeless individuals congregate which are referred to
as Rock Bay Landing and Our Place. This is not borne out by the evidence of Cst.
Page 33
Darling of the Victoria Police Department, whose evidence I accept. He deposed

that:
3.
I have already given three affidavits in this proceeding. In my third

affidavit sworn June 20, 2016, I deposed that the level of cooperation
police can expect from the campers is fairly consistent with what could
be expected from other homeless persons in the street community,
whether they are residing at the Encampment or elsewhere. However,
other locations than the Encampment may provide other sources of
evidence such as staff who are witnesses, video surveillance or other
independent witnesses who happen to be in the area. At the
Encampment the campers are the only source of information in most
cases so their evidence is needed to further police investigations. It is
also my view that the environment of the Encampment cannot be
compared to other places where homeless persons congregate such
as Rock Bay Landing and Our Place because these facilities [are]
staffed and have rules that if not followed can result in being barred
from the facility.
4.
In my third affidavit, I deposed that some of the individuals that were

of concern to us have recently been arrested and are no longer at the
Encampment and there will likely be a significant decrease in the
violent incidents that have occurred at the Encampment. However
yesterday I observed at the Encampment, two individuals one who
has been charged with trafficking drugs and the other who has a
criminal record including convictions for violent offences. These
individuals later told me that they were living at the Encampment. On
June 19, 2016, I last observed a gang associate at the Encampment. I
have seen this individual at the Encampment on many occasions in
the past two months and I believe that he is currently living there. It is
now my belief that the level of violent incidents will not decrease
without a constant police presence.
15.
I am aware the City of Victoria is divided into geographical regions

called Districts, Zones and Atoms. Calls for service, and other types of
information, can be extracted from PRIME-BC using each of these
geographical regions as a search parameter. In terms of search
parameters, an atom is the smallest geographical area, and is
generally an area of one square street block, although at times
another street or streets may intersect the atom.
19.
I have reviewed each of the calls for service to determine whether

each call is related to the Encampment, and included a brief notation
to either describe the incident or indicate the call is not related to the
Encampment. In reviewing the calls for service, I noted the following:
a.
From November 15, 2015 to June 17, 2016, there were a total
of 380 calls for service within Atom V10187, which includes
Page 34
the Encampment and the Victoria Law Courts. 296 of the 380
calls for service that were directly related to the Encampment,
including criminal activity and public order issues.
20.
In reviewing the calls for service, I noted the following:

a.
From November 15, 2015 to June 16, 2016, there were a total
of 1273 calls for service within the area of the Atom Map;
b.
For the same period the previous year, from November 15,
2014 to June 16, 2015, there were a total of 786 calls for
service with the area of the Atom Map;
c.
Overall the calls for service within the area of the Atom Map
have increased by sixty-two percent from the same period the
previous year; and,
d.
The atoms immediately to the east of the Encampment have

the greatest increase in calls for service. The increase in calls
for service at the Encampment is 269% compared with the
previous year. The atom on which Pioneer Square is located
experienced a 177% increase in calls for service compared to
last year. The atom on which Christ Church Cathedral is
located has experienced a 53% increase in calls for service
compared to last year. The atoms further to the east have
either a decrease in calls for service, or the increase is
statistically insignificant.
21.
There has been a significant increase in calls for service in the past
year particularly since March 2016.
22.
There has been a significant and continual increase in calls for

service directly related to the Encampment in the past year
particularly since March 2016 when calls have doubled to the end of
June 17, 2016.
27.
I have also reviewed VicPD calls for sendee for the entire City of
Victoria and Township of Esquimalt, along with two other areas in the
City of Victoria where I know that homeless persons regularly
congregate. These areas are Atom VII037, where the Rock Bay
Landing service provider is located at 535 Ellice Street, and Atom
VI0610, where the Our Place service provider is located at 919
Pandora Avenue. Now shown to me as Exhibit J to this Affidavit is a
true copy of a chart I have prepared, based on VicPD records, of calls
for service in each of these areas, which indicates:
a.
From November 15, 2015 to June 17, 2016, there were:

i.
33,822 calls for service within the City of Victoria and

Township of Esquimalt;
ii.
764 calls for service within Atom VI1037, with 627 of

those calls for service at Rock Bay Landing itself;
b.
28.
iii.

those calls for service at Our Place itself, and
iv.
380 calls for service within Atom VI0187, including

within the Encampment.
Page 35

i.
33,700 calls for service within the City of Victoria and

Township of Esquimalt;
ii.
660 calls for service within Atom VII037, with 507 of

those calls for service at Rock Bay Landing itself;
iii.

those calls for service at Our Place itself; and,
iv.
103 calls for service within Atom VI0187, including

within the area where the Encampment is now located.
I have also reviewed VicPD records to determine which of the calls for
service have involved persons being arrested for criminal offences in
the areas of interest identified in this Affidavit. Now shown to me and
attached as Exhibit K to this Affidavit is a chart I have prepared,
based on VicPD records, showing the following:
a.
b.

i.
1,536 arrests within the City of Victoria and Township

of Esquimalt;
ii.
23 arrests within Atom VI1039 where Rock Bay

Landing is located;
iii.
18 arrests at Rock Bay Landing itself;
iv.
31 arrests within Atom VI0610 where Our Place is

located;
v.
28 arrests at Our Place itself; and,
vi.
18 arrests within Atom V10187, including the 15 arrests

within the Encampment.

i.
1,730 arrests within the City of Victoria and Township

of Esquimalt;
ii.
39 arrests within Atom VI1039 where Rock Bay

Landing is located;
iii.
22 arrests at Rock Bay Landing itself;
iv.
43 arrests within Atom VI0610, where Our Place is

located;
v.
26 arrests at Our Place itself; and,

vi.
29.
[81]
Page 36
2 arrests within Atom VI0187 where the Encampment

is now located, but not including arrests within the
Victoria Law Courts building.
Based upon my review of VicPD records, I have determined that as

well as the significant increase in calls for service in Atom VI0187
where the Encampment is located, when compared with the same
time period the previous year, there has also been a significant
increase in calls for service in the atoms where Rock Bay Landing and
Our Place are located.
I find that the violence and criminal activities at the Encampment have
markedly increased since March of this year to the point where the Encampment is
unsafe, and for that reason conclude that the Encampment poses a risk to both its
residents and the residents and businesses in the area of the Encampment.
d)
[82]
Disposition
In Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC 1926,
Madam Justice Duncan concluded that a homeless camp in a City of Vancouver

park was unsafe for a variety of reasons, and granted an interim injunction requiring
the defendants to remove all tents and other structures from the park. In so doing,
Duncan J. imposed terms on the injunctive relief, commenting at paras. 61 63 that:
[61]
... An overarching theme in the submissions and evidence from the
defendants is a plea that the Park be dismantled in an orderly and sensitive
fashion, taking into account the needs of the individuals who currently live
there. I am satisfied on the evidence adduced on behalf of the Park Board
that there will be an orderly and sensitive approach to dismantling structures
and moving people out of the Park into available housing. City
representatives have tried to facilitate this since the camp began, with limited
success. This order will effectively put an end date on residency at the Park,
something the Park Board reasonably maintains is required to remedy the
current situation.
[62]
Therefore, I grant the application for an injunction on the following
terms:
* The defendants, and all other persons having knowledge of
the order, shall remove all structures, tents, shelters, objects
and things owned, constructed, maintained, placed or
occupied by them which are located on lands legally described
as Block 54 (Explanatory Plan 6556) District Lot 196 Plan 196
(the Park) by 10:00 p.m. on Wednesday, October 15, 2014. I
pause to note that the representations in the affidavits from the
Page 37
City are to the effect that there is housing coming online in the
middle of October. By my calculation, that is Wednesday,
October 15, and that is the reason I chose that date. The
10:00 o'clock timeframe is because the Park closes at 10:00
o'clock at night.
this order, shall forthwith cease constructing, placing, or
maintaining structures, tents, shelters, objects and things upon
the Park, without having first obtained a permit or written
consent from the Park Board.
this order, shall cease to occupy or reside in the Park between
the hours of 10:00 p.m. and 6:00 a.m. from 10:00 p.m. on
Wednesday, October 15, 2014.
this order, shall forthwith comply with any and all Fire Orders
issued pursuant to the City of Vancouver Fire Bylaw.
* This order shall not prohibit or limit in any way the right of the
defendants, or any other persons, to lawfully assemble on the
Park between 6:00 a.m. and 10:00 p.m.
* All employees or agents of the City of Vancouver are
authorized to remove all structures, tents, shelters, objects and
things owned, constructed, maintained, placed or occupied by
the defendants or any other persons which are located in the
Park, should the defendants or any other persons with notice
of the order fail to comply with this order. So to be clear, none
of the removal is to occur prior to 10:00 p.m. on Wednesday,
October 15, 2014.
[63]
The Park Board seeks enforcement clauses in the order to specifically
empower the police to act on resistance or obstruction in relation to this
order. The police have the authority to act on this order without such clauses.
If the Park Board is of the view that enforcement clauses are necessary,
counsel is at liberty to apply to appear again before this Court after 10:00
p.m. on October 15, 2014.
[83]
I have come to the conclusion that the Encampment is unsafe for those living
there and for the neighbouring residents and businesses and cannot be permitted to
continue. The residents of the Encampment can no longer remain where they are
pending the trial of the plaintiffs action against them, and the Encampment must be
closed. That said, I accept that I must still address the balance of convenience. To
accommodate that balance, the residents of the Encampment must leave the
Page 38
Encampment as soon as the housing being made available by the Province is

available.
[84]
Insofar as the fire safety risks are concerned, Ms. Boies Parker contended
that a more targeted order addressing those portions of the Encampment that are
not in compliance with the orders of the Fire Commissioner might be appropriate.
There has been no appeal of the orders of the Fire Commissioner pursuant to s. 28
of the Fire Services Act, so I do not propose to address the fire safety concerns, as I
consider that as the Fire Commissioner is addressing those concerns, and that I
should not, therefore, do so.
[85]
[86]
I do order that the residents of the Encampment forthwith:

a)
Clear all fences and obstructions at the Encampment;
b)
Remove trip hazards from pathways at the Encampment.
I further order that:

a)
Within 3 days of the date of this order, the Defendants residing

at the Encampment at the date of the order, who do not have
access to housing elsewhere and who wish to transition to new
housing from the Encampment must identify themselves to the
plaintiffs representative or representatives by showing picture
identification, or if they have no picture identification by agreeing
to be photographed and providing their name Qualifying
Defendants (and any photographs taken for that purpose are to
be kept only for the purpose of verifying the identity of the
Qualifying Defendants and are to be destroyed following their
transition to alternative housing).
b)
The Defendants must identify to representatives of the plaintiffs

which tents, shelters, objects and things located on the
Encampment belong to them.

c)
Page 39
The plaintiffs, their employees or agents are hereby authorized

to prevent any person who is not a Qualifying Defendant, from
taking up residence or continuing to reside at the Encampment.
d)
As housing becomes available, and by not later than August 8,

2016, the defendants shall remove all structures, tents, shelters,
objects and things owned, constructed, maintained, placed or
occupied by them which are located at the Encampment, and
otherwise cease to occupy or reside at the Encampment.
e)
For the purpose of ensuring compliance with paragraph 1 of the

order, employees or agents of the plaintiffs are hereby
authorized to remove or cause to be removed from the
Encampment such structures, tents, shelters, objects or things
as are:
i)
Not claimed by any of the defendants in the course of the

process contemplated in the preceding paragraph; or
ii)
Causing or contributing to a violation of paragraph 1 of

the order or an outstanding order of the Fire
Commissioner of British Columbia issued pursuant to
s. 22 of the Fire Services Act, R.B.C. 1996, c. 144, and
the owner has refused, on request, to remove it
themselves.

[87]
Page 40
Ms. Boies Parker asked that she be permitted to make submissions with
respect to the costs of the application that I have dealt with. She may do so within
two weeks, and counsel for the plaintiffs will have one week thereafter to reply, and
Ms. Boies Parker one week further to reply to the plaintiffs submissions, if
necessary.
The Honourable Chief Justice Hinkson

Chief Justice Hinkson, Re British Columbia v. Adamson, 07-05

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Chief Justice Hinkson, Re British Columbia v. Adamson, 07-05

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IN THE SUPREME COURT OF BRITISH COLUMBIA

British Columbia v. Adamson,

Reasons for Judgment

W. Milman and T.A. Mason

British Columbia v. Adamson

British Columbia v. Adamson

to an encampment at the Victoria Courthouse (the Encampment), the first

Following the dismissal of that application, the plaintiffs have endeavoured to

Choices Transitional Home, operated by Our Place Society (CTH): 28

The former Central Care Home at 844 Johnson Street, Victoria

Atira Womens Resource Society in Vancouver (Atira): 11 spaces for

designated representative or representatives to meet by July 4, 2016 with those

British Columbia v. Adamson

Each such person may elect to transition to the Alternative Housing

Up to 11 such persons may elect a space at Atira if they wish to do so,

the spaces by July 4, 2016.

An order requiring the Defendants

To forthwith remove all tarpaulins from the lands legally

Clear at least one meter around each tent at the Courthouse

Clear all fences and obstructions at the Courthouse Property;

Remove trip hazards from pathways at the Courthouse

British Columbia v. Adamson

Remove combustible materials (including pallets, and wood)

Remove cooking appliances from tents at the Courthouse

Centralize cooking to one area at the Courthouse Property and

Remove all fuels (including propane tanks, butane cylinders

The Defendants must identify to representatives of the plaintiffs which

The plaintiffs, their employees or agents are hereby authorized to

As housing becomes available, and by not later than August 8, 2016,

For the purpose of ensuring compliance with paragraph 1 of the order,

Causing or contributing to a violation of paragraph 1 of the

British Columbia v. Adamson

The history of the Encampment was also discussed at paras. 8 9 of my

British Columbia v. Adamson

the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney

British Columbia v. Adamson

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

Will the applicant suffer irreparable harm if an injunction is not

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

I answered the first two questions in RJR-MacDonald in the affirmative, but

At paras. 180 187 of my earlier reasons for judgment I concluded that:

British Columbia v. Adamson

Housing Options for the Residents of the Encampment

Gertrude Hanlon is the acting Executive Director of the Housing Policy

British Columbia v. Adamson

In response to the Courthouse Encampment, BC Housing provided funding

for a number of additional temporary housing facilities. On January 5, 2016, Our

The Province of British Columbia has recently purchased CCH in downtown

housing has sufficiently increased the capacity of Victorias temporary housing

British Columbia v. Adamson

that the Province proposes to provide to residents of the Encampment, some of

The Circumstances in March of this Year

In order to determine whether the circumstances of the Encampment have

degenerated, it is necessary to review the circumstances that I found to exist in

In my earlier reasons for judgment, I weighed the evidence on the plaintiffs

first application concerning the inconvenience caused by the defendants activities,

Health and Safety

On the plaintiffs initial application, I reviewed the evidence then before me

British Columbia v. Adamson

that the residents of the Encampment were at an increased health risk.

Position tents and structures such that entrances face a path of

Have all cooking separated from any areas with combustible

Do not use any open flame heating near combustible structures;

No open fires within the Encampment area; and