'It is a decampment': Lawyer challenges city's explanation of actions at Downtown Eastside park

Park rangers and police have descended on Vancouver's Oppenheimer Park again this week telling the people living there they have to pack up their belongings and leave, in some cases tossing tents, tarps and possessions into the back of municipal trucks.

But the city insists its crackdown – which has been going on for months, but has critics increasingly worried as temperatures are set to plunge to dangerous lows Thursday – is not a decampment.

"It is important to note that the daily bylaw enforcement that happens at Oppenheimer Park and other city parks is not a decampment: people without housing are welcome to set up their tents or structures to shelter overnight. We are simply asking them to pack up in the morning to enable the whole community to have access to the park," a spokesperson for the park board said in an email to CTV News on Wednesday. 

This claim is "disingenuous at best," according to Alexander Kirby, a lawyer who represented residents of the East Hastings Street encampment in a court challenge last year. That decision set what he describes as an important precedent for how government decision-makers approach decampments amid a housing and homelessness crisis where people living outdoors have nowhere else to go.

"If it looks a decampment it probably is a decampment," he says.

"By characterizing this as just the routine enforcement of city bylaws, the city is saying it doesn't have the obligation to talk to the people who are affected by its actions, and it doesn't have an obligation to consider how its actions could affect them and their lives. That's probably why they're trying to characterize this as an instance of bylaw enforcement rather than a decampment. But in practice – it is a decampment. It is forcing people out of public space, it is resulting in the confiscation of the belongings they need to survive. It is a decampment."

Enforcing the bylaw that allows people to shelter in parks overnight but requires them to pack up and leave during the day is something the city says has been happening daily at parks around the city "for months." But the city also acknowledges that something has changed recently at the Downtown Eastside park.

"Up until late December, we were seeing regular and productive voluntary compliance with the bylaw in Oppenheimer Park. In recent weeks, park rangers began to experience a growing number of people who were not in compliance with the bylaw voluntarily," the emailed statement continues.

But voluntary compliance with the bylaw, Kirby notes, takes a tremendous toll on those who are living outdoors.

“When people are sleeping outside of necessity, when they're living outside it's not the same thing as a camping trip up in the backcountry. In order to survive in the cold, in the wet, it takes a lot of gear," he says.

"This is people living their lives full-time outdoors, it takes a lot in order to survive. The idea that people can simply pack up all their belongings at eight o'clock every morning, carry them with them all day and then set them up again, ignores the reality of what it is to live outdoors."

The statement from the city says it has made plans to store people's belongings but that it will throw away anything that is "damaged or soiled." It also describes – in general terms – the indoor shelter options available in the city.

Notably, it does not mention whether the people being told to leave the park this week or the people whose possessions have been hauled away have been provided with indoor shelter.

Government action that displaces people when there is no available alternative, Kirby notes, is something that the courts have said risks violating people's Charter rights.

"For the city to step in and say you can't be here, you can't be here in the only place you can practically possibly be is tantamount to saying you shouldn't exist anymore, that you don't have the right to do the things you need to do to survive," he says.

"There's a lot of debate as to what a practical, viable alternative is. But the fact is that even taken at its lowest form – simply as the availability of a temporary spot in a shelter – there still isn't enough space for people to go elsewhere."

The BC Greens are among those questioning the timing of the stepped-up "enforcement action" at Oppenheimer Park, which Leader Sonia Furstenau called a decampment in a statement Wednesday.

“The recent actions against Vancouver's unhoused population, involving the confiscation of their belongings during a period of extreme cold, are deeply disturbing. At a time when basic necessities like tents and tarps are crucial for survival, forcing individuals to search for new shelter is not only inhumane but counterproductive. What purpose does this serve?" she asks in a statement, calling again for a moratorium on dismantling encampments during winter.

A warning from Environment and Climate Change Canada says, starting Thursday, the wind chill will make overnight temperatures feel as low as -20 C.

"Frostbite and hypothermia can occur within minutes if adequate precautions are not taken when outdoors. Any skin exposure will result in frostbite," the weather agency warns.

Kirby says whether or not what is happening at Oppenheimer Park is called a decampment or not – it is particularly dangerous in current conditions.

"It is always harmful. But for the city to undertake this action at a time like this when people need shelter, they need to keep themselves warm in order to survive is reckless, at best and will endanger the lives of those who are sheltering and Oppenheimer and elsewhere.”

CTV News asked the park board Thursday if what has been described as routine enforcement is set to continue in the coming days while warnings about the dangers of extreme cold are in effect.

A spokesperson sent the same emailed response as Wednesday, with one additional detail.

"Of note, there were 13 tents in Oppenheimer Park this morning (Jan. 11)," the email said, without indicating how many people were occupying those tents or whether they were told to leave. 

"Of those individuals sheltering in the park this week, seven individuals were transitioning to housing and six opted to access available shelter spaces," Thursday's statement also said.