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Was the order to dismantle a Downtown Eastside homeless encampment legal? Here's what the court decided.

Vancouver workers, supported by police, dismantled a tent encampment along Hastings Street in the Downtown Eastside on Wednesday, April 5, 2023. (CTV) Vancouver workers, supported by police, dismantled a tent encampment along Hastings Street in the Downtown Eastside on Wednesday, April 5, 2023. (CTV)
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An order by Vancouver's fire chief to clear an encampment on the Downtown Eastside was "unlawful and invalid," according to a lawyer who represented residents in a court challenge of the order.

On July 25, 2022, Chief Karen Fry ordered the city to remove tents, tarps, and structures where a growing number of people had been living along a stretch of East Hastings Street, citing the potential of a fire in the encampment to have catastrophic consequences.

Stephanie Vandenberg and Lenora Blue, two women who lived in the encampment when the order came down, mounted a legal challenge asking for a judicial review.

"We sought to challenge this order very soon after it was made, primarily on the grounds that it had been made without talking to any of the people who were actually on the block or listening to their concerns or considering the impact it would have on their lives," says Alexander Kirby, the plaintiffs' lawyer, in an interview with CTV News.

"The decision was made, I think, without any regard to those considerations, without having balanced the need – obviously – to address certain fire risks on the block with the very real harms that a mass eviction order of this nature would cause people like our clients, who had nowhere else they could go."

The decision in that case came down last week and Kirby says it represents a significant – if partial – victory for his clients and sets an important precedent in cases involving homeless encampments in B.C.

"If the order had still been in effect at the time the judgment came down, it would have been struck down in its entirety. I think that's something to be clear about," Kirby said.

THE CHALLENGE AND THE CONTEXT

The court decided to hear the case even though the order was rescinded, which happened after city crews supported by police moved in to remove the remaining residents, their shelters and their belongings in April of 2023.

Justice Sharon Matthews explained in her decision that reviewing this particular order could have implications for how decisions are made in the future, noting that encampments arise in the context of an ongoing and worsening homelessness crisis.

"Homeless people are vulnerable members of society, and that general vulnerability is acute with regard to where they will shelter. The jurisprudence that does exist and the evidence on this petition demonstrates how difficult it is to mount a challenge to orders that seek to displace homeless people from where they shelter," she wrote.

"There is no doubt that the circumstances confronting Fire Chief Fry presented a formidable challenge. There also appears to be little doubt that such circumstances will recur given the increasing problems with homelessness and the close connection between encampments and fire hazards," she continued.

REASONABLE, BUT PROCEDURALLY UNFAIR

The judge's decision, Kirby notes, is both lengthy and complex, but ultimately the judge ruled that the order – although reasonable – was procedurally unfair.

"The fire chief, the court found, had an obligation to give notice that she was contemplating such an order to the people on the block and to give them a chance to participate meaningfully in that decision by making submissions. In other words, she had to listen to them and she had to take their concerns meaningfully into account and the evidence showed that she didn't do that," he said.

The question of whether the decision was reasonable required the court to consider whether the encampment residents' Charter rights were "engaged." Essentially, this means the court had to decide if the fire chief's order had the potential to infringe on constitutionally protected rights – in this case, under Section 7 which is the right to life, liberty, and security of the person.

The fire chief and the attorney general argued that this right was not engaged, according to the decision. While people have a right to shelter in public places overnight in B.C., the city and the province argued that the same right does "not extend to protecting homeless people from being displaced from public places," the decision says.

The court disagreed. Key to this determination was the fact that residents who were ordered to leave the encampment had nowhere else to go, Kirby explains.

"In circumstances where there are no suitable indoor alternatives for people to go to – which everybody admitted was the case here – then the Charter is always going to be engaged by decisions to evict unhoused people from public space," he said.

"I think that's a really important thing because it means, in the future – unless, obviously, the situation changes and a lot of indoor space becomes available – decision-makers are always going to have to factor the Charter into their analysis."

Blue died before the case went to court, meaning the judge could not consider her argument that the Charter right to equality was engaged because the order had a disproportionate and unequal impact on residents like her, who were Indigenous and disabled. 

Although the residents' Charter rights were engaged, the court found the chief's order properly balanced that right with the responsibility to protect life and safety – making it reasonable in the circumstances. The residents, Kirby noted, were asking the court to find that the order was not reasonable and says this part of the decision was a disappointment. 

"The city is pleased that the court found the fire chief’s decision to issue a fire order to clear East Hastings in July 2022 was reasonable and that in making that decision the fire chief appropriately considered the competing rights and interests of the public and those directly affected by the order," a spokesperson said in a statement to CTV News when asked about the outcome of the case.

"We acknowledge that the court found problems with the process by which the fire order was issued and anticipates that the fire chief will take those concerns into consideration for any future fire orders."

A 'USEFUL' PRECEDENT

And it's the potential of the decision to impact the response to encampments in the future that Kirby says is the biggest win for his clients and people who are homeless. If and when future orders are made, the question of whether there is actually any other place for people to go will have to be asked, if not answered.

"I think this is also a really important decision for reaffirming the principle that decisions like this, which can have a really profound impact on the lives of those sheltering on the street, cannot be made unilaterally. Decision-makers have to talk to people who are affected by their orders, and they have to listen in a really serious way," Kirby added.

Ultimately, he says, the case does not preclude future orders or evictions, but it does set the bar higher for how these decisions are both made and communicated.

"I think it is going to be a useful precedent."

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