Provincial and municipal laws apply to houseless encampments, but adequately addressing the root of the issue involves policy changes and political will.
OPINION | The views expressed in this article are those of the author.
On November 23, 2022, an Encampment Response Team (ERT) composed of members from the City of Edmonton, Boyle Street Community Services, Bissell Centre, and the Edmonton Police Service (EPS) dismantled and displaced a houseless encampment near Edmonton’s Bissel Centre.
The removal involved connecting camp inhabitants with resources for housing and health support. However, we cannot forget that this process means the forceful destruction and removal of some of our community’s most vulnerable from the place they call home.
You guys need a more dignifying way to address this challenge… they are not being treated like human beings.”
Still, $1.17 million will still be allocated to the ERT annually. Presumably, EPS will continue to displace unhoused populations living in encampments.
Was the law behind them?
The Crown Property Regulation prohibits occupying, residing, camping, or sleeping on Crown (public) property between sunset of one day and sunrise of the next. Camps on private land are no safer, as landowners can remove houseless encampments from their property via section 2 of the Petty Trespass Act.
Further, a variety of municipal bylaws criminalize behaviour that tends to be overrepresented in houseless encampments. For example, littering can be more common without garbage pick-up, and public urination or defecation can be more common because of a lack of facilities. Local authorities can justify ticketing encampment inhabitants or beginning the process of their removal where there are bylaw violations.
Even if a landowner gives permission, houseless encampments may violate zoning bylaws. The Chinatown and Area Business Association, the Chinese Benevolent Association of Edmonton and others appealed a proposed drop-in shelter offering social support for the houseless. The Edmonton Subdivision and Development Appeal Board prevented the development since the site was a general business zone, and Community Recreation Services and/or Supportive Housing were not permitted nor discretionary uses. Presumably, the same logic would apply to encampments.
Why do unhoused people live in encampments?
Firstly, during surges in demand for shelter beds, commonly seen in the winter, demand can quickly outstrip availability.
Secondly, seeking shelter elsewhere puts the unhoused at risk for violence and inhumane treatment. In 2021, EPS officers issued a public apology for evicting unhoused people from a city-centre LRT station into -33 degree Celsius wind chills. The city has buses to transport people to shelter in these situations, but they were never provided. Since then, there have not been any high-profile evictions without offering transport to a shelter.
However, staying in a shelter is not a feasible option for everyone. There are many valid reasons why an individual may prefer an encampment to a shelter: being able to come and go as one pleases, the sense of community an encampment offers, no prohibitions on drug use, and being able to stay together as a group or family (for example, some shelters accept only women).
Is there a better way?
In 2008, the B.C. Supreme Court made the novel move of striking down a municipal bylaw preventing a group of unhoused people from building an encampment for temporary shelter in an urban park. The bylaw prohibited the overnight “erection or construction” of temporary shelter on public land. In Victoria (City) v Adams, the Court found a shortage of available shelter beds forced the unhoused to seek public shelter (i.e. encampments) in a way that exposed them to significant health risks. As a result, this violated their section 7 Charter right to life, liberty, and the security of the person. In other words, when there is a lack of formal shelter beds, the unhoused have the right to construct shelter on public property. A nearly identical challenge was recently successful in Ontario.
Similar conditions arguably exist in Edmonton. Municipal bylaws, in effect, prevent unhoused people from setting up temporary shelter such as encampments even when there is a shortage of available shelter beds. The unhoused in Edmonton currently seek public shelter in a way that exposes them to health risks. This raises the question of whether a similar Charter challenge could strike down Edmonton bylaws that prohibit unhoused encampments.
Practically speaking, a similarly successful court challenge in Alberta would likely protect encampments in the short term while there is a shortage of shelter beds. In the long term, the municipalities and Provincial government could fund more shelter beds, making such a finding effectively moot. A shelter is not a viable alternative for some living in encampments. Nevertheless, pressure to increase shelter funding can only be a good thing.
Another alternative may lie in Victoria’s new bylaw, which allows a houseless person to construct a shelter in public parks between 7 p.m. and 7 a.m. The unhoused have a place to sleep, and those critical of encampments are placated during the day. Of course, changing legislation requires some political will, which seems unlikely for the time being. The UCP government abolished “squatter rights” (i.e. adverse possession claims) in December 2022. The attitude of the government seems to be squarely in favour of property rights. Further, it is probably unrealistic to expect people to pack up their homes and leave every morning. Such a regime begs for police confrontation.
So, what’s left? Obviously, targeting the problem at its roots: more funding for mental illness prevention and treatment, more funding for addiction treatment, stronger unions, a higher minimum wage, and stronger tenancy protections, to name a few. In other words, a retreat from Neo-Liberalism towards policy that leads with compassion rather than assigning fault.
The law is a powerful tool, but it is no substitute for political change.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.