Background

In June 2024, an encampment was established to protest the City of Abbotsford’s (the “City”) alleged mistreatment of unhoused individuals and the lack of adequate shelter options (the “Encampment”). The Encampment was located in close proximity to several key City facilities in the City Hall precinct. While originally established as a form of protest, the Encampment grew to include unhoused individuals and access to harm reduction services.

In August 2024, the City identified several safety concerns at the Encampment, including an increase in calls for police service for violent altercations where weapons were present, and an accumulation of combustible materials and other fire concerns. In particular, the City noted several altercations between Encampment residents and City staff coming and going from City Hall.

On September 19, 2024, the City issued a Trespass Notice under the Trespass Act (the “Trespass Notice”). The Trespass Notice required the Encampment’s occupants to vacate the premises by September 23, 2024. The Encampment occupants were informed that there were shelter spaces available and there were other parks in the City where overnight sheltering was permitted.

The Petitioner sought an interim injunction restraining the City from enforcing the Trespass Notice and related bylaws against the Encampment pending judicial review.

In light of the Petitioner’s injunction application, the City agreed to permit the Encampment’s occupants to remain temporarily, provided they relocate so as to clear the southeast half of the Square. The issue before the Court was whether or not an interim injunction should be granted to prevent the City from enforcing the Trespass Notice against the Encampment pending a determination of the Petitioner’s judicial review petition.

The Decision

The BC Supreme Court declined to grant the injunctive relief sought by the Petitioner.

To qualify for an injunction, the Petitioner must demonstrate that:

• there is a serious question to be tried;
• they will suffer irreparable harm if the injunction is not granted; and
• the balance of convenience favours the granting of the injunction.

While the Court found that there was a serious issue to be tried and the Petitioner may suffer irreparable harm if the injunction were not granted, the Court found that the balance of convenience did not favour granting the injunction.

In assessing the seriousness of the question to be tried and the potential for harm, the Court acknowledged that the Petitioner had raised significant Charter concerns. Given the context of the toxic drug crisis and the vulnerability of Encampment residents, the Petitioner had established that there is a serious issue to be tried. The Court also found that homelessness and substance use are interconnected issues, and removing individuals from a supportive community could exacerbate life-threatening conditions. The toxic drug crisis adds a new dimension to the traditional risks associated with displacement, creating a heightened burden on the City to provide alternatives that preserve life and security. Displacement that severs access to critical harm reduction services increases the likelihood of fatal overdoses.

However, the Court held that the balance of convenience did not favour granting the injunction and allowing the Encampment to remain. While the Court recognized the potential Charter violations and harms to Encampment occupants, the broader public interest in maintaining order, safety, and accessibility to the City Hall precinct weighs more heavily. In coming to this conclusion, the Court held that the presence of the Encampment in the City Hall precinct, near the courthouse and City Hall, disrupted the intended use of these civic spaces and undermined the rule of law and credibility of the institutions located there. The vulnerabilities of the Encampment residents must be balanced against the broader public interest in maintaining order, public safety, and adherence to municipal bylaws.

Finally, the Court gave detailed orders requiring the City to implement a phased approach to the decampment while mitigating the risk of harm and ensuring procedural fairness for Encampment residents. The orders (or conditions of dismantling the Encampment) number approximately 14 and include such conditions as: conduct individual needs assessments; collaborate with the Petitioner and support groups; attempt to keep individuals with strong ties together during relocation; and ensure harm reduction services are available at shelters offered to Encampment occupants.

Takeaways

This decision highlights a new factor that the Court will consider when assessing whether a City’s enforcement against an encampment should be halted. Namely, the impact of the encampment on public access to civic facilities. In light of this decision, when attempting to address safety concerns associated with encampments, local governments should:

• ensure adequate shelter for encampment residents that has access to harm reduction services and medical care – these measures will constitute solid efforts to mitigate the risk of harm associated with decampment;
• consider the impact of the toxic drug crisis and how this may exacerbate the risks facing encampment occupants;
• advance evidence of any impact of the encampment on nearby civic facilities and the public’s use of those facilities; and
• ensure encampment occupants are treated fairly with adequate notice and the opportunity to be heard.

Where an encampment disrupts the intended use of civic spaces like City Hall and the courthouse, the Court may favour the broader public interest in maintaining order and public safety.