IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Prince George (City) v. Johnny, 2022 BCSC 282 Date: 20220223 Docket: S2160169 Registry: Prince George Between: City of Prince George Petitioner And Bell Johnny, Crystal Arndt, Rory Embry, Jane Doe, John Doe and Other Unknown Persons Respondents Before: The Honourable Mr. Justice Coval Reasons for Judgment Counsel for the Petitioner: T.J. DeSouza J.A. McKay K.J. Mitchell Counsel for the Respondents: D.D.R. Kavka M.R. Begalka Place and Dates of Hearing: Prince George, B.C. December 14-16, 2021 Additional Written Submissions of the Petitioner Received: January 18 and 31, 2022 Additional Written Submissions of the Respondents Received: January 24, 2022 Place and Date of Judgment: Prince George, B.C. February 23, 2022 Prince George (City) v. Johnny Page 2 Table of Contents INTRODUCTION ....................................................................................................... 3 BACKGROUND FACTS............................................................................................ 4 Zoning and Safe Streets Bylaws ............................................................................ 4 The Stewart Decision ............................................................................................. 6 THE CITY’S POSITION ............................................................................................. 9 Satisfying the Stewart Order................................................................................... 9 Strength of the case ............................................................................................. 10 Balance of convenience and irreparable harm ..................................................... 11 THE RESPONDENTS’ POSITION .......................................................................... 12 November 17, 2021.............................................................................................. 14 Occupants of Lower Patricia since November 17, 2021....................................... 18 Shelters and Housing ........................................................................................... 19 Daytime Facilities ................................................................................................. 20 ANALYSIS AND FINDINGS.................................................................................... 21 CONCLUSION......................................................................................................... 24 APPENDIX A........................................................................................................... 25 Prince George (City) v. Johnny Page 3 Introduction [1] This is an interlocutory injunction application by the City of Prince George, seeking to close a tent encampment of unhoused people in a green-space near downtown known as “Lower Patricia” or “Moccasin Flats”. [2] The application is the City’s response to Chief Justice Hinkson’s decision a few months ago in another proceeding, Prince George (City) v. Stewart, 2021 BCSC 2089 [Stewart], denying the same relief as sought here. [3] The Chief Justice’s Order of October 22, 2021(the “Stewart Order”), states in part: The City’s application for a declaration that the Respondents have contravened the Zoning Bylaw by using the encampments as campgrounds contrary to the permitted zoning is dismissed on the basis that absent other suitable housing and daytime facilities, the occupants of those encampments must be permitted to stay at the encampments. [4] The City has appealed the Stewart decision. [5] In these proceedings, the City says it has now satisfied the preconditions in the Stewart Order to dismantling and closing the Lower Patricia encampment. It has done so, it says, by providing suitable housing and daytime facilities in the Knights Inn in downtown Prince George, leased for this purpose by the British Columbia Housing Management Commission (“BC Housing”) in October 2021. [6] In mid-November 2021, the City assisted many of the occupants of Lower Patricia, together with occupants of another encampment known as “George Street”, to relocate to rooms in the Knights Inn. It then dismantled the George Street encampment and those parts of Lower Patricia it viewed as abandoned. [7] The City estimates around 50 people, previously living in the two encampments or emergency shelters, now reside in the new supportive housing at the Knights Inn. It submitted that, as of early December 2021, only one or two occupants remained at Lower Patricia, because they refused alternative housing. At Prince George (City) v. Johnny Page 4 the time, there were six additional beds available in the Knights Inn and approximately 38 shelter beds available elsewhere in Prince George. [8] The Respondents are known and unknown occupants of Lower Patricia. They say the City’s dismantling of much of Lower Patricia in mid-November breached the Stewart Order and therefore the injunction should be denied. [9] While acknowledging the valuable contribution of the Knights Inn towards battling homelessness in Prince George, they say there remains insufficient low￾barrier housing and daytime facilities for the true number of occupants of Lower Patricia. They argue that the City’s dismantling and destruction of much of the encampment was a breach of the Stewart Order that inflicted serious harm on the occupants. Many who moved to the Knights Inn had personal belongings destroyed before being able to collect them. Others, absent from Lower Patricia on the day relocation to the Knights Inn was offered, lost their shelter and belongings and were left to fend for themselves in the Prince George winter. [10] For the reasons that follow, the City’s application is dismissed. Background Facts Zoning and Safe Streets Bylaws [11] In these proceedings, the Respondents have served the Attorney General of Canada with notice of a constitutional challenge, arguing that the Lower Patricia zoning and the City’s “Safe Streets” bylaw contravene s. 7 of the Charter of Rights and Freedoms [Charter]. [12] City of Prince George Parks Zoning Bylaw No. 7850, 2007, zones the Lower Patricia location “P1: Parks and Recreation”. Permitted uses are “Park and Recreation, Outdoor.” The Lower Patricia encampment is considered a non￾permitted “Campground” use, and as such is prohibited under s. 1.6.7 of the Bylaw. Prince George (City) v. Johnny Page 5 [13] On August 30, 2021, the City adopted City of Prince George Safe Streets Bylaw No. 9209, 2021, prohibiting (among other things) erection of shelter on or around pedestrian sidewalks. [14] The preamble says in part: WHEREAS Council has deemed it desirable to enact a Bylaw for the protection, promotion and preservation of the health and safety of the habitants of the City of Prince George to peacefully use and enjoy public spaces in the City; AND WHEREAS section 8(3)(h) of the Community Charter provides Council the authority to prevent, abate and prohibit nuisances for the protection and enhancement of the well-being of its community in relation to matters referred to in section 64 of the Community Charter [nuisances, disturbances and other objectionable situations]; NOW THEREFORE, pursuant to section 64 of Community Charter, the Council of the City of Prince George, in open meeting assembled, ENACTS AS FOLLOWS: … [15] Sections 2.1 and 3.1 prohibit the obstruction of pedestrian traffic by erection of chattel or personal property: 2.1 In this Bylaw: … (e) Obstruction means: (i) To sit or lie on a street or erect a chattel or personal property in a manner which obstructs or impedes the convenient passage of any pedestrian traffic in a street; (ii) To continue to solicit from or otherwise harass a pedestrian after that person has made a negative initial response to the solicitation or has otherwise indicated a refusal; or (iii) To physically approach and solicit from a pedestrian as a member of a group of three (3) or more persons. … 3.1 No person may sit, lie, solicit or physically approach in a manner that causes an Obstruction on a Street or Roadway. [16] Under s. 4.1, violations of this Bylaw are an offence. Each day of violation is subject to fine, imprisonment, or both, to a maximum of $50,000 and six-month’s Prince George (City) v. Johnny Page 6 incarceration. Under s. 274(1) of the Community Charter, S.B.C. 2003, c. 26, the City may seek to restrain contravention of a bylaw by a proceeding in this Court. The Stewart Decision [17] The respondents in Stewart were known and unknown occupants of the George Street and Lower Patricia encampments as of October 2021. [18] Occupancy of the encampments began in June 2021. By October, there were approximately 50 tent structures and 80 occupants, the vast majority being in Lower Patricia (Stewart at para. 9). [19] While recognizing the serious adverse ramifications of the encampments -- including fire hazard, unhygienic conditions, and interference with the neighbours -- the Chief Justice found that, were the City’s injunction granted, some occupants would be forcibly displaced with nowhere to go in the Prince George winter. [20] Chief Justice Hinkson accepted the respondents’ evidence of barriers to supportive housing, and found that not all occupants of the encampments could access the approximately 80 shelter beds in downtown Prince George. The COVID￾19 pandemic compounded these problems by the closure of daytime public services and indoor spaces: [72] The respondents contend that because of the lack of appropriate, accessible shelter, or indeed any shelter at all, many people in the City end up “sleeping rough” on the streets or in parks. They contend that the occupants of the encampments are not trying to disrupt or displace anyone but are simply trying to survive. They say they need 24-hour a day shelter because BC Housing has not been able to find housing for all of the homeless, and they have worked to not interfere with other uses of the land. They assert that the encampments have specifically avoided any property that is being actively used by other City residents. They contend that they cannot comply with the injunction sought by the City without being in breach of the City’s Safe Streets Bylaw. [73] I am satisfied that the COVID-19 pandemic has resulted in the closure of normally accessible shelter spaces, and that in the result, scores of people have nowhere to shelter themselves except outdoors in either the daytime or the nighttime. [74] It is apparent that very few of the emergency shelter beds are low barrier, and it appears that many of the homeless persons in the City are Prince George (City) v. Johnny Page 7 ineligible to stay in at least some of the shelters. While the City contends that the availability of 81 shelter beds in the City is sufficient to house the encampment occupants, I am not satisfied that these shelter spaces are in fact accessible to all of the occupants of the encampments. [21] The Chief Justice found the housing barriers involved complex social problems, related to substance use, mental health issues, trauma, and disabilities. The evidence indicated the homeless were disproportionately Indigenous, reflecting discrimination, racism, and historical trauma: [68] I accept the submission of the respondents that substance use disorders, lack of identification, the inability to meet application requirements, and the lack of bank accounts or records have prevented at least some of the homeless to secure alternate housing in downtown Prince George. [69] The respondents asserted that many of the people living in the encampments are struggling with mental illness, trauma, physical disabilities, substance use disorders, and the impacts of first-hand and intergenerational trauma from residential schools. As provided in the September 22, 2021 affidavit of Terry Teegee, a disproportionate number of homeless people in the City are Indigenous. Furthermore, the September 21, 2021 affidavit evidence of Mary MacDonald explained the significant effects of discrimination, racism, and historical trauma on the health and social wellbeing of Indigenous peoples. [70] Indeed, “courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide…”: R v. Ipeelee, 2012 SCC 113 at para. 60. [71] Chief Justice Finch declared the need for courts and the broader existing legal landscape to be more receptive to Indigenous realities. In “The Duty to Learn: Taking Account of Indigenous Legal Orders in Practice” (2012) Indigenous Legal Orders and the Common Law at para. 42, Finch C.J.B.C. explained that this involves “[taking] account of context, including the context of the colonial enterprise and the injustice it has so often created… [and] acknowledgement of real past and present wrongs”. I, thus, acknowledge and take judicial notice of the impacts of trauma from residential schools on the Indigenous homeless population of the City and occupants of the encampments. [22] The Chief Justice took judicial notice of the serious risks to the unhoused from the cold of the Prince George fall and winter. Absent suitable housing, closing the encampments would mean that its fire risks would simply move elsewhere: [64] I am prepared to take judicial notice that Prince George can be very cold in the fall and winter, and that people with nowhere warm to stay must Prince George (City) v. Johnny Page 8 find ways of keeping warm to stay alive. I accept that if the occupants of the encampments are enjoined from using those encampments, they will present the same risk of fires, wherever they move to, unless they move to alternate shelters. [23] Relying on Victoria (City) v. Adams, 2008 BCSC 1363, aff’d 2009 BCCA 563, and Johnston v. Victoria (City), 2011 BCCA 400, Chief Justice Hinkson held that the unhoused’s s. 7 Charter rights could be infringed by bylaws prohibiting erection of temporary shelters where the lack of practical alternatives exposed them to serious harm: [90] In Johnston v. Victoria (City), 2011 BCCA 400 [Johnston], the Court of Appeal confirmed that Adams did not bestow any rights to property and stated at para. 12: As to the scope of the trial decision in Adams, this Court said: [74] Thus, the decision did not grant the homeless a freestanding constitutional right to erect shelter in public parks. The finding of unconstitutionality is expressly linked to the factual finding that the number of homeless people exceeds the number of available shelter beds. If there were sufficient shelter spaces to accommodate the homeless population in Victoria, a blanket prohibition on the erection of overhead protection in public parks might be constitutional. That question is yet to be determined. [Emphasis in Johnston.] [24] He concluded that the City’s impugned Bylaw could only be enforced when sufficient available and accessible housing and daytime facilities offered the occupants of Lower Patricia protection from serious harm: [115] The City’s application for a declaration that the respondents have contravened the Zoning Bylaw by using the encampments as campgrounds contrary to the permitted zoning is dismissed on the basis that absent other suitable housing and daytime facilities, the occupants of those encampments must be permitted to stay at the encampments. [25] He granted the injunction to dismantle and close the George Street encampment, however, because its residents were able to relocate to Lower Patricia (at para. 117). [26] The Stewart Order stated in part: Prince George (City) v. Johnny Page 9 2. The City’s application for a declaration that the Respondents have contravened the Zoning Bylaw by using the encampments as campgrounds contrary to the permitted zoning is dismissed on the basis that absent other suitable housing and daytime facilities, the occupants of those encampments must be permitted to stay at the encampments. … 5. The City’s application for an order authorizing its employees and agents to: a) dismantle and remove from the properties all structures, tents, shelters, shopping carts, stoves, rubbish, objects, personal chattels, and other things remaining on the properties; and b) sell, destroy, or otherwise dispose of, those items removed from the properties, without recourse to the Respondents. is granted if the occupants of the George Street encampment have not vacated the George Street encampment, and moved their possessions there within seven days. The City’s Position Satisfying the Stewart Order [27] The City claims that the addition of the Knights Inn has provided housing for all occupants of Lower Patricia. It says that the one or two remaining occupants refused to relocate. [28] It submits the dismantling of Lower Patricia in mid-November was limited to the abandoned structures, refuse, and debris of those relocating to the Knights Inn. It says that each relocating occupant identified the structures they were abandoning and understood the City would dismantle and destroy what they left behind. [29] Mr. Patrick Zsombor, a City outreach worker, described the relocation efforts on November 17, 2021 at Lower Patricia as follows: 3. Those individuals who expressed interest in moving were provided with large, green totes to pack their personal belongings. Two outreach vans from the Association Advocating for Women and Community (“AWAC”) containing two workers each, arrived to assist transporting occupants with their effects to the Knights Inn or suitable shelter. 4. Upon departing, the individuals were asked if there was anything left they wanted for their accommodations. If they indicated “No” the structure was marked on their site map created by BC Housing. Prince George (City) v. Johnny Page 10 5. Bylaw officers in attendance also physically marked the tent/structures that were abandoned with green “Bylaw Services” tape. This process was the same process used the night before where tents/structures were already marked for removal. 6. One particular tent that was marked the night before had an Indigenous woman collecting items and attempting to light a fire. Although she claimed to be part of the Encampment, there was no record from the past count to support her claim and she was not present on any of the days BC Housing performed their medical assessments or census for the Knights Inn placements. She was asked to leave for her safety due to the machinery that had arrived with the City Parks staff who were going to begin removal of the abandoned structures. She returned several times to search through the piles made by the equipment, appearing to scavenge whatever she could find and was directed each time by the Bylaw officers to leave for her own safety. 7. There were a few couples from three tents/structures at the Encampment who had second thoughts whether they could retrieve all of the items from their area in the time given to utilize the Outreach vans. An extension was provided to them to leave their structures standing until Friday, November 19th . 8. Once the last person left the Encampment, I departed. At that time, there were only two occupants remaining at the Encampment, who did not wish to accept housing. [30] Claiming to have satisfied the Stewart Order in this way, the City seeks what it characterizes as an interlocutory, mandatory injunction, to remove the remaining Lower Patricia occupants and dismantle the encampment’s remains. [31] It says the test for such an injunction is a strong prima facie case, irreparable harm absent the injunction, and the better of the balance of convenience: R. v. Canadian Broadcasting Corp., 2018 SCC 5 at para. 15. Strength of the case [32] For the strength of its case, the City relies, firstly, on its evidence of available housing. [33] Ms. Valerie Hare, regional operations manager for BC Housing, deposed that, in November 2021, housing was provided at the Knights Inn and other locations for approximately 22 occupants of George Street and 28 occupants of Lower Patricia. By late December 2021, 46 people were housed in 39 units of the Knights Inn. The Prince George (City) v. Johnny Page 11 remaining five units were undergoing repairs. There were also 26 shelter beds available in the City. [34] Secondly, it submits there are few remaining occupants of Lower Patricia. Mr. Zsombor saw only two remaining occupants on November 17, 2021, both of whom had refused relocation to the Knights Inn. Chief Fire Prevention Officer Steve Feeney and City Manager Charlotte Peters deposed that, by November 22, 2021, they saw no occupants and all that remained were five large structures, two small tents, and a recreational vehicle. Ms. Hare also said that, on December 6, only one occupant remained at Lower Patricia, but this evidence appears to be inadmissible, unattributed hearsay. [35] Regarding daytime facilities, the Knights Inn is open and available to residents around the clock. Mr. Zsombor and Mr. David Sheach, a portfolio manager for BC Housing (Northern Region), also described in helpful detail eight daytime locations for vulnerable individuals many of which appear to be low-barrier. These offer accommodation, meals, laundry, showers and toilets, drop-in space, and other services. They include Active Support Against Poverty and Association Advocating for Women and Community, both of which are low-barrier shelters with facilities available 24 hours daily. Balance of convenience and irreparable harm [36] The City submitted extensive and compelling evidence on the balance of convenience and irreparable harm. [37] RCMP Constable Amritpal Dhadwal deposed that the Prince George RCMP has devoted “significant resources and time” to the encampment. Attending officers described observing illicit drug use and overdoses, violence, stolen property and solicitation of prostitution. Ms. Morgan Thorlakson, criminal analyst with the Prince George RCMP, described increased law enforcement activity in the area. From January 1 to October 31, 2020, police calls within 250 metres of the encampment increased by 106%, and from June to November 2021 by 5,000%. Prince George (City) v. Johnny Page 12 [38] RCMP constables described attending in late August 2021, after reports of gunshots, to find a female occupant with a non-life-threatening gunshot wound. Investigation of this incident is ongoing. They described finding ammunition in late September 2021, witnessing vandalism and trespass on neighbouring properties, and garbage, human waste, and used needles accumulating along the property lines. [39] Fire Chief Steve Feeney described numerous fire hazards from the number of connected or adjacent tents, tarps and other structures. He described open fires and propane heat used in shelter areas, flammable materials as walls or barricades around tents, outdoor fires adjacent to the forest or shelters in the encampment, cooking appliances near combustible materials and smoking within and near shelter structures. He deposed that Fire and Rescue attended the encampment for at least 12 fire emergencies from July to November 2021. He deposed that most shelters had “a probability of being destroyed by fire” if the encampment is permitted to be occupied through the winter, and that the “occupants risk dying from either carbon monoxide poisoning or freezing to death.” [40] A neighbouring resident described trespassers in her yard, attempted thefts of her property, aggressive and threatening behaviour, and yelling and public disturbances. She also described sexual harassment and repeated indecent exposure towards a tenant in her yard, and a large pile of waste near her property. [41] Adjacent business owners described the situation as “frustrating and frightening”. They witnessed drug use, prostitution, and fighting. Staff and customers suffered verbal attacks, threats and thefts. They complained of a “massive amount of garbage, destruction, and vandalism,” and described daily clean-up of garbage, drug paraphernalia, and human faeces around the grounds of their businesses. The Respondents’ Position [42] The Respondents acknowledge that the Lower Patricia encampment is not an acceptable long-term solution, and they welcome the additional support housing from the Knights Inn. Prince George (City) v. Johnny Page 13 [43] They argue, however, that Lower Patricia remains the only viable option for many of Prince George’s unhoused, offering safety, stability and support. That, they say, is the reason why so many chose to be there in the first place. [44] The Respondents submit that the City dismantled most of the encampment without providing suitable shelter and daytime facilities for many of its occupants, and thus did so in breach of the Stewart Order. They argue collateral attack, issue estoppel, and abuse of process, and that the City has not met the test for an interlocutory injunction. [45] Their evidence described a celebratory ceremony at the camp, October 29, 2021, when the Stewart decision was read aloud because it brought a sense of relief and safety to the occupants. They believe this was betrayed by the events in mid￾November. [46] They submit that approximately eight occupants remain in Lower Patricia, and that many former occupants, not on site on November 17, 2021, had their tents, shelters and belongings destroyed without any offer of alternative support housing. These former occupants deposed to being left with nothing and offered no place to stay. Finally, they submit evidence from former occupants who moved to the Knights Inn, describing little time to gather personal belongings and the destruction of what was left behind without warning. [47] Regarding the extent of the overall homelessness problem in Prince George, the Respondents point to the Point-in-Time Report, by Community Partners Addressing Homelessness, November 9, 2021. It provides the following key findings as of March 18, 2021 (with the caveat that numbers are likely underestimated due to data gathering problems from COVID-19): - A minimum of 163 individuals were experiencing absolute homeless[ness] the night of March 18, 2021, including those responding by survey they stayed outdoors (16) and the enumeration data for emergency shelters (147 – using shelter stay information data) - Outreach workers observed 57 people outdoors that they identified as likely homeless. Prince George (City) v. Johnny Page 14 - An additional 134 individuals were staying in transitional housing (using transitional housing enumeration data) - 2 were provided as staying in hospital with no fixed address November 17, 2021 [48] The Respondents relied on eyewitness affidavits, photographs and videos to describe what occurred at Lower Patricia on November 17, 2021. [49] Their evidence supports the following description from their written submissions: On November [17], 2021, some of the encampment residents were transported by BC Housing and AWAC Community Services shuttles to the assigned housing, including at the Knights Inn. Immediately after, Prince George Bylaw officers arrived at Lower Patricia with heavy machinery. They proceeded to use small front-end loaders (Bobcats) to destroy the tents and shelters in the encampment. 40 photos of the destruction are appended … [50] Ms. Amelia Merrick, a community and aid volunteer, regularly visited Lower Patricia beginning in the summer of 2021. She described events in November and December this way: 21. On November 16, I was notified that some residents of Moccasin Flats were offered housing. I was sent a copy of the yellow housing form that said people were only permitted to carry two bins in the "shuttle" over to the Knights Inn. Given the space limitations, this seemed reasonable. Many people have a LOT of belongings and I expected they would have some time to figure out the transportation and storage of their goods. Just as community members were ready to help with the residents of the George Street encampment, many members of the Together We Stand group have trucks and basements and had offered to help move and store the residents' belongings. Appended to this affidavit as Exhibit "E", is a true copy of the photo of the yellow slips that were sent to me. 22. On November 17th, at about noon, I was notified that people were demolishing homes at Moccasin Flats with bobcats. At about 1 pm I arrived at Moccasin Flats to witness to the destruction. I was there together with Julian Legree, Juls Budau, Nicole Ducette, Ivan Paquette, and others. There were almost a dozen uniformed Bylaw officers standing around piles of rubble while a few bobcats proceeded to completely demolish peoples' homes. I also saw two young Indigenous men searching through the rubble pile for their belongings. They were distraught. I saw Ike (Patrick) under extreme stress trying to gather his belongings. He was clearly cold and disoriented by the destruction. Photos of this are shown in Exhibit "F." Prince George (City) v. Johnny Page 15 23. Later, on November 17th I spoke to a young woman named N.J. who was in Bel's tent. She told me that her tent was destroyed, and she was not given housing. N.J. did not want her name used for fear she might lose future housing. N.J. said, "I had a blue tent, the first one on the left side of the street. Everything was inside, all our clothes, electronics and things that we needed to survive outside. My mom's memorial pamphlet was in there." On November 18 I saw her on the street and I asked her where she was going to stay that night and she said she has nowhere to stay. I believe what she told me. 24. Later on November 17, 2021, I spoke to Bruce, a First Nations Man who is 41 Years Old. He said, "My stuff got blown up, like all of my belongings and everything. I don't have a place to live and my tent was destroyed. I did not consent. I was away, walking around. The cops were there [at Moccasin Flats] and they said "we are not allowed back here". We couldn't get our stuff, they just piled everyone's belongings in a heap. I lost everything I had, clothes, tent, blankets, I lost pictures and a few things from friends and stuff like that, sentimental things. 25. Later on November 17, 2021, I spoke to a 36 year old First Nations woman who received housing at Knights Inn. She said, "We were told we had 15 minutes to pack, but we really only had 5 minutes. We had to leave most of our belongings behind. We had to rush here if we were promised a room. We forgot really important things, pictures of family members, IDs, anything that meant a lot to us. We were told that we had 5 minutes if we wanted housing, I did not give consent for my belongings to be destroyed. Especially for couples we had to get out quickly if we wanted to be together".. She prefers not to be named as she does not want her story to jeopardize her housing. 26. Also, on November 17 2021, I spoke with several other people on 3rd and George street. This is what I heard: a. 26 year old man was told he had housing, he said he would return for his stuff. He did not give consent for it to be bulldozed. b. A young First Nations man was not at Moccasin Flats the day of the destruction. His tent was destroyed, and he was not given housing. His brother is Joe. c. A First Nations woman moved to Knights Inn, but she was not told that her things would be destroyed. She told me she did not give consent. d. I spoke to several young people who were de-housed at 3rd and George. They said they are too scared to stay at Moccasin Flats anymore. … 28. Also on November 18 I returned to Moccasin Flats to witness the second day of destruction. This is what I observed: a. The first home was burned by fire; b. L's home was destroyed; Prince George (City) v. Johnny Page 16 c. G.'s home was destroyed; d. Lacy's home was destroyed; e. Joe's home was destroyed; f. Mel's home was destroyed; g. R.'s home was destroyed; h. Darlene, Dallas and L's homes remain intact. They got housing; i. Rory's camper van is parked. He was given housing. He informed me that he was offered a 2-room apartment once he sells and moves his camper van; j. Jimmy remains in his home during daytime hours; k. Bels remains in his home and will set up a stove outside his tent to comply with fire code; l. N. J. is without a home and was staying in Bels' place; and m. There are 5 - 7 people living in structures that have remained intact. … 32. On 2 December 2021, I went to the site of what is left of Moccasin Flats and spoke with two employees of BC Housing who happened to be at the encampment. When I asked them, they both denied that BC Housing had anything to do with the destruction of the encampment. This contradicts what I was told by PG Bylaws, on November 17. PG Bylaws told me they were authorized by BC Housing to dismantle the camp. BC Housing was clear that their only role was to find people housing and move them there. Both housing representatives were clear they did not ask the Bylaw officers to discard or destroy any of the tents or possessions once people were assigned housing. 33. Shortly after the demolition of Moccasin Flats, I sent an email to Michael Kellett, who is a spokesperson for the City of Prince George, where I asked who people should call if their belongings were taken. I also posted this to the City's public Facebook page. I attach a copy of the said email as Exhibit 'H" to my affidavit. Nobody from the City has ever replied to my email. [51] The Respondents submitted evidence from nine witnesses who described residing at Lower Patricia in mid-November but being absent when the relocation and demolition occurred. 1 They explained that residents did not always stay in the 1 The City objected to the admissibility of many of these affidavits. They were sworn in the Stewart case after the Chief Justice’s Reasons for Judgment and were as yet unfiled in that proceeding. In this proceeding, they were attached as exhibits to the affidavit of Ms. Michelle McGregor. I ruled them admissible because the City itself relied on numerous affidavits from the Stewart proceeding, and because of the difficulty finding unhoused persons to re-swear their affidavits for this proceeding. Prince George (City) v. Johnny Page 17 camp through the day, and some occasionally stayed elsewhere for a night or two. November 17, 2021 was also the day of income assistance and disability cheques, drawing some away from the camp. [52] These witnesses described losing their tents, sleeping bags, and other belongings in the demolition on November 17, but receiving no housing assistance due to their absence on the day. Some lost all their identification. Some even lost the ashes of their loved ones. Most described continuing to live outside but in worse circumstances than at Lower Patricia. [53] The Respondents’ written submissions accurately summarized this evidence. Their summary is in Appendix A to these Reasons [54] The Respondents also submitted affidavits from three former residents who, though helped to relocate to the Knights Inn on November 17, lost their belongings to the subsequent demolition without adequate warning or consent. The Respondents’ accurate summary of this evidence is included in Appendix A. [55] Ms. Juls Budau, overdose crisis researcher, deposes to a summary of her interviews with three additional former occupants of Lower Patricia whose shelter and belongings were demolished on November 17 when they were absent. One was absent due to being in the hospital at the time. Two now sleep outdoors in the City. One resides in a shelter when space is available. All three told Ms. Budau they desired housing but could not find it. They prefer Lower Patricia to how they live now, but have not returned for fear they are prohibited and their belongings would be destroyed again. [56] On November 23, 2021, Regional Chief Terry Teegee, member of the Takla Nation and Regional Chief of the British Columbia Assembly of First Nations, met with Mayor Lyn Hall and other senior representatives of the City and BC Housing. They discussed why Lower Patricia had been dismantled and the urgency of finding housing for those whose shelters had been destroyed. On December 3, 2021, Regional Chief Teegee wrote to the Mayor regarding those who received housing at Prince George (City) v. Johnny Page 18 the Knights Inn but lost their possessions without consent or forewarning, and whose tents were destroyed without offer of housing. He stated that the City’s actions violated Stewart and no further dismantling should occur. Occupants of Lower Patricia since November 17, 2021 [57] The Respondent Mr. Belvery Johnny continues to reside at Lower Patricia despite the offer of housing at the Knights Inn. He is a professional carpenter and former union member who lost his work to the COVID-19 pandemic. He is Indigenous and grew up with a court-appointed guardian due to the death of his parents when he was young. [58] Homeless for the past three years, he deposed to avoiding shelters because of thievery and lack of cleanliness. He said that, in the summer of 2021, bylaw officers told him to move to Lower Patricia from his campsite outside town. [59] Mr. Johnny estimated more than 40 people were living at Lower Patricia just before the November 17 demolition. He deposed that, as of December 6, 2021, he knew of eight people still residing every night in the camp. He described conditions this way: 34. I let people come in and stay in my shelter if they need somewhere to stay. I still do that. 35. A young kid came to my place at 3am the other night. He was basically frozen. He said he smelled the smoke coming from my stove and came by to get warm. He stayed three nights. … 44. I worry that when I am away from the camp that Bylaw will come and ruin it. … 45. The bathroom and the garbage bins that were in the camp have been removed now. There is no access to garbage bins there now. I drag my garbage to the nearest bin when I can. … 47. I have been preparing for myself to stay warm for the winter. I burn pallets to keep warm. I will be fine for the winter. People have brought me firewood to keep warm. I am not going to freeze. Prince George (City) v. Johnny Page 19 48. I have a wood burning stove that I use to stay warm. I am not worried about my place catching fire. It is surrounded by fire resistant materials. I have five fire extinguishers. I am going to get a smoke detector. [60] His evidence is supported by that of Ms. Budau and Ms. Merrick, who deposed to seeing five structures or tents that appeared occupied when they drove through Lower Patricia on December 2, 2021. Shelters and Housing [61] The Respondents’ position is that there are no more available units at the Knights Inn, and little if any low-barrier shelter space. They say the City’s evidence of shelter beds is no different than in Stewart, where Chief Justice Hinkson said he was “not satisfied that these shelter spaces are in fact accessible to all of the occupants of the encampments” (at para. 74). [62] On December 3, 2021, Ms. Merrick called all five Prince George housing shelters. Her evidence is that only four beds were available and were subject to restrictions. She had little success finding accommodation for five former residents of Lower Patricia whose structures were destroyed on November 17. [63] On December 14, she called the Knights Inn and the manager advised there was no space due to ongoing repairs. The City’s reply affidavits of December 22, 2021 acknowledged the Knights Inn is now full until the five unoccupied rooms are repaired or occupied rooms become available. [64] Ms. Katherine Mueller, an outreach coordinator with the Indigenous Justice Centre, seeks housing and essential services for the homeless or precariously sheltered. She described the severe challenges this way: 5. In order to assist my clients, I personally helped them to fill out many hundreds of applications. I did this for people who came to me, and I also sought out others, who appeared to need help, to find housing and offered them help. 6. I do not want to sound overly dramatic, but the lack of response was notable. Not once did ANY organization get back to me, including BC Housing. This is an important point because I usually listed my own name and contact information for contact purposes because the homeless and Prince George (City) v. Johnny Page 20 precariously housed people rarely have reliable phone service, they have no homes for mail and no computers to receive email. I was prepared to go find each of them to help secure housing. It never went that far because of the lack of response to the applications from the landlords or from BC Housing. 7. I recently reached out to the Aboriginal Housing Society of Prince George, to see what their capacity and available housing options were. I was advised that their waitlist is presently three years long. It was also confirmed that they are not set up to provide emergency or assisted living, housing accommodations. … 12. Shelters are another problem for the people I serve. There are not enough shelter spaces for all the homeless I work with. The shelters do not have sufficient room for the numbers of homeless and they have barriers, lock-out times. If you don't make it there you don't get inside. There are also abstinence rules that that make it impossible to house those with active addiction disorders. I have been told by several of my clients that they do not feel safe at shelters. They describe having been victimized by thefts and assaults. Couples are required to separate. The issues of thefts and fear of violence came from females with the initials D.J., C.A., M.P., J.G., and males with the initials J.S., T.B., G.C., and G.M. Their full names are confidential. I believe they were truthful when expressing their fears and concerns. 13. I personally attend the Tent Cities at Moccasin Flats ("Lower Patricia") and The Splits ("George Street") when it was being occupied. I frequently visit the unhoused individuals all around town. I observe communities in crisis but clinging to whatever dignity they can muster. They have portable washroom facilities at Moccasin Flats. I cannot imagine how difficult it is for a person to have no place to relieve themselves, particularly in the time of Covid, or after all the doors are closed downtown. I understand the disgust at witnessing the human excrement. I see it too. But when I see it I see the indignity and anguish that must be felt by the people who had absolutely no other option because they are literally locked out everywhere else. 14. I have observed the effects of extreme cold on the homeless. I have seen the frostbitten hands and sometimes the toes on their feet. Some have had frostbite visible on their noses and faces too. People who are homeless suffer immensely living with housing insecurity. It is not their choice it is their present circumstance. Daytime Facilities [65] The Respondents rely on affidavits from Ms. Merrick, Ms. Budau, Ms. Brenda MacDougald, a Prince George social worker, and Ms. Joni Fuller, a community volunteer. They described shelters and daytime facilities as often full, closed (particularly on weekends or holidays), and difficult to navigate with a shortage of personnel to assist. Prince George (City) v. Johnny Page 21 [66] The Respondents submit that the City’s evidence is out of date and relies on published hours rather than actual availability of these services. They argue that, if these educated professionals, using their phones and vehicles and the internet, have such difficulties finding services, it is unreasonable to expect the homeless to do so. [67] The Respondents also rely on the affidavits of Ms. Perrault, Mr. Shane Coulas and others, regarding barriers at shelters and daytime facilities. While they described positive experiences of great kindness, they also deposed to being ousted from the shelters early in the morning and suffering for hours in the cold while searching in vain with one facility after another being closed or full. They described feeling unwelcome, disrespected, or being banned for what they say were minor transgressions. They say active addictions are often prohibited and the inability to bring belongings inside is a serious obstacle. Analysis and Findings [68] The Lower Patricia encampment is obviously a fluid, complex and difficult situation. I accept the City’s compelling evidence of the encampment’s serious intrusion on the neighbouring residents and businesses since June 2021. [69] I also accept the City’s evidence of fire risk, but note the Chief Justice’s finding that, absent suitable housing, closing the encampment simply moves such risks elsewhere (Stewart at para. 64). [70] As noted above, the Respondents accept that Lower Patricia is not an acceptable long-term solution, and agree that securing the Knights Inn as supportive housing for its occupants is a valuable contribution by BC Housing and the City. [71] In the face of the Stewart Order, however, in my view none of this entitled the City to dismantle much of the Lower Patricia encampment before returning to court to seek an order to do so. Prince George (City) v. Johnny Page 22 [72] I find that, before dismantling and demolishing much of the encampment on November 2017, the City failed in the admittedly difficult task of identifying, as much as reasonably possible, how many people were regularly occupying the camp and how their shelters and belongings should be managed. [73] I accept Mr. Johnny’s evidence that, in December 2021, approximately eight people continued to reside at Lower Patricia. In my view, his evidence is the most reliable on this issue because he is living there. It is supported by the eyewitness evidence of Ms. Budau and Ms. Merrick. [74] I find that numerous people residing at Lower Patricia in mid-November 2021 left the camp only because their shelters and belongings were dismantled and destroyed in their absence and they were not offered housing. Their numbers include the Respondents’ nine affiants, and likely the additional three persons who recounted their situation to Ms. Budau. There are probably others given the difficulty of locating those who were dispersed. [75] I find that the available units at the Knights Inn have proven insufficient to house these occupants of Lower Patricia. The City’s reply evidence acknowledged that, as of late December, there were no available units though five more will eventually become available (three relatively soon and two after extensive renovations). This is insufficient to house the current occupants of Lower Patricia and the former occupants dispersed without housing. [76] I find that some of the Lower Patricia occupants helped to relocate to the Knights Inn lost their personal belongings in the dismantling without reasonable opportunity to collect all that was essential and important to them. [77] The City argues that, when assessing whether it has satisfied the preconditions in the Stewart Order to closing Lower Patricia, only the number of “current” occupants should be considered, not those who were dispersed. In my view it is unreasonable, when assessing compliance with the Stewart Order, to Prince George (City) v. Johnny Page 23 ignore those who were evicted, in breach of the Order, without their belongings or any offer of housing. [78] The City also argues that it was not the City itself but “BC Housing [that] organized and executed the housing effort, and any allegation on displacement is best made in a separate application.” With all due respect, this is an untenable position. The City’s own evidence, from its manager of Bylaw Services, is that Bylaw Services personnel were involved in these events. In any event, the displacement of persons in breach of the Stewart Order is clearly a relevant consideration in this application. [79] Regarding availability of shelters, although I accept the statistics offered by the City witnesses, I find this does not necessarily translate into actual shelter space accessible to the occupants of Lower Patricia because of active addictions, mental health challenges and other barriers. Because of their extensive, recent experience assisting Prince George’s homeless, I accept the evidence of Ms. Merrick, Ms. Mueller and Ms. MacDougald about the shortage of low-barrier space. Their evidence is supported by the personal experience of the Respondents’ unhoused witnesses, including Ms. Perreault, Mr. Coulas and another witness who asked not to be named. [80] Regarding daytime facilities, assessing the sufficiency of low-barrier facilities, particularly in a northern city during winter, is exceedingly difficult given the complex personal circumstances and challenges of the homeless. The difficulties are exacerbated by the COVID-19 pandemic. [81] While not questioning the City’s witnesses about the extensive daytime facilities and services for the unhoused, I accept the evidence of Ms. Merrick, Ms. Budau, Ms. MacDougald and Ms. Perrault regarding the practical difficulties encountered with capacity, closures, changing hours, weekends and holidays, all no doubt exacerbated by the pandemic. These difficulties raise particularly serious issues during the winter. I accept the Respondents’ characterization that: “If three highly educated professionals cannot access services when they have access to Prince George (City) v. Johnny Page 24 phones, internet and vehicles, it is unreasonable to expect a person who is homeless to be able to access that service.” [82] Under the Stewart Order, the Lower Patricia encampment was permitted to stay unless and until the City demonstrated available and accessible housing and daytime facilities for its occupants. The City breached the Stewart Order by dismantling much of the encampment without such housing or daytime facilities for many of the occupants. This breach inflicted serious harm on vulnerable people. [83] Having not satisfied the preconditions in the Stewart Order to closing Lower Patricia, the City’s injunction application is denied. Conclusion [84] The City’s application is dismissed with costs. [85] The Respondents’ submissions sought special costs. The City has not responded on this issue. If the Respondents wish to pursue it, then the parties should kindly arrange a judicial case management conference through the Registry to determine the process and schedule for submissions. “Coval J.” Prince George (City) v. Johnny Page 25 Appendix A Deanna Marie Lindstrom, age 59, deposed that she is an indigenous woman, aged 59, who was living at the encampment she calls Moccasin Flats [Lower Patricia]. She was not at the encampment after having spent a short time away. Her ailing mother died a couple of weeks before November 17th and she was grieving the loss. When she returned to the encampment, she found everything she owned and needed to survive, winter clothing, blankets, and gifts from her deceased mother were gone. She was so devastated she tried to obtain enough drugs to die by suicide, but in kindness the employees at the needle exchange would not let her have what she wanted, and their kindness helped her. She did not consent to the destruction. She would have taken housing if offered. Lorianna Mae Cahoose deposed that she was a resident of the Lower Patricia. She was not present on 17 November 2021 to witness Lower Patricia’s destruction. She estimates there were between 70-80 people staying at Lower Patricia in mid-November. She had housing at Knights Inn, but was evicted for having too many visitors. She presently has no housing, and she did not consent, verbally or otherwise, to the destruction of her belongings. On November 17, she was at the Social Assistance office to collect her income assistance. Bruce Brian Willier, a 41-year-old Indigenous man, stated that he resided at Lower Patricia following the [Stewart] Order. His home and all of his belongings were destroyed on November 17, without his consent. He lost everything, and he is now utterly homeless. He wanted the City and the court to know what happened to him, stating, "We were supposed to be safe there”. Chet Lee Bradley, a tattoo artist on disability for a severe anxiety disorder, is 43 years old. He was a resident of Lower Patricia and as of the day he swore his affidavit, he remained unhoused. He estimated the actual number of people staying intermittently at the encampment was closer to 100. He thought his things were safe there and he “didn’t have to worry". He described what he lost, including all of his tattoo equipment. He was not offered housing and he has no place to go. He wants the City and the Court to know “that I lost everything when the City took this violent action against us.” Derek Scott Livingstone is 33 years old and was a resident at Lower Patricia. He periodically stayed there and stored his belongings there following the [Stewart] Order. He had a tent and stayed there every couple of days. He was away on 17 November 2021; when he returned, his things were gone. He lost his tent, clothes, laptop, cellular phone, a couple wood carving boxes, and two hiking backpacks. Aaron Moore is 32 and unemployed. He stayed at Lower Patricia following the [Stewart Order]. He had a tarp where he kept his belongings. It was his primary Prince George (City) v. Johnny Page 26 residence. He does not know what to do. In Mid-November he went out for something to eat. He thinks it was income assistance day. When he came back his stuff was destroyed. He did not give consent. He now says he would not go back to the encampment because he is “scared this will happen again”. Danielle Lisa Willier is 37 years old. She was a part time resident of Lower Patricia, who was still without housing at the time she swore affidavit. She and her roommate Anthony stayed ay Lower Patricia together. She is the woman who was shot when an unknown intruder came to her tent. The person was not someone she recognized from the encampment. She says she has PTSD and does not feel safe anywhere. Since the [Stewart] Order, she has not been offered any housing. She wants “the court and the City to know we are people, and we exist. We just want to survive and be treated like human beings. What was done to us was very hurtful.” Hope Jessica Perrault, age 23. deposes that she stayed at Lower Patricia and was not offered any housing. Her belongings were destroyed; no one asked for her consent. She was never offered any housing. She estimates there were about 40 plus people staying at the camp. Everything she owned was in her camp. Her ID and birth certificate were in her tent, along with her brother’s ashes. She left to pick up her welfare cheque and when she got home all her things were destroyed. She said, “I feel traumatized that once again that this has happened and now, I need to restart again. I am so sick and tired of being told that I cannot be anywhere. I cannot get a job because I don’t have a place to stay, and I cannot get a place to stay without a job. I also suffer from mental health and addiction issues, and I am in the process of applying for Person’s with Disability”. Allen Shane Isaac is a 61-year-old man with a Life Skills Counselling Certificate from Rhodes College. He moved to Lower Patricia following the [Stewart] Order. He stayed there every night. He was offered housing but did not want to stay in a hotel with so many people. He was trying to find his own housing. On 17 November 2021, he left for an appointment; when he returned, his tent was bulldozed. He lost his bike, wallet clothes, carpentry work gear, and his laptop, which helped him look for jobs. He would take camp work when he could and stay at Lower Patricia when he wasn’t in camp. Now he is staying outside in other parts of the city, sometimes in a shelter. Darlene LaRose, 53, stayed at Lower Patricia following the [Stewart] Order. She was offered housing on 17 November 2021, however, she was only given 5 minutes to prepare her things before departing. She was sick that day and not able to get all her things ready. On November 18, she went back and found “they had many more tents plowed.” She wanted the court to know “that it was a heartless act that happened. We lost a lot of personal belongings. Things we will never get back”. Prince George (City) v. Johnny Page 27 Rebecca Hall is a 44-year-old Indigenous woman and a former resident of Lower Patricia. She stayed there following the [Stewart] Order. She recounts the day she and her family were moved into housing. She saw stickers put on her tent; she says no consent was given to destroy their property. “I was at my new room. My son-in-law Dallas told us that our tent and belongings were destroyed.” Hank Theodore Williams is a 47-year-old Indigenous man who formerly resided at Lower Patricia. He confirms he and his spouse had two tents, one for storage of clothes and food and one for sleeping. He stated. “We did not sign an agreement to destroy our belongings. They put some tape around our tent to say that we moved. I did not sign anything that said they could destroy my property.”