The laws, bylaws, and regulations that apply to personal belongings in park spaces apply to anyone using public parks, greenspaces, and city squares. However, these laws disproportionately impact precariously housed people who continuously move through public and private spaces, including sidewalks, parks, shelters, transitional housing, storage facilities, rooming houses, single-room accommodations, and other insecure rental housing. For those who lack secure places to call their own, their increased presence in parks means they experience enforcement of their belongings beyond what other standard users of these spaces experience. Similarly, even individuals who can access tenancy and non-tenancy private indoor residences or shelters may still heavily rely on public parks for reasons including lack of security or safety in the indoor accommodation, social support people who remain living outside, or need to access their formal and informal sources of income.
Certain populations experience greater surveillance and criminalization while existing in public park spaces. Indigenous, Black, and other people of colour, visibly poor people, people who use drugs, people stigmatized around mental illness or other health conditions, people with disabilities, and people who are non-conforming in other ways often experience greater enforcement than others precariously housed individuals who exist in these same spaces and are able to exist within the complicated legal matrix of park spaces, or are not stigmatized in the same ways.
Each of the cities surveyed has at least one bylaw that aims to directly regulate and control the activities of people and objects, including people’s possessions, within municipal parks. Some of the cities also have bylaws that regulate specific possessions, such as vehicles and shopping carts, which has an impact on a person’s ability to bring or keep those objects in a park space. Generally, parks bylaws in both British Columbia and Ontario municipalities tend to take a similar form when it comes to regulating the hours when people cannot enter a park, what people must avoid damaging, what people can and cannot do without a permit, and how animals must be handled. However, there are a few notable differences between provinces and between municipalities.
1.How Parks are Defined in this Report
Public parks, green spaces, and city squares are essential elements of civic life in urban centres, offering some of the only common, public space accessible to the general public that permits certain types of congregation. This section of the report categorizes park spaces based on how parks are defined in municipal bylaws and codes. This includes public parks, green spaces, city squares, playgrounds, beaches, paths, cemeteries, golf courses, and “any other area owned, leased or used by the City and devoted to active or passive recreation”.1 For the purposes of this report, since encampments occur in a variety of urban spaces, they will be explored in the context of both Streets and Parks. This chapter also includes discussions about yards as privately owned greenspaces.
These spaces are commonly utilized by precariously housed and unhoused populations for shelter and as spaces where they can simply exist if they lack access to their own safe, accessible, and exclusive property, such as their own home or tenancy. As such, their personal belongings are also often located in these spaces.
Park spaces are regulated by municipal bylaws and provincial legislation regarding personal belongings in public space. While city parks are commonly understood as a form of public space, they often include overlapping private property elements. These can include green spaces that are used as public space but are technically privately owned land, private uses of property within the public green space (such as vehicle use and parking), and the enforcement of provincial trespass laws on public greenspaces and parks.
Bylaws and other legislation hinder the ability of certain individuals to exercise control over their personal property in park space compared to people who have access to permanent housing or can secure storage for their belongings. This gives enforcement agencies authority and discretion to impound and destroy items that violate the bylaw, as well as regulating parking and other vehicular restrictions. While the overlapping laws and designation of a space as public or private will impact exactly which legislation is used and will therefore have different impacts on the belongings of precariously housed people who rely on these spaces, the final impact on their personal belongings is effectively the same. In the context of people and their personal belongings, park spaces differ from street spaces in some jurisdictions because of the decision Victoria (City) v Adams, which permits people experiencing homelessness to erect overnight shelters in parks. This overnight sheltering rule, however, does not apply on streets, boulevards, or sidewalks.
Vignette
Jordan had been unhoused for the last three years.2 She avoided staying in shelters because she had a beloved pit bull mix and several other large possessions, including a tent, a bicycle, and a small cart that she used to transport her belongings. Jordan did not want to give up any of these things to access a shelter,3 or risk having them stolen when staying around other people in a shelter.4 Before she got her dog from a friend, she had stayed on and off in shelters and had lost a few treasured belongings to theft. She preferred setting up camp in parks, often with a friend or two, where there were fewer people around and she could keep an eye on her belongings. She had been on a list for social housing for over a year, but in the past she had found it difficult to follow restrictive housing rules,5 and was now worried about what would happen if any housing she was offered was not pet-friendly. Even though her dog was calm and well-behaved, she knew that a lot of housing providers never gave someone with a dog a chance.6
Vignette
Jordan and a couple of friends were camping in a park near the university when they heard that there was a group of people who had set up an encampment in a City park closer to downtown. The encampment residents were keeping their tents set up during the day in opposition to City bylaws. Jordan was nervous about joining an encampment because it would mean an increased police presence,7 and she knew that past encampments in town had eventually been cleared out, but she wanted to be downtown because it was closer to a variety of health and social services that she needed to access, as well as a vet clinic.8 It would also be good to not have to take her tent down every morning, and the idea of being able to leave some of her belongings in one place with people she trusted while she went about her day was encouraging.9
Jordan and her friends joined the encampment and began to develop a strong sense of identity and community with the other encampment residents.10 It was not perfect, but people were able to look out for one another. A couple of her things were stolen by non-residents, which was hard for her, but overall, she found she was less stressed in her daily life than she had been when she was packing up every day and having to move all of her belongings, and a lot fewer of her possessions were going missing.11
Jordan was nervous about joining an encampment because it would mean an increased police presence
Vignette
Police and City representatives would routinely come by and ask people to move and clear their belongings during the day, but the campers were not forced to move until the City was granted an injunction and the encampment residents were given a deadline to clear the park. In the meantime, City representatives accompanied by outreach workers offered accommodation to residents. A lot of people that Jordan knew refused because they would only be allowed to bring two bags with them.12 When Jordan was offered accommodation, the available rooms would not allow dogs, so she refused.13 The deadline came and City workers started to clear out the encampment. Jordan had packed up most of her belongings, but before she could pack up her tent and a few other small belongings that were inside, the City came and took them away and threw them in the garbage.14 Jordan and her dog slept rough for a while until she was able to acquire a new tent, which increased her stress and anxiety due to the increased exposure to the elements as well as the increased risk of violence and theft while she was sleeping.15
Jordan had packed up most of her belongings, but before she could pack up her tent and a few other small belongings ...the City came and took them away and threw them in the garbage
2.Bylaws related to Urban Parks and Green Spaces
Ontario Municipalities
In Ontario, the local parks bylaws surveyed are consistent in banning camping and the act of erecting a temporary tent or shelter without a permit. Toronto’s Municipal Code is brief on the matter:
§ 608-13. Camping and lodging. Unless authorized by permit, no person shall dwell,
camp or lodge in a park.
§ 608-14. Tents and structures. Unless authorized by permit, no person shall place,
install, attach or erect a temporary or permanent tent, structure or shelter at, in or to a park.16
The language used in Hamilton’s parks bylaw is nearly identical to Toronto’s municipal code, while the Ottawa parks bylaw conveys the same intent.
However, enforcement in Toronto is not as clear cut as the text of the bylaw would suggest. Bylaw enforcement measures are modified by Toronto’s Interdepartmental Service Protocol for Homeless People Camping in Public Spaces, which was created in 2005 as part of the City’s first annual report on its Streets to Homes initiative.17 The document prioritizes the provision and coordination of outreach services prior to officials enforcing bylaws that could displace unhoused people and remove their belongings. Enforcement of the bylaws occurs only after all support efforts have been attempted without success and after notice to vacate has been provided to the people involved.
The protocol also specifies that staff must make efforts to “ensure personal items such as identification, documents and photographs are not lost by sorting through all of the materials before the site is cleared of debris.”18 While these personal items are undoubtedly important and losing them can induce a great deal of hardship for unhoused people, this approach suggests that other personal belongings, such as tents, tarps, sleeping bags, food, etc. that are unequivocally critical for an unhoused person’s survival are likely to be disposed of with less care during an encampment clearing. As the following examples illustrate, whether the protocol prevents or mitigates the harms associated with bylaw enforcement that removes people’s possessions is not clear.
Example 1:
In July 2020, an encampment in Toronto’s Moss Park was given notice that the activities at the park, including personal goods being left there, structures being erected without authority, and illegal camping, were contrary to the Municipal Code.19 Residents were ordered to remove their possessions within 24 hours of the notice or else the possessions would be stored at a nearby facility and most would be disposed of if not claimed within a month. Though a City outreach team found temporary accommodation for some 156 people who were living in the park, and were purportedly working to find more permanent housing for the residents, some campers refused the offer for various reasons including the many rules in temporary hotels, there being a lot of people coming and going, and health concerns about potentially contracting COVID-19.20 A lawyer assisting the encampment residents argued that 24 hour notice was not sufficient and emphasized the “irreparable harm” the residents would suffer “if their belongings, including tents and shelters they rely upon for protection from the elements, as well as essential belongings like food, water, clothing, bedding, sentimental belongings, personal hygiene supplies, medication and medical supplies, were removed from the park and disposed of.”21 The City said it would continue to engage with park residents who expressed a need for secure shelter or housing, but it is unclear from their statement whether that included people who had refused temporary hotel rooms due to the concerns that had been voiced, or if the City was no longer engaging with those people.
Example 2:
In 2020, Khaleel Seivwright, a carpenter, started building insulated wooden shelters for unhoused people, with lockable doors where they can sleep and store their possessions, many of which have been placed in City parks. The City issued warnings to Seivwright, and eventually filed an injunction application in February 2021 to order him to stop placing the structures on City land, citing its bylaws prohibiting camping and living in parks.22 A letter supporting encampments and Seivwright called on the City not to remove the shelters, stating that “in the absence of real shelters...[small shelters] prevent people from freezing to death, provide a modicum of security and a regular place to sleep and store items.”23 The letter was also critical of the shelter spaces that the City was offering to encampment residents, citing the lack of privacy and the fact that residents were only allowed to bring two bags of belongings with them.24
“One of the problems with living out here is you never know if your things are going to get stolen, and I don’t have the mobility to carry my stuff with me, like every time I go to the bathroom or go somewhere else. With the shelter, they lock from the outside, you can also lock it from the inside, and as long as you put an empty lock on it when you’re in there so no one can lock you in, then it’s safe. And you know, I didn’t have to worry about having my medication or all my stuff stolen, cause it’s not safe to walk around with a month’s worth of medication on you at all times, you’ll get robbed. So, the shelter provides safety too.”25
Example 3:
The 2021 displacement of an encampment at Toronto’s Lamport Stadium Park resulted in police arresting at least one non-resident supporter of the encampment.26 The encampment residents were given a trespass notice a week before the displacement occurred, and City workers conducted the displacement by breaking down tents and loading them into garbage trucks. The City claimed outreach workers had visited the encampment over 100 times since January 2021 in order to offer alternative shelter spaces, but it is unclear how many people accepted the shelter and whether the offers included conditions regarding their belongings.
These examples demonstrate that even if bylaw enforcement postpones encampment displacement from City parks under the Protocol, this will not necessarily prevent the loss of personal belongings or mitigate related harms where the alternative shelters and services being offered are inadequate and do not meet the needs of those being displaced. When the shelter that is offered does not allow people to bring more than two bags or does not allow pets, for example, many people feel as if they have no option but to continue camping and sleeping rough, thereby placing their belongings at risk of being removed through bylaw enforcement measures. When they resist these measures, their belongings are nonetheless removed and disposed of, a difficult and traumatic experience that contributes to further precarity.
British Columbia Municipalities
In British Columbia, bylaws respecting camping in parks have been influenced by a body of legal cases that have sought to clarify the rights of unhoused people to live in parks and on other City lands. In Victoria (City) v Adams,27 the B.C. Court of Appeal ruled that a Victoria bylaw which prevented unhoused people from erecting temporary shelters in City parks overnight violated their section 7 Charter rights to life, liberty and security of the person28 and was not justified under section 1 of the Charter. The court however noted that the ruling was contingent on the fact that the City had insufficient shelter spaces, and that if other accommodation were available the bylaw sections may have been valid.29 This seminal case was later followed by Abbotsford (City) v Shantz,30 in which the B.C. Supreme Court held that certain sections of Abbotsford’s Consolidated Parks Bylaw and its Good Neighbour Bylaw, to the extent that they applied to unhoused people in Abbotsford and prevented them from erecting shelter and sleeping in City parks overnight, violated their section 7 Charter rights and were not saved by section 1 of the Charter. The decision in Shantz thus specified that unhoused people had a right to set up camp in a City park overnight between 7pm and 9am, and acknowledged the barriers that many unhoused people experience in accessing adequate shelter space even where space was technically available.
Victoria’s Parks Regulation Bylaw, amended after the Adams decision, currently contains a section specifically targeted toward unhoused people constructing overnight shelter in parks. The bylaw states that an unhoused person may erect or place a structure such as a tent or other shelter overnight between 7pm and 7am,31 but also that the shelter may not be set up in certain areas including playgrounds or environmentally sensitive areas.32 The Abbotsford post-Shantz parks bylaw permits a “Homeless Person” (defined as a person “who has neither a fixed address nor a predictable residence to return to on a daily basis,”33 to” erect a temporary shelter and camp in a City park between 7pm and 9am the next day, so long as the shelter is not set up in a prescribed area or facility, when “where there is no accessible shelter accommodation available in the City”.34 The City retains the right to remove any temporary shelter that is in violation of the bylaw.35
In line with the relevant case law, Vancouver’s parks bylaw contains a similar allowance for a person experiencing homelessness to camp and set up temporary shelter in a park so long as they do not do so in a restricted area of a park, the shelter complies with the bylaw, and the shelter is removed in accordance with the bylaw.36 Temporary shelters may only be erected between dusk and 7 a.m. the following day, must be dismantled by 8 a.m., must not take up more than 9 square metres of space, must not contain any campfire or propane stoves, and must not be left unattended.37
The bylaws that permit overnight sheltering seem to provide park dwellers with an amount of respite compared to jurisdictions where setting up temporary shelters could lead to the immediate enforcement through ticketing, or seizure or destruction of their belongings. However, unhoused and precariously housed people often have complex lives and needs, and the cycle of needing to dismantle a shelter and move one’s belongings before setting up again in the evening is not sustainable for most people, particularly given challenges in accessing secure storage for their possessions. For example, in VFPA v Brett, one encampment resident who provided evidence stated that he was unable to camp overnight in situations where he was required to move his belongings from the site during the day because he had severe mobility issues.38 Bylaw provisions that require people to dismantle their shelters and move their belongings each morning contribute and perpetuate instability of people who are often sheltering outdoors because of a lack of shelter spaces, or shelter spaces that are not adequate for their needs, personal belongings, or lifestyle.
Example 1:
Legal scholars and advocates in B.C. have lobbied the public and the government about the effects of forcible decampments on precariously housed people and their ability to retain their belongings. UBC Law professor Stepan Wood has criticized decampment policies, given that the process ignores the various benefits of tent cities such as stability and storage of people’s belongings, and undermines harm reduction initiatives, the consequences of which can be life threatening.39 Decampment also creates a cycle of continual displacement where people have less control over their lives and possessions, and often their belongings are destroyed during the process. Pivot Legal Society has criticized the threats of forced displacement that lead to a ‘siege’ mentality of encampment residents, where they fear that all their possessions will be gone if they leave for even a short period of time, and therefore they fail to meet their basic needs in the attempt to protect their belongings. Pivot cites a harm reduction worker who spoke about the concerns that encampment residents experience:
“People are only allowed to bring two tote bins inside [temporary accommodation offered by the City], totally insufficient to address survival needs. Many people are very concerned about having to give up their possessions in order to move inside, especially as hotel rooms are not a permanent solution and they fear not being able to afford a new tent, sleeping bag, and camping gear if they need them again. People have been promised safe storage for their belongings but that hasn’t materialized yet and it’s not clear whether tents and other sheltering supplies will be considered people’s belongings and stored along with the rest of their things, or whether those will be considered government property and (needlessly and wastefully) destroyed”40
Example 2:
Even for people who are willing to accept temporary accommodation that has been offered to them during a decampment process, there is concern and confusion about their belongings when the information that is provided is incomplete or unclear. During the mass decampment and relocation into temporary housing of hundreds of residents of Oppenheimer Park in Vancouver, and Topaz Park and Pandora Avenue in Victoria, there was a reported lack of communication that created confusion about the storage of belongings. One advocate stated that in addition to the two tote bins they could bring with them into their temporary housing, people were allowed to place two extra bins into storage. However, there was an apparent lack of communication about how long people could store their belongings for and how they would be able retrieve them.41 It is unknown exactly what consequences this had for people trying to manage their belongings during their move into temporary accommodation, but it is possible that people were forced to give up possessions that they mistakenly thought they would not be able to put into storage.
Example 3:
A tent city that was set up in a Port Alberni park in B.C. was forcibly displaced after two verbal warnings and after campers were issued a trespass notice.42 The City’s manager of community safety said that the six campers “were not permitted to camp overnight in the city-owned park.”43 It is unclear whether or not there was adequate shelter space in the City such that overnight camping should have been permitted per Adams and Shantz, however it appears that the accessibility or availability of shelter space was a precipitating factor in the organization of the tent city. When the camp was eventually forced to leave, “everything was torn down and put into a small garbage truck, including Naloxone kits that were clearly labeled.” A few days later, some belongings were returned to the tent city’s organizer and to volunteers, but very little was salvageable.
As with the surveyed municipalities in Ontario, an issue that continues to emerge is the inadequacy of the temporary housing that is offered to people living in parks when they are displaced, and the rules or requirements that come with (or are perceived to come with) that temporary housing. Despite bylaws in B.C. which allow people to take up temporary shelter overnight in City parks, the enforcement of contraventions of these bylaws remains harmful and traumatic for people who often lose their belongings in the process, whether or not they are offered or choose to accept temporary accommodation. Further, not everyone living in a park will receive an offer of housing before being displaced, which has contributed to some choosing to form encampments in order to increase the chance that as a group they will offered temporary housing.44 With larger encampments - and the benefits they provide, such as having other people to watch one’s belongings - come more enforcement measures and risks to the security of one’s home and possessions.
Provincial Legislation
While municipalities have jurisdiction to enact bylaws governing parks, there are provincial acts that have consequences for people who set up a shelter or camp in a municipal park. For example, British Columbia’s Police (Disposal of Property) Regulation45 permits police to dispose of stolen, abandoned or found personal property where they are unable to identify the true owner of the property. Non-perishable or valuable goods must be kept by the police for a minimum of three months and after that point they can dispose of them. Perishable or ‘unmarketable’ items can be disposed of at any time. In situations where a person leaves their tent or belongings in a park so that they can acquire food or access services, their property, if considered to be ‘unmarketable,’ is likely to be disposed of before the owner has a chance to try to reclaim their possessions. Ontario’s Police Services Act46 has an even shorter one-month retention timeline for most items, except for vehicles and bicycles which are disposed of after three months. Under B.C.’s Prevention of Cruelty to Animals Act a person’s pet could be removed if it is considered to be in distress, and under Ontario’s Dog Owner’s Liability Act, a pit bull or dog that is believed to potentially cause harm can be seized by a peace officer in a public place.
3.Vehicles in public parks
Parking in municipal parks is regulated in most of the surveyed cities as ways of attempting to deter people from parking their vehicles and sleeping overnight.
Ontario Municipalities
The surveyed municipalities in Ontario each have similar regulations including the times of day during which a vehicle can drive or park in a designated area of a municipal park. Toronto’s Municipal Code provides that a vehicle cannot be parked between midnight and 5:30 a.m. in a city park, except in a designated area for overnight parking, and a vehicle cannot be parked for a period longer than 24 hours.47 The City of Hamilton’s parks bylaw is phrased in a similar way, prohibiting parking or leaving a vehicle between 11 p.m. and 6 a.m., except in a designated area for overnight parking, and a vehicle cannot be parked for a period longer than any posted time limit.48 The City of Ottawa parks bylaw is less detailed when it comes to vehicles, however a person cannot drive or park a vehicle except during the hours designated. Ottawa’s Traffic and Parking bylaw supplements the gaps in its parks bylaw by clarifying that a person cannot park their vehicle in a park between 11 p.m. and 5 a.m.49
Where vehicles are parked in contravention of local parks bylaws, Ontario municipalities have the power to enforce their bylaws by way of impounding and removing those vehicles. In Toronto, a vehicle may be removed and “all costs and charged for removing, care of and storing the vehicle, if any, are a lien upon the vehicle” under the provincial Repair and Storage Liens Act.50 Further, anyone who contravenes a provision of the bylaw is subject to an administrative penalty (a fine), unless a vehicle was in the possession of another person without the owner’s consent and was parked in contravention of the bylaw.51 The City of Hamilton has near-identical enforcement provisions compared to Toronto, placing a lien on impounded vehicles and subjecting the owners of vehicles to a fine unless it was parked by another person without their permission.52 The enforcement of vehicle parking in Ottawa parks is again governed by its Traffic and Parking bylaw, which states that a contravening vehicle may be impounded, with all costs being charged to the owner and with a lien being placed on the vehicle.53
British Columbia Municipalities
In B.C., while local parks bylaws permit a limited degree of temporary overnight parking in city parks, these periods are very short and the act of sleeping overnight in one’s vehicle in a park is explicitly prohibited by at least one bylaw. In Vancouver, a vehicle may be parked for up to 30 minutes in a City park between 10 p.m. and 6 a.m.54 A contravention of this, and any other vehicle-related provision of the bylaw, may subject the vehicle to being removed at the owner’s expense. The City of Victoria’s parks bylaw, like its Streets and Traffic bylaw, is much more explicitly targeted at the act of sleeping overnight in a park. Per the bylaw, no person may:
(h) park a vehicle in a park for longer than 3.5 hours between 7:00 a.m. and 6:00 p.m. of any day from Monday to Friday;
(i) park a vehicle for the purpose other than visiting the park;55
…
(k) park a vehicle in a park for the purpose of sleeping overnight in the vehicle;
While the bylaw also contains provisions that specify closing hours in particular named City parks, it is interesting that Victoria seems to allow some amount of temporary overnight parking in parks on weekends, so long as the purpose is not to sleep in the vehicle overnight. Nevertheless, Victoria’s parks bylaw was the only bylaw surveyed in both B.C. and Ontario which puts an outright prohibition in sleeping in one’s vehicle overnight in a City park (though such a prohibition is implicit in other cities where parking overnight is not permitted). Further, a vehicle parked overnight in contravention of the bylaw is subject to being removed at the owner’s expense.
4.Legal decisions impacting people’s belongings in parks
Most cases involving the ability of people to camp and live in municipal parks have emerged from British Columbia. Most of these cases are centred around the municipalities’ applications for interim injunctions which would require any campers to remove their structures and tents from the parks, and which give the cities a legal basis to enforce decampment measures. With a few exceptions, most cases have not had positive outcomes for precariously housed people living in public parks, as well as their belongings situated in these spaces. Please see a list of legal cases at the end of this section.
Where the property owner is a municipality, an injunction is more likely to be sought to remove the trespasser(s). While injunctions are typically regarded as extraordinary measures in trespass,57 (online), Trespass, “Trespass: Trespass to Land: Remedies: Injunction” (II.9.(a)) at §154. courts are more likely to interfere to grant an injunction when the trespass is continuing.58 Under the law, people who sleep or set up camp on public or private property, including parks, are therefore trespassing unless authorized to do so (by bylaw or otherwise). In Abbotsford (City) v Shantz, it was held that where people had been given notice to vacate a park, cease lighting fires, cease camping overnight, and remove their tents and structures, they had committed an offence of trespass.59 Although encampments are often described as being ‘evicted’ or threatened with ‘eviction’, eviction is a term generally connected to legal occupancy connected to tenancies. As such, As such, decampments are more likely to be realized using trespass law.
When a municipality seeks an injunction to address a breach of a bylaw or other municipal provision, it seeks a statutory injunction. The granting of a statutory injunction is determined by one of two tests. Municipalities generally often do not need to prove irreparable harm to be granted an injunction, and injunctions are only refused in exceptional circumstances because of the presumption that the municipality is acting in the public interest (“Thornhill / Windsor test”).60 Where the seeking of a statutory injunction has Charter implications, in order for the injunction to be granted, the municipality must demonstrate three things (“RJR-MacDonald test”): (i) that there is a serious question at issue, (ii) that they will suffer irreparable harm if the injunction is not granted, and (iii) that the balance of convenience favours the municipality in granting the injunction.61 In cases where an injunction is sought on the grounds of trespass on private land, the private property owner merely needs to prove trespass is occurring by proving clear title, without the requirement of proving that they have experienced any harm.62 The granting of injunctions to remove people from public space has significant impacts on their security to their personal belongings, which are often named in the injunction removal orders.
Since Victoria (City) v Adams in 2009—where it was held that Victoria’s Parks Regulation Bylaw violated unhoused people’s constitutional rights to life, liberty and security of the person under section 7 of the Charter by prohibiting erecting temporary shelter in parks at night—municipalities across the province have adopted bylaws permitting overnight sheltering in parks. This decision was reaffirmed in Abbotsford (City) v Shantz63 where the court held that the city’s Consolidated Parks Bylaw and Good Neighbour Bylaw violated section 7 rights, and again in 2020 when the Vancouver city council voted to align bylaws with Adams
and Shantz and permit temporary overnight shelters in parks.64 Importantly, the right to erect overnight shelters is restricted to overnight sheltering,65can exclude certain areas of parks such as environmentally sensitive areas,66 and is contingent on the fact that the City has insufficient shelter spaces.
While these cases and other cases discussing encampments and sheltering in parks have implications on people’s belongings, only recently did the courts specifically address the importance of people’s belongings and the impacts that losing these items has on people’s wellbeing. In Bamberger v Vancouver (Board of Parks and Recreation) the court held that decampment requirements caused by overnight sheltering bylaws, coupled with lack of storage and sheltering options, effectively forcing people to move all of their personal property on a daily basis, was a “substantial hardship” for many.67 In Prince George (City) v Stewart68 the court acknowledged that available shelter spaces were “not sufficiently low barrier and accessible to all of the occupants of the encampments”69 and therefore rejected the City’s injunction application to dismantle an encampment on a city greenspace. The subsequent case, Prince George (City) v Johnny70, stated that the City’s dismantling of the encampment and destruction of people’s personal belongings when the city still lacked sufficient accessible shelter amounted to “serious harm on vulnerable people”. 71 These cases demonstrate some judicial acknowledgement of the significant impact that loss of belongings can have on people sheltering in parks and other public spaces, and how the personal property is a consideration that must be made when determining the accessibility and suitability of indoor shelter spaces.
Despite these recent developments, owners of public land have begun to adopt different approaches to injunctions depending on how the land is categorized. In Vancouver Fraser Port Authority v Brett,72 an encampment located on Crown land managed by the port authority was ordered to be removed through an injunction. Encampment residents noted that the land adjoined a public park, had no fence, was unused at the time and thus differed from other public land leased to a third party.73 However the court determined it to be “private property and not intended for public use.”74 Although the land in this case was an empty lot rather than a clear park space, park spaces can also be subject to the concepts of public and private space which can impact how a court decides. In a reference case regarding Beacon Hill Park in Victoria in 2022,75 the City of Victoria inquired as to whether a park, held in trust by the city through an 1882 Crown grant, could be used for temporary sheltering by people experiencing homelessness. The court held that sheltering in the park was not consistent with the terms of the trust which was “to maintain and preserve … for the use recreation [sic] and enjoyment of the public.”76 This recreation-centered language, embedded in the colonial instrument of a trust, led the court to decide that temporary sheltering by people experiencing homelessness could not be considered a ‘use’ and was thus prohibited.77 While this decision did not amount to an order or a granted injunction, these decisions together signal that cities could use various land-use agreements such as trusts or leases of public land to deal with encampments in the future.
One other exception to the dominant trend of granting municipalities injunctions is the Ontario case of Black et al v City of Toronto.78 In that case, residents of encampments in parks across the city brought a motion for an injunction to prevent the City of Toronto from enforcing its bylaw that prohibits camping, tents and structures in City parks during the COVID-19 pandemic. The applicants argued that during the pandemic and in the context of Toronto’s housing crisis, enforcing the City’s bylaw would violate their section 7, 12, and 15 Charter rights. While the judge in this case acknowledged the principles set out in Adams and Shantz coming from B.C., the motion was dismissed. This was based on the judge’s finding that the City shelter system had been updated to respond to COVID-19 concerns, and that there “is no evidence that the shelter system does not have the capacity to accommodate, safely, those currently living in the parks who wish to seek shelter.”79 However, aligning with BC’s Victoria (City) v Adams, in January 2023, the Ontario Supreme Court declined to declare that an encampment of people on a city-owned vacant parking lot in Kitchener was contrary to the bylaws. Instead, the court stated that the bylaw which prevented sheltering violated section 7 of the Charter by depriving people of life, liberty, and security of the person, and was inoperative if the number of unhoused people exceed the number of shelter beds in the city.80 The court determined that even if it did not violate section 7, that it would not to grant the interim and final orders because the Region did not meet its own Encampment Policy terms prior to enforcing the bylaw, and that this amounted to an exceptional circumstance from which to deny the injunction.81 While this decision addresses bylaws about vacant city-owned land rather than the city’s parks bylaw, it may have implications on similar anti-sheltering provisions in parks-related bylaws in this and other jurisdictions across Ontario.
Beyond court injunctions, other legal mechanisms have been used to clear encampments. On May 8, 2020, in the context of COVID-19, the Minister of Public Safety and Solicitor General of BC made a Ministerial Safety Order demanding that “[a]ll persons camping in, residing in or occupying” Oppenheimer Park in Vancouver, Topaz Park and the Pandora Avenue corridor in Victoria “must evacuate the area as soon as practicable”.82This order spanned public space across both park and street spaces.
The trends in case law suggests that where a municipality seeks an injunction, it is most likely to be granted, allowing them to remove the people and possessions that take up residence in parks. While injunctions have been granted to cities to dismantle encampments on streets and sidewalks, most injunction cases in BC have been in the context of city parks. This is perhaps in part due to the high demand and limited number of green spaces and public pressure on city officials to remove signs of visible homelessness from those spaces, exacerbated by travel and distancing restrictions during the COVID-19 pandemic. This is not to suggest that a group of unhoused people will never again be successful in defending against an application for an injunction – a successful Charter challenge or demonstration of exceptional circumstances could be possible. However, as has been seen post-Adams and Shantz, such an argument will likely need to be narrow in scope. As most unhoused people do not have the resources to fight an injunction,83 and absent advocacy work and systemic policy change, most campers and tent city residents facing injunction applications are likely to be on the receiving end of displacement processes which place them at risk at losing many of their belongings.
5.Conclusion
A precariously housed person or group of people who set up temporary shelter in a park may do so for a variety of reasons, many of them related to their belongings. They may have had experiences with theft of their possessions in city shelters, they may have a greater ability to watch over their belongings in a park shelter, and they may develop a sense of community that helps them manage their day to day lives. A tent might be preferable to low-income or temporary housing that puts restrictions on what they can do and how many bags of belongings they can have with them. But a person living in a park is subjected to a numerous laws and local bylaws that govern their ability to set up camp, stay there for a length of time they would prefer, and have full control over where they can keep their belongings. By placing their belongings in parks, they become more visible to regulators, and subject to regulations that target structures and objects in such spaces.
In both Ontario and B.C., a person who sets up a tent in a park will be at constant risk of having their belongings removed. Under provincial laws, if they leave their shelter and belongings to access services, for example, they could return to find their belongings have been removed if they were considered to be abandoned or to find their pets have been removed if they were considered to be in distress. In B.C., bylaws based in provincial case law allow people to set up temporary shelter overnight in parks, but the right is limited, and it is not practical for many people to engage in a constant setting up and dismantling of their homes. People’s belongings are at risk as soon as their tents remain during the daytime. While City officials will often provide notice to remove the structures and vacate the space, those who remain are at risk of increased enforcement measures and of being the target of court injunctions that order their removal. That is, at least in B.C., cities tend to wait for an injunction before forcibly displacing larger encampments and putting people at risk of losing their belongings. In Ontario, there is no provision for temporary overnight shelter set out in municipal bylaws. However, after a recent Ontario Supreme Court decision that stated that a bylaw was inoperative if it prevented people from sheltering on city-owned land, this may change. The City of Toronto has a protocol to follow when working to clear unhoused people from public space, but on the ground the harms of losing many of one’s belongings does not seem to be mitigated by this process. Further, municipalities in Ontario seem to be less inclined to seek court injunctions before displacing gatherings of people who are living in parks, which has led to difficult and traumatic situations for people whose belongings are removed and thrown away without having the opportunity to defend themselves against an application to have them removed.
The possessions of precariously housed people in parks heighten their visibility to the general public thereby increasing their risk of being reported and being the targets of law and bylaw enforcement. The principle and value of human dignity should seek to facilitate the ability of people to retain their belongings wherever possible, especially those belongings that are critical to their survival. The increasing public awareness of the issue has created an opportunity for enforcement authorities to examine, reform, and abolish current policies and practices that perpetuate housing precarity and put people at further risk of harm.
Appendix: Legal Cases
Park Spaces - Legislation and Regulations Impacting People’s Possessions
To protect, maintain and enhance public parks and promote safety of park users, avoid conflicts in the use of space in parks, and the protect the parks’ natural conditions.
When the number of homeless people exceeds the number of available shelter beds, does a bylaw that prohibits homeless people from erecting temporary shelter at night violate their constitutional rights to life, liberty and security of the person under s. 7 of the CanadianCharter of Rights and Freedoms?
Parks bylaw found to violate s. 7 rights and was not justified under section 1 of the Charter. The ruling was contingent on the fact that (1) the City had insufficient shelter spaces, and (2) that if other accommodation were available the bylaw sections may have been valid. The court narrowed the ruling to night-time sheltering only.
Occupy Vancouver protestors erected tents, structures, and shelters on the city-owned plaza of the Vancouver Art Gallery.
Should the City’s application for an interlocutory injunction be granted?
An interlocutory injunction was granted pursuant to s.334 of Vancouver Charter to enforce removal of structures, tents, shelters, and other objects that had been constructed and placed by the protestors.
Are homeless people in Victoria entitled by section 7 of the Charter to erect and maintain shelters on City property during the day?
Johnston argued that there are people who cannot sleep at night and need shelter during the day, and that few daytime shelter beds are available.
The court confirmed that the outcome in Adams was to allow temporary overnight shelter in City parks and property (para 16), and not enough evidence was provided to support a Charter claim based on daytime needs. Johnston’s appeal was dismissed.
Should an injunction be granted to require approximately 150 occupants of a tent city at Oppenheimer Park to remove their tents, structures, and other belongings?
The Park Board asked for a delayed end date “to allow sufficient time to connect people living in the Park with resources to assist them and to facilitate an orderly transition out of the Park” (para 2).
The judge made a point of hearing and summarizing the evidence provided by park residents and advocates about their circumstances and barriers to being housed. However, the injunction was granted, effective a week from the date of the decision.
People were removed from a tent city in Jubilee Park. Advocate associated argued that City ‘displacement tactics’ like spreading chicken manure and destroying belongings infringed homeless people’s section 2, 7 and 15 Charter rights. Does the association have standing?
The court dismissed the City’s appeal and determined that the association has standing to advance a Charter challenge.
An encampment was set up on Victoria courthouse property. The land belonged to the province.
Should an injunction be granted to order the occupants to vacate the property?
The province met the test for an injunction in part due to increased fire, health, and safety risks posed by pathways blocked by garbage, “hoarders” keeping items of “questionable worth” (para 53), aggressive dogs, and used harm reduction supplies. The occupants were ordered to vacate.
Should an injunction be granted to require occupants of Regina Park to remove their structures and belongings?
The named defendant had previously been removed by injunction from a park in Duncan.
The court cited each of the cases above, among others. The court noted that Saanich’s bylaw met the requirements set out in Shantz, and the injunction was granted based on a balancing of the relevant factors.
The City had concerns about fire safety in the encampment on City land. The City Fire Department posted fire regulation notices. The City continued to have concerns about the use of in-tent heaters.
Should the City’s application for an order requiring occupants to comply with the Fire Department safety orders be granted?
The application was granted. The judge noted that in previous cases involving encampments, significant fire risk has tipped the balance towards favouring the municipality. The occupants were ordered to comply with the fire safety orders.
The City removed homeless persons and their possessions from a tent city in Jubilee Park. The complainants alleged that City conduct was discriminatory based on race, ancestry, disability and place of origin.
Which issues raised by the complainants should proceed to a hearing?
The tribunal determined that the allegations that the City pepper sprayed tents and personal property, and that the City destroyed and disposed of the residents’ personal property would proceed to a hearing.
An encampment at a public park on federal port land leased by the City is ordered to close by way of the Parks Control By-law. Encampment residents seek judicial review of the orders. Parks Board seeks injunction to compel encampment residents to comply with orders.
Are the Parks Board’s orders for eviction valid and enforceable?
Application for judicial review granted. Parks Board application for injunction adjourned pending the judicial review.
Court acknowledges impacts of a daily decamping requirement; recognizes that lack of storage, sheltering options make moving belongings a significant hardship.
City’s previous injunction application to close an encampment on city-owned greenspace for contravention of Zoning Bylaw was rejected due to lack of accessible housing and daytime facilities.85 City seeks another injunction to dismantle encampment claiming it procured sufficient housing facilities.
Should the City be granted an injunction to remove the remaining encampment residents?
City’s injunction application is dismissed because the City dismantled the majority of encampment prior to returning to court to seek an order, and without procuring sufficient accessible
housing and daytime facilities or identifying number of people remaining in the encampment. This “inflicted serious harm on vulnerable people” (para 82).
1. City of Ottawa, by-law No 2004-276, Parks and Facilities By-law (1 August 2004), online at s 1; See also Toronto Municipal Code, c 608-1, Parks, online (pdf) [Toronto Parks Code]; See also City of Victoria, by-law No 07-059, Parks Regulation Bylaw (14 May 2021), online (pdf) at s 2 [Victoria Parks Bylaw]; See also City of Abbotsford, by-law No 2456-2015, Parks Bylaw(Consolidated) (2021), online (pdf) at Schedule “A”; See also City of Hamilton, by-law No 01-219, A By-law to Manage and Regulate Municipal Parks (16 May 2007), online (pdf) at s 1(t); See also City of Vancouver, Consolidated by-laws, Parks By-Laws (Consolidated) (21 June 2021), online (pdf) at s 1(l).
2. The stories described at the beginning of each chapter are not real-life stories of specific individuals. They are composites of experiences that people have described regarding the ways in which they navigate a variety of laws, bylaws and policies that impact their ability to retain their possessions or access services with their belongings. These stories reflect the experiences of real people who have shared their experiences, whether as individually identifiable people or as participants in studies that have contributed to knowledge on this issue. The elements that make up the stories are derived from multiple municipalities, so it would be inaccurate to name a particular municipality in any of them. The relevant body of research concerning these kinds of experiences focuses on particular areas in which people have been impacted, rather than on their entire experiences moving across different spaces.
3. See Michelle Lem et al, “Effects of Companion Animal Ownership Among Canadian Street-Involved Youth: A Qualitative Analysis” (2013) 40:4 J Sociology and Soc Welfare 285 at 291 for a discussion of the ways in which many unhoused pet owners will put their pets’ needs before their own; See also Jennifer Labrecque & Christine A. Walsh, “Homeless Women’s Voices on Incorporating Companion Animals into Shelter Services” (2011) 24:1 Anthrozoös 79 at 90 for an overview of the extreme pain, distress, and trauma that relinquishing a pet can have for unhoused women.
4.Vancouver Board of Parks and Recreation v Williams, 2014 BCSC online 1926 at para 26 [VBPR v Williams], the manager of an emergency shelter gave evidence stating that many people “do not want to go into shelter because they feel anxious about sharing a space with a large group of strangers, they fear assaults… or theft of their belongings.”; Sylvia Novac et al, “Justice and Injustice: Homelessness, Crime, Victimization, and the Criminal Justice System” (November 2006), online (pdf) at 61 and 64 describe how most survey respondents had had belongings stolen at a shelter or other location.
5. Taylor Fleming et al, “Housing in Crisis: A Qualitative Study of the Socio-Legal Contexts of Residential Evictions in Vancouver’s Downtown Eastside,” (2019) 71 Intl J Drug Policy 169 at 172 describe some of the ways in which low-income and social housing policies and rules can often fail to account for the social relationships and survival needs of their residents.
6. Lem et al, supra note 3 at 292 report that having a dog that is legislated to be ‘dangerous’ can make it even harder for people to find housing. Pit bulls are banned in Ontario: Dog Owner’s Liability Act, RSO 1990, ch. D.16.
7. Nicholas Blomley, Alexandra Flynn & Marie-Eve Sylvestre, “Governing the Belongings of the Precariously Housed: A Critical Legal Geography,” (2020) 16 Ann Rev of Law & Soc Sci 165 at 168 at 167.
8.Vancouver Fraser Port Authority v Brett, 2020 BCSC 876 online at para 64 [Brett]. Generally, encampment residents asserted to the court that “their centralized and established structure attracts local service providers and allow[s] them to benefit from an increased ability to access services where they are, in a safe and familiar space.” They also stated that the encampment provided “physical safety for both residents and their belongings.”
10.Black et al v City of Toronto, 2020 ONSC 6398 (CanLII) online at para 100. Dr. Wiwcharuk states in her expert evidence that “there is often a sense of community that develops among encampment residents, and people come to rely on one another to watch their belongings when they leave the encampment site (although thefts do take place).”
11.Brett, supra note 8 at para 24. Encampment resident Tony Cahoose gave evidence that his possessions went missing when he was in shelters, but they did not go missing when he lived in the encampment.
12. It has been common in encampment displacement and closure situations for the accommodation being offered to only allow people to bring two bags or totes with them, and people have faced other restrictions on pets and guests. Anna Cooper & Caitlin Shane, “Decampment of Topaz Park and Pandora Avenue Corridor” (14 May 2020), online: Pivot Legal; Stepan Wood, “Temporary Overnight Shelter is Not Enough, Vancouver Should Authorize Stable 24/7 Homeless Encampment”, The Vancouver Sun (17 July 2020), online; Jesse Winter, “Vancouver Works to Close Strathcona Park Tent Encampment”, The Globe and Mail (26 April 2021), online.
13.Brett, supra note 8 at para 25. Encampment resident Ryan McNabb gave evidence that he declined an offer of housing that would not allow him to bring his puppy with him.
14. During the forced displacement of a tent city in Port Alberni, residents’ belongings were reportedly put in a small garbage truck, and while some of the belongings were later returned to the organizers and volunteers, much was not salvageable: Susie Quinn, “Port Alberni Tent City Evicted Again”, Vancouver Island Free Daily (24 November 2020), online; In Toronto, City workers broke down tents and put them into garbage trucks while clearing out an encampment: CBC News, “Toronto Police Make Several Arrests After Clashes at Lamport Stadium During Encampment Clearing”, CBC News Toronto (19 May 2021), online [Lamport Stadium].
15. Sleeping rough on the streets puts people in a state of vulnerability to violence when another person tries to take the sleeper’s belongings, leading to both physical and mental distress: Joshua Daniel Phillips, From Losing Everything to Finding Community: How Homeless People Narrate Their Lived Experiences (PhD Dissertation, Department of Speech Communication Southern Illinois University Carbondale, 2014) [unpublished] at 29.
17. Toronto General Manager, Shelter, Support and Housing Administration, “Annual Report on From the Streets into Homes: A Strategy to Assist Homeless Persons Find Permanent Housing” (29 December 2005), online (pdf): City of Toronto. [Streets to Homes].
22. Liam Casey, “Toronto Seeks Injunction to Stop Man from Putting Tiny Shelters for the Homeless in City Parks”, CBC Toronto (19 February 2021), online; Muriel Draaisma, “Toronto Carpenter Who Builds Tiny Shelters for Unhoused People Calls on City to Drop Legal Fight”, CBC News Toronto (22 February 2021), online.
23. CBC News, “Academics, Lawyers, Musicians Launch Public Letters Urging City to Halt Encampment Evictions”, CBC News Toronto (4 December 2020), online.
25. Toronto Tiny Shelters, “Tiny Shelter Testimonials” (24 January 2021) at 00h:00m:41s, online (video): YouTube.
26.Lamport Stadium, supra note 14; CityNews Toronto Staff, “Man Charged as City Dismantles Homeless Encampment at Lamport Stadium”, City News Toronto (19 May 2021), online.
27.Victoria (City) v Adams, 2009 BCCA 563 [Adams] online.
28. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7.
55. Combined with subsection (h), the bylaws effectively limit ‘visits’ to the City park to 3.5 hours if the person parks their vehicle in or adjacent to the City park.
56.Victoria Parks Bylaw, supra note 1 at ss 12(1)(k) and (l).
60.Maple Ridge (District) v. Thornhill Aggregates Ltd. (1998), 54 BCLR (3d) 155, [1999] 3 WWR 93, 1998 CanLII 6446 (BCCA), online ; The Corporation of the City of Windsor v Persons Unknown, 2022 ONSC 1168 (CanLII) online at paras 51-56.
61.Nanaimo (City) v Courtoreille, 2018 BCSC 1629, online at para 110; RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 online.
62.Fraser Health Authority v Evans, 2016 BCSC 1708, online at para 49.
82.Emergency Program Act, M150/2020 (8 May 2020), BC Ministerial Orders; Emergency Program Act, M128/2020 (24 April 2020), BC Ministerial Orders.
83. In Vancouver Board of Parks and Recreation v Sterritt, 2003 BCSC 1421 online, Mr. Sterritt was self-represented in his defence.
84. The ‘Purpose’ of each law is often stated directly in the preamble or body of the law and is understood as the general objective of the law from the perspective of law makers. This purpose does not necessarily consider the ways the effects of the law may diverge from their stated purpose, and how this inevitably impacts people in precarious housing situations.
85.Prince George (City) v Stewart, 2021 BCSC 2089 online at para 115 [Stewart].
