Hansard Blues

Committee of the Whole –

Section A

Draft Report of Debates

The Honourable Raj Chouhan, Speaker

4th Session, 42nd Parliament

Thursday, November

30, 2023

Afternoon Sitting

Draft Transcript — Terms of Use

PROCEEDINGS IN THE

DOUGLAS FIR ROOM

Committee of the Whole House

BILL 45 — MISCELLANEOUS STATUTES

AMENDMENT ACT (N O . 4), 2023

(Continued)

The House in Committee of the Whole (Section

A) on Bill 45; F. Donnelly in the chair.

The committee met at 1:13 p.m.

On clause 1 (continued) .

The Chair: Good afternoon, Members. Thanks for your patience.

I'll call Committee of the Whole on Bill 45, Miscellaneous Statutes Amendment Act

(No. 4), 2023.

Minister, would you like to start us off?

Hon. N. Sharma: In response to the member's question before the break, I wanted to start by talking

about the purpose of the amendments that we have before us. As we talked about a little

bit a couple of days ago, encampments are an issue not only for the people staying

in them, as they can be unsafe, but also municipalities have been grappling with how

to move on the spectrum of housing for people.

What we've seen is that, in some scenarios when municipalities are going to enforce

their bylaws, they're doing so at times where there is no alternative shelter available

for the people in the encampment. That doesn't solve the problem; it displaces and

traumatizes the people in encampments and can lead to encampments in other places.

We'll situate this provision into where it would apply: if a municipality seeks to

enforce a bylaw through injunction. So they're before the courts. Then if there's

a factual analysis before the court that relates to alternative shelter and its availability,

that's the next level where it would apply.

What this does is to set criteria for the court to consider when determining it. It

also provides a guideline to municipalities when they seek to find injunctions to

enforce their bylaws.

[1:15 p.m.]

M. de Jong: Time is at a premium, so I'll keep my questions and prefaces very short. That's not

meant to be argumentative; it's just that we're on a timeline here.

What is the test that a community must meet today when it seeks an injunction as it

relates to the availability of shelter space?

Hon. N. Sharma: There's no test at this stage. The case law and our judges — neither has determined

a test that sets out criteria like the one before.

[The bells were rung.]

M. de Jong: I think they're playing our song.

The Chair: : I think they are.

Members, it looks like a vote has been called. We will recess until after the vote.

The committee recessed from 1:16 p.m. to 1:31 p.m.

[F. Donnelly in the chair.]

The Chair: All right, Members. I'll call the committee back to order. We were on clause 1.

M. de Jong: I'm trying to get a sense of what the Attorney — and she's well placed to offer this

opinion as the Attorney — and the government feel the test is today prior to the implementation

of the provision we're dealing with.

The Housing Minister has said recently: "The courts have ruled that you have to have

some sort of shelter available for people before you decamp them." There's a certain

logic to that, but I'm curious to know whether the Attorney endorses that as a statement

of the law as it presently stands.

[1:35 p.m.]

Hon. N. Sharma: As I mentioned in my previous answer, there's no legal test regarding this issue.

What there is, is judicial commentary related to this. That was precisely the reason

that we felt the need to draft and insert more clarity into the law on this.

We, as I mentioned before, have seen examples where municipalities have sought to

enforce injunctions or bylaws without any kind of alternative shelter available to

those people in the encampment. What that does is displace and traumatize the people.

It also can lead to encampments elsewhere.

This intervention in the law that we've drafted here helps provide clarity. Likely,

that was what the minister was talking about with that example, the real-life example,

as I was referring to.

M. de Jong: Here's what I'm trying to reconcile. It's the difference between the statement made

by the Housing Minister and a similar statement made by the Premier on November 23

referencing a court decision that said there must be shelter space available in order

to obtain an injunction.

I'm trying to reconcile that with what lawyers for the Attorney General's ministry

argued, apparently this summer, in the case of Vandenberg versus the city of Vancouver,

at the Vancouver registry…. The reference is Supreme Court 227764. The AG's own lawyers

argued before the court that there is no legal requirement that shelter exist in order

for decampment to occur.

On the one hand, we have the Premier and the Housing Minister saying one thing. On

the other hand, lawyers for the Attorney General's ministry are saying something very

different.

One, I'm curious to know, in the Attorney's view, which of those very different statements

are accurate. Secondly, how does the provision we are dealing with today clarify that?

[1:40 p.m.]

Hon. N. Sharma: As the member knows as a former Attorney General, oftentimes we're called upon in

court cases to put before the judiciary the state of the law and how the law has developed

in the province.

Related to this specific issue, it is true that we went before the court to state

the law that right now, there is no legal requirement, as courts have determined,

for there to be alternative shelter before there's a de-encampment. What we've noticed

in development of the case law is that it's fact-specific. Sometimes this is a factor

that comes before the court.

What we're doing with these provisions that you have before you is, for the first

time, setting out criteria for the court to consider when they're determining if it's

an issue whether or not there's alternative shelter available.

M. de Jong: That's helpful. I think what I heard the Attorney say is that to her mind, as her

counsel argued in the Vandenberg case, there is no legal requirement presently that shelter exist in order for decampment

to occur. Do these provisions change that at all?

[1:45 p.m.]

Hon. N. Sharma: As I mentioned previously, right now, under the jurisprudence, there is no universal

legal requirement for there to be alternative shelter available before enforcing a

de-encampment.

What this provision does is provide criteria for municipalities seeking an injunction

related to enforcing a bylaw for de-encamping. The reason that we think this is very

highly necessary is because in an instance where municipalities are before the court

seeking an injunction to de-encamp, there needs to be criteria for the court and the

municipality to consider that meets the basic needs of the people that are being de-encamped

into that alternative shelter.

We think that fills a space in the law that goes towards human dignity and how municipalities

and courts should think about the criteria that are at play when you're thinking about

that de-encampment.

I gave examples before of municipalities that have stepped in without there being

alternative shelter. If they're seeking an injunction, and it's at issue in a court,

we think it's right that the court has this criteria, and the municipality does, to

consider what's necessary for the basic human needs of that individual under the alternative

shelter.

M. de Jong: We don't have time for me to explore further the significant difference between what

the Attorney has just confirmed as the state of the law and what we have heard from

others from the government on that point. That will have to stand, and others can

analyze that subsequently.

Am I correct, then, in processing what the Attorney has said, that what we're dealing

with in clause 1 and, ultimately, clause 2, is essentially a definition of what the

government is saying the court needs to examine in determining whether or not an available

shelter space constitutes a reasonable shelter space. Is that an accurate statement?

[1:50 p.m.]

Hon. N. Sharma: I want to set this in the context of how our policy of addressing encampments begins.

When there's an encampment, the outreach that's done with that encampment — it's a

voluntary exercise — is to meet with individuals in the encampment to understand their

housing needs and understand what is needed to meet the needs that they require for

housing. That's the first part.

What we're talking about here today is a situation where a municipality has sought

to enforce an injunction to remove an encampment. The purpose is to set criteria —

so that, when the local government is going to the court to remove people from encampments,

the actions and considerations regarding shelter are informed by a common understanding

of what meets the person's basic needs.

That's not the end of the housing story in our housing policy. Once they are in alternative

shelter, there is another opportunity that's taken with the policy to understand the

individualized needs of that person in that alternative shelter at this stage, to

more adequately address their needs. Whether it's complex care or the range of other

of our bigger work that's needed to help people in encampments to get to housing.

M. de Jong: All very helpful, useful information to have. I'm trying, though, because of the shortage

of time, to focus on the provision that we're dealing with. I'm doing this by making

a statement, which the Attorney can agree or disagree with and give reasons for either.

It strikes me that what is being created here is an evidentiary burden in circumstances

precisely along the line of what the Attorney is saying. A community, a municipality

covered under the charter is saying, "We have identified an encampment. It comprises

people who are living there in the encampment," presumably because they have nowhere

else to go or feel they have nowhere else to go. "We are going to court to seek an

order to enforce our injunction –– first, to get the injunction and then, perhaps

an enforcement order that follows."

It seems to me that this is intended to create an evidentiary burden, where that municipality

says to the court: "

(1) We seek this injunction to move people out of this encampment,

and (2) we have identified the following places where they could go to live. They

are reasonable places for them to live, consistent with clause 274.1 of the Community

Charter."

Is that how this is intended to work practically?

Hon. N. Sharma: To begin with, it's important to start by saying, to the member's question, the placement

of this provision, in the context of both the charters that are being amended by this

bill, puts it in so that it's not a universal standard and universally applied, because

it's only under the context of an injunction application. The other operations of

a municipality and their decision-making are not part of this provision.

[1:55 p.m. - 2:00 p.m.]

The second thing that I will reiterate a little bit more and be more specific about….

I talked about the lack of clarity and jurisprudence right now. Right now there's

no universally applied evidentiary burden when it comes to this in the courts if this

is a factor, if there's alternative shelter available to those people.

Of course, as the member knows, judiciaries are independent. They have their own ability

to apply the facts and consider criteria. What this does is provide common ground,

which is what we're seeking, and common evidentiary factors to consider. There's nothing

in here that says "must" for a municipality or "must" for a court, but it's an attempt

to bring common ground and understanding based on the basic needs of a person in this

scenario.

M. de Jong: Again, time is of the essence. I'll take one more kick at this before moving on. It

strikes me, though, that

section 274 of the Community Charter lays out the basis upon

which a municipality covered by the charter can bring an application to the court

in circumstances where it believes a bylaw has been violated.

This new section, then, says that if you bring that application under

section 274,

and insofar as you're seeking an order against the person in an encampment, in order

to satisfy the court that there is reasonable alternative shelter, we are now defining

that legislatively. I mean, isn't that the purpose?

When a municipality goes before the court and says, "We are seeking this order. We

have this encampment. There are 50 people here, but we are bringing evidence before

you, My Lady, My Lord, that says we have 50 shelter beds available for these people.

They are reasonable shelter beds," isn't the purpose of this for the judge to be able

to look and say: "Ah. Well, are they reasonable? Can a person stay overnight? Do they

have access to a bathroom? Are they offered one meal a day? Is it staffed by someone

when persons are at the shelter?"

Isn't that the purpose of this?

Hon. N. Sharma: To answer the member's question, it's not wrong in the sense that we felt like an

intervention was necessary if this is an issue of alternative shelter to have a common

ground with respect to the court determining what meets the basic needs of that shelter.

We think that the court will, hopefully, use this as a way to assess whether or not

the provisions and the way they are set out are available or factors….

Of course, a court…. It's not a must. The court also can avail itself of other factors

or determinations of fact to get there. But we did feel like it was necessary to have

a common understanding, for the municipality's sake and the court's sake, of the basic

needs of an individual that are required, understanding that it's in the context of

our bigger housing plan and strategy related to moving people to the shelters and

the permanent housing that they require to stay housed.

[2:05 p.m.]

M. de Jong: All right. Well, maybe this is a good transition point, because the Attorney just

offered to the committee that in her view…. And I accept what she's trying to convey

to the committee. She talked about communities, municipalities, having a better understanding

and that this is meant to be informative for them. But isn't the provision of shelter

space a provincial responsibility?

Hon. N. Sharma: Yes, the government does have a mandate to build shelter spaces, and we as a government

want to build shelter spaces across this province. We know that municipalities need

to be a partner in that. We are actively looking for shelter spaces across this province

in every jurisdiction, and some municipalities are resistant to that.

To be frank with you, we had an example in Prince George where…. The way that the

de-encampment process works is you assess — voluntarily, of course — the needs of

the individuals in the encampment. In the Prince George example, we had an MOU with

the municipality to move those people into alternative shelter once it was available.

We had shelter that was being worked on, that was meant to be available in two months.

In that scenario, the municipality took their own action to de-encamp those people

before that alternative shelter was available.

We know that's harmful to people. It's traumatic to do that. Also, it doesn't solve

the issue of encampments in communities. So what our policy is and what our approach

is, is to have human dignity in the process of dealing with encampments and provide

municipalities with the resources needed to build shelter spaces in their communities.

We want willing partners in that process.

M. de Jong: Where does the constitutional legal responsibility lie for the provision of shelter

spaces for homeless people in British Columbia?

Hon. N. Sharma: This does not rest in a constitutional right or power at this stage in Canada.

M. de Jong: Just to be clear, the Attorney is telling the committee there's, to her mind, no constitutional

right to shelter in Canada. Did I understand that correctly?

[2:10 p.m.]

Hon. N. Sharma: If I understand the member's question…. He can clarify if I missed it. If it's about

the constitutional division of powers and which government has responsibility for

housing, then, of course, it wouldn't be the local government. I know he knows that.

It's the provincial government.

M. de Jong: That's a clear answer to one part of the question. The secondary question is: does

the Attorney and the government take the view that there is a constitutionally protected

right — and when we say constitutionally protected, we are referring to the Charter

of Rights and Freedoms — to housing, to shelter? Is there a constitutionally protected

right to shelter that an individual in British Columbia can rely upon?

[2:15 p.m.]

Hon. N. Sharma: I'm happy to just state on the record the state of the law as it exists right now

with respect to this issue.

Right now, in Canada, there's no freestanding constitutional right to shelter under

section 7, but the courts have considered

section 7 rights under this issue, and a

blanket prohibition on temporary overnight sheltering in public parks triggers a

section

7 analysis.

When the number of unhoused people exceeds the number of available shelter beds, the

shelter beds must be accessible and those persons experiencing homelessness must be

eligible to access those spaces. This is where Charter rights are implicated in this

analysis.

M. de Jong: Thank you. That's helpful.

Let's now go back to a scenario in which the provisions of clause 1, what would be

the new

section 274.1 of the Community Charter, come into play. We are now in the

Supreme Court of B.C. courtroom.

A municipality has come along and is bringing an application seeking injunctive relief

as it relates to an encampment. For reasons that the Attorney has alluded to, if they

wish their application to be considered and to have some prospect of succeeding, the

state of the jurisprudence is such that they would be well advised to call evidence

or present evidence about the number of available shelter beds. They are, further,

to be guided by the provisions of this clause, which sets out what constitutes a reasonable

shelter.

Where do they get that information from? I come back to the point the Attorney made

earlier about where the constitutional responsibility for providing the shelter beds

lies. How are they to present that evidence that they require? They're not responsible,

and they don't have it.

[2:20 p.m.]

Hon. N. Sharma: The best practice and what we ask of municipalities in an encampment is to work in

partnership. So work with the provincial government, B.C. Housing, outreach in B.C.

Housing and, also, any community service providers that are there.

In the situation of an encampment…. If the best practice is to do that, the information

and assessment done with that encampment is: what is the available alternative shelter

space for that encampment? I mentioned the MOU with Prince George. The work that was

done on the ground was to assess what was needed for those people to move to alternate

shelter.

We're at that stage, when they're seeking an injunction…. If the municipality has

followed the best practice, which we are asking them to do, they would have the information

that the member asked for in terms of what the exact availability of alternative shelter

in that area would be.

In a situation where they haven't, which is not a best practice and following that

procedure of partnership and working with it, and they were seeking an injunction

to enforce a bylaw…. We think it's right that a court would ask them, quite rightly:

"Well, can you show us where you've done the analysis of what alternative shelter

space is available that meets the basic needs of this population?"

M. de Jong: Here's my concern and, I think, the concern that the Attorney and the Premier and

the Housing Minister are hearing from others, municipalities…. I learned the other

day about the concerns of the leadership council and other agencies.

That is that we're employing a…. The government is purporting to employ a legal mechanism

to impose an obligation on municipalities, in a practical way, that reveals itself

at a difficult time, when a municipality is bringing an application.

I dare say. Any municipality I have run across doesn't want to be in court. They go

to court as a last resort, when they believe there are general public safety issues

of concern. We've seen some examples of that in the, in some cases, terrible things

that are happening within an encampment, the vulnerability of women within an encampment.

It is a last resort.

The concern and the suspicion are that the provincial government is using this as

a mechanism to say to municipalities, "Here are the criteria you need to address,"

when, as we've just had confirmed by the Attorney, the constitutional responsibility

for addressing these needs rests with the province.

There is that level of concern. I'll come back to that in a moment, with respect to

the discussions that, apparently, are going to take place with interested parties,

municipalities and the leadership council, in the months ahead. I just had one or

two other specific questions.

[2:25 p.m.]

Encampment — at least I'm not aware — does not appear to be a defined term. Is that

correct, and if it is correct, what constitutes an encampment? Do two people in a

tent constitute an encampment? Is there a minimal threshold that must be met before

we have an "encampment"?

I don't think it's a defined term. Maybe the Attorney can clarify that.

Hon. N. Sharma: In this particular provision, a definition of "encampment" is not necessary. What

we're dealing with is when a municipality has themselves determined that they need

to decamp and enforce a provision of a bylaw and, in that scenario, go before the

court and, as we talked about at length already, undertake to enforce that through

an injunction. It's going to be driven that way.

That's why a definition of "encampment" is not necessary for this provision.

[The bells were rung.]

The Chair: Members, a division has been called in the main chamber, so we will recess until after

the vote.

The committee recessed from 2:27 p.m. to 2:56 p.m.

[R. Leonard in the chair.]

The Chair: I call the committee back to order.

Hon. N. Sharma: I move that the committee rise, report progress and ask leave to sit again.

Motion approved.

The committee rose at 2:56 p.m.

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