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BC Supreme Court decision on Moccasin Flats closure delayed until after New Year

‘It is a precedent that is dangerous for people who are homeless’
Prince George courthouse. (via John Deacon, Courthouse Co.)

A decision regarding the City of Prince George’s petition to evict the remaining residents and close down the encampment on Lower Patricia Boulevard known as Moccasin Flats won’t be known until the New Year.

Justice Simon R. Coval is allowing for a deadline of Jan. 12 for further submissions relating to late-filed affidavit from Amelia Merrick stating she contacted the Knights Inn and was told there was a waiting list of 41 people seeking services and no available rooms.

The affidavit impacts the city’s position that it has satisfied the conditions of a previous Supreme Court ruling from Justice Hinkson in October by providing the occupants of the encampment with housing.

On the third day of the proceedings, the court heard further legal arguments from Melanie Begalka,a lawyer from the First Nations Justice Council, representing the respondents, before the city offered a rebuttal.

Begalka argued that not all occupants had been given suitable shelter and if there is enough suitable shelter in the city for those remaining at the encampment to be housed, that is only because of the “illegal enforcement activities of the city and should not be granted on that basis”.

She was referring to actions taken on Nov. 17 when the city dismantled structures at the encampment and moved occupants into housing at the Knights Inn.

Belgalka argued that the court must look at all of the circumstances regarding homelessness in the city before issuing an injunction.

“Looking at the whole context, and I think the risk here is that if this injunction is granted it would lead to incentivize Prince George and other municipalities in this situation to act first and beg forgiveness later,” said Begalka.

“Beyond this specific injunction, this would set a very terrible precedent, in my submissions, if you don’t want a homeless encampment in your city go ahead and dismantle it and then come to court and say ‘it is no longer a problem so can we have our order.' That can’t be what the court endorses here it is a precedent that is dangerous for people who are homeless.”

She also noted that one of the broader considerations is that most of the homeless individuals are Indigenous and that matters to the court in this context.

“We have a collective consciousness that it matters and how we as a court and a country treat Indigenous people must be considered,” said Begalka, asking the court not to gloss over what is being asked.  “This court is being asked to displace Indigenous people from their land.”

Justice Coval asked Begalka once the Knights Inn was opened what should have happened to those living at the encampment and whether or not she thought the city needed to come back to court before taking action.

“If there is going to be an order that Lower Patricia can be closed then once everyone is housed there has to be a clear process for identifying who is there and knowing when they have been housed,” said Begalka, adding that because there was no order outlining that process the city needed to come back to court.

City says its intentions were clear

In her rebuttal, Jordan McKay, lawyer for the City of Prince George, argued that the city was not taking enforcement action.

She said it was a mischaracterization to say the city had bulldozed the encampment when it was a process of getting people into housing.

“It is our position that the intention behind the removal was clear, that the tents and structures were marked as abandoned, and city parks staff, and not bylaw officers, began removing those items and it is city parks staff’s job to maintain the parks within the city,” said McKay.

“By removing items that they were told were abandoned, park staff were acting within their duty to maintain parks and not as enforcement officers, which they are not.”

She said it is difficult to determine who is an occupant of Lower Patricia if they are not consistently at the encampment and argued the previous ruling did not put forward that any unhoused person could store all of their belongings at Lower Patricia and come back to access them.

“It isn’t a fair characterization to say that because they have stuff there, they are occupants there because stuff gets left everywhere by everybody.”

She also argued that the city made reasonable efforts to determine what property was abandoned and that application before the court is not an application regarding what happened on Nov. 17, but that Nov. 17 instead speaks to the number of occupants remaining at the encampment.

Further legal actions proceeding

Begalka had argued that the city’s petition should be dismissed because the city is also currently appealing the previous Hinkson ruling from October, effectively taking two separate actions to achieve the same thing.

“We submit this is not the case,” said McKay, adding the city is before the court because it believes the circumstances have changed and it has now met the requirements for housing outlined in the Hinkson ruling.

“The closing of the encampment is now permissible under those conditions.”

She said the city is not disputing any aspects of that order and the pending appeal is a different issue entirely.

“The appeal is primarily focused on what the city believes are legal errors in what contradicts the established case law and the encampment of rehoused issue is a significant issue in the province such that it is important for clarity on the law."

She said the appeal is important in its own right and will be proceeding regardless of the status of the application currently before the court.

Begalka and her co-counsel Darlene Kavka will also be pursuing further legal actions. 

In her previous arguments, Begalka asked the court to consider the constitutional rights of the homeless to shelter overnight. 

She confirmed to the court that on Dec. 6, they put the Attorney General on notice that they are going to be raising whether the enforcement of the zoning bylaws were in violation of Section 7 of the Charter of Rights and Freedoms, which is the right to life, liberty and the security of the person.

The third day of proceedings concluded with Kavka indulging the court to thank volunteers who helped connect counsel with the unhoused residents of Lower Patricia.

“But most of all I wish to thank our clients for permitting us the honour of bringing their truth before the eyes of this court and the public at large. We see that you exist.”