Municipalities lack powers of enforcement

In recent weeks, the municipal councils in Saanich and Nanaimo have petitioned the courts for a judicial order to remove tent cities. The question many are asking is: Why is a court proceeding necessary? Both municipalities have bylaws dealing with infractions such as trespass and creating a nuisance. Both also have bylaw enforcement officers. Why get the courts involved? Isn’t this a waste of taxpayers’ money?

In fact, municipalities do have some recourse. They can issue fines or eviction orders. But here’s where it gets tricky.

If those residents refuse to pay the fine or obey the eviction order — and this is almost invariably the case — local governments lack the means to enforce their orders.

Municipal bylaw officers are limited in the measures they can employ. They cannot make an arrest or physically remove a resident. They cannot take down a tent or physically bar an entryway.

In practice, local governments have only two options if tent-city residents refuse to comply. They can ask for a criminal proceeding, but the attorney general’s office, which must approve a criminal prosecution, is unlikely to agree.

The reasons are partly political and partly constitutional. The prospect of hauling homeless people into court on criminal grounds is not appealing. But in addition, the courts often view tent cities as, in part, political protests. And those are constitutionally protected.

The other option is to file a civil proceeding, which is the route both Saanich and Nanaimo took. But here there is another complicating factor.

In a civil suit, both sides are considered equal before the law until a resolution is made. For that reason, the police are unwilling to move before the case is decided. They do not want to appear biased.

As before, there is also a political aspect. Most lawenforcement agencies, understandably, have no desire to descend in force on an encampment of homeless people.

They are aware that many of these residents are well informed of their rights, and might launch a suit against the police for false arrest.

What about an order to vacate by the fire marshal, on grounds of public safety? But fire marshals, like municipalities, have no ultimate authority to enforce their orders. A court order is required.

Certainly it would strengthen a municipality’s case if a tent city had been deemed unsafe, on risk-of-fire or health-related grounds. But in court, that fact would be weighed against other considerations, such as the right to protest and lack of alternative housing.

Some judges have criticized what they consider an unduly high bar in ejecting illegal occupants or protesters. But they are in a minority. Case law is pretty well settled.

If a municipality wants to evict the residents of a tent city, it must gain a court enforcement order before the police will move.

It is difficult to know how to balance this issue. After the encampment adjacent to the Victoria courthouse was removed, the province spent $3 million on cleanup (the tent city was on provincial land).

Saanich staff estimate the encampment in Regina Park near Uptown will cost local taxpayers at least $950,000.

There is also the burden on residents who live nearby. Noise, discarded needles and poor hygiene are threats to quality of life.

Clearly, this is an evolving social challenge. A wealthy society such as ours owes homeless people a proper roof over their head. Yet it is disturbing to learn that the governing authorities closest to the scene have been disempowered to such a degree.

We like to believe that municipal councils are responsive to the people who elect them. But when they cannot enforce powers lawfully given them, the credibility of local government is weakened.