Keith Gerein: Can A Court End The Inertia Around Edmonton Encampments?

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Published Sep 05, 2023 • Last updated 34 minutes ago • 4 minute read

Winter encampment A homeless encampment is seen in central Edmonton on Nov. 20, 2022. Photo by Greg Southam /Postmedia, file

Almost all of us, I think, can support the idea of housing as a human right.

The details are where things get a little stickier.

What constitutes housing? What obligation does government have to provide it? What choice should individuals be afforded when government fails?

As it turns out, a lawsuit launched against the City of Edmonton may be what forces the emergence of some more definitive answers, at least when it comes to the city’s ability to dismantle encampments.

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The lawsuit in question, announced Thursday by the Coalition for Justice and Human Rights (CJHR), has apparently kicked up quite a hornet’s nest behind the scenes at city hall — perhaps the legislature as well — though there shouldn’t have been much surprise.

Ever since an Ontario court ruled early this year that it was unconstitutional for a municipality to remove an encampment when there is lack of alternative shelter space, a similar legal effort here in Alberta seemed inevitable. (There is also legal precedent from British Columbia.)

And it’s not exactly like things are going well on Edmonton’s streets right now. Indeed, the city seems to be on the crest of a near-perfect storm of misery with its unhoused residents.

Homelessness numbers are as high as they’ve been in years. Drug poisonings are setting records. Shelters are already almost at capacity, which is unusual for summer months. Complaints about encampments are up 50 per cent from last year, which suggests there are far more tent communities in far more places, or else public tolerance for them has become increasingly frayed.

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Moreover, winter is getting ready to blow into town, which heightens additional risks such as exposure deaths, frostbite-related amputations, shigella infections and outbreaks of COVID-19.

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In such context, it might seem as if the plaintiffs and their lawyers are being more than a little reckless, if not outright disruptive to well-intentioned city efforts to remove people from an unhealthy situation that is also causing rampant conflict with surrounding communities.

Yet here is where we get to one of those sticky questions, because notions of relative safety are more complex than they might appear.

For one thing, we’ve heard many people actually prefer to take their chances in a river valley tent right now than an emergency shelter, where there have been complaints about a lack of security against loss of property, aggressive behaviour and gangs that prey on this population. Some say many of the shelter operators also insist on a level of sobriety that precludes many potential clients from regularly using them.

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Then there’s the larger issue of shelter and housing supply. Yes, despite the concerns I noted, the shelters are close to full now, but the plaintiffs allege a disparity has festered for at least a couple of years between the number of unhoused residents and the number of available beds.

Until that’s resolved, they argue, encampment evictions put people in peril because they frequently have nowhere else to go.

In this sense, the court action comes across not so much as a desperate response to a desperate situation — though that may draw more attention and urgency to the case — but rather an attempt to finally provoke some movement on a crisis that has too long wallowed in inertia and political stalemate. Should the Alberta court echo the rulings in Ontario and B.C. by restricting camp removals, that may serve as the catalyst for public officials to re-evaluate their strategy.

Still, there is a question as to whether the lawsuit targets the correct public officials.

On that front, the plaintiffs argue they have taken on the city because that’s who is responsible for a less-than-compassionate eviction policy and other decisions that have hurt vulnerable people. This includes, in their view, a refusal to enable small managed encampments — perhaps run by Indigenous groups or other agencies — and an unwillingness to reallocate more funding to housing, shelters and social services that would reduce the need for camps. The court case may in fact serve as a pseudo trial on the adequacy of the city’s response.

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That said, I can understand why civic leaders might feel miffed that the lawsuit is aimed at the order of government that has offered the most effort and empathy toward the problem. They may also feel trapped in an impossible position, given that municipal lawyers have warned that enabling or sanctioning encampments could make the city liable for any harms that occur.

As well, it seems awkward to have a legal action against the city somewhat tied to shelter spaces, which is primarily the responsibility of the provincial government. If the court rules that the city can’t touch encampments until shelter vacancies improve, is it the city or the province that has to deal with that?

Likewise, most other interventions that could make a lasting difference — justice reforms, housing, health care, etc . — fall under the jurisdiction of those working at the legislature or in Ottawa. In that sense, the lawsuit feels a bit misdirected.

(Of note, the day after the lawsuit was revealed, the UCP government was ready with its own announcement of more provincially funded shelter spaces this winter — an increase to 1,727 from 1,202, with some of the new beds likely to become year-round spaces. Though that still feels well short of what’s needed.)

From their headquarters at the Edmonton courthouse, the justices of the Court of King’s Bench have had a regular window into the city’s worsening homelessness issue. We can only guess what impression that has made on them, and on the one who will be selected to rule on this case.

But with our various governments seemingly unwilling or unable to make appreciable headway, we may be at the point now where someone with a gavel is our best hope to end the paralysis.

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