A lawsuit against the City of Victoria for restricting outdoor sheltering in most city parks has been adjourned as the city works to pass amendments to the sheltering bylaw, which raises some "serious concerns" from the plaintiffs and their legal counsel.
In October, Krystle Fox, Kimberly Scheu and Shea Smith filed a petition to the Supreme Court of B.C., saying the City of Victoria's decision to ban overnight sheltering at Victoria West Park and Irving Park failed to proportionally balance their rights under the Charter of Rights and Freedoms.
The case was to go to a hearing the week of April 14, however, as the bylaw amendments make their way through the council process, the hearing was adjourned. The two plaintiffs, Krystle Fox and Kimberly Scheu – members of Victoria's unhoused community – were offered the opportunity to provide feedback and submissions on the proposed amendments.
At the April 17 meeting, council voted in favour of the bylaw amendments, which the plaintiffs contend fail to consider whether its decisions left sufficient suitable outdoor space to accommodate the number of people in need of shelter in the city.
The bylaw amendments leave 34 parks that people can shelter in, which excludes both Irving and Victoria West parks, which are at the centre of the lawsuit.
When the lawsuit was filed in 2024, the three plaintiffs – one of which, Shea Smith, has since died – argued that many of Victoria's parks are far from amenities and Irving and Victoria West provided a safer community compared to the streets, while also being in proximity to downtown amenities like clean water and washroom facilities.
"By our calculations, the proposed amendments would leave, at most, 103 outdoor spaces suitable for sheltering in the entire City of Victoria. Even taking the numbers provided in the report at face value, this is far from enough," noted the submission to the court.
The 103 spots would have to accommodate the hundreds of people living unsheltered (at least 242 as of the 2023 Point in Time count), and of the 34 parks, only five have washroom facilities, three of which provide 24-hour access.
"There’s already so much stigma around being homeless. Acting like we can just “make do” without washrooms only makes it worse. It reinforces the idea that homeless people don’t deserve the same basic human needs as everyone else. Having access to a washroom isn’t a privilege; it’s a basic necessity," noted Fox's second affidavit.
The plaintiffs also found issues around how the bylaw amendment defined "person experiencing homelessness” and "temporary shelter." According to the new amendment, a person experiencing homelessness is defined as "a person who does not have a fixed address, a predictable safe residence to return to on a daily basis, and access to indoor shelter space or housing,” while a temporary shelter is said to be "used by a person experiencing homelessness to protect themselves from the elements and the risk of hypothermia."
The plaintiffs said the new definitions “would exclude persons who can utilize accessible shelters or housing but choose to shelter in a park instead”, as well as permitting temporary sheltering only for “the purpose of sheltering from the elements to prevent the risk of hypothermia."
"I can’t stay at most of the shelters in Victoria. As a survivor of domestic violence, I do not feel safe staying at co-ed facilities. My anxiety – which Graves’ disease makes much worse – is triggered when I don’t feel safe or have a door I can lock and be alone. Most shelters in Victoria are co-ed or men-only. At the same time, because of my condition, I can’t handle places with stairs, or other mobility barriers. This leaves me with few options. In fact, other than Sandy Merriman, there are no shelters I can realistically stay at," noted Scheu's affidavit.
Based on their criticisms of the bylaw amendments, the plaintiffs made a number of recommendations for the city to consider. The first is to provide access to sufficient outdoor space, notably at least 200 spaces in parks with adequate access to washrooms and proximity to the downtown core. In addition, they ask for more options for daytime sheltering, as well as clear limits on bylaw enforcement, including a notice before belongings are seized, and compensation for the loss and destruction of belongings seized under the bylaw.
"No one is arguing that sheltering in parks is an acceptable, long-term solution to the homelessness crisis. The reality is, however, that as homelessness continues to rise, parks will continue to serve as housing in the absence of better alternatives. While the city did not choose this role, it cannot ignore the responsibilities that come along with it," noted the submissions.
