When Should Publicly Owned Land Be Considered Private in Homeless Encampment Cases? A Critique of Recent Developments in BC

Two recent decisions of the Chief Justice of the BC Supreme Court, Evans (2016) and Brett (2020), introduced a dangerous new idea into homeless encampment jurisprudence: that the purportedly “private” character of encampment sites determines that defendants’ Charter rights are not engaged, and that government landowners are entitled to interlocutory injunctions evicting homeless encampments from publicly owned land. These decisions distort the established test for engaging section 2(b) of the Charter, collapsing a nuanced spectrum of government-owned property into a formalistic dichotomy in which any state-owned property that is not formally open to the public as of right is “private property” for civil and constitutional purposes. Moreover, they inappropriately extend the section 2(b) “public arena” inquiry to section 7, ignoring the established test for engagement of the right to life, liberty, and security of the person. These decisions drop the already low bar for granting interlocutory injunctions to evict homeless encampments from publicly owned land onto the ground, further tilting the homeless encampment litigation playing field against some of society’s most marginalized and vulnerable members. They should not be followed.