The cruel, pointless belief that we can address a social crisis with enforcement

Scrambling to pack up as bylaw gets ready to close in

In days gone by, I'd be out talking to people living homeless and hearing mostly about police. These days, it's all about City of Victoria bylaw enforcement.

The city's bylaw department and many new bylaw hires have been given expansive new powers to seize people's stuff. The Streets and Traffic Bylaw lays out all the places where impoverished people aren't allowed to sit, stand or lie down, but it's the 2023 Property in Custody Bylaw that really gives the muscle.

I'd like to share some sections from these bylaws, in hopes that someone who understands civic law might have ideas on how to push back against them. It's hard to believe that they could possibly be legal given the grand misery they are causing to people, none of whom have the capacity or the knowledge to stand up against them. As noted by one young fellow out there I spoke with, Michael, "maybe one per cent of the people out here know their rights. That doesn't leave people with enough courage to stand up to police or bylaw."

The Streets and Traffic Bylaw lays the groundwork with a number of sections prohibiting people from being on sidewalks, medians and boulevards in the downtown area between the hours of 8 a.m. and 9 p.m. (Of course, people with money sipping a latte or having a hearty meal at a sidewalk cafe are exempted.)

Section 102 (1):

- A person must not place, or cause or permit to be placed or left, any of the following items so as to occupy, obstruct, or cause a nuisance on any part of a street, sidewalk or other public place: 

(i) any property or thing, or

(ii) a sign, as defined in the Sign Bylaw.

- A person must not place or cause or permit to be placed on, above or in a street, sidewalk, or other public place waste matter of any description, including without limitation, litter, rubbish, garbage, offal, filth, or any noxious, offensive or unwholesome substance or matter;

102 (3)

The Director of Engineering, a person authorized by the Director of Engineering, a bylaw officer, or a police officer, may remove, seize, and impound or cause the removal, seizure or impoundment of any property or thing that unlawfully occupies, or has been unlawfully placed or left in, a street, sidewalk or public place, and such item will be dealt with in accordance with the Property in Custody Bylaw

103 (1)

Without limiting the generality of section 101, a person must not obstruct a sidewalk by squatting, kneeling, sitting, or lying down on it between the hours of 8:00 a.m. and 9:00 p.m. of the same day if the sidewalk is located at any of the following locations: (a) (b) (2) in the area that is bounded by Cook, Pembroke, Store, Wharf, Government, Superior and Southgate Streets; abutting or adjacent to those parts of Cook, Pembroke, Store, Wharf, Government, Superior and Southgate Streets that form the boundary of the area referred to in paragraph (a).

103A 

(2) A person must not place, construct, erect or cause or permit to be placed, constructed or erected any structure, tent, object or thing that encroaches on, obstructs, or otherwise occupies a boulevard or median without first obtaining written permission from the Director of Engineering.

(4) The Director of Engineering, a person authorized by the Director of Engineering, a Bylaw Officer, or a member of a police force, on behalf of the City may cause the removal, detention or impounding of any structure, tent, object or thing found on a boulevard or median in contravention of this section, and the portable sign will be dealt with in accordance with the Property in Custody Bylaw.

(5) Between sunset of one day and sunrise on the next day, a person must not: (a)  (b) occupy a median by squatting, kneeling, sitting, or lying down on it;  stand or walk on a median except while lawfully crossing a street.

So that's the bylaw that provides the foundation for enforcement. In 2023, the City brought in the Property in Custody Bylaw, which is the one that gives power to bylaw officers to seize people's goods if they're found anywhere in the no-go zones and hours defined by the Streets and Traffic bylaw.

In theory, seized goods that aren't deemed "rubbish" are to be held for 14 days (it used to be 30 days) in a mysterious location that the City won't disclose. Word on the street is that between the difficulty of the process to get something back, the lack of a proper chain of custody, and the distance that a person without a car is expected to travel to get their goods back from wherever they're held essentially means nobody gets anything back. 

Here's what is required to get something back. Please take a walk down 900-block Pandora and try to imagine who among the sad, sick people stranded out there could make this happen:

Claiming and Disposal of Retained Property

5 (1) (2) (3) (4) Within 14 days of the date of removal, seizure or impounding, owners of retained property may attend at the property return facility to claim and request the return of the retained property, after which the City will endeavor to return the retained property within 48 hours.

Any retained property that is not claimed pursuant to subsection (1) may be immediately and permanently disposed of without notice or compensation to any person. Permanent disposal of unclaimed retained property may be made to a landfill, recycling facility, or other waste disposal facility or, with the permission of the Director, to a registered charity. Notwithstanding subsection (1), the Director may provide any retained property to the police if they believe that such property may be stolen, may have been used in commission of a crime, or may be misplaced or lost.

6    (1) (2) (3) (4) For each removal, seizure or impounding of any property or thing under a City bylaw, the owner of that property or thing must pay the fee prescribed in Schedule A to the City.  Retained property which has been seized shall not be released without payment of the applicable fee. 

(The fee is waived for a first seizure in any given year, $50 for a second, $100 for a third.)

Notwithstanding subsections (1) and (2), no fee is payable for return of retained property to a person experiencing homelessness where in the opinion of the Director (of bylaw services, or authorized delegate) such item is a life-supporting item such as a tent, sleeping bag, medication, medical device, cell phone, personal identification, or waterproof or winter apparel.  

6 (5) 6 Persons claiming retained property must, as a condition of claiming such property, execute a compliance agreement in a form prescribed by the Director stating that the claiming party will not repeat the unlawful behaviour.

7 - Nothing in this Bylaw shall be construed to impose a private law duty of care on any City employee, agent of the City, or police officer with regard to the removal, seizure, impounding, return, disposal or donation of any property or thing pursuant to this Bylaw or any related statutory authority. No Liability 8 No City employee, agent of the City, or police officer shall be liable to any person or entity for the application of this Bylaw.

Perhaps more importantly than any of that, the definition of rubbish under the bylaw is so broad that it's likely most of the 10 tonnes (!) of stuff being seized every week by the city is immediately garbaged. Whether the person who actually owns it thinks that it's rubbish - well, that makes no difference. It's totally the bylaw officer's decision. 

4) Any property or thing that is removed, seized, or impounded may be immediately and permanently disposed of without notice or compensation to any person if it is rubbish, hazardous material, or a bulky item.

Definition of rubbish:

includes any item that, in the opinion of a City employee: appears to be of no resale value, or negligible resale value, is damaged or soiled to the extent that it appears it cannot reasonably be used for its intended purpose, was manufactured for single use, appears to contain an unidentifiable, noxious, or hazardous substance,  is perishable,  was manufactured for the purpose of packaging a product or thing, including food or beverage, or was part of a cart, bicycle, machine, or other similar item, including wiring and other small parts;

Definition of bulky item: 

includes large, heavy, unwieldy or irregularly shaped items, such as furniture, sheet plywood, lumber, heaters, fencing, structures, and includes a shelter, unless such shelter is lawfully temporarily placed, secured, erected, used or maintained by a person experiencing homelessness in accordance with Parks Regulation Bylaw;

Now let's say you're not one of those people who cares much for human rights for people living homeless, and you just want your damn streets to not look like such a mess. I do get that, because the truth of the current situation is that it's a lose-lose for all of us. 

But here's the rub: Enforcement only works if there's someplace for people to go. If you want to force people from building messy structures and keeping all their worldly possessions with them on the sidewalks of our downtown, then there needs to be some other place where they can relocate. 

I'm definitely seeing people relocating to try to escape the seizures, which are killing them (sometimes literally - I heard tell of a fellow who died of an asthma attack after he couldn't get into his taped-off tent to get his inhaler). But they're just relocating to other people's neighbourhoods. It's not like there's some magical housing where they can all disappear into if we just keep chasing them hard enough. 

So yeah, the seizures are cruel, almost certainly illegal if tested in a court of law, and completely pointless to boot. If the baton-carrying bylaw teams in their anti-stab vests are ever successful in clearing out the downtown core, that just means that pockets of visible homelessness are building up elsewhere. How is that a win for anyone?

What to do about it? It's absolutely essential to identify someplace where it's OK to be homeless. That doesn't mean accepting homelessness; a wealthy country like ours should never do that. But there is just nothing to be gained by this cruel and pointless pursuit of people who are barely surviving and now having to endure the added misery of running from bylaw twice a day, and the government-sanctioned theft of their possessions.

Some of the people living on our streets have been outside for years. It's going to take a lot more services, support and housing than we currently have to address the complexities of their highly individual situations. 

But there is no question that there is nowhere near enough low-income housing for the people who need it. If we don't want homelessness in the downtown core, OK, that can be arranged. But not without designating some other area where people without housing can exist in peace.

Shoving a few of them into "supportive housing" for a few weeks under prison-style rules won't do it. Nor will this insubstantial pipe dream of involuntary treatment, which not only lacks any kind of evidence base but has no plan that I'm aware of for housing people post-treatment, or the massive expansion in social supports that would be needed to ensure all the disabilities and traumas underneath people's substance use are addressed as part of their treatment. (And if we were actually committed to creating such a system, why wouldn't we just make it voluntary?)

Surely no one still believes that homelessness is a problem of wilful people determined to live "free and easy" on the street so they don't have to work for a living. If anyone still thinks that, I'd invite them to come walking with me one day and meet some of the people who are stuck out there. They break my heart with their stories of trying so hard, in many cases since they were children.

Or maybe just wait until a day not far down the line when bylaw chases people into your neighbourhood. Then you can ask them yourself.