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. 

Lock 'em up: Everything old is new again

Image by Gerd Altmann from Pixabay

And just like that, institutionalization is back. 

My head is in a whirl. After untold hours of my early journalism career spent documenting the hard-won battle to banish BC's bad old institutions rife with abuse and civil-liberties violations, the former executive director of the BC Civil Liberties Association is now the premier of the province and pitching involuntary care like it's a fresh new idea whose time has come. 

“This announcement is the beginning of a new phase of our response to the addiction crisis," said Premier David Eby in a statement released yesterday in which government outlined how British Columbians could now be held against their will for mental illness, drug use or brain injury if they are making their communities feel "unsafe."

"We’re going to respond to people struggling like any family member would. We are taking action to get them the care they need to keep them safe, and in doing so, keep our communities safe, too," said Eby. 

If it was possible to believe that a return to institutionalization would actually play out that way, maybe it wouldn't feel so damn sad to have us rolling the clock back 50 years. History tells us otherwise, however. The stories of suffering that journalists all heard in those years leading up to the closure of BC's big institutions were absolute heart-wrenchers.

The whole reason we abandoned institutionalization back in the 1980s is because it's a horrible idea that doesn't work, except as a means to shield "normal" people from realities they'd rather not have to think about. 

Like what happens to people with severe mental illness when they don't get help and support. Or, in this latest incarnation of "secure care" (aka imprisonment), the tremendous damage a product can have on its customers in a market totally controlled by the sellers/manufacturers and abandoned by the regulators.

Instead of trying to fix any of that, it appears we're just going to lock people up again so we don't have to see our policy failures in their shattered faces.

As researcher Gillian Kolla noted in The Tyee last week, B.C. is jumping to institutionalization without even trying to see how things might go if we actually had spaces in voluntary, trauma-informed, evidence-based treatment programs for all the people who are desperate for such services. Research and experiences all over the world - much of it right here in BC - have demonstrated time and again that institutionalization does not make people well, and in fact puts them at risk of even more harm.

Sure, temporary secure care might have a role in helping to manage some aspects of the social crisis unfolding in all of our communities. But it's meant to be a last resort, after all other attempts to help a person have failed. Please don't let anyone tell you that the people we're seeing spilling out onto our streets have had every social intervention provided to them already. That is so very far from the truth.

Our current social crises are in fact a result of decades of social needs gone unmet. We haven't even begun to try hard to help people with mental illness, substance disorders and brain injuries. Virtually all of the services we've got are patchwork, disorganized, uncoordinated, short-term and often unevaluated. BC doesn't even have an overarching social policy.

We have orchestrated a disaster with our indifference - and now we're going to "fix it" by finding new ways to hold people against their will? Not a chance. 

As Kolla also pointed out, BC does have the power right now to hold people against their will under the Mental Health Act. If someone is deemed a danger to themselves or others, they can be held. (And that definition includes threats and anti-social behaviour, as my uncle Joseph McCorkell found out back in the 1990s when he fought his own incarceration in the years before Riverview Psychiatric Hospital was fully phased out.)

How low will be the bar be for this new initiative? No details yet, but I'm going to take a wild guess that people who are impoverished, traumatized, unable to maintain paid work and with a lifetime of struggle and hardship will be the first ones in. Interesting as well that these new secure facilities are mostly going to be sited at prisons, not hospitals. 

To see brain injury thrown into the mix this time out just adds to the wrongness. Someone suffers a serious injury that causes behavioural changes that unravels a life, and our government decides the best course of action is to make it really hard for them to get any help, and then lock them up indefinitely when they inevitably fail to recover. 

As soon as I read that Vancouver story earlier this month about one person getting their hand severed by a stranger with a machete in a mental-health crisis and another person dying, I knew where this was going, especially mere weeks before a provincial election. 

Eby has been hinting at a return to institutionalization since 2022, when he was angling to replace John Horgan. BC Conservative leader John Rustad has made institutionalization part of his party's platform.  I suspect both will get plenty of support from the electorate for their positions, because everyone I know is sickened and fed up with the social disasters unfolding on their city streets. 

But the answer to the tragedies we're seeing in the hearts of our communities is not to lock people up. Where is the announcement of preventive measures to slow the flow of people onto our streets? Where are the services that would catch people early in their crisis? Why are we embracing the harshest "solution" first? 

I wonder if I will live long enough to be throwing out a bitter "I told you so" in 15 or 20 years when we are back to trying to undo the damage of this deeply sad return to institutionalization. People, we are making a mistake. 

Life sentence for victims of intimate partner violence

Sharing an opinion piece I wrote this week that was published today in the Times Colonist, sparked by the sentencing of a serial assaulter of women. 

Tyler Mark Denniston is going to jail. And on the one hand, that’s a win in the world of intimate partner violence, where 80 per cent of the crimes aren’t even reported to police and a conviction is far from certain.

But the impact of the Greater Victoria man’s beatings will be felt by the women he attacked for so much longer than he’ll be in jail. That’s not just about having to live with the trauma - it’s about brain injury. 

People experiencing intimate partner violence end up with a brain injury (IPV-BI) from that violence as frequently as 90 per cent of the time.  A majority of them, in fact, end up with multiple brain injuries, because intimate partner violence is rarely something that only happens once.

Denniston was given a four-year jail term this week for attacking his then-girlfriend in 2018 and 2019. But he has a history of major assaults of previous girlfriends before that, all of a type most associated with brain injury. He strangles his intimate partners. Hits them in the head. Smashes their heads into furniture.

One of his victims said in an impact statement at Denniston’s trial that since her abuse, she has become someone she doesn’t recognize. She has trouble falling asleep, has terrible nightmares when she does, and is experiencing periods of explosive anger, panic and suicidal thoughts.

Whether she knows it or not, that could be because she is now living with a brain injury on top of all the trauma she has endured.

But if she’s like the vast majority of victims of intimate partner violence, her brain injury will go undiagnosed and unsupported. IPV-BI is such a newly emerging concept that even victims themselves don’t think about whether they’ve incurred a brain injury. The impact of their untreated brain injury can put them at risk of losing their job, their housing, their kids and so much more, and they won’t even know why.

It seems unbelievable that a woman who is beaten by her partner violently enough to incur a brain injury could suddenly find herself on the precipice of profound poverty, homelessness, child-protection involvement and social isolation as a result of the assault. Surely services are there to support her, or she could move to the head of the line for housing and supports to keep her safe?

Unfortunately, there are no designated services at any level – in BC or Canada – specifically for people experiencing IPV-BI. While some bright spots are emerging within Island Health around piloting occupational therapy assessments as a means of helping victims get past diagnosis barriers, that work is in its earliest days.

More broadly, there are no guidelines for health professionals to follow to ascertain IPV-BI-caused injury. No overarching plan. No targeted funding. No consensus as to what should be done, or data being collected.

And if work on all of that got going tomorrow, there are other hurdles. Start with the fact that only one in five women beaten by their partners even report the assault to police, rendering most victims of IPV-BI completely invisible in our systems.

Add in the stigma, lack of witnesses and fear factor for the victim around doing anything that might spark a whole other assault, and it’s not surprising that the majority of women aren’t even going to visit the doctor about that hit to the head they took, or after they’ve regained consciousness from being strangled.

And even when they do seek medical attention, there are no provincially funded community services for them unless their concussion shows up on an MRI scan. Which is not often the case, because it’s an injury that doesn’t show up well on an MRI, and is much better diagnosed through its impact on a woman’s ability to function.

At any rate, unless a woman can pay for that assessment of her functioning, and the services she needs as a result of what’s discovered, she’s never going to get that support anyway. It was nice to see IPV-BI get some solid mentions last fall in the BC government’s Safe and Supported action plan against gender-based violence, but we are so badly overdue for some genuine action on this appalling state of affairs.

So yes, Tyler Mark Denniston is going to jail. But he’ll be out in not much more than a couple of years if he behaves himself, and his life will carry on pretty much the way it always has. His victims, on the other hand, have been handed a life sentence.

Jody Paterson is a lobbyist and advocate on the issue of intimate partner violence and brain injury on behalf of The Cridge Centre for the Family and the Board Voice Society of BC.