The court has ruled against the City of Nanaimo, denying a request for enforcement of a fire safety order.
In the Supreme Court of B.C. in Nanaimo on Monday, Justice Ronald Skolrood decided that while the fire order must be complied with, a police order is premature.
BREAKING: Judge rules against the City of #Nanaimo. Does NOT grant their request for a police enforcement. Says fire order must be complied but police order premature.
— Nicholas M Pescod (@npescod) August 13, 2018
During his ruling, which was done through a teleconference call, Skolrood said an order authorizing the arrest of an individual for simply refusing to take down a tarp or for setting up a tent too close to another tent is “excessive.”
“The order sought takes on its face an attempt to in effect dismantle the tent city while its legal status remains undecided. In this sense, the application for a police enforcement clause is, in my view, premature,” he said, which immediately drew positive reaction in the courtroom.
Skolrood noted many of the occupants view the tarps as “essential” to their personal well-being and that in other tent city cases the municipality involved has worked with campers to provide alternative solutions as a replacement for tarps. He said while there have been discussions to that effect in Nanaimo’s case, it appeared to him that those discussions hadn’t let to results.
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Court expected to rule today on Discontent City fire safety order https://t.co/TuZOGHF3C8
— Nanaimo Bulletin (@NanaimoBulletin) August 13, 2018
Although Skolrood ruled in favour of Discontent City, he made it clear that the occupants must comply with the fire safety order and that their failure to do so would be a consideration in his future ruling on the city’s statutory injunction case against them.
“The occupants of the camp are required to comply with the order and the ongoing failure or refusal to do so is a factor that I will consider when determining the issues raised in the city’s petition,” he said.
In what could be viewed as a small victory for the city, Skolrood said he was concerned about the potential of individuals blocking access to the camp and ruled that police officers can arrest any individual who prevents officials from entering Discontent City for the purpose of carrying out a safety inspection.
“Police are authorized to arrest and abate any individual who the police have reasonable and probable grounds to believe is obstructing a fire safety official from entering the tent city camp for the purpose of carrying out safety inspections,” he said.
Skolrood’s ruling came after lawyers representing the city sought to obtain an enforcement order which would force Discontent City occupants to comply with the fire safety order.
The initial Supreme Court of British Columbia order, issued last month by Justice Ronald Skolrood, set out a number of conditions that must be met by occupants, including removing all tarps currently placed on all structures inside the campground and removing all combustible materials.
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Jarrett Plonka, one of the lawyers representing the city, said in court that Discontent City occupants have persistently failed to comply with the fire safety order. He said a police enforcement order is needed because the city’s fire chief has no power to enforce compliance.
“Even though the city’s fire inspector is designated as a peace officer under the fire services act, the city’s fire inspector has no official power … so in order to take any steps, any active steps, beyond issuing suggestions, a police enforcement clause is necessary,” Plonka said, adding that there is also evidence of weapons at Discontent City.
Plonka laid out a number of examples of how the occupants are violating the order beyond not removing tarps from the site.
“Broadly speaking, most people did not comply with the order. There are any of number of examples … beyond the tarps that we can point to,” he said, citing open flames, pallets laying around and tents in the bushes.
He said the occupants are aware of the conditions laid out in the fire safety order but chose not to comply.
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City of Nanaimo seeking court-ordered compliance of a fire safety order at Discontent City. #Nanaimo https://t.co/NfEiUJkwp0
— Nanaimo Bulletin (@NanaimoBulletin) August 13, 2018
Noah Ross, lawyer representing some occupants and organizers of Discontent City, told the court said there has been compliance to some degree, with occupants spacing their tents further apart.
“The residents are not [saying] that there has been total and complete compliance, they are disposing that there have been attempts to comply with the fire order,” he said.
Ross acknowledged that not all compliance has been met because the fire safety order contains language that is vague and unclear.
“What exactly is excessive combustible material? What does that even mean?” Ross asked the court, later adding that “the vagueness in multiple parts of the order needs to be addressed.”
Ross also expressed concerns with the language contained in the city’s application for a police enforcement order. He said the language suggests police could remove people from the camp because they are not in compliance with the fire safety order when the issue is around objects not in compliance.
There should be a delay to allow “what appear to be services from B.C. Housing to come online” Ross said, without elaborating on what those services are. He also suggested the order be delayed to allow for police and tent city occupants to work together on what the enforcement would look like.
Speaking after the ruling, Ross said he was pleased with the outcome reached by Skolrood.
“I think the order that is granted was reasonable,” he said, adding that it was unreasonable for homeless people to face arrest for simply having a tarp over a tent.
Ross said he expects the occupants to comply with the fire safety order and that there have been discussions with third-party agencies which could provide supplies to Discontent City, such as a tarps. He said he hopes the decision sends a message to the city that it needs to do a better job of working with people.
“I think that’s one thing the judge was saying, was that he wanted people to try to work together to provide services, supplies to the people at camp, rather than just try to use the court to evict them while we’re still waiting for the main decision on the injunction,” he said.
Lawyers from the city could not be reached for comment immediately following the ruling.
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nicholas.pescod@nanaimobulletin.comLike us on Facebook and follow us on Twitter
