The Tent City As a Place of Power: Homeless Political Actors and the Making of ‘Public Space’

THE TENT CITY AS A PLACE OF POWER: HOMELESS POLITICAL ACTORS AND THE MAKING OF ‘PUBLIC SPACE’

Bradley Alexander Por Faculty of Law, McGill University, Montreal August 2014

A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of LL.M.

I would like to acknowledge my supervisor, Professor Mark Antaki, whose detailed comments on my work, thoughtful engagement with the questions I raised and personally supportive presence have made working on this project a more enriching experience than I could have hoped for. I would also like to thank Professor Kirsten Anker, who provided me with sage advice on the process of writing and bringing to conclusion a major research paper. Stephanie Chipeur has been a supportive colleague and good friend who, especially in the last few weeks of working to complete our respective thesis projects, has helped me keep my head on straight and my eyes on the prize. This study has been enriched by the keen insights of a friend from my days as a Greenpeace canvasser in Vancouver, Sara Breitkreutz, who coincidentally ended up living in the same city as me at this time, working on an anthropological study of an urban public square.

Sean O’Flynn-Magee, another canvassing colleague, who found himself caught up in the swirl of political activity surrounding Occupy Vancouver and named in the injunction served by the City of Vancouver, kindly took the time out of his travels to have a long-distance conversation with me about his experience, and for this he is warmly thanked. Finally, I would like to acknowledge the inhabitants of Vancouver and Montreal, friends and strangers alike, whose life paths have become intertwined with my own by being in the same places. This study is inspired by my recognition that every person I share the city with has played a role in my life, and it is to all of my urban neighbours I owe the gift of coming to know myself as a political person.

ABSTRACT

This study looks at three public places, in the cities of Victoria and Vancouver, BC, where homeless people and other activists have come together with common purpose to gain political visibility and challenge the dominant legal and political discourses that bound ‘public space.’ The Cridge Park action in Victoria led to the BCSC and BCCA decisions in Victoria (City) v. Adams that found a right for the homeless to set up temporary overnight shelter in public places, when insufficient shelter beds were available in the city. The limitations on this right, which protect homeless persons from being forced to take down temporary shelter at night, but not from being made to take it down in the morning, affirm that public places are intended only for temporary uses by people who have a ‘private space’ to go home to, and leave the homeless with no place they can legally inhabit on an ongoing basis. An effect of these limitations is to legally deny to the homeless a place for the sort of community empowerment that occurred in the tent city and made the homeless participants politically visible. Employing Hannah Arendt’s theory that people gathering in ‘public space’ are the source of power in a political society, I argue that the tent city subverts dominant notions about the public/private divide that effect an exclusion of the homeless, and creates a new extra-legal ‘public space’ where they become visible as political actors. The Woodward’s action in the 1990s/2000s in Downtown Eastside Vancouver is an example of a tent city that clearly empowered the participants as political actors. Occupy Vancouver, which set up a tent city in Robson Square in Fall 2011, was a large-scale action that created a new ‘public space’ in the central square of the city and brought many homeless people into political visibility as political actors, and was disbanded by an injunction from the City of Vancouver that Adams did not provide a constitutional defence against. These tent cities show that public places in the city provide a stage for the excluded homeless to place themselves on the urban landscape as members of a community and as political actors. While these actions disrupt the boundaries of legal ‘public space,’ the extra-legal ‘public spaces’ that are created are a means for homeless people to resist their political exclusion and assert the right to a place in the city.

RÉSUMÉ

Cette étude analyse trois espaces publics dans les villes de Victoria et Vancouver en Colombie Britannique, où des sans-abris et autres militants ont uni leurs forces pour augmenter leur visibilité politique et s’opposer aux discours politiques et juridiques prédominants. Les mouvement de «Cridge Park» a mené à des décisions de la Cour supérieure et de la Cour d’appel de la Colombie Britannique dans l’affaire Victoria (City) c. Adams, où la cour a jugé que les sans-abris avait le droit de construire des abris temporaires dans les espaces publics quand il manquait de lits d’hébergement dans les refuges pour sans-abris de la ville. Les limites de ce droit, qui permet aux sans-abris d’ériger un abris la nuit, mais pas de les maintenir pendant la journée, établissent que les endroits publics peuvent seulement être utilisés temporairement par les gens qui ont un domicile, et nient aux sans-abris le droit de les habiter sur une base continue. Ces limites ont pour effet de nier aux sans-abris le droit d’occuper un endroit qui leur permettrait de développer un pouvoir communautaire, comme cela s’est passé dans le village de tentes, ce qui leur avait donné une visibilité politique. En ayant recours la théorie d’Hannah Arendt selon laquelle le rassemblement de citoyens dans un espace public est la source du pouvoir dans notre

2 société, cet article soutient que les villages de tentes remettent en question les concepts dominants de séparation de la sphère publique et privée en matière d’exclusion des sans-abris, et crée un nouvel espace public « extra-légal » où les sans-abris deviennent visibles en tant qu’acteurs politiques. Le mouvement de Woodward dans les années 1990 et 2000 dans l’est du centre-ville de Vancouver est un exemple d’un village de tentes qui a clairement réussi à valoriser ces participants en tant qu’acteurs politiques. Le mouvement «Occupy Vancouver», marqué par l’érection d’un village de tentes dans le carré Robson à l’automne 2001, a également créé un nouvel « espace public » dans un lieu central de la ville, transformant plusieurs sans- abris en acteurs politiques. Le village fut cependant dissout suite à l’obtention d’une injonction par la ville de Vancouver, contre laquelle le jugement Adams n’offrait aucune défense. Ces villages de tentes démontrent que les espaces publics fournissent une plateforme pour les sans- abris leur permettant de se réaliser dans un espace urbain comme membres d’une communauté et acteurs politiques. Même si les villages de tentes perturbent les limites de l’espace public , les espaces publics « extra-légaux » ainsi créés constituent un moyen pour les sans-abris de résister à leur exclusion politique et d’affirmer leur droit d’Occuper un espace dans la ville.

CONTENTS

I. INTRODUCTION: PLACE AND THE CITY…………………………………………….5

II. METHODOLOGY: ‘WORLD-MAKING,’ THEORY, CRITIQUE…………………….20

III. CRIDGE PARK: FROM TENT CITY TO COURTROOM……………………………..26 i. The Right to Temporary Shelter on Trial………………………………………………….28 ii. The Right to Temporary Shelter on Appeal………………………………………………..50

IV. WOODWARD’S: POWER AND VISIBILITY ON THE STREET……………………..54 i. The Woodward’s Action………………………………………………………………..55 ii. Hannah Arendt and the Generation of Power...... 67

V. ROBSON SQUARE: INHABITING THE CITY SQUARE……………………………..80 i. Law, Design and Exclusion in the City Square………………………………………....81 ii. Occupy Vancouver…………………………………………………………………….92

VI. CONCLUSION: A PLACE IN THE CITY…………………………………………….104

VII. BIBLIOGRAPHY………………………………………………………………………..112

VIII. APPENDIX: IMAGES OF PLACES DISCUSSED……………………………………118

‘Cities, like dreams, are made of desires and fears, even if the thread of their discourse is secret, their rules are absurd, their perspectives deceitful, and everything conceals something else.’ - Italo Calvino, Invisible Cities1

I. INTRODUCTION: PLACE AND THE CITY

This study considers how the place of the homeless in the city is affected by the intersection of place and law. It focuses on place in the physical sense, but it does so in order to explain how social placement is both determined by, and determinative of, physical placement. I look at how limitations on the legal rights of homeless people to inhabit public places operate to leave them without a place in the city, and in particular how these limits deny a right to gather and participate in a community that is a source of political empowerment. As an embodiment of such a political community, I zero in on the ‘tent city’: these cities within cities have effectively made the homeless visible as political actors, and I discuss three different tent cities in BC that have been a source of political power for the homeless.2

In order to speak honestly about place, I must first place myself. I have lived almost my whole life in the Vancouver area, and had an apartment in the city center for seven years, including the time I completed my undergraduate degree and went to law school at UBC. I am aware that my situation as a white man from a middle or working class background, who most relevantly, has not experienced poverty and homelessness, carries with it a certain set of privileges, which empower me to feel in place and be perceived by others as being in place in different settings than the homeless, who are in a social situation that constructs them as out of place in physical settings that more privileged people like me take for granted as places we can

1 Italo Calvino, Invisible Cities, translated by William Weaver (New York: Harcourt Brace Jovanovich, 1978) at 44. 2 Studies that have examined the use of tent cities for political mobilization of the homeless include: David Wagner & Marcia B. Cohen, ‘The Power of the People: Homeless Protestors in the Aftermath of Social Movement Participation’ (1991) 38 Social Problems 543; and Gloria Gallant, Joyce Brown & Jacques Tremblay, ‘From Tent City to Housing: An Evaluation of the City of Toronto’s Emergency Homeless Pilot Project’ (Toronto: City of Toronto, 2004).

5 in some way call our own. I have moved through different places – ‘private’ places where I sleep, eat and maintain close relationships, and ‘public’ places where I make myself widely visible and interact with strangers, and have very often been able to feel in place. I know there are many people who do not have so-called ‘private’ places to be in, nor meet social expectations that would enable them to be seen as in place in many public settings. Yet everyone must be placed somewhere; that is inescapable. My intention with this section is to explain what exactly I mean by place, which will show why I think place is so important, before proceeding to my discussion of three political actions in urban public places that confronted the legal boundaries constructed around these places and resisted the political exclusion of the homeless that is effected by these boundaries.

The word ‘place’ signifies something both physical and social, but not merely one or the other. This fact will play a key role in my argument that law, in its regulation of public places, displaces people by acting as if it is neutrally regulating a physical space, when it is really affirming dominant views of ‘public space’ that benefit some people in their inhabitation of places and marginalize others. The anthropologist Tim Ingold takes issue with the common notion that places exist in space, because it perpetuates a view of places as bounded sites existing on a fixed spatial plane that are occupied but not inhabited, thus removed from the groundedness of place.3 Thinking of place as being in space ignores its embodied aspect, which once considered makes it difficult to conceive of place without focusing on lived experience. This does not mean that place has nothing to do with the spatial, but that what makes place is the view one has from their life on the ground, not the abstract view from space.

3 Tim Ingold, ‘Against Space: Place, Movement, Knowledge,’ in Peter Wynn Kirby, ed, Boundless Worlds: An Anthropological Approach to Movement (Oxford, UK: Berghahn Books, 2009) 29 at 30-31.

Indeed, the social component of place is implicit in our common usage of the word, in which notions of being in or out of place are more than a spatial referent, but suggest the belonging of a thing or person in one place but not in another.4 In this sense, one can be perceived as being in or out of place in a particular physical setting, but the important element is social context. For instance, I can say that I feel ‘in place’ at the McGill Faculty of Law, which partly refers to my experience of inhabiting a particular building in a particular city, but is really only a meaningful statement because I have developed positive relations and strong connections in a social setting that is not confined within the boundaries of the faculty building.

Even understandings that are sensitive to the social aspect of place, however, have a tendency to maintain that place exists in space. For instance, after pointing out how ‘place’ is used to refer to a sense of what is proper and not just as a spatial referent, the geographer Tim

Cresswell concludes that ‘“place” combines the spatial with the social – it is “social space”.’

Place is not simply equated with space in his definition, but he still assumes that place is fixed to bounded spatial divisions, where social structures are translated into expectations of appropriate behavior for each particular site, which determine who or what is in or out of place in these sites, and are often written into law.5 The spatialization of place reflects the way our knowledge, and indeed our actual experience of place, is shaped by a worldview that seeks an abstract plane upon which to fix people so they can be made into objects that can be understood. This worldview is real in the sense that people think within it and have it imposed upon them. The view of place as space is easy for us to relate to because the places we actually inhabit have been spatialized by being made subject to the ‘objective’ gaze, and our experiences of places have been shaped by laws and designs that inscribe them as a particular type of space. Thus place is somewhat reified

4 Tim Cresswell, In Place/Out of Place: Geography, Ideology, and Transgression (Minneapolis, MN: University of Minnesota Press, 1996) at 3. 5 Ibid.

7 as space by the fact that the experiential possibilities of places are largely determined by the consequences of their being treated as spaces.6 I will demonstrate this in my study by showing how the legal regulation of public places as space shapes what people’s relations to these places will be like. If place is really about embodied beings and their interactions with the world around them, then because we are accustomed to seeing this world through the lens of spatiality it is not surprising we tend to think of our experiences of place spatially.

In order to make the connection between law and place then, I must couple my criticism with a coherent understanding of what place really means. Cresswell’s description of place as

‘social space’ seems to be a good starting point for grasping how laws relating to public places are generative of the relationships that people have with these places. But it does not go far enough in challenging the objectifying worldview that sees place as space – as something that can be separated from embodied people who are placed. It is through contemplating my own lived experience in places that I have found myself in accord with Ingold and others who believe that places do not really exist in space. Walking around Vancouver and Montreal, I have learned much about the lay of the urban land. As urban lands, these cities are very easy to look at as space. They are designed by human actors to be understandable and manageable by human actors. A North American city, as we know, is largely made up of buildings full of rooms built on top of blocks in a grid of streets, with parks, squares, and other public places dispersed through out the grid. Indeed, as I walk around the city I can easily see myself as walking through and between distinct spaces; different buildings with different rooms inside of them, areas zoned for residential or industrial use, roads, parks and public squares – all of these are clearly defined sites that can be identified and given meaning as a type of space. Much of the city is not designed,

6 The modern marginalization of place and ascension of space as a concept in disciplines ranging from physics and philosophy is described by Edward S. Casey in ‘Part Three: The Supremacy of Space’ in his book The Fate of Place: A Philosophical History (Berkeley: University of California Press, 1997).

8 but is the natural geography it was built on and around. These natural elements of the city are also organized spatially – they can be seen as water marking the lived-in city’s edge, points from which to view the urban landscape, and zones of natural refuge, among other things. But spatial facts are not really the most important pieces of knowledge I have about the cities I have inhabited; rather, it is my experience of being emplaced in these cities, which lives on in memories, that makes me feel like I know them.

As I walk around Montreal, I am following the lines of the grid that I knew in advance from looking at maps, but I never really knew the street until I got here. The street is a place full of people and activity, of smells, sights and noises; it is a place where events happen and life is lived. What I know through my sensory experiences of the city, however, only provides a partial view. The conglomeration of circumstances that determine each moment I experience on a city street are both unique and elusive to me, shaped as they are by the life paths of many others who have their own experiences in the city that happen to intersect in some way – in some place – with mine. The partialness of my knowledge of the city is obvious as I walk through it. Michel de Certeau, in his essay ‘Walking in the City,’ contrasts the voyeuristic desire to ‘see the city’ from a panoramic viewpoint with the act of walking, an ‘elementary form’ of the ordinary city inhabitant’s experience of living ‘below the thresholds at which “visibility” begins.’7 From the view on the street, as opposed to the view of the whole city from above or afar, one can only see the narrow range between the buildings on each side of the street, and absorb a flood of sensory data particular to the immediate place where one’s foot falls while they walk. I can guess and remember from past experiences what is around the next corner, but each time I turn the corner it will be somehow different. As I move about the city, I know it as a place only in the sense that I

7 Michel de Certeau, ‘Walking in the City,’ in The Practice of Everyday Life, translated by Steven F. Rendall (Oakland: University of Californ ia Press, 1988) at 92-93.

9 experience being in different places within the city, and I know that I cannot make these experiences into a universally coherent view of the city because even the specific locations I inhabit are known to me at different, intricately connected moments. This is how, as de Certeau describes it, the bodies of those who inhabit the city ‘follow the thicks and thins of an urban “text” they write without being able to read it.’8 The city is a place where people live their lives, but they do not know the city by trying to see it. The view on the ground is a partial view, but its

‘truth,’ if we can say that, comes from the mass of sensory data that is absorbed and reacted to by being in actual places, because it is a view from lived experience in the city. A spatial view of the city is only just that – a view, from which you can see that streets are there, learn what they are called and what sorts of things are on them, but which cannot show you what it is like to actually be there. In other words, while I can think about the city as space and that will help me navigate it, physically and mentally, this does not allow me to know it as a place, which can only happen from being placed there. As Ingold says, a world of space is ‘[a] world that is occupied but not inhabited, that is filled with existing things rather than woven from the strands of their coming-into-being.’9 Human beings inhabit places; we do not simply occupy spaces. The meaningfulness of a place is thus only known through personal inhabitation, and never truly understood from the outside, looking at it as a space.

Lived experience is central to notions of place that are not anchored to space. The philosopher Edward S. Casey presents a phenomenological approach to place that inverts the ordering of an ‘absolute and infinite as well as empty and a priori’ space out of which ‘places become the mere apportionings of space, its compartmentalizations,’ in favour of a view which

8 Ibid at 93. 9 Ingold, supra note 3 at 29.

10 sees place as being prior to space.10 This inversion acknowledges that space only emerges as a meaningful concept to people who cannot help but be placed before they are able to perceive the world in terms of spatiality. Perception, Casey says, is ‘the crux in matters of place,’ but the sensory experience of a particular place does not occur as the accumulation of data that we connect to some prior ‘objective’ understanding of space. Rather,

the perceived finds herself in the midst of an entire teeming place-world rather than in a confusing kaleidoscope of free-floating sensory data. The coherence of perception at the primary level is supplied by the depths and horizons of the very place we occupy as sentient subjects.11

Place, from this phenomenological perspective, is local and particular, and places can only be known through lived experience, but the fact that we always find ourselves in places means it is only through sensing a place that we can perceive anything about the world at all.12 Place is not the particularization of the infinite expanse of space, but a fact of embodied existence that provides us with the depths and horizons that make our perception of the world meaningful, and enable us to develop concepts such as space. Because a place is not a compartment in the midst of space, but an experience of the world that is complete in terms of cohering the sensory perceptions that are the elements from which we create meaning, embodied placement is how we come to know what is true of the sites that we construct as objects through spatial thinking.13 In other words, a place can never really appear in space, because as Casey says, the abstraction of space only arises as we reckon with the places we inhabit:

10 Casey, ‘How to Get From Space to Place in a Fairly Short Stretch of Time: Phenomenological Prolegomena,’ in Steven Field & Keith H. Basso, eds, Senses of Place (Sante Fe, NM: School of American Research Press, 1996) at 14-17. 11 Ibid at 17-18. 12 Ibid at 18. 13 The geographer David Harvey, in his influential book Social Justice and the City (Baltimore: Johns Hopkins University Press, 1973) identifies three inseparable levels of spatial experience – organic, perceptual and symbolic – that connect the abstraction of space to embodied emplacement (at 28-29). I go further in opposing place to space, but Harvey can be seen as deconstructing ‘objective’ spatial understandings by considering how space can only arise as a concept through the experience of emplacement.

We come to the world…as already placed there. Places are not added to sensations any more than they are imposed on spaces. Both sensations and spaces are themselves emplaced from the very first moment, and at every subsequent moment as well.14

I find this phenomenology of place convincing, because it reflects the driving intuition behind my thesis, that what we come to know about any thing is intimately connected to the places we are in as we live our lives and engage in the experience of knowing. I use the word

‘knowing’ here to refer to all of the meanings, responses, feelings and thoughts that arise through lived experience.15 What we know about law encompasses not just knowing what the written laws are and how they have been interpreted, but what we know about the meaning and effect that law has on our lives as well. Law is part of lived experience; on paper laws themselves are nothing more than words. This means that law, like every experience, is always emplaced. To attach law to space, which treats people as if they are only the occupiers of spaces, and not the inhabitants of places, is to bypass lived experience in favour of a supposed ‘objectivity’ that is callous about how people’s inhabitation of places is actually affected by law. Laws related to space say what is appropriate or not to each particular place that is regulated as a space, but their neutral presentation glosses over the ways that a bounded space is a different place for different people. Legal constructions of space thus do not provide an ‘objective’ view of places, but enable the community imagined by dominant legal and political discourses to be transformed into a ‘well controlled and bounded space.’16

Law is experienced much differently by homeless people inhabiting public places than it is by more privileged inhabitants. I know this from my own experience, the most obvious

14 Ibid. 15 Martin Heidegger elaborated an influential philosophy of human experience that conceives of ‘knowing’ in this embodied and emplaced sense, as a mode of existence that is ‘founded upon Being-in-the-world’ (Being and Time, translated by John Macquarrie & Edward Robinson [Oxford: Basil Blackwell, 1962] at 90). 16 Franz von Benda-Beckmann, Keebet von Benda-Beckmann & Anne Griffiths, ‘Space and Legal Pluralism: An Introduction,’ in Beckmamm et al, Spatializing Law: An Anthropological Geography of Law in Society (Farnham, UK: Ashgate Publishing Ltd, 2009) at 9.

12 divergence being that I have always had what is known as a ‘private’ place – a ‘home’ – that I am able to call my place, and my right to act as if it is truly my place is largely supported by law.

The homeless who live in what is considered by law to be ‘public space’ are denied such a place because their inhabitation of public places is heavily restricted or made illegal. As I will show in my analysis of the legal right to temporary shelter in public places, I benefit much more from the way law regulates these places than homeless people do, despite the fact the law claims to treat us as equals.17 This difference in effects indicates that attaching law to space undermines homeless people’s ability (right?) to have a place of their own, and causes many to experience law as a threatening and disempowering force. If law is to be to the equal benefit of all, I suggest we must understand it as a lived experience and not just as neutral words, and re-orient the focus of law from space to place.

I am mindful that it is a challenge to conceive of law being attached to place instead of space, due to the orthodox understanding of law as a fixed and ‘objective’ set of rules applied neutrally to everyone. However, in critiquing how this dominant legal approach disempowers certain actors in their relationships with place, I am pointing out one way the law fails to achieve its purpose and have some obligation to suggest a way it could be re-thought. Our legal rights, as made explicit in the Canadian Charter of Rights and Freedoms, are derived from the idea that

Canada is ‘a free and democratic society.’18 My awareness that there are many people in

Canadian society who do not have the security and opportunities that come with a home, and in turn face social and political exclusion by being made subject to laws in public places that

17 A famous comment by Anatole France about how the ‘majestic equality’ of law is felt by the poor is worth quoting here: ‘[T]hey must labour in the face of the majestic equality of the laws, which forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread’ (The Red Lily, translated by Winifred Stevens (London: John Lane the Bodley Head Ltd, 1930) at 95). 18 Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

13 restrict their ability both to live as individuals and to gather with others, causes me to question how free and democratic Canadian society really is. I focus particularly on how restrictions on legal rights to be in public places affect gatherings, to point out how laws not only impact the freedom of homeless people as individuals but also their ability to become politically visible and participate in democracy. If we take the democratic foundation of law seriously, it may appear that the ability to participate in a political society, let alone to be an equal member of it, requires some right to a place where one can appear as a political actor. Otherwise, as many homeless people experience, embodied beings who are subject to law can be left to the inevitability of being emplaced while the very elements of emplacement that enable people to make their lives meaningful in their own way are continuously denied to them. It should not be impossible for place to play a role in legal thinking, and for the important relationships that people actually have with the places they inhabit to be a central consideration in deciding what makes a law justifiable in a free and democratic society.

In the following sections of this study, I will look at how dominant legal and political discourses function to disempower the homeless by displacing them from the places they inhabit.

Each section is focused on public places in the cities of Victoria and Vancouver, BC, where homeless people and anti-poverty activists set up tent cities for political purposes. The first,

Cridge Park in Victoria, is the place where a tent city established a few blocks away from the provincial legislature in 2005 led to the British Columbia Supreme Court and Court of Appeal decisions in City of Victoria v. Adams (Adams),19 in which a right to construct temporary shelter in public places was found for the homeless claimants under Section 7 of the Charter, but limited in ways that, as I will show, make it illegal to gather in public with others and become politically

19 Victoria (City) v. Adams, 2008 BCSC 1363 [Adams BCSC]; Victoria (City) v. Adams, 2009 BCCA 563 [Adams BCCA].

14 visible. While this case, especially the lower court decision, is notable for showing judicial sensitivity to protecting homeless bodies20 and rejecting a city government’s demeaning reasons for regulating homeless people out of public places,21 it does not increase the visibility of the homeless or enable what is known as ‘public space’ to become a place for community building and empowerment. I will explain how the limits placed on homeless people’s rights to be in public places are derived from law’s spatial fixation, which neglects the experiential significance of place. I suggest that this method of legal reasoning is not in accord with a broad view of the democratic principles underlying the Canadian Constitution, since the limitations on inhabiting public places that are upheld in Adams affirm governments’ authority to make participatory political actions that empower the homeless, like the tent city that provoked this very case, illegal.

The second place I will focus on is the historic Woodward’s building in Vancouver’s

Downtown Eastside, where a sidewalk was occupied in the 1990s to oppose the planned redevelopment of a department store that had long been a central meeting-place in Canada’s poorest neighbourhood.22 This event brought homeless and poor activists making a community claim to the building into broad public visibility, and ultimately led to the inclusion of low- income housing in the redevelopment project.23 Relying on the political theory of Hannah Arendt,

I will use the Woodward’s example to demonstrate how such encampments are an effective means of making the homeless politically visible, because they harness public places to disrupt the public/private divide that functions to politically exclude the homeless. The success of the

Woodward’s action shows that gatherings in public places can empower the homeless, and points

20 Sarah Buhler, ‘Cardboard Boxes and Invisible Fences: Homelessness and Public Space in City of Victoria v. Adams ’ (2009) 27 Windsor YB Access Just 209 at 223. 21 Ibid at 217. 22 Nichols Blomley, Unsettling the City: Urban Land and the Politics of Property (New York: Routledge, 2004) [Unsettling the City] at 39-41. 23 Ibid at 45.

15 to how the limitations on the right to temporary shelter in public places specified in Adams legally block avenues for homeless people’s political empowerment.

I will also spend some time discussing how the design of public places intersects with law to embed dominant power structures in the possibilities presented by the built urban environment. This part of my study will focus on a public place in Vancouver that has been an important site of political activity, for the homeless and others, and that is a meaningful place to me personally as well. As a canvasser for politically motivated organizations, and attendee of

Vancouver’s 2011 ‘Occupy’ action, the place known as Robson Square has been especially relevant to my own political existence. Events in this public square provide an ideal context for making my argument about law, place and political empowerment, especially given the fact that a BC Supreme Court judge allowed the City of Vancouver to enforce an injunction ordering the

Occupiers to disband their tent city, despite the defence that the large number of homeless residents in the tent city should invoke a right to temporary shelter in the square.24 The end of

‘Occupy Vancouver’ is evidence that Adams will not protect the need for ongoing access to public places that homeless people have in order to become politically visible, even in the central public square that is the most important place for political gatherings in the city.

Before turning to these places and their stories, I conclude this introduction by presenting a concept of place that I believe accurately depicts the role of place in our lives. As I walk around Montreal, I find myself in new places that become meaningful in my life, and the longer I live in the city the deeper the connection to certain places I inhabit becomes. In Vancouver, the city I have spent almost all of my life in and around, there are many places that are deeply meaningful to me, and some that I feel very profoundly are more or less my place, and often I share these places with other people who may think of them as their place too. While I could

24 Vancouver (City) v. O’Flynn-Magee, 2011 BCSC 1647 [O’Flynn-Magee].

16 point towards these places as sites on a map, much more is required to articulate what makes them meaningful to me. This is because these places are more than where they are located in space – they include my experiences as an embodied being, contained within the meanings, feelings and memories that make up place. Ingold has an understanding of place that resonates with this fluid experience of place. Lives are not lived inside places, he says, but in a perambulatory movement ‘through, around, to and from them.’ Connected to this movement is the realization that life is not fundamentally place-bound, but place-binding:

Proceeding along a path, every inhabitant lays a trail. Where inhabitants meet, trails are entwined, as the life of each becomes bound up with the other. Every entwining is a knot, and the more that life-lines are entwined, the greater the density of the knot.25

The image of places as knots in the paths of people’s lives, where embodied beings interact with each other and with the world around them and share experiences, is the one I adopt as I consider place in this study.

Places are not sites in space, but the knots in our personal journeys that string the stories of our lives together. They are moments of contact with others, and are fundamentally relational.

It is thus through place that we become aware of who we are and relate to the world around us.

Indeed, keeping with Casey’s phenomenological point that place precedes space, we can see that it is the experiences of people in places that in fact spatializes the city. In ‘Walking in the City’ de Certeau says that the pedestrian movements of a city’s inhabitants is part of what makes the city: ‘Their swarming mass is an innumerable collection of singularities. Their intertwined paths give their shape to spaces. They weave places together.’26 Looked at in this way, the city is not really a place itself, but is made up of numerous places that exist in the city as knots in people’s life paths. In a passage that I quote here at length, de Certeau describes how the movements of

25 Ingold, supra note 3 at 33. 26 de Certeau, supra note 7 at 97.

17 people in the city weave an urban fabric that is ‘the City’ but which cannot be perceived in its wholeness as a singular, unified place:

The moving about that the city multiples and concentrates makes the city itself an immense social experience of lacking a place – an experience that is, to be sure, broken up into countless tiny deportations (displacements and walks), compensated for by the relationships and intersections of these exoduses that intertwine and create an urban fabric, and placed under the sign of what ought to be, ultimately, the place but is only a name, the City. The identity furnished by this place is all the more symbolic (named) because, in spite of the inequality of its citizens’ positions and profits, there is only a pullalation of passer-by, a network of residences temporarily appropriated by pedestrian traffic, a shuffling among pretenses of the proper, a universe of rented spaces haunted by a nowhere or by dreamed-of places.27

Walking in the city serves to emphasize the dreamlike quality of the city as a place. City dwellers walk through, around, to and from a multitude of real, physical places inhabited by others, and stop to inhabit certain places for periods of time. All of these places, in some way, are reflections of a dream of ‘the City.’ Yet despite all that the city reveals as one walks along its streets and enters its various public and private places, the multitudinous dreams the city is built on make it impossible to perceive a coherent logic or see the city as a whole. For this reason, a place one inhabits within the city cannot be reduced to an address or space on a city map, which would imply that the meaning of a place is defined by its position within a spatial hierarchy (the space of the city > the space of a building > the space of an apartment, and so on). Rather, places in the urban fabric, despite being physical, are fluid, entwined and overlapping; they are knots in people’s life paths where dreams are pursued and fears are confronted, where people appear to others and mark out their own place. The desire to ‘see the city’ as a conglomeration of spaces in a larger urban space can only reveal an illusion, a highly distilled and particularized version of the dream of the city that is false because what really makes a city is the potentially infinite variety of its inhabitants’ dreams. Thinking of places in the city as universally visible space

27 Ibid at 103.

18 cannot help us to understand the diversity of experiences that make these places meaningful, and to perceive that these places are where the urban fabric continues to be woven every day, by people who have different desires and fears, but who all seek to find and mark out their place within the dynamic and elusive collective dream we call ‘the City.’

My place in the city is defined by the knots I have become entwined in while being in the city, as is the place of the homeless. A difference is that while I have gained many benefits from these knots, including entwinements that enable me as a political actor, the homeless must face laws which displace them from the public places they inhabit, and restrict their ability to become entwined in strong knots that are sources of political empowerment. The line from Italo

Calvino’s novel Invisible Cities that I introduce this study with highlights the dreamlike, elusive, overlapping and indeed non-spatial character of cities. The many different depths and horizons perceived by different people in places are the elements that enable our ability to find the world meaningful, and these elements construct and are constructed by our desires and fears. The thread of discourse running through the city is composed of the desires and fears of all its inhabitants, but some lived experiences are empowered, while others are excluded and concealed.

This study considers how the law contributes to embedding dominant discourses in the urban fabric by denying homeless people the right to a place, and how homeless political actors have been able to resist these dominant forces. Hopefully, it will illuminate why place is so important to people’s lives, and inspire a sensitivity to place in the law, especially for those whose struggles to be equal participants in political society are greatly facilitated by the power that comes from entwining one’s life path with the paths of others who share similar desires and fears, and acting to make these visible.

II. METHODOLOGY: ‘WORLD-MAKING,’ THEORY, CRITIQUE

As I have made explicit in the introduction to this study, my aim is to offer a perspective on law that reveals how laws are experienced and known to people in their lives as embodied beings, rather than remain in an internal dialogue about law which assumes that laws function neutrally in ‘objectively’ perceivable spaces. This perspective is deeply attached to the realization that human beings inhabit places, rather than simply occupy spaces. My study focuses on public places in the cities of Victoria and Vancouver, BC, for two reasons. One is that the

Adams decision establishing a right under s. 7 for homeless persons to set up temporary shelter in public places was a response to an action that occurred in a park in Victoria, so it makes sense to look at how the tent city in this place politically empowered the activists and led them to the courtroom. The other, as I stated in the introduction, is that I seek to place myself in my own research, and Vancouver is the city where the difference between my place and the place of the homeless has been most perceivable to me.

In order to understand how law relates to the inhabitation of places in the city, rather than simply what it says about the occupation of spaces, I must adopt a methodology that opens up the study of law to examination of the ‘thicks and thins’ of the ‘urban text’ written by people who move to, from, through and around places in in the city. While, as de Certeau suggests, the writers of this urban text may not even be aware they are writing it,28 I think it is possible, with the right methodological framework at hand, for a reader of this urban text to get some sense of what it says. Or, more appropriately, to get a sense of what certain people have written in particular places in the city. A city is fundamentally plural, fluid and incomprehensible, because it is made out of an infinite number of ever knotting life paths, but it is possible to perceive how law is experienced and known to people in places, and how this interaction of embodied beings

28 Ibid at 93.

20 with laws makes the ‘place that is not a place’ we call ‘the City.’ To this end, I maintain an overarching focus in my study on how these human interactions ‘make the world.’

I adopt the term ‘world-making’ to refer to the human-driven generative processes that are revealed when laws are looked at in the context of place. In the making and enforcement of laws, as well as in their contestation by actors in places such as courts and public squares, people are engaged in the production and reproduction of the worlds they exist in as embodied beings and through which they make their lives meaningful. David Delaney has written about world- making as a legal and spatial process, by employing the concept of ‘nomospheres,’ which he describes as:

[t]he cultural-material environs that are constituted by the reciprocal materialization of “the legal,” and the legal signification of the “socio-spatial,” and the practical, performative engagements through which such constitutive moments happen and unfold.29

‘Nomospheric investigations,’ as Delaney labels his approach in the sub-title to his book, aim to perceive these ‘cultural-material environs’ in their ‘worldly, worlded and world-making character rather than continue to connect other-worldy “law” to lived social realities.’30 This nomospheric perspective looks behind the ‘majestic’ quality of law that maps the world into spaces which are regulated by laws, in order to see how this majesty is enforced by world- making operations of legal and political power that play out in the way legal texts are actively enforced and passively affirmed by performances on the ground. It also allows for a look at how performances that challenge dominant legal and political discourses contribute to the making of new worlds. It takes the ‘constitutive’ character of law’s performance and spatialization

29 David Delaney, The Spatial, The Legal and the Pragmatics of World-Making: Nomospheric Investigations (New York: Routledge, 2010) at 25. 30 Ibid at 30.

21 seriously,31 a focus that helps us to see how spaces are created out of places by law.

Nomospheres can thus be seen as fundamentally about place; they encompasses the depths and horizons perceived by people in places through which the world (or worlds) can be made meaningful, as well as the meanings that are derived through these emplaced perceptions.

Indeed, Delaney suggests that a way to get a better feeling for what nomospheres are is to shift our focus from space to place.32 Nomospheric investigations, in looking behind the majesty of the law, also look behind the objectified constructions of space, to reveal the world-making and overlapping experiences of different people in places; they provide ‘a way of thinking about the complex, shifting and always impenetrable blendings of words, worlds, and happenings in which our lives are always embedded and through which our lives are always unfolding.’33 Such attentiveness to the worldly context in which laws are known as a part of human experience anchors law firmly in places – it is the ‘happenings’ of embodied beings that make the world, not disembodied laws that exist as words articulated by legal authorities.

Stating that world-making is the foundation stone of my methodology implies that my research begins from the ground up, and that the particular academic methodologies I employ stem from my view of the places I examine, rather than from a desire to write a ‘legal theory’ or

‘critical legal’ paper. This is reflected in the organization of my study, which is divided into three sections each devoted to particular urban public places in BC. These are places where people have experienced law in ways that both make and disrupt the objectified world generated by legal authorities who pronounce judgments in court and enforce laws on the street. For each place I make use of a method of study that best draws out the world-making implications of the event that occurred there.

31 Ibid. 32 Ibid at 25. 33 Ibid at 26.

In the first section, about Cridge Park in Victoria and the homeless tent city that led to the

Adams trial and appeal decisions, I adopt a critical legal analysis approach, that involves a close reading of the written judgments to reveal how the construction of a legal case that was provoked by a political action caused much of what was important about the event to its participants to be marginalized in court. This method, which dissects the words of a judgment to see what work they are doing in order to justify the disposition of the case, exposes legal decision making as a world-making process, in which lived experiences are stripped of certain context to fit into and affirm the spatialized world regulated by law.

In the second section I look at a sidewalk tent city set up by homeless persons and poverty activists in the Downtown Eastside of Vancouver, and employ a theoretical approach to demonstrate how this political action shows that people do indeed generate power by gathering together in a public place in pursuit of common purpose. Here I rely in particular on the political theorist Hannah Arendt, whose concept of power allows us to see the actions of people who are socially and politically marginalized as world-making events that create nomospheres of resistance against the dominant ‘official’ legal nomosphere.

Finally, in the third section I focus on Robson Square in Vancouver, a place that has seen numerous political actions by people making use of its high visibility function as the central public square for Vancouver. Here I synthesize the critical legal analysis and theoretical insights from the preceding sections by looking at the ‘Occupy Vancouver’ tent city that harnessed the city square as a place for people to gather to contest dominant legal and political discourses and generate alternative nomospheres that make the city in a different way than authorities seek to make the city. The failed use of Adams by the Occupiers as a defence against eviction shows how public gatherings confront legal nomospheres that operate to make the homeless politically

23 invisible. In this part of my study, theory and critique are deeply grounded in the physical depths and horizons of Robson Square, and I refer extensively to the design of the place, including current plans to re-design the square.

Throughout all of these sections, while certain research methods may dominate my discussion of particular topics, I maintain an interdisciplinary approach, drawing on academic work in law, politics, philosophy, anthropology, geography, urban studies, architecture and design. Interdisciplinarity is a key methodological tool derived from a commitment to focus on the world-making, rather than solely doctrinal, aspects of law. Looking at the pragmatics of how law is lived by people inhabiting places in the city requires an open-minded approach to research, since the urban text written by city dwellers is a multi-faceted, almost impenetrable bricolage of meaning that cannot be perceived in an honest and enlightening way through a single academic lens. The worlds that are made in the interplay of written laws with embodied lives engage all elements of human experience and meaning, so an interdisciplinary approach is most appropriate to understanding what is happening in places inhabited by people and regulated by law.

As a final comment on methodology, I reiterate that I consciously seek to place myself within my own research. This is perhaps not a research method in itself, but is determinative of what I talk about, how I talk about it, and underlies my focus on the way that public places, in my home province of BC and home city of Vancouver, are experienced as different places by different people. My study is grounded in three different urban public places, ending in a place I know very well, Robson Square. My experience, in this last place in particular, has involved the entwining of my life path with numerous others, in some cases through participation in collective political actions. My place has been shaped by nomospheres in which the law constructs the

24 potentialities of public gatherings in a certain way, and by the actions of participants in political gatherings who deconstruct the law and create alternative and overlapping nomospheres. What is apparent is that while the law purports to construct a nomosphere in which all people are regulated neutrally and fairly, my relatively privileged social position makes my own experience of law and public places much different than that of the homeless, who almost always inhabit the

‘public’ nomosphere and rarely inhabit the ‘private’ nomosphere of ‘home.’ I recognize this to note that my own understanding of homeless people’s experience is severely limited by my existence in my own distinct nomospheres. My research, therefore, seeks to understand how the distinct realities of life for homeless people intersect with laws in public places that are supposed to be neutral, while always recognizing that any understanding I gain is partial and contained within my own unique life-world.

III. CRIDGE PARK: FROM TENT CITY TO COURTROOM

On the long road to the courtroom, much of what makes an event meaningful to its participants can seem to fade into the distance once it provokes a legal response, and the story of what happened is thus distilled into the elements of a case and legal decision. And so it is with

City of Victoria v. Adams, a case that was spawned by the setting up of a tent city in a public park by homeless people and anti-poverty activists, which brought the homeless into wide public visibility as politically active citizens, and fostered a sense of safety, community and identity for the participants.34 While the result of this case was a success in terms of finding a right for the homeless to set up shelter in public places, I will show how the limitations placed on this right subvert the broader goals of visibility and political empowerment that are an important part of the story that led to Adams. This case is very much about place, but its legal result finds a limited right for the homeless to sleep in public places that fails to protect the strong community attachments to real, inhabited places that homeless people like those who were involved in the tent city have.

The story of Adams is the story of a place – Cridge Park. The City of Victoria’s website describes Cridge Park as ‘a half hectare of valuable green space in downtown Victoria consisting of a lawn bowling green and treed area…named after Victoria philanthropist Edward Cridge for his work in the community during the mid to late 1800s.’35 This sentence describes the park’s physical size and location at the center of the city, its treed setting and use as a lawn bowling green, and whom it officially commemorates. But of course there is much more to say about

Cridge Park, by all those whose life paths have led them to inhabit the park and become

34 Cristal Sargent, Cridge Park Tent City From the Perspective of Participants (MA thesis, University of Victoria, 2012) [unpublished] at 70. 35 City of Victoria, ‘Cridge Park’ (accessed March 14, 2014), online: http://www.victoria.ca/EN/main/departments/parks-rec-culture/parks/improvements/cridge-park.html.

26 entwined with other life paths in this place. The personal and collective stories of the activists who built a tent city in the park and challenged the laws that made this occupation illegal tell us more about the meaning and significance of Cridge Park for its inhabitants than any ‘official’ or legalized description of the place ever could. Their story is as at least as important an element of the Adams case as the ‘official’ understanding of what the park is supposed to be, what it is supposed to be used for, and what the ‘public’ whom it exists for refers to.

In the trial court judgment, written by Justice Ross of the Supreme Court of British

Columbia, the history of the litigation is said to begin with the establishment in October 2005 of a tent city in Cridge Park within the City of Victoria, where:

‘[a] group of up to 70 people occupied the park, setting up more than 20 tents. Two large kitchen areas were constructed using tables and electrical cords that ran from the cooking area to an outdoor electrical outlet in the church building located adjacent to the north side of the park.’36

This description depicts the Cridge Park occupation as a sort of small city within a city, where a large number of people had set up shelter and shared cooking areas in the park, creating a self- sustaining community of activists. It also establishes the tent city as the event that provoked the litigation, making it clear that the court case originally arose from a collective action occurring in a public place, not as a response to the experience of homeless persons sleeping in public places individually. These are important facts, because they attach the legal issues discussed in the case to an event that was experienced collectively, and draw the connection between a political action in a place and the laws the action challenged. However, I will show how much of what is important about these facts was glossed over at both the trial and appeal courts by judgments that focused on individual homeless bodies in ‘public space’ and ignored the community building and

36 Adams BCSC, supra note 19 at para 7.

27 political empowerment that were a significant part of the tent city’s meaning to its inhabitants as a place.

i. The Right to Temporary Shelter on Trial

The tent city action became a courtroom battle after the City of Victoria chose to enforce its by-laws made under the delegated authority37 to regulate public places and prohibit certain actions in these places. By the time the case got to court, the City’s Parks Regulation By-law38 had been amended so that sleeping in ‘parks or public spaces’ was no longer prohibited, but taking up temporary abode was still illegal.39 The Streets and Traffic Bylaw40 stated further restrictions on using, damaging, obstructing and placing chattels in public places. The operational policy of the Victoria Police, which the Acting City Manager deposed reflected the

City’s interpretation of the by-laws, was presented to the court as follows:

Parks Regulation Bylaw - when police encounter people sleeping in a park [during] daytime hours and there is no evidence of those persons taking up temporary abode in the park, they are not awoken or asked to move on;

Streets and Traffic Bylaw - where police encounter homeless people sleeping in public spaces between the hours of 11:00 p.m. and 7:00 a.m., they do not generally awake or request the person(s) to move on if they are not obstructing a sidewalk, street or other right-of-way, or interfering with the use of a public amenity such as a bus shelter;

In both cases, when concerned about a person’s welfare, police may need to waken the person in order to assess their health condition.41

The Acting City Manager summarized that this operational policy ‘does not prohibit people from creating shelter in public places so long as they do not take up temporary abode,’ and ‘that it is the City’s position that the Parks Regulation Bylaw prohibits the taking up of a temporary abode

37 Under the Community Charter, SBC 203, ch 26, ss 8(3) and 62, cited in Ibid at para 31. 38 City of Victoria , by - law No 07 - 059, Parks Regulation By-law. 39 Adams BCSC supra note 19 at para 32. 40 City of Victoria, by-law No 92-84, Streets and Traffic By-law. 41 Adams BCSC supra note 19 at para 34.

28 overnight and accordingly no tents, tarps that are attached to trees or otherwise erected, boxes or other structures are permitted.’42 The parties agreed that the (then) current state of the law was reflected in the combination of the by-laws and the operational policy described by the Acting

City Manager, and Ross J held the focus of the constitutional inquiry to be what is permitted and what is prohibited by the by-laws and operational policy.43

‘Public place’ is the term often used in the by-laws and text of the judgment, with no apparent distinction from ‘public space.’ In the light of my introductory discussion of place and space, this could be seen to reflect the spatialization of place that is characteristic of the objectifying worldview laws are inscribed with. Place and space are not the same thing, but laws are written to say what can and cannot be done in a particular place that is spatialized, and has its boundaries and specific characteristics and purposes defined by its identity as a certain type of space. The City of Victoria’s by-laws on use of and access to public places regulated Cridge Park as a place, since they restricted the actions of tent city inhabitants and others for whom the park is a knot of life paths, but they did so because this place was viewed from an objectifying legal perspective that sees universal rules of use and access as applicable to everyone at any time who inhabits a particular physical place defined as a ‘park.’ Cridge Park is known as a place through the experiences of embodied beings like the activists who inhabited the park, but the law knows

Cridge Park as a bounded space regulated from an ‘objective’ distance. In this way, when legal authorities say what the rules are in a ‘public place’ like Cridge Park, they are making this place into the type of space these rules are meant for.

The original notice made to the defendants by the City of Victoria, which was distributed on October 14 to persons occupying the park, ordered them to vacate within three days, or face

42 Ibid at para 35. 43 Ibid at para 36.

‘confiscation of…camping equipment and personal property’ followed by ‘investigatory and injunction proceedings,’ but this notice was ignored.44 The City then sought injunctive relief, pursuant to s. 274 of the Community Charter, ordering the activists to ‘be restrained from loitering or taking up temporary abode overnight in any portion of lands legally described as, and commonly known as, Cridge Park.’ The injunction further specified that those having notice of the order ‘be restrained from erecting any tent or shelter in any portion of Cridge Park,’ ‘remove from Cridge Park…any items…which in any way encumbers or obstructs the free use and enjoyment of any portion of Cridge Park’ and authorized police to ‘arrest and remove any person the peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of any order issued by this honourable court.’45 The injunction order reflects the Acting City Manager’s later deposition that it was not setting up shelter per se, but the ‘taking up of temporary abode’ that was unacceptable, and its specific demand was that the semi-permanent structures that made the park into a tent city be removed. It is reflective of the

City’s efforts to avoid the appearance of seeking to enforce a ban on sleeping in parks altogether that after the injunction had been served the Parks Regulations Bylaw was amended to no longer prohibit simple loitering.46 The elements of the City’s order to remove the activists from Cridge

Park which were directly at issue when Adams got to court – the taking up of temporary abode and obstruction of access for other users of the park – point directly at the tent city. It was the existence of this city within a city that provoked a legal response from the City of Victoria, not the fact that individual homeless persons were sleeping in a park.

While the City sought to act on its legal authority to enforce the by-laws, the Cridge Park activists were devoted to seeing the case through the courtroom to test the constitutionality of

44 Ibid at paras 9-10. 45 Ibid at para 10. 46 Ibid at paras 18, 24.

30 these laws. The tent city was broken up on October 28 by a police raid,47 two days after an interim interlocutory order was granted to the City.48 Following this event, the now displaced activists awaited a hearing in which they could raise their constitutional defence: that ‘provisions of the bylaws that prohibit sleeping overnight in any public space in the City of Victoria violate the Defendant’s rights pursuant to ss. 2(b), 7, 11(d), 12 and 15 of the Charter’ and cannot be justified under s. 1, thus they are of no force or effect.49 After the trial date had been set, the City attempted a permanent injunction order restraining the activists from returning to Cridge Park, but this was rejected for reasons including that the tent city remained disbanded and ‘the constitutionality of the very bylaws at issue was to be determined at trial.’50 A subsequent move by the City to discontinue its legal claims against the activists was also rejected, on the basis that the defendants should not be denied the opportunity to have their constitutional position decided on its merits, having invested considerable time and energy to that end already.51 Finally, the defendants, who at this point decided to restrict their constitutional arguments to ss. 7 and 12,52 were required to file a counterclaim in order to seek a declaration that the by-laws were of no force or effect. Their counterclaim sought to strike down the by-laws ‘to the extent that they prohibit homeless people from engaging in life sustaining activities, including the ability to provide themselves with shelter, in public,’ or in the alternative, ‘a constitutional exemption for

47 Benjamin Issit, Housing for All: The Social Economy and Homelessness in British Columbia’s Capital Region, Occasional Papers Series, No. 6 (Victor ia: Canadian Social Economy Hub at the University of Victoria, 2008) at 14. 48 Adams BCSC supra note 19 at para 12. It is worth noting that in the trial court judgment the police raid is not mentioned, and it is simply said that the activists ‘were informed of the order of the court and left the park shortly thereafter on October 28, 2005.’ 49 Ibid at paras 11-13. 50 Ibid at paras 15-17. 51 Ibid at para 21. 52 Ibid at paras 23, 28.

31 homeless persons, such that they can sleep and provide themselves with shelter in some or all public places in the City of Victoria without contravening the Bylaws.’53

On this path to the courtroom, the story of the Cridge Park tent city evolved into a legal story about constitutional rights. While the construction of this political event as a legal question enabled the activists to seek recognition of their rights by legal authorities, it is important to note how it made the tent city itself fairly irrelevant and invisible in the legal narrative. The Cridge

Park defendants’ counterclaim was articulated as a claim for the individual right of embodied beings to protect themselves from the elements by setting up shelter at night in all or some public places in the city, but it also stressed the community aspects of the tent city. ‘Living together,’ the counterclaim stated, ‘rather than as individuals dispersed through public spaces in the City,’ not only helped the defendants’ keep themselves safe, but also ‘provided them with a sense of hope and belonging.’ The defendants drew the connection between s. 7 rights and being part of a community, claiming that the by-laws ‘prevent homeless people from living together in a manner which allows them to provide each other safety and security. This constitutes a deprivation of their liberty and security of the person.’54 This community element of the constitutional defence, however, was marginalized in the judgment, which is focused on individuals and does not pay attention to relationships between individuals, aside from the relationship between homeless persons and the authorities who confront them for sleeping in a public place. The Adams decision thus reflects how these collective features of legal rights are given short shrift by the dominant legal discourses judges operate within.55

53 Ibid at paras 28-29. 54 Adams BCSC , supra note 19 (Factum of the Defendants) at 21, 26. 55 The atomistic features of Canadian constitutional law that marginalize community claims in court are well addressed by Joel Bakan in Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) at 48-51.

The counterclaim ultimately allowed the defendant’s to prove that they have a constitutional right to set up temporary shelter in public places that was violated by the City’s enforcement of its by-laws, but the court also clarified the justifiable limitations on this right, which I will critique for their negative effect on the visibility of homeless people in the city.

Justice Ross is explicit that ‘while it is the case that the litigation arose in response to the Tent

City in Cridge Park, at issue in the present summary trial application is the Counterclaim initiated by the Defendants.’56 Despite the community aspects of the counterclaim, it was still framed (as it had to be) as a claim for individual rights, and it was the protection of individual homeless bodies that determined the judicial outcome, not the need to be part of a community.

This is demonstrated in the text of the judgment that does not connect the effects of the by-laws on individual homeless persons to their effects on collective events like the tent city that make public places important sites of political empowerment and community building for homeless people.

The trial decision turned on Ross J’s interpretation of the claim under s. 7 of the Charter, which states: ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.’ In her analysis under s. 7, Ross J rejected the notion that Adams is a case engaging the positive dimension of s. 7, exemplified by Arbour J’s dissent in Gosselin v. Quebec (Attorney General),57 which would impose obligations on governments to take actions to advance the interests of rights-bearers, and she held the traditional s. 7 analysis, based on protecting individual rights against harmful state actions, to be the appropriate framework for this case.58 The relevant question, she found, is not whether a positive obligation to provide shelter for the homeless falls upon the state under s. 7,

56 Ibid at para 72. 57 Gosselin v. Quebec (Attorney General) , 2002 SCC 84, [2002] 4 S.C.R. 429 [Gosselin]. 58 Adams BCSC, supra note 19 at para 78.

33 but whether when ‘the number of homeless people exceeds available shelter space, it is a breach of s. 7 for the city to use its Bylaws to prohibit homeless people from taking steps to provide themselves with adequate shelter.’59 This ‘negative rights’ use of s. 7, which treats the right as an

‘invisible fence’ surrounding individuals to protect their life, liberty and security from oppressive state actions, has been criticized for the limited scope of harmful actions which are actually protected against by the fence, and for bolstering doctrinal barriers to a more positive application of law that would require governments to actively work to mitigate the harms of poverty and homelessness.60

By focusing on a state action, in this case the City’s enforcement of the by-laws by evicting the activists from Cridge Park, the underlying issues of poverty and homelessness that the tent city was formed to draw attention to are marginalized in the legal discussion, and the scope of the constitutional right is limited to the effect on individuals of being denied the right to construct temporary shelter, not the effect on the tent city, or on the activists conceived as a group. Nevertheless, constitutional protection from being forced to take down one’s shelter and made to move along is a significant legal tool for homeless individuals to wield, hence the

Cridge Park activists persistence in pursuing their constitutional claim. It has been noted that the positive/negative rights distinction is not a very accurate way of looking at legal rights, as evidenced by the positive obligations placed on governments by supposedly ‘negative’ civil and political rights, such as the requirement to establish a functioning electoral system that stems from the right to vote.61 While a right to be left alone to sleep in a park does not place such apparent obligations on governments, by breaking through the positive/negative rights dichotomy we are better able to perceive that the important constitutional question is whether the

59 Ibid at para 119. 60 Buhler, supra note 20 at 218 - 219. 61 Margot Young, ‘Section 7 and the Politics of Social Justice’ (2005) 38 UBC LR 539 at 549-550.

34 effects of laws and their enforcement are unjustifiably harmful to the people subject to them, and the answer to this question has both ‘negative’ and ‘positive’ implications for governments. In this sense, Ross J’s focus on the forced eviction of homeless campers from the park keeps the case centered on the specific state actions that sparked the constitutional claim, an approach that is more in line with a place-based view of what occurred in Cridge Park because it is fixated on the actions of the parties rather than expanding to the less localized issues they are connected to.

While there are a number of positive actions the tent city could be seen as advocating various levels of government to pursue, providing adequate shelter being only the most obvious, evicting the campers has the effect of making them invisible again, which hampers their ability to advocate for whichever positive state actions they might wish to see pursued. By claiming a right to stay in Cridge Park the campers were demanding the ability to be seen and heard in public free from state interference. Framing the case as engaging negative rights and not positive rights adds little clarity to our understanding of the events that occurred in Cridge Park. But Ross J is correct to identify Adams as a case about state interference of the campers’ actions – it is thinking of this interference as only disrupting individual rights, and not considering the effect on the tent city community itself, that marginalizes the political objectives of the campers and turns the collective story of a tent city in a public place into an individualistic story about rights in ‘public space.’

Following the traditional framework for analysis under s. 7, the campers’ claim that the prohibition on erecting shelter in public places, in circumstances where there are insufficient shelter options, deprived the life, liberty and security of homeless persons, was framed in the judgment in clearly individualistic terms.62 The effect of the by-laws on individual homeless persons who set up shelter in public places because they need to sleep somewhere at night was

62 Adams BCSC, supra note 19 at para 79.

35 the question at issue in Adams, even though the case arose because a community of homeless persons and their supporters had gathered collectively in a single public place. Ross J determined that enforcement of the by-laws restricting homeless people from sleeping in public places engaged all three s. 7 interests: life, because ‘the ability to provide oneself with shelter is a necessity’;63 liberty, because ‘[t]he state’s intrusion…interferes with the individuals’ choice to protect themselves;’64 and security, because the by-laws ‘deprived the homeless of access to the shelter required for adequate protection from the elements.’65 Ross J summarized her findings by concluding that the by-laws exposed the homeless ‘to a risk of significant health problems or even death,’ and therefore constituted a deprivation of life, liberty and security of the person.66

This conclusion demonstrates how the traditional framework for analysis under s. 7 functioned to make apparent the harm caused by enforcement of the by-laws. But the harm that was recognized was harm caused to individuals, not to a community. Indeed, the wording and common understanding of s. 7 attaches these constitutional rights to individuals, and it was thus as individuals that the claimants brought the case forward. The decision they made along the path to the courtroom to whittle away the sections of the Charter that would ultimately be included in the counterclaim and focus on s. 7 indicates that this was perceived to be the most likely route to a legal victory, and their counterclaim did in fact succeed. Indeed, the attention the tent city brought to homelessness was fundamentally about the life, liberty and security of homeless individuals who inhabit the City of Victoria. However, as the campers’ counterclaim indicated, we could conceive of these rights as requiring some ability to be self-sustaining and self- realizing that translates into more than a right to set up temporary shelter alone in order to

63 Ibid at para 145. 64 Ibid at para 148. 65 Ibid at para 153. 66 Ibid at para 155.

36 protect the body from the elements, and as involving the need for connection and belonging to a community. For the homeless, who do not have private places, and thus live their lives and interact with others in public places, community must be created in public, for the simple fact that there is nowhere else for them to be aside from the institutionalized environment of the shelter. Not only did the Cridge Park campers’ claim, in order to be heard in court, need to be framed in terms of individual rights for homeless persons, and the community aspects of their inhabitation of a public park be made secondary, but the reasoning that was followed by Ross J to find a right to set up temporary shelter in public places, because it focused on homeless individuals in general who occupy ‘public space’ by setting up shelter to sleep at night, led her to define the right in a way that lent no legitimacy to gatherings like the one which provoked the case.

I will discuss in detail the importance of gatherings in public places for community building and political empowerment among the homeless in the next section of this study. First, I will dissect the legal reasoning followed by Ross J in her analysis of the City’s justifications for the by-laws under s. 1 of the Charter, and demonstrate how despite challenging demeaning notions about the place of the homeless in public Ross J maintains an objectified view of ‘public space’ that fails to respect the significance of public places for the people who inhabit them, thus cutting rather than preserving the knot of life paths that was created at Cridge Park by the tent city. I will then conclude this section by discussing the further limitations placed on the right to temporary shelter in public places at the BC Court of Appeal, which more strongly affirm dominant understandings about ‘public space,’ and further entrench the notion that public places are for individuals to inhabit only briefly on their way between private places where they live, work, play and sleep.

Section 1 of the Charter ‘guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’ Having established that ordering the homeless campers to leave Cridge Park constituted a deprivation of their rights under s. 7, Ross J applied the two-stage Oakes test, as laid out in Canada (Attorney General) v. JTI-Macdonald Corp.,67 to determine if this deprivation could be demonstrably justified.68 The deprivation was found to pass the first s. 1 hurdle, which looked at the objectives sought by the City in enforcing the by-laws. Ross J held the purpose for the by-laws identified by the City, which was ‘the preservation of urban parks,’ which ‘provide significant environmental, recreational, social and economic benefits to the community,’ to be an important objective, thus the by-laws passed this stage of the test.69

In the second stage of s. 1 analysis, the means of fulfilling the legislation’s objectives must be reasonably and demonstrably justified as proportional to its ends, and this is assessed in three steps.70 Under the first step, which analyzes the connection between the impugned provision and the objectives of the legislation,71 Ross J found that the by-laws, which regulated what sorts of shelter homeless people are permitted to erect in public places, were not rationally connected to the City’s stated purpose of protecting urban parks against the “‘real urban problems’ that come with homeless encampments’; rather, she determined that these ‘real urban problems’ are ‘matters related to the presence of a population of homeless people and the services available for that population.’72 The by-laws also failed the second step of the proportionality test, which requires the impugned provision to impair the right as minimally as

67 Canada (Attorney General) v. JTI-Macdonald Corp, 2007 SCC 30 at para 36, [2007] 2 S.C.R. 610. 68 Adams BCSC, supra note 19 at para 196. 69 Ibid at para 200. 70 Ibid at para 201. 71 Ibid at para 202. 72 Ibid at para 204.

38 possible,73 as Ross J found that while the City’s professed concern is protecting parks, the by- laws apply to all public land, and while the other professed concern is with semi-permanent structures, all overhead protection, including that taken down every morning, is prohibited by the by-laws.74 Finally, under the third step of the proportionality analysis, the purpose of the provision must be weighed against its deleterious effects, with the values underlying the Charter and the importance of the rights at issue kept in mind.75 Section 7 rights have been held to be very significant and cannot ordinarily be overridden by societal interests.76 The by-laws failed this step as well, as Ross J rejected the City’s argument that limiting the ‘permanency’ of people’s occupations of public places is a proportionate response to the tent city, and that the failure to enforce such limits would in fact exacerbate the problems of homelessness and interfere with efforts to shelter and/or house people.77 Rather than being focused on limiting the permanency of the use of public places, Ross J found, the by-laws in fact prohibit all forms of overhead protection, including temporary shelter, which prevents homeless people sleeping outdoors from protecting themselves from the elements; therefore failing to enforce the by-laws would not exacerbate the effects of homelessness, but rather would temper them by permitting homeless people to shelter themselves.78 Furthermore, Ross J stated that since the defendants were not seeking a right to establish permanent tent cities in public places, failing to enforce limitations on overhead shelter could not be seen to interfere with efforts by the City to shelter or house the homeless, and the condition of some homeless people would in fact be improved by

73 Ibid at para 205. 74 Ibid at para 207. 75 Ibid at para 208. 76 New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46 [G.(J).] at para 99, cited at Ibid. 77 Adams BCSC, supra note 19 at para 209. 78 Ibid at paras 211-212.

39 being permitted to set up such shelter.79 Having failed all three steps of the proportionality test,

Ross J concluded her s. 1 analysis by finding ‘that the Bylaws, to the extent to which they prohibit the erection of overhead protection,’ could not be justified as a reasonable limit on the s.

7 rights of homeless individuals.80 Having come to this conclusion, Ross J disposed of the case by declaring that the impugned provisions of the by-laws violate s. 7 of the Charter in a way that is not in accordance with principles of fundamental justice, are not saved by s. 1, and ‘are of no force or effect insofar and only insofar as they apply to prevent homeless people from erecting temporary shelter.’81 Having reached this conclusion under s. 7, Ross J did not address s. 12 of the Charter.82

The result of the Adams trial is significant for many reasons, not least because Ross J rejected the blanket application of laws regulating public places in the City of Victoria. The by- laws could not be justifiably applied in the Cridge Park case, because the life, liberty and security of homeless people who live all or most of their lives in public was harmed by enforcing these laws in places where the homeless chose to sleep. However, the reasoning applied by Ross J to reach her conclusion, while disrupting the notion that public places are strictly for daytime temporary uses and not for setting up shelter, still evokes dominant assumptions about ‘public space,’ as evidenced by the particular limits placed on the right to set up shelter in public places that homeless people were found to have.

In order to demonstrate how the eviction of the Cridge Park campers was a justifiable means of preserving the park and the benefits it provides to the community, which was accepted as a legitimate objective for the by-laws by Ross J in her s. 1 analysis, the City submitted that the

79 Ibid at paras 213-215. 80 Ibid at para 217. 81 Ibid at para 239. 82 Ibid at para 240.

40 effect of striking them down would be an inevitable conflict over public places between the homeless and other users, in which the benefits of public places for the ‘community’ at large would be lost. Ross J summarized the City’s argument as follows:

The City submits that parks and public spaces positively affect the quality of urban life, contributing tangible and intangible benefits to the community. If these spaces are not protected and maintained for all, and these benefits are lost, the vitality of a community's commercial and residential life is weakened, as is its desirability as a place to live, work or visit. It is the City's submission that absent the Bylaws, there will be an inevitable colonization of public spaces with a devastating impact to the economic viability of adjacent areas.83

This depiction of public places being overrun and defiled by the homeless if they are permitted to set up shelter in ‘parks and public spaces,’ causing social and economic distress to the surrounding area and to the city at large, portrays the homeless as essentially separate from the

‘community’ the City seeks to preserve its public places for, even though the City says it must protect and maintain these places ‘for all’ (emphasis mine).

In her article analyzing Ross J’s decision in Adams, ‘Cardboard Boxes and Invisible

Fences,’ Sarah Buhler connects the City’s position to Law and Economics theories, the exemplar being those of Robert Ellickson,84 which perceive the economic harms of allowing the homeless to inhabit public places to outweigh the benefits, since homeless people sleeping and engaging in other ‘misconduct’ in public places is assumed to dissuade other members of the public from moving about, interacting and stimulating the economy in urban areas.85 Buhler sees these theories reflected in the City’s appeal to the notion that for public places to be highly valued by members of the public they must be characterized by order and pleasing aesthetics: ‘temporary shelters, such as tents, strung-up tarps, or cardboard boxes, represent the antithesis of “order”,’

83 Ibid at para 173. 84 Robert Ellickson, ‘Controlling Chronic Misconduct in City Spaces: of Panhandlers, Skid Rows, and Public Space Zoning’ (1996) 195 Yale LJ 1165. 85 Buhler, supra note 20 at 214-215.

41 and it is assumed that their existence in public places frustrates and diminishes the ability of other members of the public to use and enjoy public places, which in turn has a negative effect on the well-being of the surrounding community.86 By uncritically adopting and reproducing these perspectives on homelessness and the place of the homeless in ‘public space,’ the City’s argument is seen by Buhler not to be based on a neutral set of facts, ‘but rather on concepts that are thoroughly political.’87 The politics underlying the City’s argument are apparent, according to Buhler, in its reliance on ‘dominant assumptions about public space and the place of homeless individuals within this space.’88 These assumptions are that ‘public space’ is for the use of ‘the community’ or ‘the public,’ terms which appeal to a notion of inclusivity, but which are revealed to refer to an idealized image of city dwellers as the ‘bourgeois public’ who properly belong in the public sphere, and exclude the homeless, who are imagined as ‘“colonizers” who threaten to harm the public by their very presence in public spaces,’ and thus ‘public space’ is seen to be fairly regulated to enable a particular set of acceptable uses, namely the ‘leisure and activities of those deemed to be part of the “community”.’89

By connecting the City’s argument to this narrative, Buhler reveals how the supposedly neutral term ‘public space’ is in fact deeply political. While the City purported to be preserving public space ‘for all,’ it was actually excluding inhabitants of the city who are homeless from both this ‘space’ and the ‘public’ it exists for by making homeless people’s ways of using and enjoying ‘public space’ illegal. Buhler notes Jeremy Waldron’s observation that this dominant notion of ‘public space’ relies on a perceived ‘complementarity’ between ‘public’ and ‘private space,’ in which everyone is assumed to have some ‘private space’ where they can perform

86 Ibid at 215. 87 Ibid . 88 Ibid at 216. 89 Ibid.

42 supposedly private activities.90 In this way, the ‘objective’ view of ‘public space’ is seen to be constructed in opposition to a complementary view of ‘private space,’ both of which gloss over the reality that the vast range of human activities that occur in the city cannot be simply defined as either public or private, because for the homeless who live in public places, these are places where they live out both the public and private aspects of their lives. In claiming to preserve public places for all by enforcing its by-laws, the City made a clear distinction between places that are public and places that are private, but in order to do so it relied on deeply political assumptions about what particular activities are appropriate to particular places in the city, that leave a whole segment of the population, the homeless, caught in an ongoing cycle of ‘real and symbolic “eviction”’ from the public places they inhabit.91 While the ‘dominant narrative’ and

‘dominant assumptions’ Buhler refers to need to be disaggregated and analyzed further in order to sustain her conclusion that the City’s argument empowers a ‘bourgeois public’ against the homeless, she effectively criticizes this argument for building on an image of the city’s ‘public’ and ‘community’ that excludes homeless inhabitants. Other commentators on Adams have noted the same problem with the City’s argument that enforcing the by-laws against the homeless is a reasonable means of preserving parks for all; without access to private property, excluding the homeless from public places leaves them with no right to be in any place, or at best without the choice to be anywhere but an institutional shelter.92 This exclusion clearly indicates that ‘public space,’ which the law regulates in a much different way than ‘private space,’ is far from an

‘objective’ category of places, but is in fact a political distinction that justifies treating certain individuals as outlaws not because what they do is fundamentally wrong, or because they are

90 Jeremy Waldron, ‘Homelessness and the Issue of Freedom’ (1991-1992) 39 UCLA LR 295 at 301, cited at Ibid. 91 Buhler, supra note 20 at 217. 92 Kendra Milne, ‘Municipal Regulation of Public Spaces: Effects on Section 7 Charter Rights’ (2006) 11 Appeal 1 at 12; Sarah Hamill, ‘Private Property Rights and Public Responsibility: Leaving Room for the Homeless’ (2011) 91Windsor Rev Legal & Soc 91 at 93.

43 somewhere no one is supposed to be, but because of their social and economic situation which makes violating social norms and written laws in public places all but inevitable.

Buhler commends Ross J’s judgment for disrupting this dominant view of ‘public space,’ and destabilizing the notion of an inevitable conflict between the homeless and other members of the public over ‘public space.’93 Ross J found that ‘there is simply no evidence that there is any competition for the “public resource” which the homeless seek to utilize, or that the resource will not remain available to others if the homeless can utilize it,’94 and noted that ‘the parks are of fundamental importance to the homeless people, who are also part of the community.’95 In this way, Ross J deconstructs the exclusive notion of the ‘public’ presented to the court by the City, and reconstructs an inclusive view of the ‘public’ that brings homeless people into the ambit of the broader community for whom the City has the responsibility of preserving public places.

This reconstruction is crucial to her finding that the violation of the Cridge Park campers’ s. 7 rights was not justifiable, because it was the unfair harm caused to homeless people by the City’s chosen means of pursuing its objective of preserving public places ‘for all’ that led to the impugned sections of the by-laws being struck down. However, this reconstruction of the

‘public’ does not translate into an equally fundamental reconstruction of the notion of ‘public space.’ Remembering that the Adams case was sparked by a tent city, and not by individual homeless persons sleeping in public places, enables us to see that the dominant view of what

‘public space’ is, and what public places are for, remains essentially intact at the end of Ross J’s judgment.

The by-laws were struck down because of their harmful effects on the homeless, but allowing homeless people to establish temporary shelter in public places seems to be an

93 Buhler, supra note 20 at 217. 94 Adams BCSC, supra note 19 at para 130. 95 Ibid at para 181.

44 exception to an otherwise acceptable rule that people should not be setting up shelter in these places. In response to the City’s argument that failure to enforce the by-laws would hamper its efforts to house the homeless, Ross J reiterated that along with not claiming a positive right to housing, the Cridge Park campers ‘are not seeking…the right to establish permanent tent cities in public parks.’96 Indeed, nowhere in the judgment is it suggested that the homeless activists may have anything more than a right to set up temporary shelter in public places. Ross J discussed the facts of homelessness in Victoria,97 and addressed expert evidence about the health effects of not having a home,98 and her decision is based on her findings that while some may choose to sleep outside instead of in an institutional shelter, most homeless do not, and ‘[w]hile some homeless people choose not to seek accommodation in shelters, the fact is that there are not sufficient spaces in the shelters to accommodate those who seek shelter. Thus hundreds of people are left to sleep in the public places in the City.’99

Buhler notes that the issue of ‘choice’ is complicated in the context of this case, because the choice of where to sleep at night is severely constrained for the homeless, yet it is problematic to think of homeless persons as actors without agency or control over their lives.100

Ross J destabilizes the notion that homeless people are either victims or responsible for making illegal choices, Buhler says, by envisioning the homeless as autonomous agents who make necessary choices about where to sleep, and who thus should not be punished because they decide that setting up shelter in a public place is the best available option.101 Buhler also finds the

Adams decision to be significant for emphasizing the ‘corporeal reality of people who are

96 Ibid at para 213. 97 Ibid at paras 37 - 66. 98 Ibid at paras 67-69. 99 Ibid at para 58. 100 Buhler, supra note 20 at 220. 101 Ibid at 221.

45 homeless,’102 and showing ‘a concern for dignity and bodily integrity, and a holistic understanding that shelter is a necessary precondition for any human flourishing.’103 Despite this thoughtfulness about choice and care for human bodies, Buhler critiques the decision for maintaining a traditional negative rights approach to law. Buhler sees Ross J as viewing s. 7 as a

‘shield’ to be used by homeless persons against forced eviction from the public place where they choose to sleep when this is the best available alternative.104 The judgment’s emphasis on bare physical protection of homeless persons’ bodies through construction of flimsy temporary structures, Buhler argues, will produce minimal gains for the homeless, since the ‘shield’ approach to legal rights does not confront the larger economic and social structures that cause homelessness or place positive obligations upon governments to address the problems of homelessness.105

For the purposes of this study, I focus on the way the political event that sparked the

Adams case – a group of homeless people set up a tent city in Cridge Park in the center of

Victoria, and the City forced them to leave – was diluted in the construction of a legal narrative.

Given my earlier comments about the insufficiency of the positive/negative rights paradigm, I find the most troubling element of the legal reasoning not to be the lack of a positive rights dimension, but the focus on individual homeless persons rather than on the group of people whose collective actions provoked a response from the City, which in turn sparked a constitutional law case. The larger issue of homelessness is undeniably at the center of the case, and the tent city was set up to bring these issues (literally) to the center of public discussion in the City of Victoria. Nevertheless, an important part of the particular choice the homeless

102 Ibid at 222. 103 Ibid at 225. 104 Ibid at 222. 105 Ibid at 225.

46 inhabitants of the Cridge Park tent city made in order to protect their bodies was to be a part of a community. In her sociological study of how the Cridge Park tent city was experienced and perceived by its participants, Cristal Sargent identifies three dominant themes that emerged from interviews with campers: ‘attaining a sense of community, safety and security (the right to sleep), and negotiating individual identity.’106 The Adams case deals with the second of these themes, while the other two are essentially irrelevant to the decision. My study focuses on the theme of community, and I zero in on the importance of community gatherings for political participation and empowerment. Whatever positive obligations could have been placed upon governments in response to the issues raised by the Cridge Park tent city, I argue that the visibility gained by the campers through their collective occupation of the park is a centrally significant feature of the story of this place, and it is this aspect of the story that was most glaringly elided through its conversion into a legal narrative.

In her study, Sargent interviewed individuals who spent significant amounts of time inhabiting the tent city107 in order to determine ‘whether there is an association between Cridge

Park tent city participation and collective action and protest.’108 Her findings suggest that the political aspect of the tent city was of major importance to the campers, and for many it was a key factor in the choice to join and remain in this community. Responses from participants showed that ‘they became involved in the collective action through organizing, association with other activists, leadership, sharing personal and political ideologies, and/or spontaneously becoming involved.’109 Many responses indicated that active engagement in the tent city was provoked by individuals’ discovery that their values aligned with those of the collective action,

106 Sargent, supra note 34 at 70. 107 Ibid at 58. 108 Ibid at 53. 109 Ibid at 71.

47 and that many found participation to be enjoyable and beneficial to their living situation; one of the campers stated that the tent city ‘meant everything for me, it was a battlefield, although it was also a place for peace and freedom.’110 Connecting community to safety and security, the only one of the three themes identified by Sargent that was directly addressed in Adams, some participant responses indicated that being a part of the tent city had a positive impact on their health and well-being, and one camper noted a sense of safety from being able to avoid negative attention from the police, who targeted those homeless individuals who were not secured in the tent city.111 The theme of negotiating individual identity is also deeply attached to community, and campers reported becoming politically engaged and involved in other protests after the tent city,112 and feeling a sense of solidarity and oneness as a result of their participation.113 These findings indicate clearly that the community and political aspects of the tent city were an important part of the Cridge Park campers’ experience of the action, and that these were key factors in the choices made by individuals to inhabit the tent city. While the campers’ constitutional counterclaim in Adams was framed in the individualistic terms required to prove a violation of a s. 7 right, the evidence collected through these interviews adds emphasis to the aspects of the claim that depicted the tent city as much more than a place to shelter one’s body at night – it was a place where inhabitants could feel some belonging to a community and a sense of political empowerment.

The campers came to Cridge Park to be a part of the tent city community, but the responses to Sargent’s interviews indicate a degree of ambivalence about the legality of the tent city and its intended duration. One participant was clear that they thought the ‘Cridge Park tent

110 Ibid at 71-72. 111 Ibid at 73 -74. 112 Ibid at 75-76. 113 Ibid at 78.

48 city was not meant to be permanent…[t]he intended goal is not to permanently house people in that space, it was about lobbying for changes in laws and policies.’114 Another camper stated that while the tent city fostered a sense of community, ‘eventually tent cities would have to come to an end.’115 All participants agreed, however, that tent cities are a feasible option for the homeless when the resources and services offered by governments and other parties to people without adequate housing did not meet their needs.116 The tent city was seen to provide services for homeless people that they could not access without the existence of this city within a city: ‘[a]n open green space, water access, and a place for sanitation and human waste,’ and more generally

‘a designated tent city location for people to return to each night to pitch their tents’ were benefits referred to by participants.117 One participant emphasized the importance of ‘reclaiming public space and making space for everyone, even those alienated from social services.’118 It appears that while the campers’ may not have intended to permanently occupy Cridge Park, many of their reasons for inhabiting the tent city and the benefits they gained from it could only be satisfied by a more permanent occupation than that of an individual discreetly setting up shelter to sleep overnight in a park, only to be made to take it down in the morning. Participants saw their role in initiating the Adams case as key to what made the Cridge Park action extraordinary when compared to other tent cities.119 Nevertheless, by going to court to claim a right to set up shelter in this public place, the campers life paths were disconnected in the legal narrative, and they were portrayed as a class of individuals occupying ‘public space’ overnight, rather than as a real community inhabiting a public place on a more ongoing basis.

114 Ibid. 115 Ibid at 79. 116 Ibid at 80. 117 Ibid at 79. 118 Ibid at 78. 119 Ibid at 77.

49 ii. The Right to Temporary Shelter on Appeal

At the BC Court of Appeal, the right to construct temporary shelter in public places that

Ross J found to exist for the homeless under s. 7 had its limitations clarified in a way that solidified the highly temporary nature of the right, and that reinforced dominant notions about

‘public space.’ In the opening paragraph of the judgment, the court stated that the appeal addressed a ‘narrow issue’:

[W]hen homeless people are not prohibited from sleeping in public parks, and the number of homeless people exceeds the number of available shelter beds, does a bylaw that prohibits homeless people from erecting any form of temporary overhead shelter at night – including tents, tarps attached to trees, boxes or other structure – violate their constitutional rights to life, liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms?120

The narrow scope of the homeless campers’ claim is positioned as having ‘wide meaning and implications for all,’ because of the City’s responsibility to preserve public places for the benefit of the larger city community.121 This careful positioning of homeless people’s claims for a right to inhabit public places within the broad context of a need to preserve public places for the public at large limits the possibility of the court upholding anything more than a fleeting right to set up shelter under s. 7. The narrow scope of the constitutional claim affirms the notion that setting up shelter is beyond the range of normally acceptable uses for public places, and treats whatever right to set up such shelter exists as an exception to these normal uses. The appeal court ultimately upheld Ross J’s decision, except ‘to the extent of varying the wording of the order…to more accurately reflect the issue considered at trial and the trial judge’s reasons for judgment.’122

To conclude this section of my study, I will discuss this change in the wording of the order, which affirms the dominant assumptions about ‘public space’ I have shown to underlie Ross J’s

120 Adams BCCA, supra note 19 at para 1. 121 Ibid at para 4. 122 Ibid at para 11.

50 decision, and hardens them into law by more clearly and strictly limiting the right to set up shelter in public places.

Drawing on a key component of Ross J’s reasoning in the trial judgment, the appeal court made its decision on the premise that a ‘free-standing constitutional right to erect shelter in public parks’ was not at issue, and ‘[t]he finding of unconstitutionality is expressly linked to the factual finding that the number of homeless people exceeds the number of available shelter beds.’123 Directly attaching the right to set up shelter in public places to the lack of available shelter beds minimizes the element of choice for homeless people who may have particular reasons for preferring a tent in a park to a bed in an institutional shelter, and lays the ground for limiting the right to strictly overnight sleeping. Indeed, the appeal court made clear that in order to preserve public places for all, ‘[t]he City could require the overhead protection to be taken down every morning.’124 Viewing the right as directly stemming from the lack of available shelter beds also confirms that the right to set up shelter in public places for the purpose of sleeping does not translate into a right to gather and participate in a community with other people. The appeal court, unlike Ross J, accepted that there is ‘some evidence that people would congregate in parks if the absolute prohibition on the erection of overhead shelter was lifted’ and saw this evidence as properly related to the City’s goal of preserving public places for all.125

Reflecting these concerns, the appeal court clarified the meaning of ‘temporary shelter,’ holding that the term refers not to the nature of a particular shelter’s construction, but to the amount of time it is in place.126 These clarifications led to the varying of the trial order, which was adjusted to specify that the by-laws ‘are inoperative insofar and only insofar as they apply to prevent

123 Ibid at para 74. 124 Ibid at para 116. 125 Ibid at para 122. 126 Ibid at para 160.

51 homeless people from erecting temporary overnight shelter in parks when the number of homeless people exceeds the number of available shelter beds’ (emphasis mine).127 In this way, the assumptions about the appropriate uses of public places that appeared to frame the reasoning in Ross J’s trial judgment despite her efforts to disrupt dominant notions of the ‘public,’ became solidified in the strict limitations placed on the right to temporary shelter by the Court of Appeal.

The right that homeless people can now claim under s. 7 by relying on Adams is a right to temporary overnight shelter in public places that does not grant a right to gather with others and form community free from state interference. Rather, it is a right for an individual to sleep alone, under temporarily constructed shelter, in public places, overnight when other members of the public are not making use of these places.

As the reported experiences of the Cridge Park campers show, the tent city, although formed to draw attention to homelessness and advocate for adequate housing, meant more to its inhabitants than merely a place to shelter one’s body at night. The tent city provided homeless people in Victoria with a sense of belonging to a community, and made these marginalized residents of the city visible to its more privileged denizens, as well as to the various levels of government that made and enforced the laws which brought the campers to court. In the next section, I will turn to political theory to demonstrate how public visibility and belonging to a community are essential prerequisites to participation in political society. These needs are tied to the life, liberty and security of individuals, and suggest that a free and democratic society requires more than bare protection of human life, which was the focus of the s. 7 discussions in the Adams judgments. The homeless people who made a tent city in Cridge Park sought to address the severe problems to people’s health and well being caused by having to live without adequate housing. But in so doing, they directly confronted dominant notions of ‘public space,’

127 Ibid at para 166.

52 and it was this challenge that led them to the courtroom. The victory they achieved there reinserts the homeless into the narrative of ‘public space,’ subverting the exclusionary tendencies of the public/private conceptual divide. Nevertheless, the limits placed on the right to temporary shelter, which essentially affirms a right to exist in ‘public space,’ deny to the homeless the right to build community and become visible in a public place. The stories I will tell in the remaining sections of this study, which take place in my home city of Vancouver, highlight the importance of public places for the homeless people who inhabit them during political actions, and can hopefully be used to inspire more place-conscious understandings of constitutional rights that enable homeless people to empower themselves, rather than remain subject to an objectifying view of ‘public space’ that keeps them invisible.

IV. WOODWARD’S: POWER AND VISIBILITY ON THE STREET

Cities, like dreams, reflect our desires and fears, and those of some inhabitants are imprinted on the urban landscape more clearly than others. In the introduction to this study, I described the dreamlike quality of cities created by the multitudinous and intersecting life paths that weave an urban fabric. Although people inhabit common places in the ‘City’ the meanings attached to knots of entangled life paths are marked out in different ways, and these meanings are made more or less visible to others depending on who is most empowered in these places.

The ‘City’ cannot be seen as a whole, but the urban landscape can be viewed from different angles, and the relative power of the ‘City’s’ diverse inhabitants is reflected in the physical reality of the places that make up the landscape.

‘Landscape’ refers both to physical environments and to the ways that people see them,128 and is a useful term for thinking about places as physical embodiments of entangled life paths created from the interactions of people with each other and with the world. Sharon Zukin notes in her book, Landscapes of Power, that ‘landscape is the most important product of both power and imagination.’129 Landscapes reflect the desires and fears of people inhabiting places, but the particular desires and fears that are inscribed in a landscape are determined by whom it is that has power in that particular place. An obvious feature of landscapes, and perhaps the most relevant feature for considering the connection between power and place, is simply the actual people who are present in a place. When we are physically emplaced in a city, we can look at who the inhabitants of the particular place we are present in are, and have a view of what they are doing in that place, of how they interact with the other people around them and with their physical surroundings, and this view tells us much about that place and who has power in it. In

128 Blomley, Unsettling the City, supra note 22 at 37. 129 Sharon Zukin, Landscapes of Power: From Detroit to Disney World (Berkeley: University of California Press, 1991) at 268.

54 this light, when marginalized city dwellers occupy a public place for political purposes, they are seen as making a mark on the landscape and this is a key aspect of their empowerment. In Cridge

Park, for instance, the tent city campers who sparked the Adams case can be seen to have inserted themselves into a landscape that they were excluded from by dominant legal and political discourses, and their action can be viewed as a challenge to the power structures and social imaginaries that had been inscribed in this park at the center of Victoria. In this section, I will look at occupations of public places by homeless and anti-poverty activists in the City of

Vancouver, to show that high visibility events that confront legalized notions of ‘public space’ have been a crucial means for empowering the homeless, because gatherings like tent cities inscribe homeless people onto the urban landscape and perform alternatives to the public/private paradigm that functions to deny the homeless the right to have a place in the ‘City’ they live in.

i. The Woodward’s Tent City

I have vivid memories of walking and driving along Hastings Street in Vancouver in the late-1990s and early 2000s, past the abandoned Woodward’s department store building where residents of the Downtown Eastside (DTES) had made an encampment on the sidewalk out front.

The image of the sidewalk tent city made an indelible imprint on my view of the urban landscape of Vancouver, and is one of my earliest memories of the DTES community and of homeless and anti-poverty activism in the city.

Many inhabitants of Vancouver and its surrounding urban areas live without homes. The most recent ‘official’ report of the homeless population of the Metro Vancouver area, the Results of the 2014 Homeless Count in the Metro Vancouver Region, which defined the ‘homeless’ for the purposes of the count as a person ‘who did not have a place of their own where they could

55 stay for more than 30 days and if they did not pay rent,’ found ‘a total of 2,777 homeless people…in the Metro Vancouver region.’130 While the Vancouver area offers a number of institutional shelter spaces, particularly in winter months when the weather is more harsh, according to a 2012/2013 report on the Greater Vancouver area’s ‘Extreme Weather Response

Plan,’ 522 shelter spaces were available ‘at various points in the season,’131 a number far below the number of homeless people who live in the region. Despite the availability of these shelter spaces, few homeless people stayed in them; the same report found that average occupancy of regional ‘extreme weather response’ shelters in the winter season was only 27%.132 These facts show that the quantity of available shelter spaces in the Vancouver area is clearly insufficient to house the homeless population, and the fact that few homeless persons appear to have chosen to stay in those that were available (or were unaware or unable to access the shelter spaces) suggests they may be qualitatively insufficient as well. Given the work that the insufficient availability of institutional shelter spaces in Victoria played to limit the right to set up temporary shelter in public places established in Adams, it appears homeless persons in Vancouver would have a strong claim for exercising the same right, and I will return to this issue in the next section.

Here, I will look at an action in Vancouver that involved many homeless people and which set up a tent city in a public place; this action did not lead to a case in a courtroom, and came to an end with a political, not judicial outcome.

130 The 2014 Homeless Count in the Metro Vancouver Region found 2,777 people living without a home in the region on the night of March 12, 2014 (Greater Vancouver Regional Steering Committee on Homelessness, Results of the 2014 Homeless Count in the Metro Vancouver Region (Vancouver: Metro Vancouver, 2014) at i-ii. 131 Greater Vancouver Shelter Strategy Society, Greater Vancouver Extreme Weather Response: 2012-13 Evaluation (Vancouver: James Pratt Consulting, 2013) at 12. 132 Ibid at 14.

In the very center of the Vancouver area is the DTES, a neighbourhood with a large low- income population at the eastern end of downtown.133 Statistics for the DTES show a high proportion of residents living in single person households as well as living on social assistance, but they do not account for the homeless.134 Without a fixed ‘private’ place, homeless people, who are a highly visible part of the urban landscape in the DTES from the view on the street, become invisible when the city is looked at and rationalized from an ‘objective’ distance. Having a home is a key feature of what it generally means to be ‘resident’ in the city, and even in its poorest neighborhood where the homeless have strong community attachments and many support services this lack of a ‘private’ place makes it difficult for homeless people to be seen from an ‘objective’ view of the city. The homeless population cannot be sorted into individual

‘housing units’ in ‘private space,’ which is why figures about Vancouver’s homeless are collected over a single night and day by counters who visit streets and shelters in the city.135 This is an example of how the place of the homeless in the urban landscape cannot be fixed the same way it can be for people who have homes. Homeless people are perceived as being broadly in

‘public space’ rather than in any particular place where a homeless person has strong attachments or a feeling that the place is theirs. This also indicates how significant tent cities are for increasing homeless people’s control over their own visibility as part of the urban landscape;

133 Recent statistics show that the DTES had a higher unemployment rate (22%) than the City as a whole (9%), average household income was less than 30% of the City’s median household income, 40% of residents total income was from government transfer payments compared to 10% in the City, 67% of the population was considered low- income compared to 10% in the City, a high-percentage of residents were not living in families and 50% of these non-family persons lived alone compared to 20% in the City, the percentage of low-income unattached individuals was almost two times that of the City, only 90% of housing units were owner-occupied, and while average gross rent was approximately half that of the City, more than 30% of households spend more than 30% on shelter costs, compared to less than 23% for the rest of the City (City of Vancouver, 2005/06 Downtown Eastside Community Monitoring Report (Vancouver: City of Vancouver, 2006) at 6-14). 134 Ibid at 12. 135 Greater Vancouver Regional Steering Committee on Homelessness, supra note 130 at i.

57 these actions put the homeless ‘on the map,’ so to speak, not only as individuals as the Homeless

Count does, but also as members of a community that has its own place in the city.

While the Woodward’s action was not a ‘homeless’ action per se but a gathering of different people from the DTES who may or may not have had their own homes at the time but were all responding to the problems of poverty, gentrification and lack of affordable housing in the city, their ongoing inhabitation of the sidewalk brought visibility and empowerment to a community of low-income activists determined to address these problems by setting up a tent city in a public place that is generally seen as a place for moving through and not inhabiting. For this reason, I present the Woodward’s action as an example of how power can be generated by marginalized actors through the occupation of places in public, and as evidence that the limitations placed on the right of homeless people to be in public places affirmed in Adams have serious consequences for the political power of the homeless.

The Woodward’s building is ‘[a] large red brick building’ that ‘fronts the north side of the one hundred block of West Hastings Street’: originally the flagship store of a regional department store chain, the building long played a central role as a retail and social resource in the DTES, until spatial shifts in retail capital investment towards the western part of downtown had made it non-competitive, and it closed its doors for the final time in 1993.136 While the building was ‘private space’ in the strict sense of ownership affirmed by the law, its role as a central meeting point in the DTES community gave local residents their own sense of ownership over the place, as the response to Woodward’s closure showed. In 1995, people began to gather on the street outside, and started to clean the area and pick up litter; subsequently, some locals used water-soluble paint to make pictures and slogans on the building’s windows, some of which were political, but many of which were simply images to make the place charming and

136 Blomley, Unsettling the City, supra note 22 at 39.

58 aesthetically pleasing.137 The geographer Nicholas Blomley, whose book Unsettling the City:

Urban Land and the Politics of Property critically examines the politics of real property in

Vancouver, deduces that these actions at the Woodward’s building were motivated by two connected desires of the activists. First, to show that they cared for the building and the neighbourhood, and that it was the fault of capital, and not the poor residents of the DTES, that the built environment had declined and this central building had been abandoned. But also, by acting on a sense that they ‘can and should maintain and improve’ the building and its surroundings, DTES locals ‘were enacting a claim of ownership.’138 Blomley employs performative theory, exemplified by J.L. Austin’s linguistic argument that language does not merely represent the world but enacts it,139 in his research on the making of progressive property models by urban anti-poverty activists. This theory has been extended beyond the realm of language to include other modes of performance, including legal regimes such as property; from this perspective we can see how property becomes a reality through our personal and collective performances, in which we act as if property as we know it is real, through actions which can be as simple as maintaining a fence to mark the boundary between our own property and our neighbour’s.140 The care shown for the Woodward’s building by the activists can be seen as a performance of ownership, although not by an individual claiming title to the property, but by a community that viewed this place as theirs collectively and wanted to maintain it.

Under the law, however, the Woodward’s building did not belong to the DTES community. It was owned by a developer that had a proposal to build 350 condominium units on

137 Ibid at 39. 138 Ibid . 139 J.L. Austin, How to Do Things With Words (Oxford: Oxford University Press, 1965). 140 Blomley, ‘Performing Property: Making the World,’ (2013) 27:1 Canadian Journal of Law and Jurisprudence 23 [‘Performing Property’] at 32-33.

59 the site, a plan that was met with stern opposition from many local residents.141 While the public/private divide functions to clarify that places like the Woodward’s building are ‘private space’ owned by an individual person, this distinction does not preclude other people who have strong attachments to such places but do not ‘own’ them from seeing them as their own.

Opposition to the plan, which was essentially the first large redevelopment project proposed at the core of the DTES, was related to concerns that gentrification would displace local residents who would no longer be able to afford the cost of living in the neighbourhood. But Blomley sees another source of opposition rooted in a more fundamental rejection of the dynamics of ‘real property’ that deemed the Woodward’s building to belong to the developer and not to the people of the DTES. Blomley perceives that the ‘[a]ctivists claimed an enduring symbolic relationship between the building and the “community”,’ and that after so many years of being ‘invested with meaning and value’ by the DTES community, ‘the private rights’ of the developer ‘had to recognize the collective claim of the community.’142 In this way, while the building belonged to a private developer and was therefore ‘private space,’ local residents enacted a kind of collective ownership that had been developed over many years through numerous life knots being tied together in this place, that countered the ‘official’ individualistic real property model.

The care the activists showed for the building made this claim visible to the public at large, and led to the establishment in early 1996 of a partnership between the City, the developer, and the activists, from which emerged a proposal to develop the site as mixed-use housing that would not exclude low-income locals. However, tensions between the developer and activists who insisted the site should be developed entirely as low-income housing led to a break down in negotiations, and in 1997 the developer walked away and returned to his original market-only

141 Blomley, Unsettling the City, supra note 22 at 40. 142 Ibid at 41.

60 proposal, which was formally accepted by the City government.143 This outcome was perceived as a betrayal by members of the DTES community, and sparked renewed actions against the project which, as Blomley notes, showed even clearer evidence that a claim of community ownership was being made, highlighted by one activist’s claim that: ‘We’re not going to let go of the Woodward’s site, even if someone else does own it.’144

At this is point in the Woodward’s story the actions of local residents had taken on an overtly political tone. Activists painted graffiti on the now-boarded up windows of the building that marked it explicitly as ‘community property’ and physically expressed their protection of the property by encircling the building with a ‘human chain and surveyor’s tape.’ This renewed pressure proved effective, and in 2001 the outgoing provincial NDP government acquired the site from the developer and promised to create 300 co-op housing units and reserve the rest of the site for retail and commercial purposes.145 This decision shows that the visible displays of community ownership over this place, although contrary to the ‘official’ and common understanding of property, were not unnoticed or wholly rejected by the ‘official’ authorities, and they may have been more openly received because of the social-democratic sympathies of the BC NDP government. However, this victory was quickly upended, as the new BC Liberal government decided in spring 2001 to seek to offload the property once again, and the perceived threats to the community of private condo development were renewed. In response, activists removed the boards from the windows and entered the empty building, establishing what was called ‘Woodsquat.’ This squat, which occurred fully across the threshold between the ‘public space’ of the sidewalk and the ‘private space’ of the building, was ended when police entered the building and evicted the squatters. Not content to leave this place that they claimed belonged to

143 Ibid. 144 Ibid . 145 Ibid at 41-42.

61 their community behind, the activists renewed their squat on the sidewalk out front, setting up an encampment that the authorities allowed to remain until it was disbanded in December 2002.146

The final period of the Woodward’s action was defined by the presence of this encampment, essentially a tent city on the Hastings Street sidewalk. This is the view that left such a mark on my mental image of the landscape of the city; it made the fact of unaffordable housing and homelessness in Vancouver clear and obvious, but more pointedly it showed that a community of low-income and homeless residents existed that was committed to political action to counter threats to its future survival in the DTES. As Blomley reports, activists used the tent city to embarrass the authorities for allowing urban poverty and homelessness to persist, and more bluntly, to maintain their claim of ownership over the building: ‘[t]he physical presence of the tent city, complete with mattresses, chairs, and tents made this sense of ownership manifest.

Walking down Hastings Street, one entered people’s bedrooms.’147 While the community ownership claim to the Woodward’s building had disrupted the notion that it was strictly ‘private space’ owned by the developer, the tent city similarly disrupted the notion that the sidewalk was

‘public space’ that people were not entitled to occupy on an ongoing basis. By setting up a tent city in front of this building that had been a central meeting point for the DTES community, the activists enacted a claim to a place in the city based on the historical and continuing existence of a community with strong attachments to a place called Woodward’s. The visibility of the tent city, where people lived their ‘private’ lives in ‘public,’ demonstrated to the rest of the city that regardless of whether the sidewalk and building were called ‘public’ or ‘private’ by ‘official’ designations, there was a community that had made the building and neighbourhood what it was and that had in turn been made by being in these places. The fact that the City allowed the tent

146 Ibid at 42. 147 Ibid at 45.

62 city to stay on the sidewalk does not exactly suggest that they saw the activists as having legal rights to be there, but it enabled the continuation of a performance by DTES locals that transcended the public/private dichotomy and enacted a community form of ownership over the

Woodward’s site. The tent city was, technically, an occupation of ‘public space’ in front of a building that had been ‘private space’ but had been transferred to public ownership. While the same rights of use and access do not apply to a building owned by the City as they do to public places like parks, squares or sidewalks, the campers did invoke the building’s new designation as

‘public property’ to embolden their claim that the place belonged to them.148 Nevertheless, the claim of the campers was never fundamentally about the legal characterization of the place as public or private, as the first actions showing care for the building, which was then indisputably owned by the private developer, indicated. The key point was that the DTES neighbourhood, and the Woodward’s building that was at its center, belonged to a community, and this community had a right to stay in these places that should not be overridden by individual property rights.

The Woodward’s tent city did not take place in a public park or square like the tent city at issue in Adams, although it did take place on a sidewalk, which is evidently ‘public space.’

While presumably the same concerns about temporary structures blocking use and access for other members of the public would apply in this setting (indeed, a sidewalk seems to be a place clearly designed for moving through), the City did not make the activists leave. A distinction between the two tent cities, aside from one being on a sidewalk and one being in a park, is the particular nature of the attachment between the activists and the places. The Woodward’s building was a site of deep community significance for the people of the DTES, and a tent city was set up to maintain this attachment and preserve the community the building catered to.

Cridge Park, on the other hand, was made meaningful to the activists through the creation of the

148 Ibid at 45.

63 tent city, which was set up in the center of Victoria in a highly visible public place to bring attention to the city’s housing and poverty problems and provide the homeless with a place to gather and meet their essential needs. But the meaning of the Cridge Park tent city, as indicated by the emphasis of interviewed participants’ on ‘community, safety and security’ and

‘negotiating individual identity,’149 was not so unlike the meaning of Woodward’s to DTES locals, in the sense that it was a place where individuals could be with each other as members of a community as well as attend to their individual needs.

Campers in front of the Woodward’s building recognized its symbolic role in the

DTES,150 and it was located at the center of the neighbourhood, so letting them stay on the sidewalk in front of the building may have been more palatable to the authorities in Vancouver than allowing the homeless campers to remain in Cridge Park seemed to have been to the authorities in Victoria. Both were gatherings of low-income and homeless persons that had certain similar meanings to their participants, but the places presumably had very distinct meanings from the view of the authorities that regulated them. While Cridge Park is in the center of Victoria in the heart of the tourist area, around the corner from the provincial legislature and adjacent to a residential area of carefully kept old houses, the Woodward’s building is at the heart of a neighbourhood that has been economically and socially marginalized within

Vancouver, to such an extent that one city official has described the DTES as ‘no longer part of our city.’151 Because of this difference in its location within the urban landscape, the Cridge Park tent city challenged laws regulating uses of public places in a way that was jarringly at odds with typical uses of the park, and it abruptly made a place for the homeless where none had existed before.

149 Sargent, supra note 34 at 70. 150 Blomley, Unsettling the City , supra note 22 at 44. 151 David Beers, ‘At Face Value,’ Globe and Mail (21 November 1998), D3, quoted in Ibid at 33.

Commentators on laws regulating public places such as parks and squares have noted the connection between these laws and fears about the homeless that ‘perpetuate stereotypes and maintain stigmatization.’152 Talmadge Wright, in his book Out of Place: Homeless Mobilization,

Subcities, and Contested Landscapes, has noted that ‘the homeless body in the public imagination represents the body of decay, the degenerate body, a body that is constantly rejected by the public’ by pejorative inferences that ‘create social distance between housed and unhoused persons.’153 This social distancing is reflected in the characterization of the Cridge Park campers by the City of Victoria as ‘colonizers’ of ‘public space,’ which I discussed in the previous section. Wright concludes that ‘[i]n effect street people, camping in parks…evoke fears of

“contamination” and disgust,’ and embody social fears such that they ‘must be placed as far away as possible from safe neighbourhoods.’154 While the exact motivations of the authorities who responded to these two different tent cities are the subject of speculation, this rationale for enforcing laws against homeless persons’ uses of public places could provide some clue as to why the Woodward’s tent city was allowed to stay and the Cridge Park tent city was not.

Whether or not the people camping in front of the Woodward’s building were homeless, their presence and that of the tent city itself did not fit into the view of the urban landscape typically imagined by people who are housed and not impoverished. But in the DTES, a neighbourhood with a dramatically lower-income population than the rest of the city, that is frequently inhabited by homeless people, it is less likely the social fears discussed by Wright would be provoked. A tent city did not look as out of place in the DTES as it did in Cridge Park, because the people

152 Randall Amster, Street People and the Contested Realms of Public Space (New York: LFB Scholarly Publishing LLC, 2004) at 112. 153 Talmadge Wright, Out of Place: Homeless Mobilizations, Subcities, and Contested Landscapes (New York: SUNY Press, 1997) at 69. 154 Wright, ‘New Urban Spaces and Cultural Representations: Social Imaginaries, Social-Physical Space, and Homelessness’ (2000) 5 Research in Urban Sociology 23 at 27.

65 who set one up in front of the Woodward’s building were also seen to belong to the surrounding community. Indeed, the Woodward’s tent city had as much to do with protecting low-income renters who were housed in the DTES as it did with homelessness, so the actions of renters who feared their homes would become unaffordable could not be seen as threatening ‘public space’ in the same way as homeless people claiming a right to stay in a park, and their housed condition would grant them a less degenerate social status within the larger city than that of the homeless.

These differences may account for the Woodward’s tent city being allowed to stay, and may have enhanced the DTES activists’ ability to achieve their political goals. Indeed, in the city elections in November 2001, issues related to the DTES, and the Woodward’s tent city itself, received a great deal of media attention, and a left of center party was elected that had strong ties to the DTES. In December 2002 the campers agreed to disband the tent city in exchange for alternative accommodation, and the province sold the building to the City and promised to fund

100 non-market housing units.155 This put an end to the Woodward’s action, and concluded a significant moment in the history of the DTES and anti-poverty activism in Vancouver. The

Woodward’s story shows how a gathering of peoples, even of the most marginalized, can become a source of power. The coming together of residents of the DTES with common purpose was a moment of empowerment that forced those with legal authority over this place to listen and address their demands. The Woodward’s activists performed a different kind of property, based on community ownership. This performance made the most marginalized inhabitants of the city visible as a community, and was successful, at least to a degree, at achieving its purpose.

Nevertheless, the success of the activists in terms of the actual outcome should not be overstated. The fact that the resulting compromise was less than what the activists had demanded, because the final Woodward’s redevelopment replaced 404 demolished low-income homes with

155 Blomley, Unsettling the City, supra note 22 at 45.

66 only 125 new units,156 shows that any power generated by marginalized people is still directed against a dominant performance that has its own source of power in the collective actions of more privileged members of society. For the homeless in particular, who are among the most marginalized inhabitants of the city and are not perceived as having as deep an attachment to a place as low-income renters of housing do, this power imbalance is even more amplified. Having shown through the Woodward’s example that occupations of public places can empower the people who are made visible by such actions, I will now employ the political theory of Hannah

Arendt to explain how it is that power is actually generated in such gatherings. This clarity about the connection between power and place will reveal why the limitations on homeless people’s rights to inhabit public places have effects that are highly detrimental to the political empowerment of the homeless.

ii. Hannah Arendt and the Generation of Power

My argument is deeply influenced by the political theorist Hannah Arendt’s concept of power, which is most clearly defined in her essay ‘On Violence.’ Power, she says ‘corresponds to the human ability not just to act but to act in concert. Power is never the property of an individual; it belongs to a group and remains in existence only so long as the group keeps together.’157 This is distinguished from violence, which Arendt believes is wrongly equated with power;158 violence is instrumental in character, and refers only to implements that can be used to subdue others, which is not the same as power.159 This concept of power is useful for revealing

156 Carnegie Community Action Project, ‘Social mix has displaced low-income people at Woodward’s’ (accessed 26 April 2013), online: http://ccapvancouver.wordpress.com/2013/02/20/ww_gent/. 157 Hannah Arendt, ‘On Violence,’ in Crises of the Republic (New York, NY: Harcourt Brace, 1973) [‘On Violence’] at 143. 158 Ibid at 134-141. 159 Ibid at 145.

67 the ways people who are commonly seen as not having power (when power is characterized as force, violence or the ability of some persons to control the actions of others),160 like the homeless, are able to generate power themselves through their own actions. Arendt explicitly seeks to subvert the dominant view of power, which she calls ‘command-obedience,’ that fails to perceive, even when it is attached to the rule of law instead of the rule of men, that it is consent and agreement, not command and obedience, which is the fount of power.161 When power is conceived in this way, our attention is drawn away from authorities (or in general, the state) as the locus of power, and we begin to see how the interactions of people pursuing common purposes are not only able to challenge institutions that are known to be powerful, but are engines of power themselves.

Arendt describes how political institutions like governments rely on the generation of power by the governed in order to function: ‘[a]ll political institutions are manifestations and materializations of power; they petrify and decay as soon as the living power of the people ceases to uphold them.’162 With a representative government system in mind, we could theoretically view this statement as reflecting the fact that elected governments must maintain the consent of the people as articulated through the vote in order to maintain power, and see the vote as the means through which ‘the living power of the people’ upholds the state. But this is a narrow view of power, since while the people could be seen as forming a common will and

160 A classic definition of power is that of Thomas Hobbes, who saw power in individualistic terms as the ability of a man ‘to obtain some future apparent good,’ and even while recognizing that ‘[t]he greatest of human powers is that which is compounded of the powers of most men, united by consent,’ that is only because these powers are handed over to ‘one person, natural or civil, that has the use of all their powers depending on his will’ (Leviathan, edited by J.C.A. Gaskin [Oxford: Oxford University Press, 1996], Ch. X). While power in Hobbes’ view can be seen to come from below, through the consent of peoples, it is still conceived as the power of one or some persons over others who have given up their individual powers –it is the transfer of powers between individuals that makes power the property of some and not others to Hobbes, whereas for Arendt power belongs to the community as a whole, not to any one person or group within it who are empowered by the others. 161 Arendt, ‘On Violence,’ supra note 157 at 139-140. 162 Ibid at 140.

68 generating power at voting time, power is generated only as long as the ‘group keeps together,’ and it is questionable whether voters can be seen as ‘together’ just by going to the ballot box on the same day, or at any other time between elections. Jurgen Habermas uses the word

‘communicative’ to describe Arendt’s concept of power, noting that power is not seen by Arendt as the ability of one person or group to instrumentalize another person’s will, but as ‘the formation of a common will in a communication directed to agreement.’163 I will not discuss

Habermas’ own theory of communicative action in politics, but I find the word ‘communicative’ useful because it highlights that people being together and communicating is key to political action. The ballot box is a form of communication, but the physical and social distance between voters and the people they vote for, and between different voters themselves, makes this a disembodied and distilled way of forming a community. Habermas notes that Arendt was critical of views that reduced democratic politics to mere representation, and he quotes from her book164

On Revolution, where she suggests ‘how dangerous it might be to allow the people a share in public power without providing them at the same time with more public space than the ballot box and with more opportunity to make their voices heard in public than election day.’165

Arendt’s political theory hinges on relations between people themselves, not simply on the relation between ‘the people’ and their political institutions. It sees the essential political communication to be that occurring between actors pursuing common purpose in public, not the communication between peoples and governments that can be reduced to the casting of ballots every few years. While non-electoral political actions by people could be viewed as a means of communicating to political institutions, they are fundamentally about the communication that occurs between the actors themselves, because this is how the ‘common will’ materializes among

163 Jurgen Habermas, ‘Hannah Arendt’s Communications Concept of Power’ (1977) 4 Social Research 3 at 4. 164 Ibid at 10 -12. 165 Arendt, On Revolution (New York, NY: Viking Press, 1963) [On Revolution] at 253.

69 a group of people and how they generate power. Andreas Kalyvas, in his book Democracy and the Politics of the Extraordinary, emphasizes Arendt’s concern that political action should not be confined within ‘rigidly delineated legal structures’ and says that while ‘she recognized the need for bounded public spaces, these cannot exhaust or consummate politics.’166 The ability to communicate with others is essential to participation in the generation of power. There are many reasons why ‘bounded public spaces’ may be seen as insufficient for democratic politics. In this project I focus on ‘place,’ and my reliance on Arendt is intended to show how actions like the

Cridge Park and Woodward’s tent cities empower the homeless by disrupting the boundaries of

‘public space’ that the ‘objectifying’ view of the law imprints onto the urban landscape, and by making a place where the homeless form a visible community with its own ability to pursue common purpose and generate power.

Place is of central importance to democratic politics because it is connected to power: it is in places that groups meet each other and communicate, and thus generate and maintain power.

In a democracy, everyone must have some place where they can gather and interact, and if the only gathering places available to the homeless are closed off by political and legal institutions, this indicates a reliance on something like violence, rather than power, to maintain political authority.167 Indeed, for a homeless person who is made to move along from the public place they are inhabiting and where they are interacting with others, by the looming threat of force inherent in being confronted by a police officer, the authorities may seem much more like figures of violence than executors of a democratic common will.

166 Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge: Cambridge University Press, 2008) at 192-193. 167 Arendt says that ‘authority’ is an elusive concept, but it can be vested in persons or offices, and ‘[i]ts hallmark is unquestioning recognition by those who are asked to obey; neither coercion nor persuasion is needed’ (‘On Violence,’ supra note 157 at 144).

In her book The Human Condition, Arendt states that it is through ‘speech and action’ that human beings appear as more than mere bodily existence, and reveal their unique distinctness to the world.168 Speech and action are the means by which embodied beings show who they are, and this can only be done in the presence of others: ‘This revelatory quality of speech and action comes to the fore where people are with others and neither for nor against them – that is, in sheer human togetherness.’169 Here Arendt could be seen as acknowledging that the knots people become entwined in on the paths of their lives are the very source of each person’s humanity. To appear in the world as more than just a body, but as a being with a distinct character, requires communicative interaction with others. A person who speaks and acts must be willing to reveal him or herself in order for their act to maintain its specific character as an action, and ‘action needs for its full appearance the shining brightness we once called glory, and which is only possible in the public realm.’170 In order to be a political actor, Arendt indicates that access to ‘public space’ is essential, because action requires visibility. In her dissertation on

Arendt’s political phenomenology, Marieke Borren emphasizes that good public visibility is characterized by participation, recognition and publicity.171 It is this kind of visibility, which enables people to assert themselves as human beings rather than mere bodies, that is legally denied to the homeless by restrictions on their right to inhabit public places.

Arendt’s theory is anchored to a divide between ‘private space’ and ‘public space,’ but the distinction is not a firmly physical one. The polis, Arendt says, ‘is not the city-state in its physical location; it is the organization of the people as it arises out of acting and speaking

168 Arendt, The Human Condition (Chicago, IL: The University of Chicago Press, 1958) [The Human Condition] at 176. 169 Ibid at 179-180. 170 Ibid at 180. 171 Marieke Borren, Amor Mundi: Hannah Arendt’s Political Phenomenology of World (PhD Dissertation, University of Amsterdam, 2010) [unpublished] at 165.

71 together, and its true space lies between people living together for this purpose, no matter where they happen to be.’172 In a way then, we can see Arendt’s insistence on the importance of appearing in public as reflecting an appreciation of place, since even though her idea of ‘public space’ is highly idealized, by locating it ‘between people living together’ she recognizes that it is the actual interactions of human beings, not the particular kind of place they are in, that makes a space public. The ‘space of appearance in the widest sense of the word’173 that for Arendt is the public as opposed to private realm, because of the fact of our embodiment, arises for people who must always be physically emplaced, so being in the public realm inevitably requires some physical location where people can place themselves in order to act and speak together.

Borren discusses how in Arendt’s theory ‘private’ and ‘public’ spaces function as two sides of the same coin, with ‘private space’ being a necessary place for one to exist as a ‘natural’ person from which one emerges into ‘public space’ as a political person.174 This public/private divide highlights the performative character of Arendt’s understanding of politics. ‘Private space’ is seen as essential to presenting oneself in public as a political actor. Because speech and action are the means for a person to appear as more than mere flesh and blood, but as a distinct character with particular interests and opinions, basic bodily needs must be taken care of in private to enable one to appear in public in their chosen political form. The difference between what we keep invisible in our private lives and make visible in our public lives is the difference between what identifies us either as simple organic life, or as a person with particular desires and fears:

In acting and speaking, men show who they are, reveal actively their unique personal identities and thus make their appearance in the human world, while their physical

172 Arendt, The Human Condition, supra note 168 at 198. 173 Ibid. 174 Borren, supra note 171 at 167-170.

identities appear without any activity of their own in the unique shape of the body and sound of the voice.175

Politics, Arendt suggests, not only requires ‘public space,’ but the ability to enter the public realm from a place where our basic bodily needs have privately been taken care of and our chosen way of presenting ourselves as unique personalities can be put forward. When we look at the situation of the homeless, who do not have a private home to live and care for themselves in, the physical aspect of what Arendt calls ‘public space,’ or the ‘space of appearance,’ comes to the fore as a major consideration in the ability to be a political actor.

The political consequences of being homeless have been considered previously from an

Arendtian perspective by Leonard C. Feldman in his book Citizens Without Shelter:

Homelessness, Democracy, and Political Exclusion.176 Feldman finds that Arendt makes three interrelated points about the necessity of ‘private space’ for the ability to appear in ‘public space’: first, the home is where the necessities of ‘bare life’ are attended to; second, the household provides necessary shelter from ‘the glare of the public realm’; and third, the home

‘provides the head of household with a political and spatial location and orients him as a citizen in the public sphere.’177 These points, although hinged to the existence of idealized ‘public’ and

‘private spaces,’ are all in fact about place. Arendt believes that the public sphere exists anywhere people speak and act together as ‘political’ and not merely ‘natural’ beings, but the necessity of taking care of one’s natural self in private darkness, before appearing in public light, requires a physical place to be in private that is somehow separated from the physical place where one appears as a member of the public. What is interesting about tent cities, when placed in this Arendtian figuration, is that they make the homeless visible in public as political actors by

175 Arendt, The Human Condition, supra note 168 at 179. 176 Leonard C. Feldman, Citizens Without Shelter: Homelessness, Democracy, and Political Exclusion (Ithaca, NY: Cornell University Press, 2004). 177 Ibid at 120.

73 harnessing their lack of ‘private space,’ which generally functions to exclude the homeless from

‘public space’ where their ‘private’ acts and ongoing inhabitation are considered illegal. By setting up tent cities, the campers in Cridge Park and at the Woodward’s building drew attention to the problems of poverty and homelessness by openly living their private lives in public places.

It was their refusal to do this illegal act of living in public individually and discreetly, but instead do it collectively and visibly, that made them political actors who could gather the attention of the authorities and the larger public.

From this Arendtian perspective, the tent city actions can be seen as creating a non- legally bounded ‘public space,’ in Arendt’s sense of the term as space created in the interactions between people acting for a common purpose. While Arendt thought these unbounded, extra- legal spaces were essential to the health of a political society, the people camping in Cridge Park and at Woodward’s were also challenging ‘the discourse of public and private’ that, although not conceptualized the same way it was in the Greek polis, or in Arendt’s own time at the mid- twentieth century,178 continues to lay the foundation for a view of homeless people as ‘natural’ beings and not political actors, because they live their lives in public places and are not able to care for their bodies in private darkness before entering public light.

Feldman argues that the representation and treatment of the homeless by society discloses

‘a fundamental relationship between political power and “bare life”.’179 In my discussion of the

Adams judgments, I noted, as has Buhler, that even the sympathy shown for homeless persons and clear rejection of the City of Victoria’s characterization of the homeless as unclean and destructive ‘colonizers’ of public places did not elevate the homeless to a status above bare life.

The limitations placed on the recognized s. 7 right, which only allow homeless people to shelter

178 Ibid at 121. 179 Ibid at 15.

74 their bodies in public places by setting up temporary overnight structures, provide protection for homeless persons only to the extent that they are conceived as bare life. Feldman refers to the theory of Giorgio Agamben, who suggests that an opposition between bare life and political life is constitutive of Western political societies, which establish political spheres by banishing bare life from the polis and containing it within the household; the inherent contradiction Agamben points out is that bare life cannot be ‘natural,’ because it is the act of excluding bare life to the private sphere that constitutes it as such, and it is also this exclusion that constitutes the political sphere, thus both spheres retain traces of each other through this divisive act of constitution.180

The political sphere thus appears to maintain itself through the ongoing exclusion of the traces of bare life that remain within in it, and Feldman finds bare life embodied in dominant discourses through the figure of the homeless person: ‘the political exclusion of homeless persons is a constitutive exclusion,’181 and ‘[h]ome-dwelling citizen and homeless bare life are political statuses, not social statuses.’182 Feldman contends that legal representations of the homeless as bare life play a particularly important role in this constitutive exclusion, because they establish the range of police powers over bare life, uphold sleeping bans, allow police to confiscate property and, at their most compassionate, do little more than authorize shelter institutions as a place of confinement.183 In this light, by seeing the right to set up shelter in public places only as a temporary exception to an otherwise accepted rule that these places exist for people to inhabit only briefly on their way between private places, the Adams decisions can be seen to rely on legal and political discourses that constitute political society by excluding the homeless.

180 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, translated by Daniel Heller-Roazen (Stanford: Stanford University Press, 1998) at 2, 7, cited in Ibid at 15. 181 Feldman, supra note 176 at 18. 182 Ibid at 20. 183 Ibid at 58.

The limitations placed on the right in Adams affirmed the boundaries of ‘public space’ as they had been constructed by dominant legal and political discourses. Arendt believed that the creation of extra-legal ‘public spaces’ through gatherings of people with common political purpose were crucial to the continuation of politics, since this is how power is generated and rule by pure violence is avoided. However, the legal reasoning which confirmed public places cannot be inhabited on an ongoing basis by homeless people living in tents reflects Arendt’s own reasoning that ‘private spaces’ are an essential corollary for existence in the ‘public sphere’ because people cannot live their private lives in public and still be political actors. Feldman notes that while pluralism is an inherent feature of the ‘public sphere’ in the Arendtian model, this pluralism does not extend to forms of households or to the relations between the two spheres:

‘pluralism is a feature of the public sphere itself, not a feature of the relationship between private and public.’184 Because it is required that one cares for themselves in private before stepping out into the public light, campers establishing a tent city in a public place, even though they are enacting the sort of extraordinary ‘public space’ Arendt approves of, break down the assumptions about home and political life that this space of plurality is supposed to be built on, because the individual tents that collectively make a new ‘public space’ are ‘private spaces’ that are not separated from, but in fact make up this new ‘public space’ itself. Arendt is clear that a life lived in private is deprived precisely because it is not plural, but fixed to the biologically driven essentials of bare life and the peculiarities of the persons who live within a home; it is for this reason that public life is seen as so important to a person’s flourishing.185 It is also for this reason, Feldman says, that ‘[s]elf-governing and politicized homeless encampments’ are seen as

184 Ibid at 119. 185 Arendt, The Human Condition , supra note 168 at 57.

76 threatening to the pluralism of the public sphere;186 a place where people are caring for their private and bodily needs cannot be conceived as also a place that functions as a ‘public space,’ even though the tent city campers clearly created an Arendtian ‘public space’ in the space of appearance between them. Arendt’s own idealization of an extraordinary politics that occurs outside the bounded ‘public spaces’ regulated by law thus faces a conundrum when the homeless are considered as political actors. Her concept of power explains how it is that marginalized actors like the Cridge Park and Woodward’s campers are able to generate power in gatherings, but these actions also disrupt the Arendtian notion that politics and care for the body are activities confined to two separate spheres of existence.

In the Adams decisions, the life, liberty and security of the homeless claimants was attached to them as individuals, and was ultimately seen to be protected by the ability to set up temporary shelter alone in a public place, and not unjustly harmed by being made to take this shelter down in the morning. And yet the way these claimants got themselves into the courtroom to prove they had such a right was not by sleeping alone in a park overnight and moving along in the morning, but by participating in a gathering that established a tent city and made Cridge Park into a home (not indefinitely, but much longer than overnight). This tent city cannot be anything but an extra-legal political activity of the sort that Arendt idealizes in On Revolution, and which

Kalyvas says seek to ‘deepen and expand the power’ of constitutional freedoms ‘beyond the formalism and proceduralism of the existing legal system, even when they seem to violate them by adopting illegal but legitimate forms of political struggle.’187 The experience of the campers gathering together in pursuit of a common purpose gave them a sense of freedom they could not

186 Feldman, supra note 176 at 135. 187 Kalyvas, supra not e 16 6 at 290 -291.

77 experience through their legally accepted uses of the place. One participant stated, when explaining the ‘sense of freedom, community, and security’ he felt in the tent city:

It was really something I had never experienced before. It was freedom under observation. I met a bunch of people there, some I am still involved with… We bonded over food and the community that was beginning to develop there.188

This feeling of ‘freedom under observation’ highlights exactly why participation in a community is an essential aspect of living a full and rewarding life. The isolation involved in being denied a place to be with others in public is aggravated when one does not also have a private place and is always forced to move around; with the tent city, homeless campers created for themselves a place to take care of their bodily needs with a degree of privacy, and also presented themselves to the world as political actors. Feldman believes that these sorts of actions in public places, precisely because they deny the strict division of public and private lives into public and private spheres, are at the forefront of contemporary democratic pluralism in contemporary Western societies:

[H]omeless encampments provide a direct link between home-dwelling and civic involvement not only by making dwelling spaces into an experiment in collective self-governance but also by making this form of housing a very public act of witnessing, a dramatization of inequalities…189

With the tent city in front of the Woodward’s building, this dramatization of inequalities led to the plan to develop the building site into a strictly market condo complex being scrapped, and replaced with a plan to include non-market affordable housing. The Cridge Park tent city led to a constitutional inquiry that found a right for the homeless to set up temporary overnight shelter in public places under s. 7 of the Charter. Both of these outcomes are indicative of the power these marginalized actors were able to generate by gathering and making themselves visible. The

188 Sargent, supra note 34 at 74. 189 Feldman, supra note 17 6 at 136.

78 failure to have all of the Woodward’s development constructed as low-income housing is perhaps not surprising, given the steep hill to climb for any marginalized people seeking to empower themselves in opposition to privileged actors. The limitations on the right gained in the

Adams case show that these same challenges exist in the courtroom, where dominant legal and political notions such as the divide between public and private shaped the narrative and outcome of the case, and the view of people gathering and empowering themselves as a political community disappeared behind the figure of the individual homeless person seeking rights in

‘public space.’

V. ROBSON SQUARE: INHABITING THE CITY SQUARE

The final place I will discuss is one I know very well, and that has been especially important in my life as a political actor. Robson Square is a public place at the very center of downtown Vancouver, that contains the Vancouver Art Gallery, the BC Law Courts, an outdoor ice rink, numerous gardens, lawns, seating areas and pathways, and a large plaza at the north end of the square that spans the whole width of the block along Georgia Street between Hornby and

Howe Streets. It is a place where most people who visit Vancouver end up at some point, and that many residents of the city are familiar with, because of its central location and function as a main public meeting point downtown. I choose Robson Square as a place to exemplify the legal and political arguments I have made in this study because its role as a main gathering place for the inhabitants of Vancouver, including many people who come here to make themselves visible for a political purpose, provides a view of the urban landscape that clearly demonstrates how limitations on the right to inhabit public places function to make the homeless invisible as political actors, even in the place where political action is seen to be most appropriate: the public square. Moreover, Robson Square was the site of a major political action, Occupy Vancouver, which challenged dominant notions of ‘public space,’ and brought the homeless into public visibility alongside other political actors. This action, in which a tent city was formed in the city’s main place for political gatherings, demonstrates how the limits on the right to construct temporary shelter in public places established in Adams keep the homeless politically invisible, and how this political exclusion is challenged through the creation of extra-legal ‘public spaces.’

In keeping with the methodological commitment to place myself within my own research, rather than seek to stand above it at an ‘objective’ distance, Robson Square is also the place where the difference between the ability of someone like myself, who lived in Vancouver in a

80 private place, and someone who is homeless, to make themselves visible as a political actor in

‘public space’ was made the most clear to me. It is to acknowledge my own privileged position, and recognize that such acknowledgement is the most honest way to approach a critique of law aimed at social justice, that I end my study in this public place.

i. Law, Design and Exclusion in the City Square

Designed in the late 1970s by BC architect Arthur Erickson, Robson Square, in the words of a 1981 architectural review, was built as a ‘terraced urban park’ that gave to the inhabitants of

Vancouver a ‘much needed open space in the central downtown core’ and became a ‘meeting place and a major civic cultural center.’190 Erickson’s stated goal with his designs was to create

‘a singular architecture that is in dialogue with the world.’191 The law courts complex was constructed as a low profile structure with a landscaped usable open space on top of its roof, surrounded by terraced steps, waterfalls and gardens, so that people can ‘walk down and through the building complex in pursuit of many daily tasks,’ and the old courthouse occupying the north block of the square was converted into the new art gallery.192

The square was intentionally built as a central gathering place for the city, and has successfully taken on that role, but as this early article praising its design shows, the emphasis for this public place was on movement through the square, and temporary uses, such as lounging among the gardens and visiting the art gallery, or the less pleasant activity of going to court. The one part of the square that maintained much of its pre-Erickson appearance, the north plaza, is commonly used for political gatherings and protests, several of which I have attended. As a place

190 Cornelia Hahn Oberlander, ‘An Oasis in the City: Robson Square and the Law Courts, Vancouver, B.C., Arthur Erickson, Architects,’ Landscape Architectural Review 2:2 (June/July1981) at 7. 191 Arthur Erickson, ‘Biography’ (accessed 7 August 2014), online: http://www.arthurerickson.com/about-arthurerickson/biography/1/. 192 Oberlander, supra note 190 at 7.

81 intentionally designed to be the central public meeting place in Vancouver, Robson Square embodies the limits on political action and visibility that are inscribed in dominant legal and political discourses by dividing the world into ‘public’ and ‘private’ places. The city square, while offering a place for people to appear as political actors, is a ‘bounded public space,’ and the particular uses of Robson Square that are seen to be appropriate to the place reveal the political exclusion that is inherent in the constitution of the public sphere.

The city square stands at the center of the urban landscape, and is the place in the built environment of the city where ‘public space’ is constructed to be most clearly associated with the

‘public’ conceived as a political society. City squares are supposed to embody the city as a place:

‘[a]t their best, squares are microcosms of urban life, offering excitement and repose, markets and public ceremonies, a place to meet friends and watch the world go by.’193 This idealization of the square by Michael Webb, in his book The City Square: A Historical Evolution, emphasizes that ‘[t]he one essential ingredient is people.’194 The essence of a public square, according to Webb, is the particular features of ‘[p]ublic access and activity’ that distinguish it from residential, and other more private squares.195 These features make the public square the main stage in the city for the participatory political performances that Arendt believes are so fundamental to human existence, because they embody the plurality of public life by being places where everyone can go.196 As I have shown, limitations on the ways people can use and access public places prove that not everyone can actually participate in the public life of the square, since being in ‘public space’ with others is assumed to be a temporary activity that occurs between time spent in the ‘private space’ of the home. Webb sums up his historical

193 Michael Webb, The City Square: A Historical Evolution (New York: Whitney Library of Design, 1990) at 9. 194 Ibid at 217. 195 Ibid at 9. 196 Arendt says ‘plurality is specifically the condition…of all political life’ (The Human Condition, supra note 168 at 7).

82 overview of the city square by saying ‘[w]hat makes the square so rewarding is that you need neither money nor a room with a view to enjoy it.’197 Ironically, the experience of homeless people in public places suggests that while this accessibility may be the ideal behind city squares, one in fact needs the means to have a room somewhere in the city, where the private life of embodied beings is concealed and protected from the bustling urban public.

When I consider my own experiences in Robson Square, it becomes obvious that my access and enjoyment of the place has been largely determined by the fact that I had a home elsewhere in the city, only a short walk away. I have wandered ‘down and through’ the staggered landscapes of concrete, glass, gardens and waterfalls on my way through the square, just as

Erickson intended, and have also spent much time inhabiting the place for leisure, work and political purposes. But I have always returned home at the end of the day, and have only ever been in Robson Square after being in a private place where I took care of my basic bodily needs.

On many days, I have stood on the sidewalk along one of the street-fronts that bound

Robson Square, working as a canvasser for political organizations, most often soliciting for memberships and financial contributions. This job gave me a deep attachment to the place, as I met and attempted to persuade many different people passing through to join the organizations I was working for, and spent many hours developing relationships with my fellow canvassers here.

The place has thus become imbued with meaning for me, and for many of my friends and acquaintances, because we have often and tightly tied the paths of our lives into knots here.

Ronald W. Smith and Valerie Bungi employ symbolic interaction theory in their analysis of architecture, and submit that one of the ways this theory contributes to our understanding of designed places is by emphasizing that ‘designed physical environments and the self potentially

197 Webb, supra note 193 at 217.

83 influence and find expression in the other.’198 I can say that this place has shaped me, and in particular has influenced the development of my political personality, since I have spent so much time here promoting political organizations and their campaigns, as well as participating in protests. I have also made its built landscape a place for myself, by interacting with its physical environment in ways that are open to me. I know that the lamp post in the middle of the sidewalk on the north side of Robson Street is a great place to catch a lot of pedestrian traffic when canvassing, and the tree in the northwest corner of the square is a good place to stand in the shade; all of our canvass crew knows that the ‘grassy knoll’ is a pleasant place to take a break, and the ‘red spiral thing’ is a fun place to have our meeting at the end of the work day. Robson

Square has been designed to enable particular uses that I have harnessed to my benefit, some of which may not have been intended but are still seen as acceptable, and the law has allowed me to do so: I have been a visible political actor in Vancouver as a result.199

There are many ways of becoming visible, and here I will digress momentarily from discussing homelessness to refer to the experience of a group that came to this public place to pursue its political objectives in court, because their story so clearly reflects how law and design can intersect to marginalize certain political appearances. A notable legal event that occurred under the glass roof of Erickson’s BC Law Courts in Robson Square, was a trial that started on

May 11, 1987 in the Supreme Court of British Columbia, in which two First Nations, the Gitxsan and Wet’suwet’en, claimed Aboriginal title over 58,000 square kilometers of their traditional

198 Ronald W. Smith & Valerie Bungi, ‘Symbolic Interaction Theory and Architecture’ (2006) 29 Symbolic Interaction 123 at 12 4. 199 An interesting case study of how the ‘public’ nature of a public square is not simply determined by law but constructed by design that limits ‘people’s ability to decide what they would do in a space and how they would do it,’ and ‘reinforces who the public is by limiting how a site can be used,’ is Kristine Miller’s article about the politically and aesthetically controversial redesign of New York City’s Federal Plaza in the early 1980s, that was ultimately redeveloped once again in a more typical fashion for ‘public space’ (‘Art or Lunch: Designing a Public Space for New York’s Federal Plaza,’ in William Taylor, ed, The Geography of Law: Landscape, Identity and Regulation (Oxford: Hart Publishing, 2006) 137.

84 territories in Northern B.C.200 The Delgamuukw trial, which played out over ‘318 days of evidence and fifty-six days of closing argument,’ was a political event, since it ‘was not a simple appeal to the law of the land but rather a political negotiation within the Canadian legal system.’201 Ultimately, the trial judge dismissed the First Nations’ claim, finding that Aboriginal title had been extinguished,202 leading to an appeal and ultimately a landmark Supreme Court decision in 1997 that for the first time comprehensively dealt with ‘the nature and scope of the constitutional protection afforded by s. 35(1) to common law aboriginal title.’203 I will not discuss the legal decision here, but rather how the experience of ‘insinuating their claims into the terms of reference of the dominant discourse’204 was shaped for the Gitxsan and Wet’suwet’en by being placed in this court complex. The First Nations’ had to make their claims outside of their own traditional legal venues, with Canadian legal norms. The geographer Matthew Sparke has discussed how the Gitxsan and Wet’suwet’en’s distance from their own Indigenous ways of doing law was embodied by the abstract space of the courthouse:

[i]ts rules, its norms of behavior, and its general distance from everyday life among the two First Nations. Central to all these courtroom abstractions was the removed, bureaucratized, and disembodied conception of abstract space that…is constitutive of modern state effects. The Gitxsan and Wet’suwet’en were therefore obliged to negotiate with the structuring effects of this normalized abstract space…at a number of different levels.205

Sparke relates that ‘[a]t the most microgeographical scale, there was the actual spatial layout of the courtroom,’ the architecture of which ‘reflected the adversarial and individual nature of

200 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [Delgamuukw SCC] at para 7. 201 Matthew Sparke, ‘A Map that Roared and an Original Atlas: Canada, Cartography, and the Narration of Nation’ (1998) 88 Annals of the Association of American Geographers 463 at 463. 202 Delgamuukw v. British Columbia, 1991 CanLII 2371 (BC SC) retrieved on 2014-08- 09, [1991] 3 WWR 97, 673 [Delgamuukw BCSC]. 203 Delgamuukw SCC, supra note 200 at para 1. 204 Sparke, supra note 201 at 470. 205 Ibid at 471.

85 courtroom exchange,’ and made it difficult for the Gitxsan and Wet’suwet’en to enter this place of law as collective nations.206

The Law Courts complex, which had been so consciously designed to integrate with the city and people around it, appears to be exactly the sort of ‘bounded public space’ that is designed to be open to the ‘public’ but embodies dominant legal and political discourses that are built on a constitutive exclusion. The exclusion in this case is not the same as the isolation of bare life to the private realm that prevents homeless people from being visible political actors. It is rather an exclusion that legitimates the Canadian state’s sovereignty over lands in BC. This is a topic for many other studies, but the example of this emplaced experience in the court complex at Robson Square highlights that public places are inscribed with layers of discourse that are masked by their presentation as ‘public space’ open to all. In a semiotic study of the architecture of the Supreme Court of Israel in Jerusalem, Piyel Haldar argues that it is through architecture that the law presents itself as an ‘objective’ space of authority, where outside events enter the courtroom and their truth is revealed through the construction of a legal narrative.207 The features of the hushed, sterilized and grand environment of the courthouse ‘are architectural constructs which put a closure around a space,’ representing the closed off realm of the law, which presents itself as authoritative and truthful in its understanding of claims that are settled in court.208 It is through this architecture, Haldar says, ‘that the outside becomes represented and thereby reduced inside’ (recall how the collective story of Cridge Park was reduced to an individual story of rights by being brought to court), but ‘the outside always intervenes within,’ and the limits of the

206 Ibid. 207 Piyel Haldar, ‘In and Out of Court: Topographies of Law and the Architecture of Court Buildings’ (1994) 20 International Journal for the Semiotics of Law 185 at 187. 208 Ibid at 189.

‘objective’ enclosure that occurs in the courtroom can be exposed.209 By bringing the Aboriginal title claim, based on the fact that their people have lived on the lands claimed for many generations, the Gitxsan and Wet’suwet’en entered the bounded space of Canadian law, and this was an emplaced experience in which their collective story was constrained by, but also challenged, the legal and architectural boundaries of this ‘public space’ that was fixed in a real public place.

The hollowness of the court’s claim to be open ‘public space’ is exacerbated by the fact that the Gitxsan and Wet’suwet’en had to travel so far from the home in Northern BC they were seeking titular recognition over: ‘the location of this building, along with its alienating scale, its strictly monitored spaces, and its expansive environs, effectively barred the strong social support

Gitxsan and Wet’suwet’en witnesses had received from the spectator’s gallery in Smithers’ (in the First Nation’s traditional territories, where the trial was moved from).210 While the space of the courtroom that the Gitxsan and Wet’suwet’en made their legal claim in reflected the very

‘geometry of power’ they were challenging, they were also able to subvert the discourses inscribed in this place. By being there and making their claim within this colonizing space,

Sparke says they were engaging in a ‘subversive performance’ against it, particularly through their presentation of oral testimony: ‘Witnesses from both the Gitxsan and Wet’suwet’en sung or described ceremonial songs and performances in court,’ which ‘subverted the hushed and sanitized sounds of normal legal procedure.’211 In this way, the Gitxsan and Wet’suwet’en made themselves visible as a community in the courtroom, and as political actors whose chosen means of appearing in public resisted the legal and political boundaries of ‘public space.’ The court complex, a much different place to be in public than the square that surrounds it, and a much

209 Ibid at 191-193. 210 Sparke, supra note 201 at 471 - 472. 211 Ibid at 472.

87 more difficult place to access due to the financial and other pressures of going to court, embodies on an imposing architectural scale the claim of ‘public space’ to embrace the plurality of political existence, through the adversarial interactions of individual claimants. The experience of the

Gitxsan and Wet’suwet’en within the court’s concrete and glass confines exposes the limits inscribed both by law and design into ‘public space,’ because a plurality of nations disrupted the

‘objective’ and authoritative space created around Canadian law. As nations, they were able to enter the court complex in Robson Square and engage in a collective performance that resisted the limits of law and ‘public space.’

Returning outside to the noisy public square from the hushed environs of the courtroom, I will now look at how the experiences of homeless people in Robson Square are shaped by the intersection of law and design, which causes a displacement that can also be resisted. My own experience, when contrasted with the experience of the homeless, indicates that my placement in

Robson Square is determined by my ‘objective’ location in ‘public space’ only in the sense that my body could be located at that particularly designated public square at a certain time. This fact would mean very little to me, or probably anyone else, without the story I have told about what I did there. I do not know how the physical environment of Robson Square has played a role in the lives of homeless persons, because I only know my own experience of this place. I do know, however, that the design of the place was not meant to shelter people, or to enable people to care for their bodies. It does enable common usages, a notable one being the ability of anyone in this busy place to interact with a stranger near them, which is why this is a prime location for canvassing. Often when standing on the side of the street to canvass I would share space with people who were doing a similar action, except theirs is considered by law to be ‘panhandling.’

Each of us would speak to people walking by and ask for something, sometimes for money,

88 sometimes only to have a conversation, but our actions were classified much differently. This difference brings law into connection with design, since the similar communicative possibilities that are offered in common to myself as a canvasser, and to another as a ‘panhandler,’ by the built environment of this place, are made illegal for the ‘panhandler.’ In Vancouver, the Street and Traffic By-law makes it illegal to ‘solicit’ in a way that is ‘obstructive’ by specifying activities that essentially describe the act commonly known as ‘panhandling.’212 The British

Columbia Safe Streets Act is provincial legislation that labels similar activities ‘solicitation in an aggressive manner,’ and ‘solicitation of a captive audience,’ and prohibits them.213 A canvasser for a registered non-profit or charity organization, however, is allowed to raise money on the sidewalk in Vancouver if they obtain a ‘Soliciting for Charity’ licence, and is permitted to canvass without a permit if they are not soliciting money.214

There may be some differences between what I did as a canvasser for political organizations and what people ‘panhandling’ do, but each is a form of solicitation, and I cannot say that while canvassing on the sidewalk I was never seen as ‘obstructive’ or ‘aggressive’ to someone who does not like canvassers. In the 1990s the city of Oshawa, Ontario, adopted an extensive range of ‘public nuisance’ by-laws that were explicitly based on a moral distinction between ‘begging’ and other activities, such as solicitations conducted by charities and busking performances, which the City saw as posing no harm to the aesthetics and safety of the city center.215 This distinction plays into the narrative of social fear discussed in the previous section, figuring the ‘begger’ as a threat to the order and beauty of public places, but the distinction

212 City of Vancouver, by-law No 2849, Street and Traffic By-law, s 70A. 213 British Columbia Safe Streets Act , SBC 2004, c 75. 214 City of Vancouver, ‘Marketing and canvassing for charity’ (accessed 8 August 2014), online: http://vancouver.ca/doing-business/marketing-and-canvassing-for-charity.aspx. 215 Joe Hermer, ‘Keeping Oshawa Beautiful: Policing the Loiterer in Public Nuisance By-Law 72-94’ (1997) 12 Can JL & Soc 171 at 188.

89 between the two activities is hardly an ‘objective’ one. Indeed, the Oshawa by-laws were put in place by the City expressly in response to a perceived ‘image problem’ in the downtown area because of the presence of ‘troublemakers’ and people ‘loitering,’ who threatened the safety of more respectable visitors.216 The City presented a ‘vision’ of a better ‘quality of life’ due to the creation of ‘a perfectly ordered, sanitized sphere where the public nuisance of the loiterer has been ‘moved on,’ and the urban landscape thus ‘cleaned up’ and ‘restored.’217

While the targets of these laws are not explicitly homeless persons, the inevitable emplacement of the homeless in ‘public space’ means that they are highly likely to be the ones

‘caught’ ‘loitering’ or ‘panhandling.’ Randall Amster, who looks at how ‘public space’ is contested by the existence of ‘street people,’ notes that while such laws are presented as neutrally regulating activities, and not targeting a certain group of people, the fact that these laws are put in place after a problem of ‘loitering’ and ‘panhandling’ has been identified, and many of the people so identified as being the problem are homeless, exposes the flaw in this objectifying justification for sanitizing public places through the construction of deviance.218 I do not know whom among the people that were ‘panhandling’ near me in Robson Square while I canvassed were homeless, but the legality of my soliciting on the sidewalk alongside someone else whose soliciting has been made illegal draws me towards the conclusion they are being targeted for who they are seen to be, not what they are doing.

These sorts of laws have the effect of making homeless people’s daily actions in public places illegal, but they cannot make the homeless invisible. Indeed, for the most part I see people

‘panhandling’ on the streets of Vancouver every day I am there, and the police only confront these people selectively. The effect of these laws seems to have as much to do with

216 Ibid at 173. 217 Ibid at 180. 218 Amster, supra note 152 at 116-117.

90 stigmatization of the homeless as they do with actually clearing the homeless from city streets.

Considering what I have discussed about the exclusion of the homeless from ‘public space’ by relegating private life to the household, the emphasis of these sorts of laws on maintaining movement through public places highlights their connection to the dominant legal and political discourses that maintain a ‘bounded space’ for public activity. From an Arendtian lens, in this space, where bare life is excluded, the fact that the homeless do not ‘move along’ is seen as constitutively disruptive because it breaks down the boundary between public and private that political society is built on. The Oshawa by-laws even listed ‘gathering: a “person” alone or in a group that does not “move on”’ as an offence.219 By making the ongoing presence of people in public places illegal, including actions aimed at survival, such as asking other people for money, the law functions to maintain the constitutive exclusion of those who do not have a private place.

This political exclusion was challenged by the activists at Cridge Park and at Woodward’s, because the tent cities they set up rejected the stigmatization of the homeless attached to their

‘private’ existence in public places, and created new ‘public spaces’ that were visible and disruptive of dominant notions of ‘public space.’ The importance of such gatherings for the homeless seems evident when I recall my own experience of presenting myself politically in this public place, because I am aware it is ‘public space’ that was designed to be, and is regulated by law to be, inhabited only temporarily, by people like myself who have a private place to go home to. As the central city square for Vancouver, Robson Square provides a high-profile stage for the homeless to subvert the discourses that operate to exclude them, and at Occupy Vancouver, as we will see, many homeless people did so.

219 Hermer, supra note 215 at 186.

91 ii. Occupy Vancouver

At Robson Square, the political exclusion of the homeless was challenged in a highly visible event, that brought the homeless into community with other activists, who had a wide range of messages to convey and issues to draw attention to, but who collectively disrupted the boundaries of ‘official’ ‘public space.’ On October 14, 2011, ‘more than two thousand people gathered in downtown Vancouver…for a rally against financial inequality,’ inspired by the

Occupy Wall Street movement that had begun the month before in the United States.220 Occupy

Vancouver, although larger than usual, began similarly to other protests. People gathered at a rally in the north plaza of Robson Square, and this was followed by a long march around downtown. At the end of the day a tent city had been set up in the north plaza. I participated in the rally on this first day, and visited the tent city many other days. I never stayed in the tent city, but several of my friends and acquaintances did. A number of homeless people, estimated by a lawyer who represented one of the Occupiers in court to be twenty-six at one point, were living in the Occupy tent city.221 A UBC professor of ophthalmology and visual sciences, who ‘put up a medical and first aid tent’ in the tent city on the first day of the Occupy action, described the place as ‘a safe and welcoming haven for the homeless.’222

My experience of Occupy Vancouver was exciting and affirming of my existence as a political actor in the city, as I imagine it was for many of its participants. I did break the law during Occupy, along with over two thousand other people, when we marched down the streets

220 ‘“Occupy” protests hits downtown Vancouver,’ CBC News (15 October 2011), online: http://www.cbc.ca/news/canada/british -columbia/occupy-protest-hits-downtown-vancouver-1.1099210. 221 ‘Court told eviction of Occupy protestors would hurt homeless,’ The Globe and Mail (17 November 2011), online: http://www.theglobeandmail.com/news/british-columbia/court-told-eviction-of-occupy-vancouver- protesters-would-hurt-homeless/article4183803/. 222 Carlito Pablo, ‘Occupy Vancouver tent city offers haven for homeless,’ The Georgia Straight (25 October 2011), online: http://www.straight.com/news/occupy-vancouver-tent-city-offers-haven-homeless.

92 of downtown Vancouver and closed them to traffic.223 This was allowed (it was a Saturday, after all) but it surely would not have been had we sat down in the street and decided not to leave. The people who stayed at the tent city, however, were in violation of by-laws similar to those at issue in Adams. In Vancouver, Section 3 of the City Land Regulation By-law224 states:

3. A person must not, without the prior written consent of the manager:

(d) construct, erect, place, deposit, maintain, occupy, or cause to be constructed, erected, placed, deposited, maintained or occupied, any structure, tent, shelter, object, substance, or thing on city land…

Unlike the Cridge Park action, this tent city was not set up specifically to house the homeless, or to draw particular attention to the issues of homelessness and housing, although these were major topics at Occupy Vancouver. It was, however, in violation of the same sort of law at issue in

Adams that prohibited the setting up of temporary shelter in public places, and many residents of the tent city were homeless. For these homeless Occupiers, at least, Adams had some potential to afford constitutional protection of their right to stay in Robson Square overnight, but the illegality of the tent city may have been a foregone conclusion.

On November 4, 2011, the City of Vancouver served its first notice to the Occupiers that

‘the construction and continued maintenance and use of the structures, tents and shelters’ on the north plaza of Robson Square (referred to as the ‘Art Gallery lands’ in Vancouver (City) v. Sean

O’Flynn-Magee) were in violation of the City Land Regulation By-law, in conjunction with a

Fire Order from the Fire Chief of Vancouver pursuant to the Fire By-law225.226 The Occupiers did not comply with the notice, and the Chief Building Officer for the City deposed that he had

223 Section 69(1) of City of Vancouver, by-law No 2849, Streets and Traffic By-law states: ‘[n]o person shall form part of a group of persons congregated on a street in such a manner as to obstruct the free passage of pedestrians or vehicles, except with the written permission of the Council.’ 224 City of Vancouver, by-law No 8735, City Land Regulation By-law, s 3(d). 225 City of Vancouver, by-law No 8191, Fire by-law. 226 O’Flyn-Magee, supra note 24 at para 5.

93 observed another structure being built in the square on November 6; the City served a second notice ordering the tents and structures to be removed and also served a notice of civil claim to initiate injunction proceedings.227 The City was granted short leave for an injunction hearing that occurred on November 8/9, at which three members of Occupy Vancouver spoke, and they were granted an adjournment until November 16.228 On November 10, the City gave their third notice, which was posted and delivered to Occupiers on site.229 Several efforts were made, with the Fire

Chief and a fire crew on site, to bring the tent city into compliance with the fire order, which were deemed to have improved the area, but not brought it into full compliance.230 By the time of the hearing, the Occupiers ‘had not removed the structures, tents and shelters’ from Robson

Square.231

It is interesting to note how the City’s perceptions of Occupy Vancouver, and ‘public’ reaction as related in the media, appeared to have evolved between the time of the initial march on October 14 and the efforts to evict the Occupiers from Robson Square nearly a month later. A

CBC news report the day after the march described the event as a ‘protest,’ included a comment by one participant that it was about ‘building community,’ and reported that the Vancouver

Police found ‘a large but well-behaved crowd,’ ‘made no arrests, and there were no serious incidents.’232 This report, which emphasized the community building aspect of Occupy, did not mention the tent city that was set up after the march, and its fairly positive depiction of the event was about a ‘protest’ that gathered over two thousand people in the city center, on a single day.

227 Ibid at paras 6-7. 228 Ibid at paras 8 - 9. It is worth noting , considering the colonialist aspects of law and place in the city, that one of the Occupy speakers was the ‘Chief of an aboriginal band,’ who gave submissions that Mackenzie ACJ declared without elaboration were ‘unsupported by evidence with respect to aboriginal rights.’ 229 Ibid at para 10. 230 Ibid at paras 11-13. 231 Ibid para 14. 232 CBC News, supra note 220.

By early November, when the tent city had been in place for several weeks, public opinions about the encampment appeared to have soured. In particular, the overdose and death of a young woman in her tent at Occupy Vancouver led to Mayor Gregor Robertson’s decision to announce that that he would take efforts to ‘end the encampment as soon as possible.’233 The

Mayor, who was in the middle of a re-election campaign, was seen to be facing his ‘toughest test’ yet, in avoiding being ‘too aggressive’ against the Occupiers while appeasing ‘the growing percentage of the public who, however sympathetic they might have been to the goals of the

Occupy movement, are fed up with the camp.’234 Some media analysis engaged in debate about whether the tent city had become a ‘drug den’ or a ‘haven for those most affected by the very societal problems raised by the protests,’ presenting alongside calls for the tent city to be disbanded the views of Occupiers, who noted the high number of overdose deaths that occur in

Vancouver in ‘hotels, alleys or shelters’ that the Mayor does not vocally respond to,235 but others simply depicted the death as evidence that the tent city was unclean, unsafe and had to go. A reporter for The Tyee, an online newspaper generally sympathetic to Occupy’s complaints about financial inequality, declared: ‘People sleeping in tents in the cold and rain with obvious hard- drug use going on is not going to mobilize working people.’236 A line between the acceptable first day march and the unacceptable ongoing occupation of the north plaza of Robson Square was drawn.

233 ‘Occupy Vancouver death dooms protest camp,’ CBC News (5 November 2011), online: http://www.cbc.ca/news/canada/british -columbia/occupy-vancouver-death-dooms-protest-camp-1.1113312. 234 Frances Bula, ‘Gregor Robertson preoccupied with Occupy,’ The Globe and Mail (6 November 2011), online: http://www.theglobeandmail.com/news/british-columbia/gregor-robertson-preoccupied-with- occupy/article4403564/. 235 David P. Ball, ‘Occupy Vancouver: Drug Den or Harm Reduction Haven?’ The Tyee (7 November 2011), online: http://thetyee.ca/News/2011/11/07/OccupyVanDrugUse/. 236 Bill Tieleman, ‘Occupy Vancouver Turning off its Power Source,’ The Tyee (8 November 2011), online: http://thetyee.ca/Opinion/2011/11/08/OccupyVancouver/.

This frustration with Occupy Vancouver appears to reflect the social fears about ‘public space’ discussed in the previous section, in which clean, ordered, and welcoming public places are seen to be threatened by people who occupy these places for longer than deemed acceptable, particularly the homeless. The political goals of Occupy and its initial march were broadly supported, but the tent city was not, and the emphasis on the health and cleanliness of the encampment figured the Occupiers as a threat to ‘public space.’ This is despite the fact

Vancouver Coastal Health, the organization responsible for delivering health services in the region, declared there were ‘no health concerns’ regarding the Occupy tent city.237 The notion that the tent city was unclean, unsafe and unhealthy seems to have been influenced by the visible appearance of a tent city, populated by a number of homeless persons, and including at least some people who use drugs. Had the tent city been set up in the DTES, one could speculate, it may have received more solid support from the surrounding local community and been more difficult to malign, like the Woodward’s action. But Occupy occurred in the very public place that was supposed to serve as the meeting place for the city public at large, and this likely increased its threatening appearance in the eyes of more privileged inhabitants of the city who did not stay in the tent city.

Mary Douglas, in her anthropological analysis of pollution, dirt and uncleanliness, argues that notions of cleanliness tend to address situations of moral ambiguity or political contentiousness, where no obvious ‘right’ answer can be found,238 and are often invoked in such ambiguous or contentious situations to sanction persons when it would be otherwise hard to do so, by responding to actions that are seen as transgressive because they are constructed as so by a

237 Stephen Hui, ‘Occupy Vancouver poses “no health concerns” for Vancouver Coastal Health, despite Global TV rat reports,’ The Georgia Straight (31 October 2011), online: http://www.straight.com/news/occupy-vancouver- poses-no-health-concerns-vancouver-coastal-health-despite-global-tv-rat-reports. 238 Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (New York: Routledge, 2002) at 162.

96 system of social ordering that classifies them as ‘dirty.’239 Douglas’ insights about uncleanliness have been applied in critiquing limitations on the ability of people to occupy public places, to reveal how charges of uncleanliness signal that occupations like a tent city transgress notions of the proper ordering of public places, and in particular the proper place of political dissent.240 The narrative in support of evicting Occupy Vancouver, hinged on maintaining health and safety in this public place, had the constitutive effect of enforcing the boundary around ‘public space,’ which in turn effects the political exclusion of the homeless, since it legitimated the march, a form of protest I and others who had homes to return to at the end of the day participated in, but framed the tent city many homeless people stayed in, through which they gained political visibility as part of a community, as threatening and illegitimate.

At the injunction hearing which decided the fate of the tent city, lawyers for the

Occupiers provided evidence about ‘the problem of homelessness in Vancouver with its insufficient shelter spaces and dangerous conditions,’ citing ‘a shortfall of approximately 500 shelter spaces in the city,’ and describing the shelter options that are available to the homeless as

‘far worse than at Occupy Vancouver’s encampment.’241 Evidence was also presented refuting the health and safety concerns of the City.242 In response to the City’s claim that the tent city clearly breached the City Land Regulation By-law, the Occupiers argued that a ‘clear breach’ had not been shown because the by-law ‘was essentially the same as the by-law declared inoperable’ in Adams ‘in indistinguishable circumstances.’243 Mackenzie ACJ found that the Occupiers who

‘maintained and occupied tents and other structures on the Art Gallery lands’ without the consent

239 Ibid at 44. 240 Julian Brash, ‘Politics Out of Place: Occupy Wall Street and the Rhetoric of “Filth”,’ in Shiffman, et al., eds, Beyond Zuccotti Park: Freedom of Assembly and the Occupation of Public Space (Oakland: New Village Press, 2012) at 64. 241 O’Flynn-Magee, supra note 24 at para 32. 242 Ibid at paras 34, 36. 243 Ibid at para 38.

97 of the City were in clear breach of s. 3(d) of the by-law, and the City had properly exercised its authority in serving notice that the tents needed to be taken down.244 The constitutional argument employing Adams to challenge the validity of the by-law was deemed to be inappropriate for consideration at the interlocutory injunction stage, but Mackenzie ACJ found that this argument would not have assisted the Occupiers in any case, because Adams had been decided on its ‘own unique facts’ and applying it in this case would have been ‘an inappropriately broad interpretation of Adams.’245 Specifically, Mackenzie ACJ held that:

Adams only permitted temporary overnight shelter when the number of homeless people in Victoria exceeded the available number of shelter beds. Thus, it cannot be said that the decision in Adams supports an argument that the by-law in question in this case is “evidently unconstitutional” or “constitutionally suspect.”246

Mackenzie ACJ also found that the City would suffer ‘irreparable harm in terms of access to, and use of, public space,’ despite the defendants’ claim that Occupy Vancouver did ‘not pose a safety concern’ and was ‘cooperating with other groups who may want to use the Art Gallery Lands,’247 and also that the ‘balance of convenience’ favoured the City, which had a right to ‘regulate the use of its land’ in response to the tent city which ‘prevents others from using this public space’ and raises ‘health and safety concerns at the site.’248 In conclusion, Mackenzie ACJ granted the

City its injunction application including a police enforcement clause, and ordered the tent city to be disbanded by November 21.249

Had the Occupiers challenged this decision in a trial court, using Adams, there likely would have been a case to be made refuting Mackenzie ACJ’s rejection of the constitutional argument, in which he attached the decision in Adams to the difference between the number of

244 Ibid at paras 39-40. 245 Ibid at para 42. 246 Ibid. 247 Ibid at paras 56-60. 248 Ibid at paras 61-67. 249 Ibid at para 72.

98 homeless in the city and the number of available shelter beds. Indeed, given the evidence supplied by the Occupier’s lawyers that shelter options in Vancouver were in fact insufficient for housing the city’s homeless population, it is surprising this is the angle from which the constitutional claim was rejected. A more obvious reason that Adams would not help the

Occupier’s defend against eviction is the clarification in the Adams Court of Appeal judgment that only a right to construct temporary overnight shelter in public places exists for homeless persons under s. 7. The City Land Regulation By-law clearly makes the construction of any kind of temporary shelter in public places in Vancouver illegal, thus for homeless persons, who have insufficient shelter beds available to them in the city, the by-law could be declared invalid to the extent that it prevents them from sheltering themselves in public places overnight. Since Adams appears to allow the City to enforce its regulation of public places by making homeless persons take down their temporary shelter every morning, it is difficult to see how it could have been used effectively to protect the Occupy tent city, which was also inhabited by many people who were not homeless.

On November 21, the tent city, in compliance with the injunction order served against the

Occupiers, was taken down from the north plaza of Robson Square. Challenging the City’s efforts to make them disappear, the Occupiers moved their camp to the other end of Robson

Square, setting up on the steps of the Law Courts complex, but under threat of another injunction they disbanded the next day, moving to a park in East Vancouver that did not gather as many people or last for long.250 Thus ended the Occupy Vancouver action.251

250 ‘Occupy Vancouver camp disbands after failed move,’ CBC News (22 November 2011), online: http://www.cbc.ca/news/canada/british -columbia/occupy-vancouver-camp-disbands-after-failed-move-1.986828. 251 While certain other cities have seen renewed Occupy events occur since the initial actions that sprang up in Fall 2011, particularly during the Spring/Summer 2014 ‘Wave of Action,’ Vancouver has not (Hui, ‘Is it time for Occupy Vancouver to bring back the tent city?’ The Georgia Straight (4 April 2014), online: http://www.straight.com/blogra/620531/it-time-occupy-vancouver-bring-back-tent-city.

While this large, multi-issue occupation did not center on homelessness, the tent city itself drew in many homeless persons, who had shelter and support services as a result of being a part of this community. Moreover, with the tent city they were able to create a ‘private space’ with individual tents that collectively formed a ‘public space’ in which the homeless could emerge as political actors pursuing common purpose in a gathering with others. The law, which as a result of Adams provides protection for homeless persons who need to shelter their bodies in public places at night, could not be used to protect the political visibility gained by a number of homeless people through participation in Occupy Vancouver, and the move to evict the

Occupiers was driven by a perception that this occupation was not only an inappropriate use of

‘public space’ because it was ongoing, but was also unclean and unhealthy. These facts point towards the constitutive exclusion inherent in dominant conceptions of ‘public space,’ since the notion that ongoing inhabitation is inappropriate functioned to make the homeless participants politically invisible again. They also indicate that the Occupiers, by setting up a tent city at the very place that is supposed to embody the city’s ‘public,’ were able to disrupt these dominant notions and blur the lines between public and private while they remained in Robson Square. The

City’s move to evict the Occupiers, while based on a law that makes it clear public places are only for inhabiting temporarily between private places, did not immediately stem from this supposedly ‘objective’ legal fact. Rather, a narrative of uncleanliness, unhealthiness and lack of safety facilitated enforcement of the by-laws. The stigmatization of the people who were there, many of whom were homeless, played a role in ending Occupy Vancouver, as the desire for a sanitized public place at the center of the city, where people who have private places can come to temporarily to gather and protest without facing the social fears related to the exposure of bare life in public, was affirmed in the name of law.

100

Recently, the City of Vancouver has moved ahead with plans for a major redesign of the north plaza of Robson Square where the Occupy Vancouver action took place. Among the stated objectives for this project are to ‘[m]ake the space inviting and safe,’ and ‘as flexible as possible so that individual and small group use is as comfortable as large events,’ and to ‘be a symbolic and physical center of the city.’252 The design proposals were influenced by a public questionnaire about how people use Robson Square; all of the specified uses people were asked to check off relate to temporary, not overnight use of the place, and by far the most common answer people gave was ‘[p]ass by on my way to another place.’253

In consideration of how the north plaza is used as an ‘Event and Gathering Space,’ the

City’s public documents on the redesign project list ‘various protests,’ ‘Occupy Vancouver,’ and the annual ‘420 Vancouver’ rally as examples of gatherings in this place.254 Both of these last events have involved illegal acts of some kind. While the Occupy tent city violated regulations on use of this public place, many activities that occurred at Occupy Vancouver, including assemblies, workshops, speeches and protest actions, did not. The 420 rally, on the other hand, gathers thousands of people who openly smoke, sell and celebrate marijuana products, the possession of which is made illegal under s. 4 of the Controlled Drugs and Substances Act.255

Despite the clear criminalization of marijuana, the 420 rally is featured in the proposal documents as a case study of how the north plaza is used as a gathering place, which includes a schematic diagram demonstrating crowd configuration during the rally.256 While public acceptance of marijuana use may be fairly broad (especially in Vancouver, as anyone who has

252 City of Vancouver, ‘Block 51: The 800-block of Robson Street and Vancouver Art Gallery North Plaza projects (Full set of display panels )’ ( accessed 9 August 2014), online: http://vancouver.ca/streets-transportation/robson- plaza-consultation.aspx, 1. 253 Ibid at 3. 254 Ibid at 11. 255 Controlled Drug and Substances Act, S.C. 1996, c 19. 256 City of Vancouver, supra note 252 at 11.

101 spent some time in the city knows), its use and possession remains a criminal act. The fact that this event is given more validation than Occupy, by being used as an example of how gatherings fit into the designed environment of the north plaza, might thus seem surprising, without understanding exactly how ‘public space’ is bounded in dominant political and legal discourses.

A fundamental difference between Occupy and 420, which visually could be seen to disrupt the order and cleanliness of sanitized ‘public space’ in a similar way, is that at the end of the day on

April 20 the rally ends, and people go home. This distinction, considering the City’s eviction of

Occupy Vancouver while, year after year, it allows the 420 rally to occur, points to what made

Occupy, like the Cridge Park tent city, appear so threatening to City authorities.

By coming to a rally and smoking marijuana before going home at the end of the day, one breaks the law, but does not fundamentally challenge the dominant discourses inscribed in

‘public space.’ By setting up a tent city in Robson Square, the Occupiers broke down the public/private divide that is seen as crucial for keeping ‘public space’ open to all members of political society. This ‘public space’ is the space of appearance for political actors, but it is a place where they meet as individuals, and the city square is the place where they become embodied as a community. The existence of a tent city that formed its own community in Robson

Square was seen to threaten the sanctity of ‘public space,’ because it created a new extra-legal

‘public space’ that was not built on the same constitutive exclusion of bare life embodied in the homeless, but rather subverted this exclusion by creating a city within a city that provided both the privacy of a tent and the visibility of a gathering in a public place. At the very center of

Vancouver, in this place where the life paths of many people like myself, who have sought to make themselves visible as political actors, have been tied into empowering knots, many homeless persons were enabled by Occupy to tie empowering knots of their own through

102 participation in a political community. The fact that the law did not protect these knots, but instead was used to cut them, demonstrates the importance of actions like tent cities that create new, extra-legal ‘public spaces’ where the homeless can both care for their bodies and partake in the empowering experience of revealing their political selves.

103

VI. CONCLUSION: A PLACE IN THE CITY

The places I have discussed in this study have all in some way been made anew by the homeless political actors that have inhabited them by setting up a tent city. As public places, they are characterized by their openness to the city ‘public’ because in a free and democratic society, everyone is supposed to be able to move about and gather in ‘public space.’ Yet this gathering aspect of public places, as we see in the Adams judgments, is marginalized in a legal discourse that views rights as attached to individuals, and individuals as occupying ‘public space,’ rather than inhabiting a place that is defined by knots of life paths tied through the interactions of people with each other and with their environment.

An emphasis on people as emplaced beings would recognize that no life is truly individual, because everyone, in some sense or another, belongs to a community. At the level of the city, where so many life paths are intertwined, the homeless are undeniably a part of the urban community. In the city, a community in many different places, the construction of ‘public’ and ‘private space’ functions to stigmatize the homeless, who live their private lives in public places, and this effects a political exclusion since their appearance as bare life is seen to preclude the ability to step out from private life onto the public stage. This is a political exclusion that is effected by laws, such as the by-laws I have discussed in the cities of Victoria and Vancouver, despite their apparent neutrality in applying to every individual equally. The homeless are not supposed to stay in public places but they cannot be anywhere else; they must be in public to be political but this is where they are not supposed to be. And yet, laws do not make the homeless invisible, and they are able, despite their political exclusion, to make their own mark on the urban landscape, even though their place on it may often be concealed by dominant discourses that inscribe the desires and fears of the more privileged in both law and design.

104

In Cridge Park, the activists who constructed a tent city were able to make a mark on

Canadian law, by making themselves visible in a public place doing something they were not supposed to do: stay. The constitutional right to set up shelter in public places found in Adams is a powerful legal tool homeless persons can wield to shelter themselves at night without disturbance. The political exclusion inherent in the public/private divide, however, reduces the protection afforded by s. 7 to little more than a ‘right to fend for themselves by erecting flimsy overhead structures,’ in Buhler’s words.257 While Buhler is concerned in her article about the lack of a positive dimension to the right, my own concern in this study is with how being left ‘to fend for themselves’ in public places at night and made to move along in the morning keeps homeless people from gathering and forming their own communities, within the larger community that excludes them. Adams, perhaps ironically, affirms that the very means of homeless empowerment that led to the case being heard is not an acceptable use of ‘public space.’ Section 7 is an individual right, but it is possible that when considering whether a law is justifiable in a free and democratic society, a concept of place could be employed to draw a connection between life, liberty and security of the person and inclusion in a community. If people are viewed as existing within webs of life paths tied into knots, the bare life predicament of the homeless is exposed for what it is; a constitutive exclusion, based on a distinction between the ‘natural’ and ‘political’ self, that is a political designation which makes the homeless politically invisible and thus unable to partake in public life and resist the forces of marginalization that lead to their being seen as bare life. The Cridge Park campers showed that they were much more than bare life, and they did so by disrupting the boundary between public and private with a tent city.

257 Buhler, supra note 20 at 225.

105

The Woodward’s action demonstrated that people gathering in public to pursue a common purpose really do generate power. Their performance of ownership over a building that had been a main meeting point in the DTES community, by caring for the building, squatting in it, and finally setting up a tent city on the sidewalk out front, overpowered the private property claim of the developer, and they succeeded in having non-market housing units included in the final redevelopment project. They were, however, performing with much support from the surrounding neighbourhood, and their public gathering, while disrupting the legal discourses that denied them rights to the Woodward’s building, did not threaten the clean and ordered ‘public space’ of parks and squares as the Cridge Park and Occupy Vancouver actions did. Because they were never ordered to remove their tent city from the sidewalk, and thus never claimed individual rights in a courtroom, the Woodward’s activists were able to maintain the community character of their claim to the building. Appearing as a community, they negotiated an agreement as an empowered group of political actors. By gathering in a place with wide public visibility, and with deep meaning to their community, these low-income activists generated enough power to ensure that their place in the urban landscape would not be concealed by gentrification.

At Occupy Vancouver, many homeless people were part of a political gathering that directly challenged the legal and political discourses embedded in ‘public space,’ by occupying the north plaza of Robson Square, a place designed to be the central meeting point for the city’s

‘public.’ The easy dismissal of a defence argument based on Adams in response to the City of

Vancouver’s injunction order is not surprising given the BCCA’s limitation of the s. 7 right to

‘temporary overnight shelter,’ but the fact that Mackenzie ACJ mentioned only the relation between the right and the number of available shelter beds, and not the obvious temporal limitation that presumably would have allowed the authorities to make the Occupiers disband

106 their tent city every morning, is evidence of how this right is attached to homeless persons’ status as bare life, the proper place for which is the institutional shelter. At Occupy, homeless persons who had been excluded from public life could inhabit a tent city where ‘private spaces’ were constructed in a public place to make a new ‘public space,’ one that by its very nature was not constituted by the concealment of private life in the household. The private invisibility gained by the tent, and the public visibility gained by being part of the tent city, enabled the homeless

Occupiers to move between private darkness and public light, but it did so by disturbing the very legal and political discourses that maintain a strict public and private divide within the city. The placement of Occupy Vancouver in the very public square that is supposed to embody the city’s

‘public,’ and be a main site for political gatherings, made this disruption of dominant discourses highly visible and a major concern for the City. By their participation in Occupy, many homeless inhabitants of Vancouver became empowered political actors, and their tent city made a temporary but memorable imprint on the urban landscape, in the square designed to be the main gathering place in the public life of the people.

In all three of these places, homeless and low-income people disrupted the boundaries of public and private by their presence in places they were not legally supposed to be. But at the same time, they used public places as a stage for the performance of a new idea of the ‘public,’ that was not opposed to the notion that people need some ‘private space’ to care for their bodies and find solitude in, but rather resisted the political exclusion inherent in building strong boundaries around ‘public space’ when many people do not have the material means to have such a private place. In September 2011, the political theorist Judith Butler, speaking in Venice in the wake of the political actions labeled the ‘Arab Spring,’ and just before the Occupy

107 movement began in New York City, described the occupations of public squares in Middle

Eastern and North African capital cities as follows:

bodies congregate, they move and speak together, and they lay claim to a certain space as public space. Now, it would be easier to say that these demonstrations or, indeed, these movements, are characterized by bodies that come together to make a claim in public space, but that formulation presumes that public space is given, that it is already public, and recognized as such. We miss something of the point of public demonstrations, if we fail to see that the very public character of the space is being disputed and even fought over when these crowds gather.258

These gatherings of people in what is legally and politically called ‘public space’ reconstruct the boundaries of this space, as interactions with the built environment of the park or the square that are beyond the range of legally accepted uses of such places reconfigure the public nature of the place, and ‘it is equally true that the collective actions collect the space itself, gather the pavement, and animate and organize the architecture.’259 In this way, Butler said,

bodies in their plurality lay claim to the public, find and produce the public through seizing and reconfiguring the matter of material environments; at the same time, those material environments are part of the action, and they themselves act when they become the support for action.260

In the tent city actions I have discussed, the material environments of these public places in Victoria and Vancouver became part of the action by being converted into cities within a city, where the boundaries of public and private were reconfigured through the positioning of private tents in a public place. Butler employed Arendt to consider these contemporary political movements centered on the public square, but she observed the same problem that I have already discussed about Arendt’s complete separation of the ‘space of appearance’ from the realm of private life. Because this space of appearance is defined by who is excluded, it is apparent ‘that a

258 Judith Butler, ‘Bodies in Alliance and the Politics of the Street’ (Address delivered at the European Institute for Progressive Cultural Policies, Venice, Italy, September 2011), online: http://www.eipcp.net/transversal/1011/butler/en. 259 Ibid. 260 Ibid.

108 power operates prior to any performative power exercised by a plurality.’ 261 The tent city, which is an illegal performance of a new kind of ‘public,’ confronts this power that is inscribed in the urban landscape, by being its own source of power that builds a new ‘public space’ within the physical confines of the bounded ‘public space’ maintained by law. In this way, by inserting themselves as both ‘natural’ and ‘political’ beings into these spaces, the visibility of the homeless in public places, normally the source of their exclusion, becomes a source of power because they embody the traces of bare life left within the public realm that prove the strict public/private divide to be a falsehood. This power is echoed in in Butler’s comments about the

‘Arab Spring’: ‘[e]ven after the public sphere has been defined through their exclusion, they act.

Whether abandoned to precarity or left to die through systematic negligence, concerted action still emerges from such sites.’262

At Cridge Park, Woodward’s and Occupy Vancouver, the homeless people who inhabited these public places, along with others, broke the law loudly, and with conviction, because they resisted the legal and political discourses that excluded them. They could only do this by making themselves visible as a community in public, because the knots of life paths their individual lives became entangled in were a source of power that could not emerge without collectively inhabiting a place. Butler noted that no positive law exists to justify the actions of the people who occupied public squares in the ‘Arab Spring’ to oppose the forms of power that excluded them, but suggests that they nevertheless had acted on ‘an exercise of right.’263 What kind of right they were exercising is a question left open by Butler, but perhaps we could think of it as a right to a place. By making themselves visible in public places, actors that inhabit tent cities show that they have a place, and they do this through the making of a new ‘public space.’

261 Ibid. 262 Ibid . 263 Ibid.

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This new space is not the disembodied and bounded ‘public space’ maintained by law, but is a space of appearance for real people who ‘not only bring the material urgencies of the body into the square, but make those needs central to the demand of politics.’264 The new extra- legal ‘public spaces’ made by the tent cities I have discussed were defined by their opposition to the constitutive exclusion inherent in the separation of public and private spheres of life. These actions were powerful because people gathered in pursuit of a common purpose and kept together. But they did so in a way Arendt could not have perceived, because of her reliance on a strict divide between public and private. In the tent cities, public and private lives went on side by side, and a public was created between individuals not in spite of, but rather because of, their mutual appearance on the political stage as people living their private lives in public places. This subversion of the exclusionary public and private divide is captured in Butler’s description of the public square occupations she spoke about:

The bodies acted in concert, but they also slept in public, and in both these modalities, they were both vulnerable and demanding, giving political and spatial organization to elementary bodily needs… revolution happened because everyone refused to go home, cleaving to the pavement, acting in concert.265

By simply being there, activists who occupy places in public and refuse to leave insert themselves into the urban landscape as people who have a place in the city. The fact of their emplacement cannot be denied, it can only be ignored in a way that makes their means of exercising a right to place against the law. The new ‘public spaces’ they create, though not legal, are thus deeply grounded in a notion of right.

In Vancouver, the city I know best, I have not had to break the law to have a place. The existence of a private place I call my ‘home’ has enabled me to step out into public light as a political actor, and though I have often resisted the powers that be, my legal right to have some

264 Ibid. 265 Ibid .

110 place where I can do so has not been questioned. For the homeless, having a place in the city means having a right to be in a public place. Adams takes a step towards recognizing a right to a place, but its limits reinforce the boundaries of public and private that marginalize and exclude the homeless in the first place. It was the tent city action, not the decision itself, which was a source of power for the homeless people who brought Adams to court. The power exercised by the DTES locals who successfully claimed a degree of community ownership over the

Woodward’s building, and the high-profile and grand scale of Occupy Vancouver, which brought the homeless into community with other political actors, have made tent cities an indelible part of the urban landscape of my home city. The extra-legal ‘public spaces’ they created inscribed the desires and fears of homeless people into the city’s public places, even if they were only temporary and were countered by dominant discourses that operate to conceal the desires and fears of the excluded. The old communities that sought survival, and the new communities that were created in these tent cities, live on in the city, and their existence holds the hope of ensuring that everyone in the city has a place.

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VII. BIBLIOGRAPHY

Legislation

British Columbia Safe Streets Act, SBC 2004, c 75.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Community Charter, SBC 203 ch 26.

Controlled Drugs and Substances Act, SC 1996, c 19.

City of Vancouver, by-law No 2849, Street and Traffic By-law.

City of Vancouver, by-law No 8191, Fire By-law.

City of Victoria, by-law No 07-059, Parks Regulation By-law

City of Victoria, by-law No 92-84, Streets and Traffic By-law.

Vancouver Charter, SBC 1953, c 55.

Jurisprudence

Delgamuukw v British Columbia, 1991 CanLII 2371 (BC SC) retrieved on 2014-08-09, [1991] 3 WWR 97.

Delgamuukw v British Columbia, [1997] 3 SCR 1010.

Gosselin v Quebec (Attorney General), 2002 SCC 84, [2002] 4 SCR 429.

New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 SCR 46.

Vancouver (City) v. O’Flynn-Magee, 2011 BCSC 1647.

Victoria (City) v. Adams, 2008 BCSC 1363. . Victoria (City) v. Adams, 2009 BCCA 563.

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Monographs

Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life, translated by Daniel Heller- Roazen (Stanford: Stanford University Press, 1998).

Amster, Randall. Street People and the Contested Realms of Public Space (New York: LFB Scholarly Publishing LLC, 2004).

Arendt, Hannah. The Human Condition (Chicago, IL: The University of Chicago Press, 1958).

Arendt, Hannah. On Revolution (New York, NY: Viking Press, 1963).

Arendt, Hannah. Crises of the Republic (New York, NY: Harcourt Brace, 1973).

Austin, J. L. How to Do Things With Words (Oxford: Oxford University Press, 1965).

Bakan, Joel. Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997).

Blomley, Nicholas. Unsettling the City: Urban Land and the Politics of Property (New York: Routledge, 2004).

Calvino, Italo. Invisible Cities, translated by William Weaver (New York, NY: Harcourt Brace Jovanovich, 1978).

Casey, Edward S. The Fate of Place: A Philosophical History (Berkeley: University of California Press, 1997).

Cresswell, Tim. In Place/Out of Place: Geography, Ideology, and Transgression (Minneapolis, MN: University of Minnesota Press, 1996). de Certeau, Michel. The Practice of Everyday Life, translated by Steven F. Rendall (Oakland: University of California Press, 1988).

Delaney, David. The Spatial, The Legal and the Pragmatics of World-Making (New York: Routledge, 2010).

Douglas, Mary. Purity and Danger: An Analysis of Concepts of Pollution and Taboo (New York: Routledge, 2002).

Feldman, Leonard C. Citizens Without Shelter: Homelessness, Democracy, and Political Exclusion (Ithaca, NY: Cornell University Press, 2004).

France, Anatole. The Red Lily, translated by Winifred Stevens (London: John Lane the Bodley Head Ltd, 1930).

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Harvey, David. Social Justice and the City (Baltimore: Johns Hopkins University Press, 1973).

Heidegger, Martin. Being and Time, translated by John Macquarrie & Edward Robinson (Oxford: Basil Blackwell, 1962).

Hobbes, Thomas. Leviathan, edited by J.C.A. Gaskin (Oxford: Oxford University Press, 1996).

Kalyvas, Andreas. Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge: Cambridge University Press, 2008).

Shiffman, Ron, et al, eds. Beyond Zuccotti Park: Freedom of Assembly and the Occupation of Public Space (Oakland: New Village Press, 2012).

Webb, Michael. The City Square: A Historical Evolution (New York: Whitney Library of Design, 1990).

Wright, Talmadge. Out of Place: Homeless Mobilizations, Subcities, and Contested Landscape. (New York: SUNY Press, 1997).

Zukin, Sharon. Landscapes of Power: From Detroit to Disney World (Berkeley: University of California Press, 1991).

Articles

Benda-Beckmann, et al. ‘Space and Legal Pluralism: An Introduction’ in Beckmamm et al, eds, Spatializing Law: An Anthropological Geography of Law in Society (Farnham, UK: Ashgate Publishing Ltd, 2009) 1.

Blomley, Nicholas. ‘Performing Property: Making the World’ (2013) 27:1 Canadian Journal of Law and Jurisprudence 23.

Buhler, Sarah. ‘Cardboard Boxes and Invisible Fences: Homelessness and Public Space in City of Victoria v. Adams’ (2009) 27 Windsor YB Access Just 209.

Casey, Edward S. ‘How to Get From Space to Place in a Fairly Short Stretch of Time: Phenomenological Prolegomena’ in Steven Field & Keith H. Basso, eds, Senses of Place (Sante Fe, NM: School of American Research Press, 1996) 13.

Ellickson, Robert. ‘Controlling Chronic Misconduct in City Spaces: of Panhandlers, Skid Rows, and Public Space Zoning’ (1996) 105 Yale LJ 1165.

Habermas, Jurgen. ‘Hannah Arendt’s Communications Concept of Power’ (1997) 4 Social Research 3.

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Haldar, Pyel. ‘In and Out of Court: Topographies of Law and the Architecture of Court Buildings’ (1994) 20 International Journal for the Semiotics of Law 180.

Hamill, Sarah. ‘Private Property Rights and Public Responsibility: Leaving Room for the Homeless’ (2011) 30 Windsor Review of Legal & Social Issues 91.

Hermer, Joe. ‘Keeping Oshawa Beautiful: Policing the Loiterer in Public Nuisance By-Law 72- 94’ (1997) 12 Can JL & Soc 171.

Ingold, Tim. ‘Against Space: Place, Movement, Knowledge’ in Peter Wynn Kirby, ed, Boundless Worlds: An Anthropological Approach to Movement (Oxford, UK: Berghahn Books, 2009) 29.

Miller, Kristine. ‘Art or Lunch: Designing a Public Space for New York’s Federal Plaza’ in William Taylor, ed, The Geography of Law: Landscape, Identity and Regulation (Oxford: Hart Publishing, 2006) 137.

Milne, Kendra. ‘Municipal Regulation of Public Spaces: Effects on Section 7 Charter Rights’ (2006) 11 Appeal 1.

Oberlander, Cornelia Hahn. ‘An Oasis in the City: Robson Square and the Law Courts, Vancouver, B.C., Arthur Erickson, Architects’ (1981) 2 Landscape Architectural Review 6.

Smith, Ronald W & Valerie Bungi. ‘Symbolic Interaction Theory and Architecture’ (2006) 29 Symbolic Interaction 123.

Sparke, Matthew. ‘A Map that Roared and an Original Atlas: Canada, Cartography, and the Narration of Nation’ (1998) 88 Annals of the Association of American Geographers 463.

Wagner, David & Marcia B. Cohen. ‘The Power of the People: Homeless Protestors in the Aftermath of Social Movement Participation’ (1991) 38 Social Problems 543.

Waldron, Jeremy. ‘Homelessness and the Issue of Freedom’ (1991/1992) 39 UCLA Law Review 295.

Wright, Talmadge. ‘New Urban Spaces and Cultural Representations: Social Imaginaries, Social-Physical Space, and Homelessness’ (2000) 5 Research in Urban Sociology 23.

Young, Margot. ‘Section 7 and the Politics of Social Justice’ (2005) 38 UBC LR 539.

News Media

Ball, David P. ‘Occupy Vancouver: Drug Den or Harm Reduction Haven?’ The Tyee (7 November 2011), online: http://thetyee.ca/News/2011/11/07/OccupyVanDrugUse/.

Beers, David. ‘At Face Value,’ The Globe and Mail (21 November 1998).

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Bula, Frances. ‘Gregor Robertson preoccupied with Occupy,’ The Globe and Mail (6 November 2011), online: http://www.theglobeandmail.com/news/british-columbia/gregor-robertson- preoccupied-with-occupy/article4403564/.

CBC News. ‘“Occupy” protests hits downtown Vancouver’ (15 October 2011), online: http://www.cbc.ca/news/canada/british-columbia/occupy-protest-hits-downtown-vancouver- 1.1099210.

CBC News. ‘Occupy Vancouver death dooms protest camp’ (5 November 2011), online: http://www.cbc.ca/news/canada/british-columbia/occupy-vancouver-death-dooms-protest-camp- 1.1113312.

Globe and Mail, The. ‘Court told eviction of Occupy protestors would hurt homeless’ (17 November 2011), online: http://www.theglobeandmail.com/news/british-columbia/court-told- eviction-of-occupy-vancouver-protesters-would-hurt-homeless/article4183803/.

Hui, Stephen. ‘Occupy Vancouver poses “no health concerns” for Vancouver Coastal Health, despite Global TV rat reports,’ The Georgia Straight (31 October 2011), online: http://www.straight.com/news/occupy-vancouver-poses-no-health-concerns-vancouver-coastal- health-despite-global-tv-rat-reports.

Hui, Stephen. ‘Is it time for Occupy Vancouver to bring back the tent city?’ The Georgia Straight (4 April 2014), online: http://www.straight.com/blogra/620531/it-time-occupy- vancouver-bring-back-tent-city.

Pablo, Carlito. ‘Occupy Vancouver tent city offers haven for homeless,’ The Georgia Straight (25 October 2011), online: http://www.straight.com/news/occupy-vancouver-tent-city-offers- haven-homeless.

Tieleman, Bill. ‘Occupy Vancouver Turning off its Power Source,’ The Tyee (8 November 2011), online: http://thetyee.ca/Opinion/2011/11/08/OccupyVancouver/.

Other Sources

Arthur Erickson. ‘Biography’ (Accessed 7 August 2014), online: http://www.arthurerickson.com/about-arthur-erickson/biography/1/.

Borren, Marieke. Amor Mundi: Hannah Arendt’s Political Phenomenology of World (PhD dissertation, University of Amsterdam, 2010) [unpublished].

Butler, Judith. ‘Bodies in Alliance and the Politics of the Street’ ( Address delivered at the European Institute for Progressive Cultural Policies, Venice, Italy, September 2011), online: http://www.eipcp.net/transversal/1011/butler/en.

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Carnegie Community Action Project. ‘Social mix has displaced low-income people at Woodward’s’ (Accessed 26 April 2013), online: http://ccapvancouver.wordpress.com/2013/02/20/ww_gent/.

City of Vancouver. 2005/06 Downtown Eastside Community Monitoring Report (Vancouver: City of Vancouver, 2006).

City of Vancouver. ‘Marketing and canvassing for charity’ (Accessed 8 August 2014), online: http://vancouver.ca/doing-business/marketing-and-canvassing-for-charity.aspx.

City of Vancouver. ‘Block 51: The 800-block of Robson Street and Vancouver Art Gallery North Plaza projects (Full set of display panels)’ (Accessed 9 August 2014), online: http://vancouver.ca/streets-transportation/robson-plaza-consultation.aspx.

City of Victoria. ‘Cridge Park’ (Accessed 14 March 2014), online: http://www.victoria.ca/EN/main/departments/parks-rec-culture/parks/improvements/cridge- park.html.

Gallant, Gloria, Joyce Brown & Jacques Tremblay. ‘From Tent City to Housing: An Evaluation of the City of Toronto’s Emergency Homeless Pilot Project’ (Toronto: City of Toronto, 2004).

Greater Vancouver Regional Steering Committee on Homelessness. Results of the 2014 Homeless Count in the Metro Vancouver Region (Vancouver: Metro Vancouver, 2014).

Greater Vancouver Shelter Strategy Society. Greater Vancouver Extreme Weather Response: 2012-13 Evaluation (Vancouver: James Pratt Consulting, 2013).

Issit, Benjamin. Housing for All: The Social Economy and Homelessness in British Columbia’s Capital Region (Occasional Papers Series, No. 6.) (Victoria, BC: Canadian Social Economy Hub at the University of Victoria, 2008).

Sargent, Cristal. Cridge Park Tent City From the Perspective of Participants (MA thesis, University of Victoria, 2012) [unpublished].

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VIII. APPENDIX: IMAGES OF PLACES DISCUSSED

All images are reproduced with the photographer’s permission or retrieved with no known copyright restrictions (https://www.flickr.com/commons/).

Cridge Park campers, October 2005 (Pete Rockwell).

Cridge Park, December 2014 (Gavin Torvik).

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Cridge Park, December 2014 (Gavin Torvik).

Woodward’s sidewalk tent city, early 2000s (Andrew McWilliam).

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Woodward’s site post-redevelopment, March 2010 (Rick Chung).

Woodward’s site post-redevelopment, December 2014 (Shayla Walker).

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North plaza of Robson Square, December 2014 (Kris Por).

March on first day of Occupy Vancouver, October 2011 (Bradley Por).

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Occupy Vancouver tent city, October 2011 (Geoffrey Kehrig).

Occupy Vancouver tent city, October 2011 (Joseph de Lance).

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