City can’t be ‘ordered’ to create more shelter for homeless: Judge

Final arguments being heard in case to determine constitutionality of Abbotsford's bylaws.

As final arguments began in a Supreme Court trial to determine whether Abbotsford’s bylaws and homeless policies are unconstitutional, Chief Justice Christopher Hinkson suggested he may not be able to force the city to do more for people living on the streets.

A group of homeless activists called the B.C./Yukon Drug War Survivors (DWS) allege Abbotsford’s bylaws are unconstitutional. Represented by the Pivot Legal Society, they allege a combination of the city’s bylaws – which prohibit unauthorized camping in city parks – and a lack of housing options put homeless people at risk and infringe on their right to security of person. They also say city staff have tried to make life difficult for the homeless.

The city contends it’s been doing its best to help the homeless while keeping parks safe for other users.

After nearly a month of testimony by witnesses for both sides, Pivot lawyers David Wotherspoon and DJ Larkin began their final submissions to the court Friday.

Wotherspoon alleged that the city’s bylaws breach homeless people’s constitutional right to security of person.

“… the evidence supports the conclusion that the goal of the City of Abbotsford has been to move people along somewhere other than the City of Abbotsford,” he said.

Wotherspoon decried what he called “bureaucratic inaction” by the city that led to a lack of shelter options for the homeless.

He pointed to a 2014 homelessness report prepared for the city that found the number of shelter beds per 100,000 people in Abbotsford is around one-quarter of the provincial average.

Hinkson, though, questioned what he could do about Abbotsford’s housing shortage.

“I am quite concerned with the extent I can interfere,” he said, adding that he can’t order the city to create more low-barrier shelter spaces.

And when Wotherspoon noted that city politicians had voted against a 2013 proposal by Abbotsford Community Services to create a low-barrier shelter, after opposition by businesses, Hinkson said: “That’s what politicians do.”

He later suggested some decisions are best left to politicians.

“They’re responsible and accountable.”

Wotherspoon argued the lack of city action is important context when the judge decides whether the city’s bylaws are constitutional.

“What the court can do is tell the City of Abbotsford that if the city doesn’t provide the necessities of life, they can’t stop others from doing so,” he said.

Hinkson said he was also concerned about making a ruling that would create what he called an “unhealthy environment” in Abbotsford’s parks, and cited reports of needles, feces and garbage at camps that have taken root in the city.

“If your clients are unable to avoid these types of environments, giving them carte blanche to stay as long as possible doesn’t seem to be the answer,” he said.

Wotherspoon said he hoped the justice would be able to create an order that would limit those issues.

“We don’t seek an order that results in chaos in the parks,” he said. In response to another question, he suggested the judge could allow camping in just some parks and public lands where it would be least disruptive.

Over the course of the trial, Hinkson heard from several homeless residents and city staff members, along with community members who have been working to improve the lives of those living on the street.

“There are obviously many altruistic people in Abbotsford,” he said. “It’s a credit to the City of Abbotsford that it has citizens like that.”