Pepper-spraying of homeless tents isolated incidents, Abbotsford lawyer says

As trial wraps up, city lawyer says "isolated" acts don't affect constitutionality of city bylaws being challenged in court.

Final arguments in a court case involving homelessness have begun Friday.

Final arguments in a court case involving homelessness have begun Friday.

Controversial actions of city employees and police officers don’t impact the constitutionality of several bylaws being challenged in court, City of Abbotsford lawyer James Yardley argued Tuesday during the final stages of a trial to determine whether those bylaws breach the rights of homeless men and women.

A group of homeless activists – the B.C./Yukon Drug War Survivors (DWS) – allege several of Abbotsford’s bylaws are unconstitutional. Represented by the Pivot Legal Society, they say 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.

On Tuesday during his final arguments, city lawyer James Yardley urged Chief Justice Christopher Hinkson to consider the bylaws in isolation from evidence that police officers pepper-sprayed and slashed the tents of the homeless, and that city officials spread manure on the site of an encampment.

Yardley said the bylaws did not authorize or prompt those specific acts, which he said were isolated events by a limited number of people.

“They were one-offs,” he said.

Those acts, he said, weren’t the focus of the trial. If they were, he said the city would have presented its own evidence surrounding them. He also said the DWS doesn’t have standing to claim suffering from the acts. But Hinkson expressed skepticism that such acts could be justified.

“I don’t know how possibly you defend pepper-spraying an empty tent, cutting the tent,” he said.

Yardley also questioned the degree to which the city’s bylaws jeopardize the security of homeless men and women, arguing that DWS witnesses testified they preferred living outside.

He pointed to testimony of one man who said he didn’t want a roommate, while another cited a previous bad experience at the Salvation Army for not wanting to stay there. He said the DWS didn’t cite any evidence to show how the lives of those living in the Gladys Avenue homeless camp had improved since the city stopped enforcing its bylaw there.

Hinkson. though, questioned the wisdom in evicting homeless people.

“The evidence is consistent from service providers that there aren’t enough places to go,” he said. “I don’t understand how telling them to go away from place A is any answer at all.”

Yardley said the city’s homeless do have other options – be it in shelters, with friends or in other towns. He said that as long as there are some options somewhere, homeless men and women don’t have the right to “appropriate … publicly held lands” by setting up long-term camps.

Yardley argued that an order allowing the homeless to camp in a limited geographic area would “endorse the approach taken at the camp on Gladys Avenue and Cyril which, the evidence shows, contains a ‘criminal element,’ and is ‘too wild’ for many of the witnesses who testified.’”

Yardley also said it was “outrageous” for DWS to suggest that the city has yet to take any concrete steps to help its homeless.

“The city is moving in the right direction,” he said. Yardley also pointed to evidence that several residents of the Jubilee Park encampment are no longer homeless, and said there is no evidence that DWS Abbotsford founder Barry Shantz was ever homeless.

A decision in the case is expected to take several months to be released.

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