UPDATE: City, homeless advocates both pleased with case outcome

Decision strikes down ban on overnight camping in parks, but city can still prohibit permanent camps.

The homeless protest camp on Gladys Avenue.

The outcome of a contentious trial between a group of homeless people and the City of Abbotsford has, somehow, managed to please nearly everyone.

The decision strikes down provisions in city bylaws that ban sleeping overnight in city parks, and the use of temporary shelters or tents. But it upholds the city’s ability to ban permanent encampments on public land.

Pivot Legal Society, the non-profit law firm representing homeless activists with the B.C./Yukon Association of Drug War Survivors (DWS) in the trial, are happy the decision affirms the right to sleep in public places, and take shelter from the elements if need be, when someone has nowhere else to go. But the city is glad the decision still allows them to ban permanent encampments or tent cities, like the protest camp on Gladys Avenue that’s been in place since 2013.

In the trial, which ran for six weeks this June, July and August, DWS argued city bylaws banning sleeping outdoors violated the homeless’ rights to life, liberty and personal security as laid out in the Charter of Rights and Freedoms.

BC Supreme Court Justice Christopher Hinkson ruled Wednesday that when there aren’t enough shelter spaces in a community, banning sheltered outdoor sleeping violates fundamental rights.

“The evidence shows that there is a legitimate need for people to shelter and rest during the day and no indoor shelter in which to do so,” Hinkson wrote.

Pivot hailed the decision as a “massive vindication” of the rights of people who find themselves on the street.

Although Hinkson hewed closely to a similar case regarding a Victoria tent city in 2008 that gave the homeless the right to sleep in parks overnight, Pivot lawyer DJ Larkin says this decision is a significant step forward because it no longer requires someone to prove they have nowhere else to go.

Abbotsford Mayor Henry Braun said he was glad Hinkson didn’t grant the DWS the right to permanently camp on city land.

“They can’t camp, the parks aren’t open season all year round, because the judge recognizes that the parks are for the community as a whole,” said Braun. “I was pleased that the court did not accept, for the most part, most of what was being sought by Drug War Survivors They can still go to the park, but they have to leave every morning at 9 a.m. with their belongings.”

Larkin interpreted the no-permanent-shelter rule slightly differently in her reading, it would allow a camper to stay in the park during the day, so long as they pack down their tent.

In his decision, Hinkson also dismissed the city’s request for a permanent injunction against erecting shelters and tents in Jubilee Park.

Harvey Clause and Doug Smith, two DWS members currently living at the Gladys camp, joined Larkin at Pivot’s press conference after the ruling’s release. They were glad the court partially ruled in their favour, but had mixed feelings overall.

They were unhappy the court ruled shelters have to be taken down during the day, and urged the city not to displace the Gladys camp.

“I’m sick and tired of hearing, ‘You gotta move.’ I ask, where are you supposed to go?” said Smith.

The fight between the city and homeless activists, including the DWS, has been a protracted battle. As noted in the decision, there has long been a shortage of shelter beds available, and tensions mounted between the city and people sleeping outdoors in 2013.

City efforts to disperse clusters of homeless campers escalated. At trial, Hinkson heard that police pepper-sprayed inside tents and city staff spread chicken manure near camp areas, casting widespread negative attention on the city. When the city closed down a tent city that had been erected in Jubilee Park in late 2013, DWS and Pivot announced their intentions to sue the city.

DWS argued the pepper-spraying and chicken manure incidents to be violations of their rights but Hinkson didn’t agree, although he did call the manure incident “disgraceful.”

The city has not taken action to remove a tent-city protest camp on Gladys Avenue. Braun said Wednesday the city still needs to review the court decision and plan its next move before taking any action regarding the camp.

The decision said the city could designate certain parks for “more than overnight” camping by the homeless. Braun and city staff have not yet said whether they will explore this option.

Throughout the trial, DWS advocated not just for the right to camp in parks, but for the city to help create more low-cost housing options, citing the city-sanctioned “Dignity Village” of semi-permanent shelters in Portland, Ore., as a positive example.

The court decision won’t change housing policy, but it’s spurred both sides to once again discuss what steps they can take to help solve homelessness.

Braun said homelessness is a Canada-wide issue, and he’d like to see a federal government strategy for aiding it across the country. Larkin agreed, urging that the temporary shelters allowed by the ruling can’t solve the problem.

DWS member Clause, who has been homeless for over a decade, was guardedly hopeful about the ruling’s future effect.

“This is a good win,” he said. “It’s better than nothing.

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