Who wants what: Inside the Abbotsford homeless trial

After six weeks of testimony and legal arguments, Supreme Court chief justice Christopher Hinkson has several decisions to make.

After six weeks of testimony and legal arguments, the future of city policies towards homeless encampments in Abbotsford now lies in the hands of BC Supreme Court Chief Justice Christopher Hinkson.

The trial has pitted the British Columbia/Yukon Association of Drug War Survivors (DWS) against the City of Abbotsford. DWS, represented by lawyers from the Pivot Legal Society, contends that bylaws that prohibit unauthorized camping on city-owned land breach the homeless population’s charter right to security. They argue the city has failed to provide shelter options and cannot stop the homeless from making camp in the only spaces available.

The city contends that shelter options exist, and that the removal of the bylaws would not improve the lives of the homeless. They say the challenges faced by the homeless are not sufficient to allow them to “appropriate” public land for their encampments.

But Hinkson is being asked to do more than simply agree with the DWS or the city.

Both sides have requested the judge to make specific rulings and pronouncements regarding the case and surrounding issues.

They have also each asked for costs related to the legal case.

The DWS position

The DWS seeks a finding that parts of the city’s street and traffic bylaw, good neighbour bylaw and parks bylaw are unconstitutional because they prohibit the homeless from setting up camps.

Should Hinkson make such a ruling, the DWS is seeking an order telling the city how its bylaws can conform to the charter. At trial, lawyers for the DWS have suggested that the judge could make a ruling that permits camping – and the erection of camping structures – in certain types of parks, perhaps where they would be less intrusive.

Lawyers for the group have told Hinkson they realize they cannot order the city to take action to provide more housing for the homeless, but that in the absence of such, camping on public land cannot be prohibited.

The DWS also seeks a declaration that the city’s bylaws and the actions of its staff members have discriminated against the homeless as a group and breached their rights to freedom of assembly.

A previous court case regarding the homeless in Victoria allows tents to be set up overnight, provided they are removed during the day. The DWS is seeking a broader ruling that allows camps to remain in place during the day.

The city position

The city wants Hinkson to find that its bylaws don’t violate any portions of the Charter of Rights and Freedoms.

But if they do breach the charter rights of the homeless, the city contends that the violations are justified under the first section of the charter, which guarantees freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The city’s laws, they argue, try to balance conflicting interests, and accounting for the circumstances for every single park user is impossible.

The city says that granting the order sought by the DWS would remove its ability to regulate its public spaces.

The city says it simply seeks to protect parks as public land for the benefit of all of Abbotsford’s residents.

The city has also asked Hinkson to make permanent an injunction granted in December 2013 that resulted in the eviction of a large homeless camp in Jubilee Park.

The facts

The DWS’s case largely rests on evidence it says shows Abbotsford’s homeless population have nowhere else to go. DWS lawyers say the city has failed to provide housing options for the homeless, a charge the city has forcefully countered.

The degree to which Abbotsford has tried to help its homeless might not matter, though, with Hinkson suggesting that it is not for a judge to pronounce upon the actions of the city and its elected representatives – whether positive or negative.

Throughout the trial, the DWS pointed to a homeless count undertaken in March 2014 by the Mennonite Central Committee on behalf of the Fraser Valley Regional District. That count found 151 people who it considered homeless, although some were couch-surfing or not living outside.

Those who conducted the study – and lawyers for the DWS – say that number is a likely undercount. But the city has cast doubt on the accuracy and reliability of the count’s results.

The sides also differ as to the seriousness of the situation facing the homeless. The DWS contends that the bylaws put the homeless at risk by reducing their shelter options. The city argues that the homeless are no safer in camps like that on Gladys Avenue.

Hinkson has said testimony about the state of homeless encampments reveals reasons for the city’s concern.

But he also said service providers have been consistent in their testimony about the city‘s lack of shelter options.

The testimony

Weeks of testimony under oath have resulted in several revelations about Abbotsford’s homeless camps and the city’s policies regarding them.

The court heard that the homeless were occasionally labelled “undesirables” by city staffers. The court also heard about an email in which a staffer wrote, about the homeless camps, “…I don’t think there is a solution to this but we can attempt to make it difficult for them.”

The court heard that booby traps were sometimes found at homeless camps.

A homeless woman testified that Barry Shantz, a leader of the DWS, paid people to march in a protest in June down Gladys Avenue.

The court also heard an Abbotsford Police constable admit to pepper-spraying a tent to encourage the occupant to move.

The court heard evidence that fish fertilizer was used under a tree at the Gladys Avenue camp to deter people from congregating under the tree’s branches. There were also discussions about using the fertilizer in Lonzo Park.

The decision

Final arguments concluded Thursday in New Westminster. Hinkson will take many weeks to formulate his decision, which will be delivered in court at a later date, not set at press time.

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