The City of Abbotsford will argue it’s doing its best to help the homeless population while keeping parks safe for other users, city lawyer James Yardley said Wednesday during the ongoing Supreme Court trial into the constitutionality of several bylaws.
Lawyers affiliated with Pivot Legal Society are suing the city on behalf of the BC/Yukon Drug War Survivors (DWS), a group of homeless activists who say Abbotsford’s bylaws are unconstitutional. They allege that 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.
After two weeks of testimony before Supreme Court Justice Christopher Hinkson by witnesses for the plaintiffs, the city opened its case Wednesday.
In his opening statement,Yardley laid out the broad strokes of the city’s case.
He said the city has undertaken a variety of efforts to try to provide shelter for its homeless, despite no legal requirement to do so.
“There are housing and shelter options for people living in encampments,” he said.
Yardley pointed to a range of programs and city initiatives, including the creation of Assertive Community Treatment team to provide health assistance for the homeless, the establishment of a Homelessness Task Force, and the approval of a new low-barrier supportive housing facility.
Yardley also said the solutions to homelessness are more difficult than the plaintiffs make it seem, noting that some proposals meet stiff public opposition that politicians must take into account.
City parks must also remain usable by the rest of the city’s residents, he said.
Encampments, he said, increase the fire risk in parks and lower the safety of other users.
The case will also see Hinkson confront the degree to which he can weigh in on decisions by politicians acting for their constituents.
“Do I need to concern myself with political decisions that have been made?” he asked Yardley. Hinkson mused: “I suppose, so what if the city hasn’t done anything. It’s not something I can pronounce upon, whether they do or don’t do anything.” Yardley suggested he will make arguments similar to that point later in the trial.
Yardley contended that the definition of homelessness is up for debate, with people moving in and out of shelters, and indeed Abbotsford.
“The way it’s been framed is that it’s a simple accounting exercise,” Yardley said. “The definition of what is housing and what is available housing is not always so clear.”
If the bylaws are deemed unconstitutional, Yardley said the city will seek relief under Section 1 of the Charter of Rights and Freedoms, which guarantees those freedoms subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Yardley will also argue that Abbotsford bylaws don’t actually prohibit camping in its parks, but rather regulate it. He noted that those who wish to camp overnight on park land can apply to the city to do so.
Hinkson expressed skepticism at the argument, and asked Yardley if the city would ever approve a request for the creation of a homeless encampment.
“It’s never gotten to that point,” Yardley replied.
Hinkson suggested it might be “unlikely in the extreme” that the city would grant approval, but said he would wait until hearing from witnesses to make up his mind.
The city’s first witness was Parks, Recreation and Culture general manager Heidi Enns, who testified that the city never received an application for camping or the building of a structure in Jubilee Park regarding a protest camp that was erected there in 2013.
She said the city has previously granted applications to camp on parkland and pointed to a decision to allow RVs to stay overnight on MSA Arena grounds during the Abbotsford Whalers swim meet at Mill Lake Park.
Pivot lawyers also contend that actions taken by city staffers and the Abbotsford Police Department also infringed on the rights of the homeless.
Yardley said actions taken by the Abbotsford Police, including the slashing and pepper spraying of tents, which were referred to by the plaintiffs are not at issue because the APD is not being sued.
As for the spreading of chicken manure on a homeless camp in June of 2013, Yardley said that action “was not done pursuant to city policy.”
Yardley will also try to distance Abbotsford’s homelessness issues from those of Victoria, which was the subject of a 2008 judgment that gave people the right to camp in parks overnight – although it required tents to be taken down during the day.
Victoria, he said, had more than 1,000 homeless residents and shelter space for around 300. Abbotsford’s situation, where 151 homeless people were counted in 2014, is significantly different.
