Abbotsford Loses Attempt To Quash Pivot Anti-Homeless Bylaw Case

Pivot Case Will Go Ahead

BC Supreme Court chief justice Christopher Hinkson ruled today that the case against the City of Abbotsford brought by Pivot Legal Society on behalf of the Abbotsford Chapter of the BC/Yukon Drug War Survivors (DWS) can go ahead.

The court ruled that the DWS can stand in and represent the named and unnamed members of the homeless community in Abbotsford who would be put through extreme hardship if they were forced to make regular trips from Abbotsford to the Supreme Court in Abbotsford during what is expected to be a long and drawn out case which may go to the Supreme Court of Canada.

Cover photo: The Face Of Abbotsfords Homeless – Nick Zurowski. Bas Stevens photo.

The City of Abbotsford had argued that the lawsuit, on behalf of members of the Abbotsford Chapter of the BC Yukon Drug War Survivors (DWS)and the homeless people of Abbotsford, to have access to safe shelter recognized as a basic human right should not go to trial.

In a press release Pivot Legal Society explained the court’s decision:

 

This morning, September 29^th, the British Columbia Supreme Court released its decision on the application by the city of Abbotsford to strike the pleadings in Pivot’s application in the case of BC/Yukon Drug War Survivors v Abbotsford (City).

You can read the full decision here:

Chief Justice Hinkson, re B.C.-Yukon Association of Drug War Survivors v. Abbotsford [City], 09-29

1. First of all, what is this case about?

Homelessness in Abbotsford

The City of Abbotsford is aware that homeless people living in Abbotsford face barriers to shelter and housing.  Abbotsford’s approach to homelessness, however, has been to displace homeless people from public spaces through the using of bylaw enforcement and other tactics.  Some of these tactics to move homeless people from city spaces included spreading chicken manure on a camp of homeless people, slashing tentsand discharging bear spray on tents, belongings and food.

On February 17, 2014, Abbotsford voted against the development of the Low-Barrier Housing with Mayor Bruce Banman casting the deciding vote against the Low-Barrier Housing.

 

Abbotsford’s Court Action

In 2013, a group of homeless people in Abbotsford who had no access to safe housing made themselves a camp in Jubilee Park.  In November 2013, the city of Abbotsford filed an action against this group of people camping in Jubilee Park. The City got an injunction to evict the people from the park, and just before Christmas, everyone was evicted. Many of the campers moved to a new camp on Gladys Avenue. Pivot defended one of the named defendants in court, arguing that the bylaw used to support the injunction were unconstitutional.

 

Pivot Court Action

In March 2014, Pivot filed its own an action on behalf of the BC/Yukon Drug War Survivors, a society made up of drug users and former drug users, many of whose members are homeless and live in Abbotsford. Drug War Survivors is challenging three Abbotsford bylaws, and the city’s action in displacing homeless people. Pivot says that homeless people have a right to exist and obtain the basic necessities of life in public spaces, and that the three Abbotsford bylaws, and Abbottsford’s displacement activities violated Abbotsford’s homeless’ Charter rights under sections 2c (Right to associate) 2d (right to assemble), 7 (life, liberty and security of the person) and 15 (equality) of the Charter of Rights and Freedoms.

2. What did the City of Abbotsford ask the court to do?

The city responded by bringing an action to strike the whole case, arguing that Drug War Survivors did not have standing to bring the case, and that the pleadings were improper -because, among other things, they disclosed no reasonable claim, they were frivolous or vexatious or an abuse of process.

3. What did the Court say about the standing issue?

The court relied on the SWUAV decision to say that DWS did have standing.

Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society is a 2012 Supreme Court of Canada case in which Pivot argued that a group of DTES sex workers had a right to bring constitutional challenges as a group, rather than as individuals. Pivot relied on this case to say that Drug War Survivors was an appropriate plaintiff, and that an individual camper didn’t need to bring an action. The Chief Justice Agreed stating:

[59] In my view, the additional factors set out by the Supreme Court of Canada in Downtown Eastside Sex Workers United Against Violence Society apply to the present case. This is public interest litigation raising issues that transcend the plaintiffs’ immediate interests. It is a comprehensive challenge that may prevent a multiplicity of individual challenges, and there is no risk of the rights of others with amore personal or direct stake in the issue being adversely affected by a diffuse orbadly advanced claim. There is no suggestion that others who are more directly orpersonally affected have deliberately chosen not to challenge these provisions.

He went on to say some nice things about Pivot and our litigation team:

Further, the plaintiff has capacity to undertake this litigation and is represented by experienced counsel and Pivot Legal Society, whose expertise was recognized in Downtown Eastside Sex Workers United Against Violence Society. The present litigation constitutes an effective means of bringing the issue to court in that it will be presented in a context suitable for adversarial determination: (Downtown Eastside Sex Workers United Against Violence Society at paras. 73 –74).

4. What did the court find about Abbotsford’s procedural argument?

Abbotsford argued that the case should not be heard because the pleadings disclosed no reasonable claim, they were unnecessary, scandalous, frivolous and vexatious, they may prejudice, embarrass or delay a fair hearing of the matter, and they were an abuse of process.

The Chief Justice found for Pivot.

5. So what happens now?

There are two cases about Abbotsford’s conduct in trying to displace its homeless citizens. The first is a defense against the eviction of the Jubilee Park camp, and the second is the broader Pivot challenge to the bylaws and the city’s displacement actions. The Chief Justice suggested in his decision that both of these might best be heard together, and Pivot will work to make that happen.

The next step to try to get some important documents from the Abbotsford Police Board about the displacement tactics, and then we will get ready to go to trial.

6. And how long will they have to wait?

Pivot asked for an expedited trial to try to get the matter settled before wet weather makes life even worse for people camping in Abbotsford. As a result of Abbottsford’s delays, this is not possible, but we hope to go to trial in 2015.

 

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Short Summary of Abbotsford’s Homeless Crisis:

Nick Zurowski, The Face of Homelessness in Abbotsford. Bas Stevens Photo

First came  John Smith’s announcement to the national media that he had instructed the APD to handle homelessness in downtown Abbotsford; then the Abbotsford Shuffle – otherwise known as Chief Bob Rich’s “disperse and displace” strategy for solving homelessness; then Mayor Banman’s Chicken Manure Incident (first revealed on Abbotsford Today); then there was the Standoff in Jubilee; followed by the ‘MCC Dignity Village‘ protest camp on Gladys Avenue and the gathering of more and more of Abbotsford’s homeless to the security of living with others and out in the open in the growing size and number of camps across from the Salvation Army and along Gladys Avenue.

Embarrassing Revelations

Abbotsford Homeless Camp. Bas Stevens photo.

Along the way a few embarrassing revelations were uncovered and published by Abbotsford Today including
the fact that the Salvation Army knew about and was in agreement with the use of chicken feces to encourage the homeless to move from their camp across the street from the Sally Ann; and the rude and demeaning emails shared by police chief Bob Rich and his senior staff after the Chicken Manure Incident went worldwide.