By Mike Archer. Every citizen in Abbotsford should read BC Supreme Court Chief Justice Hinkson’s Reasons for Judgment in the City of Abbotsford’s attempt to keep the homeless men and women from having their day in court.
On Monday Justice Hinkson denied every single motion made by City lawyers to put roadblocks between Abbotsford’s homeless men and women and the justice system.
One of the central roles played by the judiciary, which was once a role also played by newspapers, is to record for the history books, the conflicts and legal disagreements which occur within a community, who is responsible and how those conflicts were resolved so that, among other things, future generations can understand the situation they have inherited.
If you read the document – and despite what Mayor Banman says … it is not a difficult read – it is a very damning document for some members of our community and some representatives of the power structure at the City and the Abbotsford Police Department (APD).
How the City and the APD managed to bungle their way into becoming defendants.
In the beginning of the Jubilee park legal action initiated by the city it was ‘The City of Abbotsford Plaintiff vs Barry Shantz, John Doe, Jane Doe and persons unknown defendants.’
Now the city of Abbotsford and the Abbotsford Police Department have been turned into defendants. The court document now reads ‘Drug War Survivors plaintiffs vs City of Abbotsford defendants.’
The chief Justice of the Supreme Court of BC has now ordered the city and the police department to defend themselves.
By arguing that the Drug War Survivors and its 700 members had no standing in court, and by objecting to almost every single aspect of the suit, the City has ensured that the citizens of Abbotsford are now defendants in one of the most explosive human rights cases in Canada.
When you read the Chief Justice’s reason for dismissing every one of the City’s motions you will wonder what on earth the City of Abbotsford is doing in court.
Editor’s note: This is an opinion piece. You can (and should) read the full decision here:
Chief Justice Hinkson, re B.C.-Yukon Association of Drug War Survivors v. Abbotsford [City], 09-29
Among the highlights:
DWS member Harvey Klause.
Judge’s summary of the issue and background
The City has had, and continues to have a population of persons without a fixed address. The City admits that there is a homeless population in Abbotsford. In an effort to manage this population, the City relies upon three of its Bylaws; Bylaw No. 160-96, Consolidated Parks Bylaw (12 February 1996); Bylaw No. 1536-2006, Consolidated Street and Traffic Bylaw (10 July 2006); and Bylaw No. 1256-2003, Consolidated Good Neighbour Bylaw (25 August 2003) (collectively “the Impugned Bylaws”).
Drug War Survivors peaceful protest in Jubilee Park, November 21, 2013. Photo by Bas Stevens
The Allegations against the City and the Abbotsford Police Department
The plaintiff alleges in para. 19 of Part 1 of its amended notice of civil claim that, relying upon the Impugned Bylaws, the City employed tactics described by the plaintiff as “displacement tactics” by:
(a) issuing bylaw enforcement notices on Abbotsford’s Homeless requiring them to vacate the public spaces (“Eviction Notices”);
(b) enforcing Eviction Notices by way of court ordered injunctions, which injunctions include enforcement provisions pursuant to the Criminal Code, R.S.C., 1985, c. C-46;
(c) ordering Abbotsford’s Homeless to move and/or disperse from various public spaces verbally and without the issuance of Eviction Notices;
(d) selective policing practices, often referred to as proactive policing, in areas known to be frequented by Abbotsford’s Homeless;
(e) spraying bear spray by members of the APD into the tents and onto the belongings of some of Abbotsford’s Homeless, destroying their Survival Shelters, clothing, hygiene items, food and other personal property;
(f) enforcing Eviction Notices by way of court ordered injunctions, which injunctions include enforcement provisions pursuant to the Criminal Code, R.S.C., 1985, c. C-46;
(g) ordering Abbotsford’s Homeless to move and/or disperse from various public spaces verbally and without the issuance of Eviction Notices;
(h) selective policing practices, often referred to as proactive policing, in areas known to be frequented by Abbotsford’s Homeless;
(i) spraying bear spray by members of the APD into the tents and onto the belongings of some of Abbotsford’s Homeless, destroying their Survival Shelters, clothing, hygiene items, food and other personal property;
Abbotsford DWS founder Barry Shantz. Bas Stevens photo.
The standing of the Drug War Survivors
[19] DWS also contends that the effect of the impugned provisions of the Bylaws and the actions of Abbotsford is to marginalize Abbotsford’s Homeless and systematically discriminate against them on the grounds of mental and/or physical disability, race, national or ethnic origin, and/or colour, contrary to s. 15 of the Charter [42] Barry Shantz is one of the founders of the Abbotsford chapter of DWS. In his affidavit of December 3, 2103, sworn in the City’s action, he deposed that DWS has worked with the City, the Fraser Health Authority, the Centre for Disease Control, and other local organizations to bring awareness to the complications around addictions and to raise self-esteem and self-confidence amongst the members of DWS. He further deposed in his affidavit that he has attended all of the Abbotsford Social Development Advisory Committee (“ASDAC”) meetings since 2009 or 2010 as a Community Stakeholder. The Committee members include an Abbotsford School Board trustee and two City council members.
Rod Santiago
ASDAC and the Shelter Working Group
14. ASDAC had a shelter working group. The group made recommendations to the City of Abbotsford. Attached as Exhibit C is a copy of minutes from the ASDAC meeting on April 11, 2012 including the Shelter Working Group recommendations, minutes from the Shelter Working Group’s meeting and the DWS report on barriers and gaps in the shelter system. I understand that the City has not implemented any of their recommendations.
15. The above noted gaps and barriers report was prepared by a working group of community service providers, of which I was a part. The only shelter available in Abbotsford is through the Salvation Army so the working group of community service providers sent a delegate, Rod Santiago, to the Salvation Army to address the issues and concerns. Rod Santiago is the Executive Director of Community Services. On his first attempt, he came back with nothing. The group sent him back again and he came back with nothing again and it never got resolved.
16. At the DWS bi-monthly meetings, on many occasions, the members brought forward their stories about the treatment they were receiving from the City by-laws and police department with, for example, tent slashing; pepper spraying; and destroying medicine, prescription eyeglasses, identification cards and other personal property through this process of pushing the members from one spot to another spot.
[49] The City also argues that there is no basis for concluding that the case transcends the interests of those affected. I reject this submission. [52] I reject the City’s submission that DWS’s action is unnecessary because some individuals who number amongst Abbotsford’s homeless have taken proceedings in Small Claims Court respecting the Impugned Bylaws and the conduct of those for whom the City may be vicariously liable. The Small Claims matters are not a more efficient and effective use of judicial resources to address the issues that DWS proposes to litigate, nor are they a practical and pragmatic method of dealing with systemic issues facing Abbotsford’s homeless. One need look no further than Dr. MacEwan’s evidence to appreciate that many of those amongst Abbotsford’s homeless lack the mental health status, the ability to focus on such a process, the resources, or the stamina to pursue the remedies sought by DWS in this action.
Abbotsford’s homeless. Bas Stevens photo.
The results of Abbotsford’s Anti-Homeless Bylaws
21. Abbotsford’s bylaws and the actions of Abbotsford, including Displacement Tactics have a disproportionate and negative impact on Abbotsford’s Homeless, particulars of which include:
(a) preventing them from existing and obtaining and maintaining the necessities of life in public spaces;
(b) impairing their ability to protect and maintain their own lives, safety, security and health, by preventing them from securing warmth and adequate protection from the elements, including erecting and maintaining Survival Shelters;
(c) destabilizing their lives by making it more difficult for them to perform the basic necessities of life, including resting, sleeping and gaining income;
(d) limiting their ability to access Abbotsford’s emergency shelter beds and services;
(e) displacing them from relatively safe public spaces to less safe spaces in Abbotsford and elsewhere;
(f) isolating and preventing their ability to assemble and to live communally;
(g) destroying their Survival Shelters and personal property, including irreplaceable personal items;
(h) causing severe interference with their psychological integrity;
(i) increasing their risk of being victimized by violent crime and property theft; and
(j) humiliating and degrading them.
22. By systematically marginalizing and displacing Abbotsford’s Homeless, limiting their access to Survival Shelter, destroying property used for shelter and survival and breaking up their community groups, Abbotsford has increased and continues to increase Abbotsford’s Homeless’ risk of morbidity, disability, psychological stress, substance abuse and victimisation by property theft and violent crime.
Chief Justice Hinkson
Chief Justice’s Conclusions
[51] This decision has not been an easy one. My conclusion is, I am confident, in accordance with the applicable legal principles and authorities. However, the circumstances of the defendants are compelling. Many of these persons are truly troubled. They are a very marginalized faction of our society. Their hardships are legitimate and constitute a serious social concern. In my respectful view, those who might be inclined to see them as simply troublemakers and malcontents, people looking for a handout or a free ride, fail to understand that this is a societal problem, one that merits the sincere consideration of members of the public. The gravity of the matter seems especially acute given the time of year. It is the Christmas season, when the spirit of caring and the comfort of home and hearth is uppermost in many minds. The weather conditions are difficult. The situations of these persons seem particularly grim. [52] The evidence indicates that certain events have occurred in respect of these persons and their experiences in Abbotsford. I refer particularly to allegations that some of them have had chicken manure dumped upon their campsites, that bear spray has been dispersed on them, and that their tents have been slashed. The allegations suggest that agents of the state, municipal employees, have been at least in part responsible for such activities. [53] It is not my responsibility in the context of this application to adjudicate those allegations and I do not purport to do so. However, I will say this: conduct of that sort, if it were to have occurred, is simply and entirely unacceptable. It is deplorable and reprehensible. I cannot imagine that any fair-minded and decent person would think otherwise. [54] As matters stand the defendants’ recourse is best pursued through the litigation process. That is an avenue that is open to them, and in my view if it is to proceed it should be done with dispatch. In aid of that, I would be prepared to recommend that steps be taken to ensure that it proceeds on an expedited basis and to provide for judicial supervision. If counsel believe that to be a worthwhile means of assistance, then the necessary arrangements can and will be made.
[83] DWS seeks relief in the current action based upon the conduct of members of the Abbotsford Police Department. The City contends that it is not the proper party to respond to allegations respecting members of the Abbotsford Police Department.
This is only partly correct. The City is liable for the negligence of the members of the
Abbotsford Police Department pursuant to ss. 20 and 21 of the Police Act, R.S.B.C. 1996, c. 367. B.C./Yukon Association of Drug War Survivors v. Abbotsford (City) Page 32
[84] It is correct, however, that the City is not liable for the Abbotsford PoliceDepartment members for liability based on other causes of action. Those causes of action must be pursued against the Abbotsford Police Department or the members themselves, subject to s. 21 of the Police Act, which provides that no action lies against individual police officers unless they are guilty of dishonesty, gross negligence, or malicious and wilful misconduct. As with the pleadings with respect to the displacement tactics, it is my view that the pleadings are adequate for present purposes, but will have to be refined by further particulars once the discovery phase.
The need for the APD to cooperate
[91] While it is questionable whether the Abbotsford Police can be sued, it is my opinion that members of the Abbotsford Police cannot, in general, be sued for the lawful execution of their duties. The clarification in the authorities such as Canadian B.C./Yukon Association of Drug War Survivors v. Abbotsford (City) Page 34Bar Association, however, shows that DWS can challenge administrative action, and the legislation upon which it is purported to be based, and may even be able to obtain s. 24(1) Charter relief, if the actions of those for whom the City is vicariously responsible are unjustified or the legislation is ultra vires.[110] Given my decision on the issues that have been discussed in these reasons for judgment, it will now be necessary for me to hear DWS’s application for disclosure of the records of the Abbotsford Police. [111] As I have concluded that DWS can pursue its action against the City, there may well be a waste of judicial resources if the action is not at least heard together with the City’s action. I therefore direct that the parties should set the plaintiff’s application for production of the records of the Abbotsford Police for hearing as soon as possible, and at the same time come prepared to discuss either the consolidation of this action with the City’s action, or an order where the two actions will be heard at the same time.
What to expect now
Now that the case will move forward, the APD will be forced to provide the documentation requested by DWS and we will get an intimate look at the workings of the department and its policy of displacing and dispersing Abbotsford’s homeless men and women (The Abbotsford Shuffle).
Now that the City will have to defend its actions against the homeless, we may find out, in detail, just what role City officials, politicians and representatives of the care community, ASDAC, the Salvation Army and perhaps even the Mennonite Central Committee (MCC) have played in the victimization of Abbotsford’s marginalized people.
Now that the court case is going ahead, members of the DWS have been asked if they would participate in a documentary in the Abbotsford Homeless Crisis and the provincial and national media is, once again, interested in Abbotsford’s peculiar treatment of its homeless population.
Municipalities across Canada will be watching the case in order to avoid the nightmare Abbotsford community leaders have created.
The City’s decisions – all the way from the passing of its illegal Anti-Harm Reduction Bylaw and Anti-Homelessness Bylaws, to the instructions given to the APD to treat homeless men and women like criminals. to Mayor Bruce Banman’s likening of the victims of drug addiction to pedophiles and the use chicken manure as a social policy tool; all the way to the role of the Abbotsford Downtown Business Association (ADBA) and individual members of ASDAC and the care community – will all come under close scrutiny in the court and in the media.
The overriding question in all of the scrutiny which will now be brought to bear, will be how and why Abbotsford community leaders, specifically at the City and the APD, but more generally throughout the church, business and care communities, actively participated in or stood idly by as the community’s most vulnerable men and women were singled out for abuse and mistreatment and what can only be described as a determined and relentless public policy of persecution.
There will likely be increased pressure on the APD to issue its findings and openly discuss the April 2014 shooting of DWS member Roy Roberts (see video below) with rubber bullets and the subsequent revelation that the Crown found no reasons to lay any charges against Roberts despite the APD’s recommendations.
“
It is not my responsibility in the context of this application to adjudicate those allegations and I do not purport to do so. However, I will say this: conduct of that sort, if it were to have occurred, is simply and entirely unacceptable. It is deplorable and reprehensible. I cannot imagine that any fair-minded and decent person would think otherwise.” – BC Supreme Court Chief Justice Hinkson
There will be more … much more. But at least the community will begin to get an idea of what has been going on with their money, on their behalf and in their name, by what, until the court cases began, appeared to be perfectly reasonable, caring and upright community members.
Make no mistake.
Thanks to Mayor Banman and the City of Abbotsford’s bungled legal maneuvers, the community of Abbotsford’s entire power structure is about to be put trial. As long as the community allows this insanity to continue it will remain on trial as well.
Editor’s note: This is an opinion piece. You can (and should) read the full decision here:
Chief Justice Hinkson, re B.C.-Yukon Association of Drug War Survivors v. Abbotsford [City], 09-29
Please let us know what you think. Use the comments box below or send us an email at editor@abbotsfordtoday.ca
Short Summary of Abbotsford’s Homeless Crisis:
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.Nick Zurowski, The Face of Homelessness in Abbotsford. Bas Stevens Photo
Embarrassing Revelations
Along the way a few embarrassing revelations were uncovered and published by Abbotsford Today includingAbbotsford Homeless Camp. Bas Stevens photo.
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.
