Why Monday’s BC Supreme Court Decision Matters

By Mike Archer. Whatever happens Monday morning, the lawsuit by Pivot Legal Society representing the Abbotsford Chapter of the BC/Yukon Drug War Survivors (DWS) lawsuit is not going away.

While certain members of the power structure may think it is appropriate to spend their friends’ and neighbours’ money in order to protect their personal reputations, the damage caused to the City and the community as a whole is simply going to mount the longer this is allowed to continue.

As Councillor Henry Braun has said on this subject, “Even if we win … we lose.”

Just how long the taxpayers, voters and citizens of this community are prepared to let politicians and public officials spend the community’s money fighting the homeless in court and playing political games which are fooling no one, rather than fixing what is broken, is a question which will likely be answered in the November 15 municipal election.

The City of Abbotsford lawyers have spent a lot of your money vigourously fighting the attempt by Pivot to have the DWS represent the named and unnamed plaintiffs in the City’s legal proceedings with it’s homeless citizens.

If the DWS is not allowed to represent or stand in for the men and women, who live on the streets and or in whatever ditch they have managed to find where the police will leave them alone, then each one of these men and women will need to be dragged before the court in Vancouver, cross-examined by City lawyers and forced to endure a process many of them would simply not survive as the proceedings drag out, as they undoubtedly will, for months and maybe years.

The Human Rights Tribunal has already given the DWS legal standing but the City is fighting tooth and nail to have the BC Supreme Court deny them standing.


Pivot has already described the City’s position as possibly the biggest legal hurdle for marginalized people’s ability to have their day in court the country has ever seen.

Who ever wins on Monday, the Abbotsford case is going to the Supreme Court of Canada if the City of Abbotsford really wants to keep fighting.

Pivot has attracted so much attention from around the province and the country that the number of sharp young lawyers who are willing to donate their services in order to make history will more than outlast the willingness of Abbotsford taxpayers to allow their politicians and bureaucrats to empty the treasury for the sake of defending its right to arrest homeless victims of the drug war.

If the City of Abbotsford actually believes that its Anti Homeless Bylaws, which effectively make it illegal to live outside in Abbotsford, are legal, proper and right, why doesn’t it simply let Pivot have its day in court, make its case and defend itself?

When you look at the City’s argument in favour of its Anti Homeless Bylaws it is ridiculous. How can a municipality, which, in Canada, is nothing more than a constitutional fiction – an extension of the provincial government which survives at its pleasure – possibly think it can pass bylaws which deny basic human rights and make it illegal which for a citizen to seek shelter on public property when they have no home, no shelter and completely lack the financial resources or the wherewithal to pay for housing?

The City’s Position Is Absurd

On the face of it, the City’s position is absurd.

By what possible right would these simple advisers to the provincial government be allowed to exceed their jurisdiction and pass bylaws which discriminate against their own citizens because of their financial situation, their state of mental health or their medical condition and effectively make it illegal to be homeless?

They can’t. If it has to go to the Supreme Court of Canada the victims of the City’s abuse will eventually win.

The DWS proved that with its challenge to Abbotsford’s illegal Anti Harm Reduction Bylaw and it will do the same in the case if its Anti Homeless Bylaws. I know I’m beating a dead horse when I try to convince Abbotsford politicians they are not a ‘third level of government’ and that most of the trouble they get in comes from passing ultra vires bylaws they have no business passing, but a few of the candidates in this election have done their homework and they know I’m right.

Look it up if you don’t believe me – the City of Abbotsford is simply not entitled to pass many of the bylaws it cherishes and is certainly not allowed to come up with its own criminal code.

So what happens when the City of Abbotsford inevitably loses its court case against its homeless citizens?

What Are The Possible Outcomes?

There are a number of possible outcomes on Monday including the possibility the judge may rule that the DWS cannot represent the defendants in court. That is, by far, the best and indeed only positive outcome for the City. But, even if they win, the case(s) will go ahead and may go as far as the Supreme Court of Canada.

This is why Abbotsford’s criminalization of homelessness is so important to other municipalities around BC and across the country. What Abbotsford’s eminent citizens are forced to do by the courts will be replayed across the province and the country for any municpality which decides to follow Abbotsford’s ludicrous example.

Among the most dangerous possible outcomes for the people spending your money defending themselves are some of the following:

First; The City could be forced to pay restitution to the men and women who have been demonstrably harmed by the City’s illegal and discriminatory behaviour.

Second; The City could be forced to apologize individually and publicly to the men and women it harmed and discriminated against.

Third; The City could be forced to retrain its staff from the Mayor’s office down the lowest employee in the Parks Department, in the proper, legal and effective methods of treating marginalized men and women.

Fourth; The Abbotsford Police Department (APD), from the Chief’s office down to the beat cop, could be forced to be re-trained in the proper, legal and effective methods of treating marginalized men and women.

Fifth; The men and women of the Salvation Army, Abbotsford Community Services, the Mennonite Central Committee, the Abbotsford Church Leaders Network (ACLN) and all of the smaller government and private agencies which deal with marginalized men and women could be forced to be re-trained in the proper,legal and effective methods of treating marginalized men and women.

Sixth; Hard resources such as money, land and services provided by the City, could be mandated by the court and the City might be legally forced to treat its own citizens properly and with basic human decency.

The Pain Will Continue As Long As The Law Suits Continue

The men and women who have contributed to the human rights abuses, through action or inaction, will be publicly humiliated and embarrassed by full publication of their complicity in this monumental civil rights disaster and the national and international shame of the City of Abbotsford will reach heights never dreamed of even during Bruce Banman’s Chicken Manure Incident.

That may be why the politicians and the members of the power structure in Abbotsford are prepared to spend as much of your money as you will let them.

But the history books will record where they stood, what they did and what they didn’t do. It will not be based on what the old chain-owned newspapers have reported but what the people of Abbotsford themselves have reported, through the citizen journalism which originally brought the whole story to light and through legal proceedings which will record the courage they have shown in standing up to the City,the APD and the accumulated power of the churches and the agencies engaged in the business of poverty in this community.

I doubt that a new council, made up of principled men and women who understand the law, will allow this travesty to continue. But there is no guarantee that a quick out-of-court settlement will be any easier on the City or the people who are responsible for this mess.

I’m almost positive the incumbents will want to continue to use their friends’ and neighbours’ money fighting against the community’s most marginalized, abused and desperate citizens, if only to avoid the reckoning they must inevitably face.

It’s a tough election platform to sell but, if the incumbents think it’ll work, more power to them.

It’s been said before; As South Africa’s Truth and Reconciliation Commission taught us, we must forsake punishment for accountability; retribution for truth.

Its simple.

If you want to avoid punishment … you must be accountable.

If you want to avoid retribution … be truthful.

The community is ready. Are the men and women who claim to be our leaders?

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