UPDATE: Trial begins in homeless human rights lawsuit

Lawsuit challenges City of Abbotsford bylaws against camping in parks

A potentially precedent-setting legal case for the homeless began Monday with lawyers telling a B.C. Supreme Court justice that the City of Abbotsford’s ban on camping in parks is unconstitutional given a lack of accessible housing options for street people.

David Wotherspoon and lawyers affiliated with Pivot Legal Society are suing the city on behalf of homeless activists affiliated with the BC/Yukon Drug War Survivors (DWS). They allege that city bylaws and actions undertaken by city staff have discriminated against the homeless and breached their rights to security of person.

If successful, Pivot hopes the result of the suit could be felt beyond Abbotsford and spur municipalities around the province to increase supports for the homeless. The trial is expected to last six weeks.

In his opening arguments before Chief Justice Christopher Hinkson and a gallery of more than 30 people, including some whom he said were homeless, Wotherspoon referenced a 2014 homeless count that found 151 people with no homes, and which he said probably understates the scale of the problem. Wotherspoon said there are currently only 25 shelter spots, and that given those numbers, bylaws which prohibit camping on city land are unjust.

“We will argue those individuals have been left with no safe option, no safe place they can legally be,” said Wotherspoon, who was joined by two other Pivot lawyers.

The lawsuit was filed last year, after the city was granted a court injunction based on the bylaw that allowed them to evict a protest camp in Jubilee Park in November of 2013. That camp had been established after city officials spread chicken manure on the site of a homeless camp on Gladys Avenue several months earlier.

Wotherspoon said the combination of Abbotsford’s bylaws and a lack of housing options for homeless combine to put the homeless population at risk. Pivot is also arguing that the rules breach the homeless population’s charter rights to freedom of assembly by making it illegal to camp together. He described his clients as “people who camp together for safety and protection of their belongings.”

In his opening statements, Wotherspoon accused the city of attempting “to make homeless people invisible.”

Wotherspoon noted the City of Abbotsford hasn’t closed a “protest camp” currently set up on city land on Gladys, but he said the city hasn’t taken enough action in the past year to address the issue.

He also cited the previous council’s decision last year to reject a proposal for a supportive housing facility. He acknowledged that a subsequent project has been approved, but noted it won’t be operational until next year.

He said Abbotsford isn’t obliged to house its homeless population, but in the absence of shelter options,  he said the city’s bylaws that bar them from city parks overnight breach their right to security.

While he said there have been discussions that led to the creation of homelessness task force, “what [Abbotsford] hasn’t had is any on-the-ground change.”

He said alternatives exist, and referred to a proposal last year for a homeless village.

“Abbotsford has had the opportunity to implement safer alternatives, but hasn’t done so.”

The Pivot lawyers will attempt to prove the bylaws are “arbitrary,” “overly broad,” and “grossly disproportionate.” Over the next two and a half weeks, they will call a number of witnesses, both from the homeless community and local groups that work to assist them. Rod Santiago from Abbotsford Community Services (ACS) will testify, as will the Salvation Army’s Nate McCready and Mennonite Central Committee’s Ron Van Wyk.

The city will present its case at the conclusion of the plaintiff’s evidence. City of Abbotsford lawyer James Yardley expects to finish calling evidence around the end of the month.

Following his opening statement, Wotherspoon called as a witness 5 and 2 Ministries pastor Jesse Wegenast, who also administers a homelessness prevention program for ACS.

Wegenast said addiction and behavioural issues make it difficult to secure housing for the homeless, and some of those options are found in “deplorable” condition. He said he has seen apartments with serious mould issues, sunken toilets, broken windows and lewd acts taking place in stairways.

The existing shelter spaces are not accessible to all people, he said, with some preferring high-barrier options which others are unable to use.

Wegenast told the court that he has only been able to find housing for about half of the clients he works with. And more often than not, those clients are evicted or leave that housing within a short span of time.

Under cross-examination from city lawyer James Yardley, Wegenast said many camps are erected on land owned by private persons or businesses, rather than the city.

Yardley also asked Wegenast about working with the city to find housing for a couple who had been living in a camp on BC Hydro land that had been evicted.

Service groups had been pressing the city to provide housing, and the city offered a home to the evicted man and woman

The result, Wegenast said, was a disaster. Not long after the pair moved into the home, he said another man with criminal ties “muscled his way in” and took up residence. Within months, all were back on the street.

“The city made that step?” Yardley asked about providing the house.

“Yes.”

“And they got burned?”

“Yes.”

Abbotsford News