By DJ Larkin and David Wotherspoon
It is often the case that discussions of “access to justice” revolve around legal aid funding and alternative dispute resolution processes - with good reason. In a climate such as British Columbia, where members of the legal profession once took job action to draw attention to the dire need for investment in legal aid, the courts remain inaccessible to many.
Access to legal counsel, while immensely important, does not by itself ensure access to justice. Dedicated and talented counsel, whether acting on a paid retainer, legal aid, or pro bono basis, cannot alone guarantee that the most marginalized among us gain fair admission to our judicial system.
For many marginalized people, their experience of the justice system is that of the criminal justice system. That experience of justice can be traumatizing, often leaving people feeling that they have been stripped of their dignity in the face of jail time and separation from their families and communities. This is not a population that is empowered to bring legal action in defense of their rights.
This was the circumstance we were faced with in representing a group of homeless people in Abbotsford, B.C. Many of the people we worked with live with addictions, have disabilities - including serious mental illness - and have experienced serious trauma; all of them struggle to meet the basic necessities of life; and, at the outset, none of them believed the courts were a place to turn for help.
Pivot Legal Society entered into a pro bono co-counsel relationship with Fasken Martineau to argue a landmark case advancing the rights of homeless people in Canada.
One of our central challenges in preparing for litigation was to ensure that their voices would be heard and that they would have access to the judicial system in a way that respected their daily struggles. We knew that many of our witnesses would never make it into the courtroom, and it was from those people whom the Court most needed to hear.
The trial was set for six weeks in New Westminster, more than 20 kilometres east of downtown Vancouver and over 50 kilometres west of Abbotsford, where our witnesses live. It was in this context, and recognizing that distance was certainly not the only barrier faced by our witnesses, that Chief Justice Hinkson of the Supreme Court of British Columbia ordered that Court be held for two days in a location accessible to people living on the streets in Abbotsford. And so, on July 8th and 9th, 2015 the Chief Justice, a Court Clerk and handful of sheriffs drove to Abbotsford and set up Court in the Super 8 Motel, just blocks from Abbotsford’s largest homeless encampment.
Over two days the Court heard from people who have lived lives marked by foster care, trauma and abuse. The Court heard testimony from a man – characterized by the City of Abbotsford as a ‘repeat offender’ for illegal camping – who was introduced to heroin at the age of five by his mother, herself a residential school survivor. The Court learned of the risks that come with being a woman turned away from the emergency shelter and left to get into a stranger’s vehicle in hopes of finding a roof for the night. The Court also heard how the voices in one man’s head affect his daily life, what it is like to be forced to move from even meager shelter in the freezing rain when you have nowhere else to go and the importance of community in keeping each other alive and safe.
As counsel, it was the most emotional and powerful testimony we have ever heard. For our witnesses, it was an opportunity to be heard and respected for their humanity, strengths and struggles. For the Court, it was an opportunity to see homelessness for what it is – people, not an abstract social issue.
In its decision delivered this October, the Court found not only that the bylaws at issue are unconstitutional, but that the “continual displacement of the City’s homeless causes them impaired sleep and serious psychological pain and stress and creates a risk to their health.” With this in mind the Court found that a balanced and minimally impairing approach for governments is one that would take into consideration the need for a space where the homeless can sleep, rest, shelter, stay warm, eat, wash and attend to personal hygiene.
In coming to the conclusion that bylaws prohibiting the homeless from being in a park overnight or sheltering themselves in public places are unconstitutional, Chief Justice Hinkson relied not only on professional experts, but also on experts in homelessness – our witnesses who were living on the streets.
Evidence from homeless witnesses was essential to the Court’s findings and having the opportunity to share their experiences with the Court was indispensable to those who testified. For people who often have no access to the courts to defend their rights, this is not just a matter of access to justice; it is a matter of dignity and respect. The courts that once seemed inaccessible and alien became a place of understanding and inclusion.
None of this would have been possible, but for the willingness of the Chief Justice to take exceptional measures to ensure that the most vulnerable were not silenced in the judicial process.
It is through creative and flexible litigation practices such as this that the courts, counsel and clients can work together to ensure that access to justice means more than getting ones foot in the door.
Of all the courts we may stand in, the Super 8 Motel will always stand out as extraordinary.
[Find the judgment at City of Abbotsford v. Shantz, 2015 BCSC 1909]
David Wotherspoon is a partner in the commercial litigation group with Fasken Martineau in Vancouver. DJ Larkin is a lawyer and campaigner for housing justice with Pivot Legal Society.
This article was originally published in Canadian Lawyer Magazine.