This morning, September 29, the British Columbia Supreme Court released its ruling on an application brought by the City of Abbotsford in the case of BC/Yukon Association of Drug War Survivors v Abbotsford (City). Abbotsford asked the court to dismiss the claim brought by Drug War Survivors on the basis that the organization lacked “standing” to bring the case to court, and that there was no legal basis for the claim.

The City of Abbotsford asked the court to dismiss the Drug War Survivor's legal action, which seeks to have access to basic shelter recognized as a protected constitutional right. The Chief Justice rejected Abbotsford's argument, which means that the Drug War Survivor's were successful and their lawsuit will go to trial.

You can read the full decision here.

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

Homelessness in Abbotsford

Homeless people living in Abbotsford face significant barriers to shelter and housing, including the fact that there is simply not enough shelter space to accommodate the homeless population. The City of Abbotsford’s approach to addressing homelessness has been to displace homeless people from public spaces through the use 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 tents and 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 was granted 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 Legal Society defended one of the named defendants in court, arguing that the bylaws that formed the basis for the injunction were unconstitutional.

Drug War Survivors' Court Action

In March 2014, the BC/Yukon Association of Drug War Survivors (a non-profit society made up of drug users and former drug users, many of whose members are homeless and live in Abbotsford) filed its own legal action. Drug War Survivors challenged three Abbotsford bylaws, and the city’s action in displacing homeless people. Pivot Legal Society 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 Abbotsford’s displacement activities, violate 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 an organization of DTES sex workers, represented by Pivot, were found to have the 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 a more personal or direct stake in the issue being adversely affected by a diffuse or badly advanced claim. There is no suggestion that others who are more directly or personally affected have deliberately chosen not to challenge these provisions.

He added the following about Pivot Legal Society 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 rejected this argument and ruled in favour of Drug War Survivors. 

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 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.

The next step to try to get some important documents from the Abbotsford Police Board about their 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 and freezing weather makes life even worse for people camping in Abbotsford. As a result of Abbotsford’s delays, this is likely not going to be possible, but we hope to go to trial in 2015.