By Pivot Legal Society and DJ Larkin
Originally published in The Volcano
In late 2015 the BC Supreme Court ruled against the City of Abbotsford’s anti-homeless bylaws. Homeless people in municipalities in all of British Columbia now have the right to sleep in parks (between 7pm and 9am). Some governments are already setting out to challenge the limits of these legal decisions. Abbotsford and Victoria have both recently opened temporary, 40-bed, low-barrier homeless shelters. With the shelters have come their claims that they are meeting the requirements of the Abbotsford decision and can send police to take down the camps. Homeless people are fighting against displacement under the cover of these inadequate shelters that do not replace housing. The coming battles may determine whether the courts recognize the right of homeless people to occupy public space if they lack housing, not just shelters. — Ed.
What did the Supreme court decide?
A legal briefing from the Pivot Legal Society
In the case of B.C./Yukon Association of Drug War Survivors (DWS) v. Abbotsford, homeless people challenged three City of Abbotsford bylaws that have been used to displace the homeless population from public spaces throughout the city.
During the six-week trial that began on June 29, 2015, the Court heard from several homeless Abbotsford residents who detailed how municipal bylaws have been enforced to displace people sheltering in public spaces despite the fact that many have no other options. Testimonies describe how homeless campers have had tents pepper sprayed by police, had chicken manure dumped on their camp, and been subjected to countless other displacement tactics that put their lives at risk.
By failing to provide safe housing options and health services, and by targeting homeless people based on their use of public spaces, DWS argued that the City of Abbotsford’s bylaws and actions discriminate against the homeless campers on the basis of disability and Aboriginal heritage, and violate their right to equal protection and benefit of the law.
On October 21, 2015, the Honourable Chief Justice Hinkson of the BC Supreme Court rendered his decision. The Chief Justice ruled that Abbotsford’s bylaws prohibiting homeless people from sleeping or being in a City park overnight or erecting a temporary shelter without permits are unconstitutional. He found that the bylaws violate the ‘liberty and security of the person’ rights of homeless people in Abbotsford, as protected by the Canadian Charter of Rights and Freedoms.
The Court found that Abbotsford’s bylaws interfere with the fundamentally important personal decision to shelter one’s self in circumstances where there is no practicable alternative shelter. It also concluded that the “constant movement of the homeless made their already vulnerable positions worse, as it inhibited the ability of the service providers … to actually locate them and provide help.”
Further, the Court said, “I am satisfied that the evidence led by DWS establishes that continual displacement of the City’s homeless causes them impaired sleep and serious psychological pain and stress and creates a risk to their health.”
The ruling allows people to erect shelters and sleep in the City’s public spaces and parks between the hours of 7:00 p.m. and 9:00 a.m. This decision means that homeless people can no longer be evicted from public spaces and parks during those hours. The Court’s decision was effective immediately.
What does the Supreme Court decision mean?
By DJ Larkin, lead counsel in the Abbotsford case (This is an excerpt from an interview on Redeye, Co-op Radio: Saturdays, 10am-noon at 100.5FM
Listen to the whole interview on the Redeye archive: http://rabble.ca/podcasts/shows/redeye
What’s unique about this case is that [Pivot was] representing a non-profit society. It was the BC-Yukon Association of Drug War Survivors who brought this forward to us. They were able to explain to the courts – not just what it’s like to not have shelter overnight, which was key evidence – but what it’s like to be constantly displaced: how exhausting it is, how difficult it is to connect to service providers, and how psychologically damaging it is to be told to move over and over and over again when all you want is to find housing.
The court found that displacement itself causes psychological harm as well as physical harm to health. It is exhausting for people, especially those who need to go panhandling or binning at night. They are displaced the moment they shut their eyes.
Under section seven [of the Canadian Charter of Rights and Freedoms], the liberty, security of the person and life are protected.
The court found that the liberty interests of homeless people were engaged because the liberty to protect your own life was infringed by bylaws like these. If you have nowhere else to go, governments find that they don’t have an obligation to provide housing for people, so you need to have the liberty to save your own life.
With regards to security of the person: it’s a negative health effect and a negative psychological effect that the courts found were unconstitutional. Under the constitution, serious psychological stress that can be linked to state action or laws are a breach of your charter rights under section seven.
The bylaws are not gone but they are “read down.” They are inoperative to the extent that they apply to homeless people who sleep overnight in a park or any public space and set up shelters between 7pm and 9am. It is our opinion that this judgement should apply to all municipalities across British Columbia.
The court was also very clear to say this is not the kind of thing that can be re-litigated over and over again. It is far too difficult for people in these circumstances to make it to court, and we simply can’t have this challenged city by city, over and over and over. It is time right now for every municipality to take a look at their bylaws and make sure they are in accordance with this judgement.
But the court does not make a direct link to a right to housing. The court was very cautious to maintain that distance between what is the court’s role and what is the government’s role. […] Our constitution does not state a right to housing.
Thanks to Redeye for permission to use this transcript