Top court rules against B.C. city in homeless case

Homeless man sitting on the street.
Homeless man sitting on the street. Stock photo from iStock/Getty Images.

The City of Abbotsford, B.C. tried to deal with its homeless by attempting to evict them from local Jubilee Park through a variety of means, including using chicken manure.

When that didn’t work, the city went to the British Columbia Supreme Court. In Abbotsford (City) v. Shantz, the city asked the court to make the interlocutory injunction order against the homeless permanent, to keep them out of the park.

However, this case isn’t just about the injunction. The case arises from two actions: the first one by the city for the permanent injunction.

The second action was filed by the British Columbia/Yukon Association of Drug War Survivors (DWS) – of whom Barry Shantz is the director - who claimed various bylaws that the city had passed were constitutionally invalid.

The court decided to deal with both actions within this proceeding.

The events leading to the actions and the proceeding started on June 4, 2013. Some city employees forced the homeless to leave a camp by putting chicken manure on the site – a fact with which the court was quite unhappy.

Then in October of the same year, Shantz and others went to Jubilee Park and set up a tent camp without permission. In December, the tent camp occupants moved into a wooden structure within the park.

Following those events, the city sought injunctions against the occupants. Justice Murray Blok ordered the emptying of the structure and Justice James Williams allowed for an interim injunction that forbade any kind of construction in Jubilee Park, including shelters and tents.

That leads us to this proceeding, which went in front of the B.C. Supreme Court. Here the city claimed there was no homeless problem, but the court disagreed. Ironically, part of the evidence the court used was the city’s own Abbotsford Social Development Advisory Committee, and the creation of a Homeless Coordinator for the city earlier in the year.

The city further argued that the occupation of Jubilee Park was trespass, because the homeless did so without a permit and violated the city’s bylaws and regulations.

DWS, on the other hand, argued that the bylaws, which were violated, were contrary to charter rights of the homeless. Those charter rights include: s. 2 (c), s. 2 (d), s.7 and s. 15. DWS also argued that the regulations the city used to evict the homeless were arbitrary.

Looking at all the evidence and arguments set out, the court concluded that the needs of the homeless are immediate, because they have few choices as to where to seek shelter, especially because there is only on emergency shelter in the city and market housing is limited and too expensive for the homeless.

Yet, doesn’t the city have a right to regulate public spaces for the interest of the public? What if the city believes it’s not in the public’s interest to have the homeless stay in a park?

The court opined that:

“Although public property is held in trust for the public, the right to access and use public spaces is not absolute. Governments may manage and regulate public spaces, provided that such regulation is reasonable and accords with constitutional requirements. Reasonableness must be assessed in light of the public purpose described.”

The court also told the city that they should look at creating new regulations with an eye to the needs of the homeless.

In short, on October 21, 2015, the court ruled that:

  • No permanent injunction was to be issued for Jubilee Park and that the homeless can sleep in the city’s parks and erect shelters between 7:00 p.m. to 9:00 a.m. (“overnight stay”);
  • The court also decreed that parts of the city bylaws, which forbid being in a park overnight, or sleeping there, without permits violates s. 7 charter rights of life, liberty and the security of the person. 
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