Edmonton demands $25k in costs against human rights coalition to create “deterrent effect” against public interest lawsuits defending unhoused people

The city of Edmonton argued in court Thursday that it wants $25,000 in costs from the Coalition for Justice and Human Rights (CJHR), a non-profit group that sought to challenge the constitutionality of Edmonton’s encampment sweeps policy on behalf of Edmonton’s unhoused people because a large penalty would act as a deterrent against future lawsuits. 

An encampment at 95 St. and Rowland Road in Edmonton before it was violently swept by the Edmonton Police Service. Photos by Duncan Kinney.

“Without a large costs award, the deterrent effect disappears,” said lawyer Cameron Ashmore on behalf of the city of Edmonton. 

In a hearing on March 7 before Justice Jonathan Martin at the court of King’s Bench, Ashmore, the city of Edmonton’s lawyer also argued that the court shouldn’t let CJHR’s lack of funds—the city had argued that CJHR was impecunious in order to get the lawsuit thrown out just weeks before—stop the court from assigning them the $25,000 bill.

The ask for stern financial penalty appears to be an act of revenge by the city government in response to CJHR’s interference in their and the Edmonton Police Service’s, and the United Conservative Party’s, crackdown on encampments of unhoused people. Edmonton, which does more encampment sweeps than any other major Canadian city, planned a sweep of eight encampments just before Christmas during the worst cold snap of Edmonton’s 2024 winter season. 

The coalition sought and won an emergency interim injunction that changed city of Edmonton policy on encampment sweeps and placed certain conditions on the sweep of those encampments. 

But that victory was overturned in another court hearing in January, when Justice Jonathan Martin decided that the coalition did not have standing to bring forth the lawsuit and threw their constitutional challenge on Edmonton’s policies out. 

Right as Justice Martin was making this decision, EPS swept the final encampment on their Christmastime list at Rowland Road in minus 25 degree cold. It was a violent, chaotic scene that was caught on video. Edmonton police arrested Indigenous journalist Brandi Morin while she was attempting to document the event, pressing a charge that ultimately did not stick. 

Immediately after the CJHR lawsuit was thrown out, EPS and the UCP drastically escalated the encampments crackdown

The encampment sweeps had become a political football for Premier Danielle Smith, who was later caught on tape boasting to an audience of wealthy UCP supporters about the sweeps at a private dinner at the Ranchmen’s Club in Calgary, embellishing the story with a number of sensational and inaccurate details.

The escalated sweeps once CJHR’s lawsuit was out of the way made the proposed Christmastime sweeps look small by comparison. The UCP claims that encampment residents were directed to social supports through a hastily-assembled ‘reception centre,’ but have not been able to provide any concrete figures about how many, if any, of these people were actually provided housing.

The city is arguing that lawsuits like CJHR’s must be deterred in the future even despite city of Edmonton lawyers conceding in an injunction brief that it was arguable that the city’s policies did indeed violate residents’ charter rights.

Avnish Nanda, the lawyer for CJHR, argued in court for both sides to bear their own costs and that the court should remember that city residents had to act through CJHR because the encampment residents themselves are among  “the most vulnerable members of our society, members of our society who do not have access to the courts."

Nanda also pointed out that the city has a far higher ability to cover the costs of the lawsuit and that the coalition has incurred costs both financially and reputationally. 

While Ashmore, the city’s lawyer, did not dispute the city’s greater ability to cover these costs  he did say that the city “is not an endless pot of money.” He also argued that the city has a limited ability to raise taxes compared to provincial and federal governments. 

The city’s total operational budget in 2023 is $3.4 billion dollars. The city’s budget for the legal services department in 2023 is $13.6 million dollars and it has 121 full time employees. CJHR, has no full time employees and is funded by donations.

One of the cases cited by the city of Edmonton to argue for why the coalition should be forced to pay costs is Justice John McClung’s decision to award costs in Vriend vs Alberta at the Alberta Court of Appeal

That decision was famously appealed to the Supreme Court where the court ruled in favour of Vriend, a schoolteacher who had been fired for being gay. The Supreme Court’s Vriend decision is now famous for enshrining many basic rights for 2SLBTQIA+ people in law across Canada. But the Albertan courts’ original Vriend decision, which the city cited as precedent this week, is infamous as an expression of prejudice and injustice.

Senator Paula Simons, who was a journalist at the Edmonton Journal at the time of McLung’s decision and who has written extensively about the Vriend decision, was shocked to hear that the city of Edmonton’s legal team cited the Vriend decision as precedent. 

“[Vriend] was a terrible decision, mean-spirited and homophobic. Even by the standards of the day that decision was out there,” said Simons.  

McClung’s Vriend ruling is broadly seen today as a shameful, bigoted stain on Alberta’s history. Justice McClung didn’t even face Vriend’s lawyers when they made their arguments; he turned his chair around while they spoke to him. McLung denied Vriend’s appeal in part because he didn't want the state to validate “homosexual relations, including sodomy as a protected and fundamental right, thereby rebutting a millennia of moral teaching,” a disgusting sentence that now lives forever in Canada's legal annals.

“That’s an interesting choice for precedent to cite, and not a choice that best reflects Alberta jurisprudence,” noted Simons.  

McClung’s infamy compounded three years later after he said in R vs Ewanchuk, a sexual assault case, that the the teenage victim had provoked her assailant by the way she dressed and that she could have stopped the assault with a "well-chosen expletive, a slap in the face or, if necessary, a well-directed knee." Like his decision in the Vriend case, that foul ruling was overturned by the Supreme Court in 1999. 

Justice Martin has reserved his decision and it will be released at a later date.