City urged to work with encampment residents
While the City of Kingston considers how it might enforce its bylaw against daytime camping at the Belle Park encampment, those who represented those residents urged them to work with the unhoused population before taking any further action.
In the spring of 2023, a legal team representing the City of Kingston submitted a request for a Superior Court of Justice injunction that would allow them to enforce the city's Parks and Recreation Facilities Bylaw and disassemble the encampment at Belle Park, along the K&P Trail and behind the Integrated Care Hub on Montreal Street.
After two days of submissions from Will Mcdowell and Nikolas De Stefano of Toronto's Lenczner Slaght LLP, representing the city's interests, the Kingston Community Legal Clinic, representing 14 named encampment residents, as well as intervener Erika Anschutz of Norton Rose Fulbright Canada LLP, on behalf of the Canadian Civil Liberties Association, on Oct. 30 and 31, Justice Ian Carter released his 44-page decision.
While the city's legal team simply wanted the court to allow the city to evict those camping at Belle Park and around the Integrated Care Hub, in the judgment, Justice Carter decided that the heart of the issue was whether the Parks and Recreation Facilities Bylaw, which bans camping in public parks, breached Section 7 of the Canadian Charter of Rights of Freedoms.
Considering the complicated nature of the situation and all the evidence before him, Justice Carter decided the bylaw banning daytime camping was constitutional while banning camping at night was unconstitutional.
“The court acknowledged that the issues raised in the proceeding were `extraordinarily complex,'” the City of Kingston said in a statement. “The city is grateful to have the court's decision, and its guidance, on those extraordinarily complex issues.”
The City of Kingston declined to provide an interview in response to the judgment, opting instead to provide a statement. It also states staff remains committed to finding “safe, supporting housing for people experiencing homelessness in Kingston, including those that have been residing at the Belle Park encampment.”
“The city is reviewing the decision very carefully as it considers its next steps, including how to enforce the bylaw's ban on daytime sheltering in a way that is fair and respects the dignity and well-being of the people residing at the Belle Park encampment,” the statement said.
“The city continues to invest in supportive and transitional housing, emergency shelter spaces, and work with community partners to offer support services for those who need them.”
John Done of the Kingston Community Legal Clinic expressed concern that the city is considering how it may enforce the ban on daytime camping.
“What is important to me is that the city, if it does intend to enforce the bylaw, that it would not do so without either having some sort of consensus with the homeless encampment residents about what is fair, and what they need,” Done said, adding that if they can't agree on next steps, the city may reapply to the courts for an injunction.
“But I would hope that they wouldn't take an extrajudicial approach which is what some cities, like Brockville, have done where they simply go and they remove encampments.”
Done suggested the statement from the city leaves the possibility of it extrajudicially removing encampments open as an option.
Due to the split decision, Justice Carter left the door open for the city to reapply for the injunction, but the Kingston Community Legal Clinic suggested it would be unwise for it to do so.
“If the city approaches the court a second time, the results are hardly certain,” the news release states. “There are constitutional arguments the encampment residents made which Justice Carter did not have to consider, because his other reasons for denying the injunction obviated the need to do so. If the city returns to court, it will face these arguments, which may lead the court to again decline an injunction.”
The community legal team also reiterated there are not enough municipal overnight shelter spaces for all of the homeless in the city, as its representation admitted on the first day of submissions.
As for daytime shelter, it was not clear to the court how many shelter spaces were available. While the city's team suggested that residents could shelter in a Starbucks or a public library during the day, Justice Carter wasn't prepared to accept the argument.
Justice Carter said the onus was on the respondents, the Kingston Community Legal Clinic, to prove the encampment residents' Charter rights were being breached if they were unable to camp during the day.
“It is not simply a matter of extending the `right to shelter' to daytime hours,” Justice Carter wrote. “In the absence of any meaningful evidence with respect to daytime sheltering options, they have failed to establish that a prohibition on camping in public parks during the daytime is unconstitutional.”
Done explained their team's approach to the case was that there wasn't a difference between a camper's need for shelter between day and night.
“We focused on the shelter beds,” Done said.
That approach was taken because that is how Justice Michael Valente made his judgment to deny the Regional Municipality of Waterloo's application to remove its encampment, Done said. When Justice Carter made his decision, however, he considered the decision of the B.C. Court of Appeal, which decided in 2009 that the unhoused in the city of Victoria may camp at night but must leave during the day.
Done said they argued against following the B.C. ruling because the City of Victoria's bylaw was always only against camping at night — not during the day.
“We asked Justice Carter to find that there really is no distinction (between camping at night versus during the day), but he didn't take us up on that offer,” Done said.
He noted they did provide the court with some evidence on daytime shelter spaces, but a “wild card remark” from Ruth Noordegraaf, director of housing and social services at the City of Kingston, about spaces at the Salvation Army led to some uncertainty.
“The numbers (of shelter spaces at the Salvation Army) were never clear,” Done said. “I'm going to concede that there was some uncertainty on the numbers, What I won't concede is that, by any stretch, the number of daytime spaces could have approached the number of homeless people. … They just don't.”