B.C. and Waterloo decisions inform Kingston encampment case before Superior Court

Story by Michelle Dorey Forestell, Local Journalism Initiative Reporter for the Kingstonist.

Justice Ian Carter heard much evidence this week about the benefits and detriments of homeless encampments, most specifically the one at Justice Ian Carter heard much evidence this week about the benefits and detriments of homeless encampments, most specifically the one at Belle Park next to the Integrated Care Hub (ICH) on Montreal Street in Kingston. However, much of it addresses a problem beyond the scope of the question he has been asked to answer.

The question before the court is whether the City of Kingston can use its current bylaw prohibiting camping in municipal parks as a basis for clearing the homeless encampment from Belle Park. This becomes more complicated depending on "how you frame it,” as Justice Carter mentioned throughout the days in court.

Approximately 35 people currently live at the Belle Park encampment site in about 27 shelters of varying levels of permanency, the court heard; these range from tents to a hand-constructed cabin heated by a wood-burning stove.

William Florence and John Done of the Kingston Community Legal Clinic are representing 14 named and two unnamed respondents living at the encampment. The lawyers argue that enforcing the bylaw in this manner is unconstitutional and violates their clients’ rights based on Sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Section 7 states, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 15 states, "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." But that "does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

In Canada, Section 7 rights include the right to overnight shelter, which was decided by the Supreme Court of British Columbia in Victoria (City) v. Adams, 2008 BCSC 1363 (Adams BCSC), which settled a similar case involving a homeless encampment in Victoria, B.C. That ruling, cited over and over throughout the hearing, established that public property is for the benefit of all members of the public, including those who are unhoused. 

As that decision makes clear, "the government cannot prohibit certain activities on public property based on its ownership of that property if doing so involves a deprivation of the fundamental human right not to be deprived of the ability to protect one’s own bodily integrity" (Adams BCSC at paragraph 131).

In other words, Adams BCSC established a "right to shelter" on public property where the number of unhoused people exceeds the number of shelter beds available.

Cases from the Supreme Court of British Columbia have since strengthened the Section 7 argument: Abbotsford (City) v. Shantz, 2015 BCSC 1909 (Shantz BCSC), Prince George (City) v. Stewart, 2021 BCSC 2089 (Stewart BCSC), and Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49 (Bamberger BCSC). 

Whereas Adams BCSC established the right to shelter in a city park when there was a lack of shelter beds, the more recent Shantz BCSC, Stewart BCSC, and Bamberger BCSC decisions have expanded the right to shelter, looking at whether the shelter spaces are “truly accessible” to unhoused people. Further, these cases have also begun looking at where the right to shelter should only exist overnight.

This came up in the discussion Tuesday multiple times, with the judge pointing out that the weather in Kingston involves extreme temperatures, wind, and precipitation of all varieties. The question was then posed by both the judge and the present human rights advocates: should the right to shelter extend to daytime in a city like Kingston, as well as overnight, because of the intemperate climate?

More recently, in a first-of-its-kind-in-Ontario decision, on January 27, 2023, Justice M. J. Valente of the Ontario Superior Court rejected The Regional Municipality of Waterloo’s application for an injunction to evict individuals who were encamped on Region-owned property, also due to those individuals being in breach of a local bylaw prohibiting such actions. Valente ruled the region could not remove people living on the site because there was nowhere for them to go, since the region didn’t have enough shelter for its unhoused citizens.

In the face of the established case law, the City of Kingston's legal team --- Will McDowell and Nikolas De Stefano of the Toronto firm Lenczner Slaght LLP --- argued that, whereas Waterloo could not prove its encampments were dangerous places to live, Belle Park was a site of violence, drug trafficking, fire hazards, human trafficking, and at least one homicide. 

They presented evidence that policing the area has become dangerous, that fire crews have been harassed, and that “it is the only place in the city where [Kingston Fire and Rescue] have to wear stab-proof vests.”

The encampment lawyers, on the other hand, argued that the encampment being next to the Integrated Care Hub (ICH) made it the safest place in the City for those addicted to fentanyl. 

"For someone who is using fentanyl, it's just not safe to stay anywhere else," Done argued, emphasizing that being alongside a supervised injection site with staff who are trained to respond to drug poisoning is a necessity. He added that most other City shelters are not close to the same expert health workers and don't allow drug use or even possession of drug paraphernalia.

Done and Florence further argued that the encampment itself was not the cause of "illegal activities and bad behaviour," but that those were social problems that existed because of poverty and the conditions around homelessness.

On the City of Kingston's behalf, McDowell challenged the Valente decision, arguing that while Kingston was only seeking to clear one encampment, the Waterloo decision was based on that region using its bylaw to clear multiple sites. McDowell said the City is only seeking to remove the one encampment, and there are enough beds for the 35 people living there who would be evicted.

Done and Florence opposed this argument vehemently. They calculated there are just 166 shelter beds in the City and that the 35 people evicted from the encampment would be in direct competition with all of the other unhoused people in the city to find a specific shelter bed each night that met their specific needs.

According to Done, roughly 480 people are registered as homeless on the most recent iteration of the City of Kingston’s By-Name List --- a real-time list of all those who are homeless in the Kingston area, according to the City --- which has been recognized as a “Quality List” by Built for Zero Canada (BFZ-C), a program that supports participating communities in ending chronic and veteran homelessness. 

Done asserted that this is a low estimate and that the true number of precariously housed people in the City is closer to 1,000. Therefore, the shelter requirement is not nearly enough for the City’s homeless population, let alone the 35 people the City wants to clear from Belle Park. 

McDowell acknowledged that there were not sufficient shelter spaces available in the City for everyone who was homeless.

Under heavy questioning from Justice Carter, McDowell conceded that because it bans “camping,” which he described as taking shelter under a “tent, tarp or other shelter and using a sleeping bag for warmth,” the City bylaw prohibiting camping in public parks is indeed overly broad, based on the aforementioned case law. He argued, though, that it was the permanence of the structures and equipment that the City was objecting to, and if the bylaw were updated to allow "temporary overnight shelter," it would be constitutional. 

Predictably, Done and Florence found the idea that homeless people would pack up their survival necessities every day and carry them around until they found shelter for the next night "absurd."

The City team intended to further their position in more written submissions, McDowell said. Carter allowed them until Tuesday, Nov. 7, 2023, to provide a final written submission, and gave the encampment team until Nov. 17 to respond.

Justice Carter noted again in his closing words that the “framing” of the question he is being asked to settle is of great importance. Most of the evidence, he said, weighed the pros and cons of encampments, as opposed to the constitutionality of the City bylaw prohibiting camping. His job, he reiterated, was only to address the legal questions about the constitutionality of the bylaw. 

"It's not my role here to come up with the social policy solutions to this very difficult problem," he explained, stating, “I am not an elected official.”

Kingstonist will continue to provide coverage of this hearing, which will resume at the Frontenac County Courthouse on Thursday, Nov. 7, 2023. Our coverage of the first.