Court ruling allows cities to ban tents
Sweeping encampments from public parks is not a Charter rights violation.
This court decision that was released on 23 December 2024, will allow cities to enforce their bylaws that prohibit encampments in public places.
Drug addicts don't have a right to fill parks with needles and faeces
National Post
Adam Zivo
25 December 2024
An Ontario Superior Court judge issued a ruling Monday that the City of Hamilton did not infringe upon the Charter rights of 14 homeless people who were evicted from local park encampments between 2021 and 2023. As Canadian jurisprudence on this issue seems tinged with judicial activism, and has often protected violent encampments at the public’s expense, this decision is an unexpected victory for common sense.
The applicants, of whom all except one were drug users, argued that their evictions violated their Section 7 Charter rights (“the right to life, liberty and security of the person”) and consequently sought $445,000 from the city in damages.
In 2002, a B.C. Supreme Court case (“Victoria vs Adams”) interpreted Section 7 as granting homeless people a “right to shelter” under the justification that, without basic protection from the elements, individuals risk being exposed to life-threatening conditions. Since then, Canadian courts have prevented municipalities from evicting homeless camps unless it can be shown that enough local shelter spaces exist to provide alternative accommodations.
More recently, some judges have argued that shelter beds only count if they are “low-barrier” and “accessible.” Critically, a 2023 Ontario Superior Court ruling barred the City of Waterloo from evicting encampments because the presiding judge, Justice Michael Valente, believed that shelters cannot be truly accessible unless they allow on-site drug use.
The Waterloo ruling arguably constituted judicial overreach, as Valante used encampment evictions as a bargaining chip to push for contentious policy reforms (i.e. permitting drug use in shelters) without public consent. This eventually led Doug Ford’s government to threaten to use the notwithstanding clause, which immunizes designated laws from Charter challenges, to protect evictions from court interference.
But in the new Hamilton ruling, presiding judge Justice James Ramsay took a very different approach than his colleague. Rather than credulously indulge the arguments made by Canada’s poverty activists, who romanticize encampments as benign and welcoming communities, he described on-the-ground realities with scathing moral clarity.
The judge found that the 2009 Adams case only granted homeless people the Charter right to set up temporary, overnight shelters to protect themselves. As neither daytime camping nor the formation of semi-permanent encampments were adjudicated then, no corresponding right to these things was established. According to Ramsay’s ruling, the City of Hamilton “did not prevent anyone from staying overnight” and only evicted campers during the day, so it was compliant with Charter jurisprudence.
Some of the applicants contradicted their peers and claimed that they had been prevented from camping overnight, but Ramsay did not believe them and prioritized evidence provided by city staff.
The judge questioned the trustworthiness of the applicants’ affidavits, and implied that poverty activists had interfered with their testimony. He observed that many of the affidavits “contained boilerplate” or sections that “were obviously drafted by lawyers,” and that, of the 13 applicants who suffered from drug and mental health problems, some of their recollections of being evicted “were hazy or were the product of what they were told.”
Ramsay argued that the applicants were asking him “to extend the right to stay in encampments to public parks in the daytime, that is, not to have to tear down and move every day.” He ruled against granting that request, primarily because homeless shelters already expect occupants to move every day, meaning that, if consistent standards are applied, this practice should not pose a Charter-relevant barrier to temporary, overnight camping.
Permitting daytime or indefinite encampment “would amount to expropriating property, or at least severely limiting property rights,“ argued Ramsay, who noted that, according to city officials, homeless people in Hamilton have become more “territorial” and “possessive” of “their” camps since the city passed more permissive bylaws in 2023.
He emphasized the “countervailing interest of preserving public parks” and stated that “the public is generally sympathetic to the homeless, but it tires of seeing its public spaces appropriated by lawless, unsanitary encampments.” He further noted that “the most vulnerable includes not only the homeless but also the elderly person and the child who wants to use a sidewalk or a city park without tiptoeing through used needles and human faeces.”
Ramsay was critical of the Waterloo case, and argued that Valente, in insisting that shelters must be “truly accessible” before any evictions be permitted, had set “arbitrary” and “impossible” conditions. According to the evidence provided to Ramsay, “accessible” shelters would have to simultaneously allow and not allow animals, allow and not allow couples, allow and not allow drug use, and allow and not allow people with antisocial mental health issues.
However, Ramsay clarified that, while it is implicit in his reasoning that he disagrees with the Adams and Waterloo cases, his decision remains consistent with the precedents they set.
The judge’s ruling relied heavily on the testimony of Dr. Sharon Koivu, an addiction physician from London, Ont., who works closely with the homeless. Koivu testified that encampments pose serious risks to occupants, including: hypothermia, arson, increased drug use and overdose, sexual violence and sex trafficking, assault, robbery, rodents and their associated diseases, as well as infections caused by exposure to faeces, needles and bodily fluids.
As described in the ruling, Koivu was “concerned that there is a developing, false narrative that encampments are a safe alternative form of housing,” and that this narrative, which appeared in some of the applicants’ affidavits, appears to have encouraged some of her patients to leave safer environments.
Ramsay argued that Section 7 rights are not endangered by encampment evictions, but rather by the risks of homelessness itself, which “lawless, dangerous and unsanitary” encampments exacerbate. He concluded that while the rights of the homeless must be balanced against the need for safe public spaces, “the democratic process is best equipped to achieve that balance” and “micro-management by judges will not be productive.”
A reporter must have attending the court hearings, as some information in this news story is not included in the judgment that is included below. I was interested to read:
“The judge questioned the trustworthiness of the applicants’ affidavits, and implied that poverty activists had interfered with their testimony. He observed that many of the affidavits “contained boilerplate” or sections that “were obviously drafted by lawyers,” and that, of the 13 applicants who suffered from drug and mental health problems, some of their recollections of being evicted “were hazy or were the product of what they were told.”’
The judge stated that 10,000 pages of documents were submitted to the court.
This ruling will embolden municipalities all across the country to clear encampments on public property. That is if they have a mind to do so.
This decision makes it clear that temporary shelters do not have to be able to accommodate all the needs that the homeless may desire because it is impossible to do so.
Paragraph 4
“I was reminded by counsel for the applicants that while the legislature represents the will of the people, the court holds the moral compass that is often the only protection for the most vulnerable. I observe that the most vulnerable includes not only the homeless but also the elderly person and the child who want to use a sidewalk or a city park without tiptoeing through used needles and human faeces.”
This may be the first time in a court decision where the elderly and children have been included with the homeless in the definition of who are the most vulnerable.
This decision is a stunning defeat for the homeless and their advocates.
Here is the court decision (abridged)
Heegsma v. Hamilton (City), 2024 ONSC 7154 (CanLII)
Ontario Superior Court of Justice
File number: CV-21-77817 (abridged)
Heard: December 16–18, 2024 at Hamilton
Released: 23 December 2024
Mr Justice J.A. Ramsay
Between Kristen Heegsma et al and City of Hamilton
[1] The applicants are 14 homeless individuals who apply for a declaration that the City of Hamilton’s enforcement of its Parks by-law during the period from August 2021 to August 2023 breached their right under the Charter to life, liberty and security of the person (s.7) and to equal benefit of the law (s.15). They seek damages from the City.
[3] The record consists of some 10,000 pages. These reasons do not reflect the massive amount of work that was done by both sets of lawyers. Their work has allowed me to deal with the issues in what I hope is a complete but concise manner.
[4] I was reminded by counsel for the applicants that while the legislature represents the will of the people, the court holds the moral compass that is often the only protection for the most vulnerable. I observe that the most vulnerable includes not only the homeless but also the elderly person and the child who want to use a sidewalk or a city park without tiptoeing through used needles and human faeces.
The experts
[45] Dr Gaetz he offers reasons why homeless persons may prefer encampments to shelters:
a.) Fear of other residents;
b.) Risk of assault;
c.) Not being able to stay with friends;
d.) Negative previous experience with public institutions;
e.) Lack of facilities to store personal belongings;
f.) Couples cannot stay together;
g.) Noise;
h.) Inability because of mental health to handle communal living; and
i.) Communicable disease.
[46] These reasons are all rational factors in the decision not to stay in a shelter, but I (the judge) note that shelters at least have rules in place that attempt to deal with assault, drugs and theft while encampments do not.
[47] Dr Gaetz deposes that homeless persons have a higher rate of health problems, in spite of a higher rate of use of the health system. Homeless encampments often have a social structure. They offer a sense of community.
[54] Dr Andrea Sereda is a doctor at the Health Clinic in London. She has experience dealing with unhoused persons and persons who inject drugs. She combines office-based care with mobile outreach and street medicine. I do not rely on her evidence. She omitted from her affidavit, but admitted in cross-examination, that she was part of a pressure group created to dissuade the City of London from evicting encampments. She is more than an expert who has views on policy. She is a partisan advocate for one side.
[56] Dr Koivu deposed that there are serious health risks associated with encampments. They are:
a.) Exposure to cold, which can lead to hypothermia or frostbite;
b.) Burns and carbon monoxide poisoning from fires that at set for heating and cooking;
c.) Trench foot;
d.) Wind, lightning and falling branches;
e.) Exposure to heat, which can lead to dehydration, which can in turn lead to rhabdomyolysis, a condition associated with muscle cell death and kidney damage;
f.) Rodents and diseases carried by rodents;
g.) Dog bites;
h.) Bacterial, viral and fungal infections caused by exposure to faeces, bodily fluids and needles;
i.) Infectious complications, such as sepsis;
j.) Arson;
k.) Influenza, scabies and lice;
l.) Overdose;
m.) Sexual violence and sex trafficking;
n.) Robbery, assault and theft.
[57] Drugs are often diverted from safe use programmes. That is, recipients of opiates are forced to part with them so that dealers can sell them.
[58] Patients reported to her that drug use increased in encampments. They also reported that stopping drug use is impossible in an encampment. They often progress to fentanyl. Methamphetamine is used to stay awake to guard property.
[59] Community based follow up, such as home care nursing and physiotherapy, require and address. An encampment is not an address. A shelter is an address.
[60] She concludes that encampments are a significant public health risk to the people living in them as well as the surrounding communities. She agrees with Dr. Joseph that marginalized people require equity and equality, but she thinks that encampments further marginalize and alienate people; they are a form of colonialization. The sense of security that some occupants have is a false sense of security.
[61] She is concerned that there is a developing, false narrative that encampments are a safe alternative form of housing. That narrative appears in the affidavits of some of the applicants’ witnesses. From talking to her patients it appears that it has been a factor in the decision to leave safer environments.
Findings of fact
[62] There is consensus among the medical experts that homelessness itself is associated with health problems. It is obvious that staying outdoors without shelter is harmful, compared to staying under a tent or tarp, in all seasons. Also, being asked to move from an encampment is a cause of stress.
[63] As to the difference between a shelter and an encampment, I prefer the evidence of Dr Koivu to the evidence of the experts called by the applicants to the extent that they disagree. They are based in her 40 years of real life experience. Dr Koivu’s opinion has the ring of truth; that is, it makes sense. It is supported by much of the applicants’ own evidence. Dr Orkin agrees that nothing in the literature suggests that encampments are better than shelters from a health point of view.
[64] Dr Koivu’s concern about the false narrative encouraging people to leave safer alternatives is supported by the evidence of David Buckle, a member of the Outreach Team, who has observed organized groups encouraging encampment residents to resist options other than encampments.
Damages
[65] A municipality is not liable to pay damages simply for enacting a by-law that is unconstitutional: Canada (AG) v. Power, 2024 SCC 26. Before damages will be awarded it must be shown that the municipality acted wrongly, in bad faith or in abuse of power. This high threshold was set for Charter breach damages by legislatures. Contrary to the submission of the applicants, I think that the same standard should apply to municipal legislatures. Municipalities legislate with power delegated by the province.
[66] I do not think that the City acted wrongly, in bad faith or in abuse of power in enforcing the by-law. It has not shown a disregard for the applicants’ Charter right. The City has not prohibited anyone from erecting temporary, overnight shelter. It has acted in compliance with then-existing Charter jurisprudence including Victoria (City) v. Adams, 2009 BCCA 563. That is, in the period of the encampment process, it evicted people in the daytime, but not at night. That is enough to dispose of the application for damages in favour of the respondents.
Section 7 of the Charter
[67] In Adams, the court held that when people are not prohibited from sleeping in a public park, a by-law that prohibits the erection of an overnight shelter in the form of tents, tarps and cardboard boxes is overbroad and therefore in contravention of section 7 of the Charter. The issue of a right to set up a semi-permanent camp, as opposed to a temporary shelter taken down each morning, was not before the court in Adams: paragraph 99.
[68] In the Waterloo case, Valente J. considered Adams and the British Columbia cases that followed it in connection with an encampment on a gravel parking lot. He found that there were insufficient shelter spaces in Waterloo and that it followed that the by-law, which prohibited erecting shelter, infringed the right to life and security of the person given by section 7 of the Charter and this “notwithstanding the tremendous and praiseworthy efforts the Region has made and is continuing to make to address the plague of homelessness.” He concluded that the law had developed to the point that the Region could not prevent an overnight temporary structure unless
a.) there was enough shelter space; and
b.) the shelter space was truly accessible in that it met the needs of the homeless population.
[69] I have found that the City did not prevent anyone from staying overnight. I am asked to extend the right to stay in encampments to public parks in the daytime, that is, not to have to tear down and move every day. This extension is said to be conditional on the lack of accessible shelter space that was stipulated as a condition in the Waterloo case.
[70] I find it impossible to extend this conditional “right”. First, I do not see the connection between the right and the conditions.
[71] Some barriers to accessibility in shelters suggested to me in the evidence are:
a.) They do not allow animals;
b.) They do allow animals;
c.) They do not allow couples;
d.) They only allow couples;
e.) They do not permit substance use;
f.) They are not effective in preventing substance use;
g.) They do not accommodate persons whose mental health issues make it difficult to get along with people.
h.) They do accommodate such persons.
[72] A combination of different shelters would be needed to eliminate these “barriers.” They would have to have private showers and storage space for belongings. This condition is impossible.
[73] The condition set by the Waterloo case is also arbitrary: Some people will not stay in a shelter whether it is available or not. Also, there are many homeless persons who do not use either shelters or encampments, and there is no reason to think that they are all sleeping rough.
[74] The applicants insist that it is only City-run shelters that are relevant to the equation. That is even more arbitrary.
[75] Moreover, shelters also require occupants to move every day, one of the main reasons for preferring indefinite encampments. There is no logical connection between availability of shelter space and harm caused by eviction from encampments. The presence of adequate shelter space is a red herring.
[76] Second, the life, liberty and security of the applicants are not put at risk by enforcement of the by-law. They are put at risk by homelessness. Encampments contribute to this risk. They are lawless, dangerous and unsanitary.
[77] In all this we must not lose sight of the countervailing interest of preserving public parks. It was an important enough public interest that in the Toronto encampment injunction case Justice Schabas found that it decided the balance of convenience in favour of the city notwithstanding the risk of irreparable harm: Black v. Toronto (City), 2020 ONSC 6398.
[78] Finally, extending the freedom from enforcement to daytime or indefinite encampment would amount to expropriating property, or at least severely limiting property rights. City officials have noticed that since the implementation of the new protocol some occupants have become more territorial, or possessive of “their” camps. Extension of freedom from enforcement would have the effect of depriving the City of the use and enjoyment of its property.
[79] For these reasons, I do not extend the prohibition on enforcement to daytime or indefinite camping.
Section 15 of the Charter
[80] I do not think that the by-law violates the equality rights of Indigenous persons, women and persons with a disability. The law does not treat them differentially by intent or impact. They are disadvantaged by homelessness, not by enforcement of the by-law.
[81] The fact that a group is over-represented does not by itself prove illegitimate discrimination.
[82] The only characteristic that the applicants all share is homelessness. It is agreed that homelessness is not an enumerated or analogous ground.
Conclusion
[83] The problem of homelessness is of diverse origin. Its resolution will come from diverse input. In City of Grant’s Pass v. Johnson, 603 US _ , 144 S. Ct. 2202 (2024), the Supreme Court of the United States was dealing with the Eighth Amendment (cruel and unusual punishment) in connection with encampments in public parks. Nevertheless the words of Gorsuch J. are apt and can be adapted to the Canadian context:
Homelessness is complex. Its causes are many. So may be the public policy responses required to address it. At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and deriving those responses. It does not. Almost 200 years ago, a visitor to this country remarked upon the “extreme skill with which the inhabitants of the United States succeed in proposing a common object to the exertions of a great many men, and in getting them voluntarily to pursue it.” A. de Tocqueville, Democracy in America 129 (H. Reeve transl. 1961). If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it. Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, they display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.
[84] The public is generally sympathetic to the homeless, but it tires of seeing its public spaces appropriated by lawless, unsanitary encampments. There has to be a balance, and the democratic process is best equipped to achieve that balance.
[85] Encampments are a symptom, not a solution. The City is trying to find a solution to homelessness in consultation with numerous others. It has attempted to address the problem with the old protocol, the encampment process and the new protocol. It has limited resources and a duty to its housed constituency. I think I am well advised to leave them to it without interference. Micro-management by judges will not be productive.
[86] The application is dismissed. If anyone seeks costs, submissions not exceeding 3 pages, to which a bill of costs and any offer to settle may be appended, may be uploaded to Case Centre within 10 days for the respondent and 15 days for the applicant.