Letter to Kingston Council, mayor on potential encampment action

Editor’s note: The following is a submitted open letter to Kingston City Council and Mayor Bryan Paterson addressing Paterson’s recent comments in an article published in The Globe and Mail regarding the potential ban of daytime camping in Belle Park, part of a City bylaw which, if enforced, would see the encampment cleared out of the public park during daytime hours. The views and opinions expressed do not necessarily reflect those of Kingstonist.

Dear Mayor Paterson and Councillors:

This is further to the decision of Justice Ian Carter in The Corporation of the City of Kingston v. Doe, 2023 ONSC 6662, issued November 24, 2023, and the Mayor’s remarks to Molly Hayes, as reported in her article in last Friday’s Globe and Mail, headlined “Kingston plans to clear homeless encampment after court ruling offers limited protection to occupants” [2023 12 08]. This article quotes the Mayor saying:

“A daytime ban, to us, is a way to prevent an established permanent encampment that brings the public safety issues that we’ve seen with the encampment in the current location.”

The purpose of this letter is to respectfully suggest that before the City takes steps to interfere with the encampment residents sheltering in the encampment during the daytime, City Council seek a fresh mandate and a second Court order. More specifically, Council should not proceed without a resolution which considers the restrictions which Justice Carter mentioned in paragraph 139 of his decision. Further, following any resolution, the City should not proceed without the authority of a Court order, which would require it to file a second injunction application.

The Mayor’s claim to the right to clear the encampment during the daytime appears based on a passage in Justice Carter’s decision, The Corporation of the City of Kingston v. Doe, which he has taken out of context. More specifically, it appears the Mayor is relying on Justice Carter’s finding the Respondent encampment residents had led insufficient evidence to show that the prohibition on erecting shelter on municipal lands during the daytime would be unconstitutional. The evidence was insufficient because it did not show how many people could attend each of the shelters during the daytime, for how long they could do so and what services are offered. Even more specifically, the evidence did not provide information about the Salvation Army’s daytime program or whether there are other daytime programs. Absent this evidence, the encampment residents failed to show that a prohibition on camping in public parks during the daytime is unconstitutional.

Does the absence of a finding that prohibiting daytime camping is unconstitutional mean the City may now require the encampment residents to vacate their shelters during the day? The rest of Justice Carter’s decision indicates that before the City could take such steps, it should return to Court with a second injunction application.

More specifically, Justice Carter indicated that while the encampment residents had failed to establish that a prohibition on camping in public parks during the daytime is unconstitutional, that is not to say that a breach could not be established on the proper evidence.

Moreover, Justice Carter declined to grant the City’s application for an injunction restricted to daytime camping. This is because the scope of the injunction the City was seeking exceeded what was required to prevent the continuation of the breach of the bylaw. Because homeless people are entitled to camp at Belle Park overnight, and they cannot be required to leave the park or to remove their camping equipment during the day, the scope of any restriction the City could seek would be limited.

Most important, Justice Carter’s decision, at paragraph 140, contemplates that if the City wishes to restrict the encampment residents’ daytime use of the park, it would “… bring a new application for an injunction on terms that comply with this ruling…” Given this passage, if the City were to now take steps to clear the encampment without the authority of an injunction arising from a new application, it would be inconsistent with Justice Carter’s intention, expressed in an order arising from the City’s own application.

Any mandate the City had to clear the encampment ended with Justice Carter’s decision. Before the City may take any steps against the encampment residents, it must seek and obtain a resolution from Council. Before any such resolution emerges, Council would have an opportunity to debate and the public would have an opportunity to express its views. Then it would be open to the City to issue a resolution consistent with Justice Carter’s decision.

Further, if Council is resolved to take further steps against the encampment residents, the only legitimate way to do so is for it to again apply to the Superior Court of Justice for an injunction.

Thank you for considering these requests. Regards,

John Done
Executive Director/Barrister & Solicitor
Kingston Community Legal Clinic

Share your views! Submit a Letter to the Editor or an Op/Ed article to Kingstonist’s Editor-in-Chief Tori Stafford at [email protected].