On Tuesday, Oct. 31, 2023, two-thirds of the way through the second day of hearings into the constitutionality of a City of Kingston bylaw which prohibits camping in City parks, Justice Ian Carter made a humble admission: “It’s not going to come as a surprise that I will not be deciding this from the bench.”
In other words, there is no quick and easy decision to be made when it comes to dismantling a homeless encampment as winter threatens.
As discussed yesterday, the City of Kingston would like to use the no-camping bylaw to evict a homeless encampment that has grown over the last two years in Belle Park, close to the Integrated Care Hub (ICH). The City will argue, among other things, that the camp is dangerous to the people living there and to the general public and public property. Will McDowell and Nikolas De Stefano of the Toronto firm Lenczner Slaght LLP, representing the City of Kingston, previewed their submissions yesterday.
By this afternoon, Justice Carter had heard arguments from both sides. William Florence and John Done of the Kingston Community Legal Clinic, representing 14 named and two unnamed respondents who live in the encampment, began their statement of facts late yesterday and finished up their submissions this morning.
In the second part of the morning, Carter heard case law recommendations given by the amicus lawyer, Liana Presse. According to the Ministry of Justice, “The traditional role of amicus curiae (also known as a ‘friend of the court’) is to assist the court with its decision-making by ensuring that all relevant evidence and arguments are properly presented to the court. In most jurisdictions, the court’s ability to appoint amicus curiae is legislated.”
Presse gave a detailed overview of various cases previously argued in British Columbia, such as Victoria (City) v. Adams, 2009, and multiple others — so numerous that at one point, Justice Carter joked that it was like BC was “playing whack-a-mole” with encampments.
“Whether that’s good social policy is not for me to say,” he added.
More recently, in the first ruling of its kind in Ontario, on January 27, 2023, Ontario Superior Court Justice Michael Valente found in The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 that the Region of Waterloo’s attempt to evict encampment residents at 100 Victoria St. N was indeed a violation of Section 7 Charter rights (but not a violation of Section 15 rights).
By the beginning of the afternoon’s proceedings, Justice Carter laughed and pointed out, “I see I’ve just about cleared the jury box with my dry legal minutia questions,” indicating the overflow seating which had taken up spots in the jury area yesterday and this morning, but was now empty of observers and media.
He then welcomed representatives of the Canadian Civil Liberties Association, who were “intervening” in the City of Kingston’s appeal to the Superior Court of Ontario. The Canadian Civil Liberties Association (CCLA) is a Toronto-based Canadian human rights organization, founded in 1964 and “committed to defending the rights, dignity, safety, and freedoms of all people in Canada.”
Erika Anschuetz and Alexa Biscaro of Norton Rose Fulbright Canada LLP represented the CCLA in the case.
Anschuetz began by saying the CCLA would focus their oral submissions on three main points.
First, the right not to be deprived of shelter “ought not to be circumscribed to the nighttime or the specific act of sleeping. It should be recognized as extending to the daytime.” Anschuetz pointed out the often overlooked problem of where to store one’s provisions for survival when forced to move daily. The same problem occurs when a person goes to a homeless shelter for the night and is forced to move on in the morning: they cannot leave their belongings behind. The need for daytime shelter has seen support in case law in Canada, Anchuetz observed.
Second, she urged Carter to look beyond the “simple mathematical assessment” of comparing the number of people in the homeless encampment to the number of available shelter beds in the municipality, because the types of spaces available must be suitable to the people who need them.
This is quite nuanced, Anschuetz argued, because different people have different needs: those with addictions might need access to a safe injection site; those who have recovered from addictions might not want to be near drug use; most shelters don’t accept pets; some don’t accept couples or youth. These are just some of the many factors that go beyond “heads and beds,” she pointed out. “Dignity compels us to look beyond the numbers… This isn’t just a numbers game.”
Finally, Anschuetz noted that adequate shelter must be dignified — that people have a fundamental need for privacy and need a spot to keep their belongings without fear of them being stolen. Having to pack up and vacate a shelter bed every morning is accompanied by the worry about what to do and where to go all day, often in extreme temperatures, with all of one’s belongings, and then constantly worrying about where the next sleep will be. The scope of the right not to be deprived of shelter should recognize that access to adequate shelter is inherently dignified, she argued.
The afternoon finished with no amicable solution to the court-ordered fire ban, which was put in place by means of an interim injunction at the City’s request in July (and followed by an interim injunction allowing the seizure of implements such as axes and saws from the encampment, which the court granted the City in August), as the fall temperatures have begun to dip below 0 C in Kingston.
Justice Carter organized a Friday case conference that would allow the City to have discussions with Kingston Fire and Rescue and come back to the table with an appropriate solution.
Court will resume next Thursday, Nov, 9, 2023. Justice Carter concluded by saying, “I will say to all parties… the quality of the submissions was top notch, absolutely outstanding, both written and oral. You’ve given me a lot to think about and a lot of work to do. But I do very much appreciate the effort that went in from all parties on this. It really showed.”
Kingstonist will provide more in-depth coverage of the tough case before Justice Carter in the coming days.