Members of the legal team representing residents of the encampment at Belle Park are speaking out after the Ontario Superior Court of Justice ruled against the City of Kingston’s application for an injunction to remove the encampment. In a ruling issued on Friday, Nov. 24, 2023, Justice Ian Carter found that removing the encampment would violate the rights afforded to encampment residents under the Canadian Charter of Rights and Freedoms.
This past June, the City of Kingston officially applied to the court for an order to begin enforcing provisions of its parks bylaw, which would allow officers to remove the encampment at Belle Park near the Integrated Care Hub (ICH), an encampment which has existed in various forms since early 2020.
Justice Carter’s ruling specifically noted that a ban on “overnight” camping at the public park violated the Charter rights of those residing at the encampment. “It is not for this court to weigh the pros and cons of the encampment,” wrote the judge, “but rather to determine whether the relevant provisions of the By-Law are in breach of the Charter. I conclude that [those provisions are in breach of the Charter] to the extent they prevent homeless persons from camping overnight in public parks.”
Now, members of the Kingston Community Legal Clinic (KCLC), who were retained by 14 encampment residents to defend them against the City’s injunction request, are opening up about the case and what the ruling means for residents of the encampment. KCLC Executive Director John Done called Justice Carter’s ruling a “win,” despite the fact it was not necessarily an outright victory for his side.
Done said, “What was disappointing to us was that the court did not come out unequivocally and say if the City denies the homeless people the right to shelter at the Belle Park encampment during the day, that’s also unconstitutional.” Instead, in his ruling, Carter found there was “insufficient evidence” to demonstrate that removing the encampment during the daytime hours would violate the residents’ rights; this finding could allow for a potential daytime camping ban.
Carter’s ruling also left the door open for the City to file an additional injunction in the near future, something Done cautioned against. The lawyer argued that any form of an encampment ban would potentially displace dozens of vulnerable individuals, given the number of daytime shelter spaces currently available in the City of Kingston.
“The available daytime shelter spaces are significantly less than half the number of homeless people, and that must be the most important consideration,” he said.
With the colder winter weather beginning to set in throughout the region, Done also warned of the effects of a daytime camping ban in the months ahead. “It’s miserably cold,” he pointed out. “It’s raining and it’s snowing… It doesn’t become magically and significantly warmer during the day. People need a place to shelter.”
The lawyer also explained that forcing residents to leave during the day, only to return to the encampment at night, would be “inhumane,” especially considering many encampment residents are people with disabilities or severe addictions.
“If they can’t stay there during the day, that means they’ve got to knock down their tent in the morning, put it up at night, and do something with it, and everything that’s inside it, during the day… It’s forcing people… to be pushing their belongings around in shopping carts in the middle of Kingston,” he said.
Done also explained the initial case did not address whether the bylaw violates equality rights under the Charter; however, a future application by the City may force the court to question other aspects of the bylaw.
“The court has to consider that. It’s not going to be an obvious victory. There would be a lot of question marks,” Done said of a potential future application by the City.
However, should the City seek to file another application for an injunction, Done said his clinic will once again represent the interests of encampment residents: “If the City were to decide to file that injunction, we would be representing those residents yet again, and we would do our very best.”
As for how the City should proceed in light of Friday’s ruling, Done said he hopes officials will look to municipalities like London, which have begun to officially sanction encampments. “I hope the City will say, ‘Let’s maybe take the high road this time. Let’s do what Halifax and London are doing and have a sanctioned encampment. Let’s figure out how we can help people get through a cold Kingston winter,'” he said.
KCLC noted in a press release that the encampment in London includes access to basic services, such as public washrooms, in an officially sanctioned environment.
As a non-profit community legal clinic, KCLC provides legal representation for low-income Kingston residents and is funded primarily through Legal Aid Ontario. According to Done, KCLC is one of the smallest community clinics in Ontario and provides all of its services through the work of two dedicated staff members. Given the importance of the encampment case, especially with the City of Kingston hiring a prestigious Toronto-based law firm, KCLC relied on assistance from other lawyers to help win the case.
Done said, “We were only able to help these encampment residents because of help from endless other lawyers who contributed their expertise and opinions and helped us draft materials. If we were in a province other than Ontario, there would not be a legal aid plan that funds clinics like ours. The encampment case is the best example I’ve ever seen in my 35 years with this legal clinic of why we need legal aid in other places.”
Thanks to Ontario’s legal aid model, encampment residents were able to secure much-needed legal representation without having to worry about the significant financial impact of obtaining a strong defence.
“In private practice, our bill would be coming in well over $150,000 just for the two lawyers, because of our seniority and experience. [When] this [case] was all done, the encampment residents [didn’t] have to pay us a penny,” Done added.
With those on both sides of the issue now wondering what last Friday’s ruling will mean for the future of the Belle Park encampment, the City of Kingston has yet to explain what its next steps will look like. After the ruling was issued on Friday, Kingstonist received a statement from the City of Kingston, which read in part: “The City is reviewing the decision very carefully as it considers its next steps, including how to enforce the by-law’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.”