In late November, the Superior Court of Justice refused to order the permanent removal of people residing in an encampment at Belle Park, and the City of Kingston estimates that up to 35 people are currently residing there. Curiously, those residents, along with many others in Kingston, learned of the City and mayor’s plans to begin removing people from the encampment during daytime hours, not by way of a notice or communication from the City, but through an article in The Globe and Mail on Thursday, Dec. 7, 2023. The article announced: “Kingston plans to clear homeless encampment after court ruling offers limited protection to occupants.”
As the article mentioned above caught local attention, questions and concerns began to swirl around regarding the Belle Park community.
The fact that the Superior Court ruling left open the option to have the encampment and the people who live in it cleared out of Belle Park during daytime hours is not news. Justice Ian 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. However, the judge found there was “insufficient evidence” to demonstrate that removing the encampment during the daytime hours would violate the residents’ rights, a finding which could allow for a potential daytime camping ban.
Days after Justice Carter’s ruling on the matter, Kingstonist spoke with John Done, Executive Director of the Kingston Community Legal Clinic (KCLC), which represented encampment residents before the court. “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,” Done said to Kingstonist on Monday, Nov. 27, 2023.
It appeared that the ruling of the court and the responses from the City of Kingston and KCLC were likely to be the last developments on the encampment matter, until the article in The Globe and Mail was published. Kingston Mayor Bryan Paterson was quoted by The Globe and Mail as 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.”
With this statement, questions around when such a ban might happen and what it would mean for those living at the encampment were many: Is this ban already being enforced? Will encampment residents be required to take all of their belongings with them when they vacate the park? Are encampment residents allowed to leave their tents/shelters in Belle Park during daytime hours? Where are those living at the encampment going to go during the hours they are banned from the park? How are those living at the encampment going to handle these daytime evictions, particularly as inhospitable winter weather conditions set in?
To answer those questions, Kingstonist first reached out to the City of Kingston. The City’s communications department redirected Kingstonist to the Mayor’s Office to request an interview or comment from Paterson, but also offered some answers.
“The City is not currently enforcing the Parks By-Law’s ban on daytime camping at the encampment at Belle Park,” said City Communications Officer Kelsey Pye.
“City staff, including staff from the Public Works department, regularly attend all City parks, including Belle Park, to maintain the park and related infrastructure. The City continues to consider the Court’s guidance and how best to address the public safety issues brought by the permanent nature of the encampment at Belle Park in a way that respects the dignity and well-being of the people residing at the encampment. As always, the City will communicate with encampment residents before taking any enforcement action.”
With the door left open to the possibility of banning the encampment during daytime hours, Kingstonist moved forward requesting to speak with Mayor Paterson or, to receive a comment from Paterson on whether he and the City plan to enforce the bylaw to allow that ban. Specifically, Kingstonist noted that it was important to have Paterson address this matter clearly and in his own words, as confusion had already set in within the city following his comments to The Globe and Mail.
The Mayor’s Office responded with the following statement, attributed to Paterson: “I believe the Court’s ruling is fair and balances the right to shelter with the public safety concerns that come with a permanent, entrenched encampment. Right now, the City is actively considering the Court’s guidance on addressing public safety issues with the Belle Park encampment. Although no specific timelines have been set, the City will communicate with encampment residents before implementing any enforcement measures.”
Reiterating that it is important for Kingstonians to have clear and direct messaging from Mayor Paterson regarding this matter, Kingstonist asked the Mayor’s Office if it would be possible to get comment from Mayor Paterson specifically regarding whether or not the City of Kingston was planning to enforce the ban.
“I asked Mayor Paterson and, as he mentioned, there is no specific timeline set at this time. Once a timeline is set, City staff will communicate with encampment residents before implementing any enforcement measures,” responded Julia Morbin, Communications and Community Relations Coordinator for the Mayor’s Office.
That final correspondence from the Mayor’s Office came on Friday, Dec. 15, 2023. Kingstonist immediately reached out to the encampment’s legal representation through KCLC. Although Director and lawyer John Done was unavailable for comment at the time, he later provided a statement he had prepared regarding Paterson’s comments in the aforementioned Globe article.
“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,” Done wrote in the letter, which can be read in full here.
“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,” Done asserted.
Reached for further comment, Done said, “Without a fresh resolution from City Council and an injunction order issued by the Superior Court of Justice, any steps the City takes to restrict the rights of homeless people camping at Belle Park during the daytime would be illegitimate.”
Done explained that the matter “has political dimensions and legal dimensions.”
“First, it would be wrong for City staff to take any steps without a clear resolution from City Council. While earlier this year council passed such a resolution, Justice Carter declined to order an injunction. He also pointed out the City’s proposed actions went far beyond what the bylaw permits. Consequently, before City staff take any steps to enforce the bylaw, they require a new resolution,” he said. Done also noted that before City Council issues such a resolution, a fresh motion would need to be brought before Council, which would involve a debate informed by public input.
“Councillors will have to consider whether it is fair to force homeless people to dismantle their tent every morning, remain outside and unsheltered during the day, and to reassemble their tent at night. Any such resolution could cause Kingston irreparable harm to its reputation,” Done said, calling the notion “Draconian.”
Done reiterated this message in his open letter to Council, asserting that “Justice Carter’s decision contemplates that before the City takes steps to restrict homeless residents during the day, it would return to court with a second injunction application. If the City were to now proceed without the authority of a court order, it would signal a disrespect for the rule of law and the Court’s role in ensuring the City does not go beyond its authority.”
According to Done, the “principal reason” the City was denied its application for an injunction to remove the encampment from Belle Park in the first place came down to the fact that there was nowhere else for the people there to go. As of January 2023, Kingston only had half the nighttime shelter spaces that would be needed to for those who were currently unhoused at that time.
“The City of Kingston should also have known that a court would not order an injunction when the number of homeless people exceeded the number of nighttime shelter spaces; that had just been decided [in a] similar case from Waterloo. The Mayor and Council [have] yet to explain to the public why [they] proceeded to court in the face of these facts and this law,” Done stated.
Done clarified that emphasizing the problem of nighttime shelter should not imply that access to shelter options during the day was somehow easier.
“In terms of daytime shelter spaces, the numbers are no better than nighttime spaces. While those numbers were not before Justice Carter, the difference between the number of homeless and the number of daytime shelter basis is no less stark. [Unless] the City of Kingston closes this gap, it would be morally wrong and potentially illegal for it to clear the encampment,” he said.