‘Serious negotiation,’ decisions yet to come: Court to hear City of Kingston’s encampment removal proposal

On Monday, Jul. 10, 2023, Ontario’s Superior Court of Justice began hearing the City of Kingston’s application for an injunction to order the removal of the homeless encampment at Belle Park. At the heart of the hearing is the challenge of balancing the City’s right to property with the rights of the people who live at the encampments under the Canadian Charter of Rights and Freedoms.

Outside the courthouse, a rally in support of the encampment was attended by about two dozen concerned citizens. Inside, tiny Courtroom C at Frontenac County Courthouse was packed to capacity, with members of the court, the press, and about 15 observers in attendance.

First, the Honourable Robyn M. Ryan Bell heard from the lawyer for The City of Kingston, William C. McDowell of Lenczner Slaght, a firm in Toronto, that the two sides had reached an agreement with regards to open fires. The City had asked for a ban on open fires citing public safety, and a ban until August 23 was agreed upon. Following this date, the court will reconsider the issue to determine if an extension of the ban is required.

As for the ultimate return date to decide the matter of eviction, “This is where my friends and me part company,” McDowell said, referring to lawyers for the Kingston Community Legal Clinic who are representing 14+ clients presently living at the encampment.

McDowell stated that he and the team for the City “want to get this done as early in the fall as possible… we don’t want the thing to be argued in mid-November…and then the decision gets handed down in January, the coldest part of the year,” suggesting that, should the decision favour the City, the encampment would then necessarily be evicted in January.

John R. Done of the Kingston Community Legal Clinic countered that, in considering when the permanent injunction application ought to be argued, he had reviewed a similar case from the regional municipality of Waterloo in January 2023. “I’ve spoken to my friends at the Waterloo legal clinic, who represented the residents in that case, and they’ve cautioned us that October is unrealistic.”

Done explained, “What is critical in this case is that the court will be asked to decide not only on the application that my friend has filed, but on a notice of constitutional question that we intend to file.” Therefore, he said, his legal team would be calling numerous witnesses to testify, including residents of the encampment and expert witnesses, who will then be subject to cross-examination.

“So it’s complex litigation,” said Done, who informed Justice Bell that his team would prefer the first half of December for the hearing.

Balancing the interest on both sides, the judge said she thought early to mid-November would be preferable to hear the case, to allow sufficient time for counsel to prepare “diligently” and not allow the matter to “drift.”

The trial coordinator informed the judge that there were no suitable dates in mid-November, and the judge ultimately settled on October 30 and 31 to hear the case.

The judge responded to a fee waiver request by Done’s team on behalf of the respondents, agreeing that the encampment community would have their filing fees waived.

The court also agreed that the entire matter, which had hitherto been referred to as “The City of Kingston v. John Doe/Jane Doe,” would now be re-titled to include both John Doe/Jane Doe and the names of 14 other respondents, thus encompassing both the named respondents and any other encampment community members who the decision would impact.

Afterward, outside the Courthouse, Done spoke with reporters, succinctly explaining the proceedings. 

Leading up to the October hearing about the larger issues of the permanent injunction requested by the City and the constitutional question he intends to raise, Done explained that the court had to address interim issues, i.e., “What are we going to do until then?”

“[The City has expressed concern] about the risk of open fires at the encampment and unused and abandoned structures,” Done explained, “and we decided that, from now until August 24th, we consented to an order from the court that there would be no open fires allowed.”

On August 24, the court will resume to hear arguments on the matter, Done said, “and we’re going to argue whether there ought to be an interim injunction against open fires and also an order allowing the City to remove unused and abandoned structures.” 

“The August date is important because if there were a restriction against open fires, what we want to make sure is that it’s not interfering with people’s need to stay warm during the coldest parts of October,” Done explained. “I hope that we can reach some sort of an agreement and, between then and now, my colleagues and I are going to be learning as much as we can about the risks of fires among homeless encampments and what are the best practices to control them so that everybody can be happy.”

Next, Done turned to the main issues of the City’s application for a permanent injunction against the encampment at Belle Park, and the notice of “constitutional question” that he will raise before the court.

Prior to the Charter of Rights and Freedoms, Done suggested that the matter would likely be decided as “a simple case of whether the court should issue an injunction based on the City of Kingston’s property rights, [and] before 1982 it probably would have gone in in the City’s favour.”

“However… because of the homeless residents’ rights under the Charter of Rights and Freedoms, the inquiry [now] doesn’t end at deciding who has the property rights,” he pointed out. “The inquiry ends after we decide whether strictly enforcing the City of Kingston’s property rights… would interfere with the ‘life, liberty, and security of the person’ for the homeless residents.”

Further, he noted that the homeless population under the Charter qualifies as a group with special needs compared to the general population. Because of this, he intends to raise equality rights as part of the constitutional question before the court. “They have special needs largely rising from their disabilities, and specifically because many of them depend on fentanyl,” Done said.

But returning to the ideas of ‘life, liberty, and security of the person’, Done explained, “All of those three rights would be triggered by an order that could leave them staying out in the cold.”

“The signal fact that informs all of this,” he said, “is that there is a significant gap between the number of homeless people living in Kingston and the number of shelter beds and indeed available shelter beds that could meet the needs of someone with an addiction.”

Even without considering people’s addictions, he noted, “For every shelter bed, there are over two maybe three people who are homeless, and so the City has to consider: is this the best way to deal with this?”

“We have an important, perhaps apparently intractable public problem, of how do we serve people who are homeless and people who have addictions,” Done continued. “One way is to come here to the Superior Court of Justice and ask a Justice to decide who’s going to be the winner or the loser.” 

However, he stated, “I would say that there can be no winners at the court. Ultimately, it’s going to have to be a question to be resolved by serious negotiation. So I’m inviting the city of Kingston to work with us to find a process where we can negotiate, [to find] the best resolution that they can come up with.”

This is a developing story. Kingstonist will provide continued coverage of this matter.