The Ontario Superior Court of Justice has ruled that the removal of the encampment at Belle Park would be a violation of the rights afforded to those living in the encampment by the Charter of Rights and Freedoms.
In June of this year, the City of Kingston applied for an order through the Ontario Superior Court to remove the encampment at Belle Park, which has existed in different formats and sizes since 2020. Since then, Kingston Legal Clinic, which represented those living at the encampment, has publicly made known its objections to the City’s position, and rallies took place outside the courthouse as the parties began the court action on the hearings in July. Monday, Oct. 30, 2023, was the first of two days scheduled for the parties to present their arguments and supportive case law. The following day, the Canadian Civil Liberties Association was granted intervenor status in the matter.
As the hearing closed out at the beginning of November, it was left to Justice Ian Carter to decide on the matter — with the City arguing its right to maintain safe public space for all by way of its encampment protocol through Bylaw Number 2009-76, and John Done and William Florence of Kingston Legal Clinic arguing on behalf of encampment residents that the bylaw is in breach of the Charter. Today, Friday, Nov. 24, 2023, Justice Carter’s decision was made public, with the Canadian Civil Liberties Association applauding the development.
In writing out his decision, Carter made the matter before him clear and concise.
“At the heart of this case is the tension between a city’s responsibility to maintain public parks for all its residents and the homeless population’s need to shelter,” he wrote.
“The City of Kingston seeks an order allowing it to enforce provisions of Parks By-Law Number 2009-76 to dismantle an encampment that has arisen in a portion of Belle Park. Over the last several years, dozens of individuals have been sheltering, both day and night, in a portion of the park. The location of the encampment is not accidental. It is directly adjacent to a safe injection site and service hub located within the boundaries of the park,” he explained.
“The provisions of the By-Law prohibit camping except under certain circumstances. There is no question that the residents of the encampment are camping and that none of the exceptions apply. In other words, they are in breach of the By-Law.”
Carter went on to explain that the City submitted to the Court that the encampment had “become a lawless, unpoliced zone that serves as a hub for fentanyl trafficking” and that it has been the site of “violence, dangerous property destruction and serious fire hazards.”
“Given that that the encampment poses a serious risk to the safety of its occupants and the community, it is the City’s position that it cannot continue in its present state,” Carter noted.
Conversely, the members of the encampment “wish to stay there,” the judge continued.
“They argue that the dangers are overblown and are not necessarily connected to the encampment. There is a strong sense of community, and it is conveniently located near services they require to survive. According to them, the positives far outweigh the negatives,” he explained.
Noting that it was not the Court’s job to “weigh the pros and cons of the encampment,” but rather to determine whether “the relevant provisions of the By-Law are in breach of the Charter,” Carter announced his decision.
“I conclude that [the provisions are in breach of the Charter] to the extent that they prevent homeless persons from camping overnight in public parks. In light of this finding and given the proposed terms of the permanent injunction sought, the City’s application is denied,” Carter stated in his decision.
“The City is free to bring an application for a permanent injunction on different terms — terms that comply with this ruling — if it so chooses.”
For their part, the Canadian Civil Liberties Association applauded the decision.
“We’re pleased that the Ontario Superior Court has not granted an injunction in the Kingston encampment case to the City of Kingston. The court found a breach of Section 7 of the Canadian Charter of Rights and Freedoms and denied the City’s injunction application,” said Harini Sivalingam, Director of the Equality Program at the Canadian Civil Liberties Association, in a statement.
Sivalingam noted that the Association is currently reviewing the decision and will “have more to say at a later time.”
“Enforced evictions of unhoused individuals, who are among the most vulnerable members of society, are inhumane,” Sivalingam concluded.
“Shelter is one of the most basic human needs, and state enforced deprivation of shelter is a violation of Charter rights and Canada’s international legal obligations.”
John Done of Kingston Legal Clinic confirmed the Superior Court decision but indicated he was currently reviewing the documents and would become available for comment at a later time.
Kingstonist reached out to the City of Kingston for comment on the decision. The City provided the following statement:
“This afternoon, the City of Kingston received the Ontario Superior Court of Justice’s decision on its application for an injunction authorizing it to clear the encampment at Belle Park. The City also received the Court’s decision on encampment residents’ constitutional challenge to the camping ban in the City’s Parks & Recreation Facilities By-Law.
“The Court agreed with the City that the Court was not bound by the conclusions reached in the Regional Municipality of Waterloo v Persons Unknown and to be Ascertained decision. The Court also found that, on the evidence before it, the by-law’s ban on daytime sheltering in parks is constitutional. However, the Court found that the by-law’s ban on overnight sheltering is unconstitutional. As a result, the Court read into the by-law an exception permitting persons experiencing homelessness to temporarily shelter in City parks overnight.
“The Court acknowledged that the issues raised in the proceeding were ‘extraordinarily complex.’ The City is grateful to have the Court’s decision, and its guidance, on those extraordinarily complex issues. 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.
“The City remains committed to finding safe, supportive housing for people experiencing homelessness in Kingston, including those that have been residing at the Belle Park encampment. The City continues to invest in supportive and transitional housing [and] emergency shelter spaces and [works] with community partners to offer support services for those who need them.”
This is a developing story. Kingstonist will provide further coverage as more information becomes available.