The other (legal) side of the City of Kingston’s Superior Court order request to remove encampment

The City of Kingston recently confirmed it is moving forward with an application to the Superior Court of Ontario for an order to remove the encampment — and therefore the people residing in it — at Belle Park.

This comes after more than two years of debate over the City-owned public park space being used for an encampment by unhoused people. The City states it is upholding the direction of the current City Council, as per its meeting on January 10, 2023.

With the City of Kingston having already publicly stated its position on the matter — the hearing of which will occur next week on Monday, Jul. 10, 2023, exactly half a year since that January Council meeting — Kingston Community Legal Clinic wants the public to hear ‘the other side’ of the current debate: both from the perspective of the 14 clients it represents, who are presently living at the encampment, and from its own legal perspective.

“The City of Kingston has chosen to fight the residents of the homeless encampment, rather than work with them, as other cities are doing. The people living in the encampment do not choose to be homeless. They live there because they cannot rent a home with their disability pension,” lawyer John R. Done, Executive Director of Kingston Community Legal Clinic (KCLC), said in an email to Kingstonist.

“Kingston’s shelters do not have enough beds for Kingston’s homeless population. And among Kingston’s homeless, the encampment residents have special needs. Most are addicted to fentanyl. Fentanyl is dangerous and street fentanyl is often laced with sinister ingredients. In Kingston, there is a single safe injection site, and this is located next to the encampment. The encampment residents live there so they can be close to health care workers and paramedics who can save their life if they overdose.”

It should be noted that, as of late May this year, that safe injection site — Kingston’s Integrated Care Hub (ICH) — has reversed more than 1,500 overdoses since opening its doors in 2020.

Outlining the case in a release entitled “City of Kingston v Encampment Residents,” KCLC shared the some of the key facts with regard to shelter services in the city and substance use disorders in relation to the encampment, as follows.

1. In an Informational Report to the Housing and Homelessness Advisory Committee, the City of Kingston reported that, according to its “By-Name List,” in March 2023 there were 432 unhoused and precariously housed people in Kingston.
   
2. According to the numbers stated on the City’s own website, there are 187 emergency beds* in Kingston:
   • 24 at In from the Cold
   • 21 at the Youth Shelter
   • 19 at Lily’s Place
   • 36 at Adelaide Place
   • 25 at the Concession Street Shelter
   • 12 at St. Mary’s
   • 50 at the Integrated Care Hub
     • *There are also 15 beds at Ryandale Transitional Housing, but this is between emergency and transitional
       * There are 19 rooms at Dawn House, 25 beds at Interval House
     • Including Ryandale and Dawn House, that’s 246 beds total; a 186 person deficit
       
3. Many residents have personal reasons for avoiding the shelter system, including:
   • Discrimination
   • Feeling dehumanized
   • The desire to have their own space
   • The uncertainty of the emergency bed system means they don’t know where they are staying night to night
   • Limited space for pets, couples

4. There are only two drop-in daytime shelter locations in the City during the day: the Integrated Care Hub (ICH) and the Salvation Army.
   • Salvation army has space for 30 people.
   • The ICH has space for 25 people (daytime).
   • This means for the remaining 377 precariously housed and unhoused people living in Kingston, there is nowhere for them to stay during the day.
   • This means during the day the homeless population has limited space out of the elements, including wildfire smoke. This is especially concerning for disabled residents.
     
5. The encampment provides a place for these people to stay. There are other benefits to the encampment, including but not limited to:
   • Community and a sense of belonging without judgementBenefits to being in a common location with other unhoused people because donations and services respond to the group of them at that locationImproved harm reduction, through group monitoring A feeling of self sufficiency and home-like environment A space to store one’s belongings
6. Many encampment residents have substance use disorders. Kingston is undergoing an opioid epidemic, and the presence of fentanyl in the drug supply leads to a higher numbers of overdoses. The only safe injection site is at the ICH
   • The illegal drug supply in Kingston is contaminated with Xylazine and Benzodiazepines
     • Xylazine increases risk of woundsBenzodiazepines increase risk of overdose, and are not treatable with NARCAN
     Most fentanyl drug users need to re-administer drugs every 1-2 hours. Consequently, to administer drugs safely they must stay close to the ICH; ICH staff have NARCAN (naloxone) to reverse overdoses and paramedics to monitor patients afterwardDrug users also have higher medical care demands relating to wound care, which they can obtain at the ICHDrug users appreciate and respect ICH staff, and report that they don’t feel judged at the ICH

In terms of the upcoming litigation, Done explained that he and fellow KCLC lawyer William Florence will argue that “evicting our clients would breach their rights under the Charter of Rights, s. 7 (life, liberty, security of the person) and s. 15 (equality – disability).” The firm referred to the following as key factors in their case against the City of Kingston:

1. The City of Kingston’s injunction application alleges:
   • the encampment is unsafe
   • the encampment causes irreparable harm due to damage to the park and risk of fire
   • the residents are in violation of the Trespass Act and By-Law 2009-76
     
2. We are arguing that removing the encampment, and the law’s applicability to the residents,  would violate their rights under the Charter of Rights and Freedoms,  s. 7 and 15.
   
3. Kingston Community Legal Clinic has been retained by 14 encampment residents to defend them against the City’s injunction application.

Further, KCLC points to the fact that “this case is similar to the The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670.” During that case, “the City [of Waterloo]… spent over $160,000 on legal fees to fight the case that they ultimately lost,” the non-profit community legal clinic said, noting that “The City of Kingston has retained a prestigious Toronto litigation firm, Lenczner Slaght, to fight this litigation. It is reasonable to expect this case will involve similar or higher costs to the city.”

Done underscored that he and Florence will be attending the hearing in person on Monday, Jul. 10, 2023, as will the two lawyers representing the City of Kingston.

“The problems Kingston’s encampment residents experience are common to cities across Canada. Other cities, like London, Ontario, have chosen to work with encampment residents so they have the services they need to live with dignity,” said Done.

“Kingston’s City Council has chosen to pay a Bay Street law firm to evict people with nowhere else to go. We urge the City of Kingston to suspend its litigation and work with the encampment residents to find a solution that works for everyone.”

Kingstonist has requested the shelter occupancy rates in the City of Kingston for the last week in an effort to provide a more current snapshot of that situation. No response was received by time of publication.

Update (Wednesday, Jul. 5, 2023 at 4 p.m.):
After confirming receipt of the request from Kingstonist and stating it was being looked into, the City of Kingston responded to the request for occupancy rates at City-run shelters over the past week with the following statement just before 4 p.m., stating that Kingstonist would have to file a Municipal Freedom of Information and Privacy Protection Act (MFIPPA) request for that information.

“