City heads to court Monday to fight an injunction preventing it from dismantling tents

The city of Hamilton will face off with five homeless people in court Monday for the ability to stop people from living in tents on public property.

City lawyers will fight a permanent injunction being sought by the Hamilton Community Legal Clinic, which is representing five people who are currently homeless, city solicitor Ron Sabo told council Wednesday.

The city wants to continue enforcing its bylaw preventing camping on public property, while the legal clinic and its applicants want to curb that enforcement. Last week, a judge granted a temporary injunction preventing the city from breaking up encampments, so long as those encampments are fewer than six tents and 50 metres away from schools, daycare centres or playgrounds.

Jason Farr, Ward 2 (downtown) councillor, defended the city's position in a council meeting Wednesday. He says he's heard from constituents who don't want encampments in local parks, and that some people in encampments are coming here from other cities.

"There's a growing number [of tents] every day," he said. "And there are more and more residents wondering what's going on."

The hearing was initially scheduled for Friday, but the legal clinic says it will now be heard on Monday morning. On Twitter, members of the Hamilton Encampment Support Network (HESN) said Farr is more focused on voters than supporting people living rough.

"Tents should not be torn down when there is nowhere suitable for people to go," HESN tweeted.

Should focus on housing

"The focus should be on providing housing," the network said.

The battle dates back to early days of the COVID-19 pandemic, doctors treating the street population asked the city to temporarily stop dismantling the encampments. Doing so, they said, drove people farther underground and made them impossible to treat, or for those living in tents to abide by COVID safety guidelines.

In July 2020, a group of doctors and lawyers, including from the legal clinic, got a temporary court injunction to block the city from tearing down tents. The number of visible tents grew, particularly on Ferguson Avenue North, where at one point there were nearly 100.

The city created an encampment protocol allowing people to stay in public spaces for up to 14 days, and in groups of five or fewer tents. Then in August, council voted to go back to its original bylaw, and has continued to dismantle tents.

In a statement in August, the clinic called that "a misguided attack on people who are already struggling to survive without adequate shelter, food, medical care, bathrooms, and potable water."

Court battle isn't helping, councillor says

Council opinion on the matter is mixed too.

Edward John, director of housing services, said Wednesday that the city doesn't have enough supportive housing, or shelter space for women. The city is searching for more options for winter, he said. 

Brad Clark, Ward 9 (upper Stoney Creek) councillor, said dismantling encampments without increasing shelter space is "the cart before the horse."

"We're spending a great deal of money in the courts dealing with injunctions and protocols, and yet what I'm hearing on the streets is we don't have enough room to find a bed," he said. "So if we wiped out all the encampments right now, where would they go? We don't have the beds for them."

"All this money spent fighting over the encampments is not helping us find emergency beds."

'We need to defend our bylaw'

But Farr said people camping in parks isn't a solution either — for neighbours or the people sleeping there. 

"There's been explosions," he said. "There's been multiple fires. There's been assaults. There's been public nudity and defecation ... In many cases, [people] avoiding using their parks."

"We need to defend our bylaw like we would defend any of our laws."

Right now, there are about 90 people who are sleeping rough and staying in 30 to 40 encampment sites, says Kelly Barnett, manager of service delivery for licensing and bylaw. Of those encampments, she estimated that about 20 are on private property or road allowances. The rest are in parks.

"The numbers constantly change day to day, hour to hour," Barnett said.