Judge rules city can enforce encampment bylaw, attempt for an injunction fails

An attempt to get a court injunction barring the city from tearing down encampments has failed, with a judge ruling the city can enforce its bylaw against tents in public parks.

"No reasonable person in Canada would disagree with the proposition that homelessness ... is a tragedy," wrote Superior Court Justice Andrew Goodman in his 76-page decision released on Tuesday.

But, he added, evidence presented during the hearing "demonstrates that the city has taken and continues to undertake reasonable steps in order to make available safe shelter space and accommodation."

The Hamilton Community Legal Clinic (HCLC) was seeking the interim injunction on behalf of five people experiencing homelessness in Hamilton.

Its proposal was for groupings of up to six tents to be allowed in parks, so long as they were 50 metres away from playgrounds, schools or child care centres and at least 200 metres from each other.

"Taking away tents is not going to reduce or eliminate homelessness," legal clinic lawyer Sharon Crowe previously told court. "The only thing it will achieve is to make an already vulnerable group even more vulnerable."

In a statement issued shortly after the ruling, the city said it will return to enforcing the bylaw, with bylaw officers as the first point of contact.

"The city enforcement approach will continue take into consideration the safety and well-being of individuals experiencing homelessness, as well as the broader community needs, including access to green space for safe outdoor recreation," the statement reads.

People staying in encampments will not be ticketed unless "alternative options are exhausted," it adds.

Legal clinic 'disheartened'

The legal clinic lawyers issued a statement of their own, saying they were "disheartened" by the court's decision and that it risks further stigmatizing people who are unhoused.

"This decision is not an endorsement or a [licence] for the City to aggressively and violently evict homeless persons into a cycle of displacement," it adds.

The legal clinic has also filed a constitutional question with the Attorneys General for Ontario and Canada on the issue of encampment evictions and said that while the injunction wasn't granted, the judge did confirm there was a charter issue at play.

A full charter challenge challenge will be the next step, the lawyers said, if the city continues to fail meet the needs of people without housing.

They argued during the hearing that the clinic was not seeking a sweeping order that could tie the city's hands, instead they were asking for the judge to limit the "sweeping nature" of the city's bylaw.

But Goodman wrote in his decision that the application for an injunction "overreaches" by asking the court to prevent the city from exercising its "valid authority."

The question before the court was not whether more should be done to address homelessness, the judge said. Instead it was whether the city's bylaw should be limited.

The case touches on "complex, and challenging social, economic and policy questions affecting homeless and marginalized" people, he wrote.

"These issues ought to be left to elected officials, health care ... social agencies and experts who are best equipped to address the welfare and needs of the homeless."

'Stop chasing people from park to park'

Dr. Tim O'Shea, who works with people living on Hamilton's streets and in parks, expressed his disappointment in the ruling on Twitter.

Court heard that there was not enough housing or shelter space in the city and that the system fails to support many of those who have complex mental health or addiction needs, the doctor said.

"Today's decision does nothing to change these facts. What it does do is allow the city to continue to sweep this issue under a rug," O'Shea tweeted.

"If you don't like seeing encampments stop chasing people from park to park and start giving people real, supported and long term housing solutions."

The Hamilton Encampment Support Network issued a statement ahead of the decision, saying regardless of the court's ruling, Hamilton had "failed encampment resident."

It urged the city to take steps to ensure people living in encampments can survive the winter, including adding more shelter beds, warming spaces and ensuring limits that keep people out of shelters are removed.

The city said staff are putting together a report with details on how changes to the shelter system and its plans for winter, which will be presented at the Dec. 7 Emergency and Community Services Committee meeting.