Encampment residents awaiting court decision on whether Kingston can evict them

Rick Sero has been staying in Belle Park for roughly two years. Over that time he's built up his shelter, lost friends and lived under the threat of eviction.

He's one of 14 named encampment residents challenging the constitutionality of Kingston, Ont.'s bylaw barring camping on public property.

A two-day hearing to determine if the city can receive a court order to clear the tents and makeshift shelters at the site north of downtown wrapped up Tuesday. The judge reserved his decision, meaning it will be shared at a later date.

Now Sero is back to wondering what's going to happen next.

"Nobody should have to go through that in life," he said. "Worrying where you're going to be sleeping … it's draining on your soul, on your mind, on your health."

Sero and the other encampment residents are represented by a team with the Kingston Community Legal Clinic (KCLC). 

Staff there pointed to a recent court decision where a judge ruled an eviction based on a similar bylaw couldn't take place until the Region of Waterloo offered enough shelter spaces for everyone who's unhoused.

KCLC lawyer William Florence argued that approach is both common sense and binding.

"The city wants to ignore the legal principles the Waterloo case carefully sets out, relitigate this and make the law take two steps back," he said.

Court previously heard an estimated 480 homeless or precariously housed people are currently in Kingston, compared to 166 shelter beds.

City argues encampment wants property rights

Florence also took aim at a possible solution, raised in case law, that would allow people to camp overnight but force them to move out again every morning.

He called that approach "absurd," detailing the hardship and impracticality of packing up all of one's belongings every day.

The city's legal team, which spent much of Monday discussing "dangers" associated with the encampment, argued what Florence's side asking for is essentially property rights for those living in the park.

Lawyer William McDowell, who's representing the city, described that as "problematic."

He maintains the city only intends to clear Belle Park and has enough shelter space for the 35 people there.

The KCLC lawyers were joined by Mercedes Perez acting as amicus curiae — a friend of the court — appointed to represent the remaining, unnamed encampment residents.

She and Superior Court Justice Ian Carter debated whether past court decisions, including the one from Waterloo, veered into judges making city policy by determining camping is prohibited, except for certain homeless people.

"It's the court's determination of what is unconstitutional, which is the court's job," said Perez. "Sure, in a way, there's a little policy decision, but it's been narrowed."

Carter later reiterated that it's his job to determine if the Kingston's bylaw is unconstitutional, not create its rules. 

"It's not my role here to come up with the social policy solutions to this very difficult problem," he explained.

'We are all trying to survive'

The judge and lawyers involved in the case are set to gather later this week to discuss a temporary injunction against fires at the site, while they await Carter's decision.

The encampment's lawyers noted the importance of allowing a way for people to stay warm as temperatures drop.

That echoed what Sero said he told the legal team ahead of the hearing.

"We are all trying to survive," he said when asked by CBC what message he'd shared with his lawyers. "That's the biggest thing, is survival at this point."

Sero and others in the encampment say the site offers community along with crucial services, including a place for people who use substances to access the city's only supervised injection site at the Integrated Care Hub next door.

Banding together to take part in the court process was an extension of that sense of belonging and a way to have their voices heard, he explained.

"Whether it has anything to do with the fact that we get to stay, or we don't get to stay, it's the fact that we got to say it and somebody actually took the time to listen," Sero said.

"Now we need our different levels of government to work on … the housing situation."