Hamilton encampment residents seek $445K from city over tent ban they say violated Charter rights

A group of Hamilton residents who've lived in encampments are taking the city to court over its ban of tents in parks, arguing their Charter rights were violated. 

The hearing began Monday in the Ontario Superior Court of Justice and will last three days. The 14 applicants seek a total of $445,000 from the city for the encampment ban that was in place between August 2021 and 2023. 

Their lawyers from the Hamilton Community Legal Clinic argued repeated evictions from parks violated their right to life, liberty and security, and was discriminatory as women, people with disabilities and Indigenous people were disproportionately impacted. 

Justice James Ramsey will decide the case in the weeks after the hearing. 

"The applicants don't live in encampments by choice," lawyer Wade Poziomka told the court.

"They want stable, secure and affordable housing … unfortunately there's a dramatic shortage. In the absence of housing options, the applicants have had to make hard choices in imperfect circumstances."

The city's ban resulted in encampment residents being evicted from their tents by bylaw or police officers day or night, the applicants argue. If they weren't allowed in shelters, or all beds were full, they'd have no choice but to sleep outside — exposed to the elements. 

They faced increased risks of hypothermia, dehydration and sexual and physical assault, and lost access to privacy, medical care and essential items they'd otherwise have if they were allowed to pitch tents, their lawyers told the court. 

The city's ban on encampments in public spaces ended last summer when council passed a protocol, or set of rules, allowing tents in some areas if they were a certain distance away from playgrounds, schools and private property, among other stipulations. 

The city denies any Charter breaches between 2021 and 2023 and will argue the case should be dismissed, according to the factum it filed with court. 

Tents were banned to protect the city's parks and public spaces, and economic and social wellbeing and the health and safety of the community, the court documents said.

The city denies it forces people to leave encampments at night, or that the ban directly harmed any people experiencing homelessness. 

Its lawyers will also argue this week that the city has spent "vast amounts of money" to support the needs of people who are unhoused, reduce harms they face and obtain housing, the factum said. 

Histories of trauma underpin case

The 14 applicants all experienced homelessness, attempted to live in encampments during the ban and rely on social assistance, their court documents said. Nine applicants are women, one of whom is transgender, and five are men. Over half of the applicants are Indigenous and two are Black — representing two communities disproportionately impacted by homelessness.

Their names are Kristen Heegsma, Darrin Marchand, Gord Smyth, Mario Muscato, Shawn Arnold, Cassandra Jordan, Julia Lauzon, Ammy Lewis, Ashley MacDonald, Corey Monahan, Misty Marshall, Sherri Ogden, Jammy Pierre and Linsley Greaves. 

Most applicants struggle with complex mental health issues, substance use, trauma and domestic violence, as well as a range of disabilities, said the documents. Only some have found permanent housing since their application was first filed in court in 2021.

Here are three applicants who demonstrate the range of experiences and challenges finding shelter in Hamilton: 

Witnessed violent shelter attack

Marchand, 58, became homeless after his landlord threatened him with eviction and he felt he had no choice but to leave his apartment in 2017.  

Staying in shelters became increasingly difficult for him after he witnessed one shelter resident attack another with a hatchet at the Salvation Army in 2020. 

"He was so traumatized that he was admitted to a crisis centre," lawyer Sharon Crowe told the court Monday. 

Afterwards, Marchand was banned from several shelters and stayed in encampments off and on. He was evicted by police or bylaw officers several times.

He had to sleep "rough" outside and, on one occasion, in December 2021, was shot in the shoulder, said Crowe. 

"When Darrin cannot stay in an encampment and cannot access shelter, he wanders around all day," Crowe said. 

"He thinks about his predicament and becomes depressed. He feels isolated … leading him to escalate his substance use." 

He remains homeless and told CBC Hamilton he is currently staying at a men's shelter.

Sexually assaulted outside city hall

Heegsma is a 31-year-old Indigenous woman, who is the lead applicant in the case. She became homeless in 2019 after fleeing an abusive relationship. 

In her experience, women's shelters are almost always full and, without a phone, she has to walk from place to place trying to find a bed for the night, Crowe said. 

She was also banned from a hotel program for missing curfew and behaviours linked to her mental health and substance use disorders, said Crowe. 

In 2021, she was living in an encampment when a bylaw officer told her to leave. 

In the following three weeks, while unsheltered, she was assaulted seven times, robbed three times, and sexually assaulted when sleeping on a park bench outside of city hall, said Crowe.

In an attempt to stay safe, Heegsma walked around all night, not sleeping. 

"When unable to use a tent, she experiences: a lack of privacy for even basic needs such as getting changed and being out of the public gaze," Crowe said.

She is also exposed to the elements and feels an increased sense of despair, which leads to increased substance use and deterioration of her mental health. 

Exposure to elements leads to amputation 

Greaves, 54, is a Black man who has used a wheelchair since his left leg was amputated below the knee in 2022, said Crowe. 

He has experienced homelessness for over 10 years and lived in a tent at Woodlands Park for almost two years before bylaw officers gave him three days to leave in 2021. 

When he didn't, "the city showed up with trucks and bulldozers and surrounded Linsley," Crowe said.

He ended up losing many of his belongings in the process, and faced evictions from other encampments afterwards, she said. He'd sleep on a heating vent behind a courthouse along with about a dozen other people before the vent was fenced off.

He's avoided shelters because he "feels his past street life 'comes back to haunt him,'" and experiences racism, said Crowe. 

"He gets targeted with theft, property damage and people trying to start fights," she said. 

He had to get a big toe amputated due to frostbite, said Crowe. 

Then, leading up to mid-December 2022, he injured his left leg, which worsened when he was unable to stay dry, Crowe said. It eventually had to be amputated. 

"The loss of his leg has been devastating," said Crowe. "He feels ashamed and his mental health has been negatively impacted."