City of Hamilton wins encampment case as judge rules it can enforce tent ban in parks

An Ontario Superior Court judge has ruled the City of Hamilton did not infringe on encampment residents' Charter rights when enforcing its bylaw that banned tents from parks.

Justice James Ramsey sided with the city Monday in a scathing rebuke of encampments, following a three-day hearing last week.

He wrote in his 15-page decision that the city is trying to find a solution to homelessness with limited resources, not showing "a disregard" for Charter rights, and should be left to do so without "micro-management by judges." 

"The public is generally sympathetic to the homeless, but it tires of seeing its public spaces appropriated by lawless, unsanitary encampments," he wrote. "There has to be a balance, and the democratic process is best equipped to achieve that balance."

Fourteen applicants, who've all experienced homelessness, were seeking a total of $445,000 from the city for evicting them from parks between August 2021 and 2023.

Their lawyers, on behalf of the Hamilton Community Legal Clinic, argued the city's encampment ban (in place until last summer) violated their right to life, liberty and security, and was discriminatory as women, people with disabilities and Indigenous people were disproportionately impacted. 

'Lawless, dangerous and unsanitary'

The city denied any Charter breaches and argued shutting encampments down is necessary to protect parks, property, economic and social wellbeing, and community health and safety. 

Its lawyers said the ban didn't directly harm any people experiencing homelessness. 

While Ramsey acknowledged the court offers protection to society's most vulnerable that doesn't necessarily mean only people who are unhoused.

"I observe that the most vulnerable includes not only the homeless but also the elderly person and the child who want to use a sidewalk or a city park without tiptoeing through used needles and human faeces," he said.

A major argument made successfully by the city was that it didn't evict encampment residents at night — only during the day, Ramsey said. It therefore didn't stop people from creating shelter — in the form of tents — when indoor shelters were full. 

He noted most indoor shelters also require people to move out every morning. 

Ramsey also accepted evidence from medical experts that there are health risks associated with encampments to both residents and the public. 

Lawyers with the legal clinic told the court last week encampments residents 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.

In his decision, Ramsey said enforcement of the bylaw isn't what's putting their life, liberty and security at risk, however.

"They are put at risk by homelessness. Encampments contribute to this risk. They are lawless, dangerous and unsanitary."