ANALYSIS: Green Light for Homeless Camps in Hamilton’s Parks Signals Where Canada May Be Headed

A woman struggles to keep her tent upright at the encampment in Victoria Park in Halifax during post-tropical storm Lee on Sept. 16, 2023. (Kelly Clark/The Canadian Press)

The number of homeless encampments nationwide is growing, and so is the case law saying cities can't remove them.

A landmark court decision in 2009 in British Columbia first established that, in some cases, removing encampments violates the charter right to “life, liberty, and security.” In January 2023, the first Ontario court decision to this effect was handed down in Waterloo.

The B.C. decision said a city must have enough shelter spots available to house those displaced when encampments are removed.

Decisions since then, including the Waterloo decision, have taken further steps to say cities must have certain types of shelter available. For example, the city might have to accommodate couples, allow people to come and go without curfew, and permit drug use onsite. In addition, there must be a sufficient supply of "low-barrier" and "accessible" shelter beds, and these are some of the factors considered by the courts in determining availability.

Encampment residents and their advocates are mounting legal challenges in increasing numbers against cities looking to dismantle encampments. The Coalition for Justice and Human Rights announced such a lawsuit against the City of Edmonton on Aug. 31, reported the Edmonton Journal.

Hamilton, Ontario, is also facing an ongoing charter-based legal challenge for removing encampments in the past, and the city has taken the unusual approach of formally allowing encampments in city parks.

Hamilton’s Decision

Hamilton’s city council voted 10–6 on Aug. 18 to allow encampments, or clusters of shelters. Encampments must, however, be limited to five tents each and be at least 50 metres apart from one another. Additionally, they must be at least 50–100 metres away from schools, daycares, playgrounds, and the like and be located at least 10 metres away from private property.

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City council reported vehement community opposition to this decision at three public comment sessions that drew 2,000 attendees and on its Engage Hamilton website that saw nearly 16,000 individual comments. But council also noted a lack of other shelter options in the city and legal issues around dismantling encampments.

City Councillor Esther Pauls voted against allowing the encampments. “It’s a lose-lose situation,” she told The Epoch Times by email.

People who live near the parks and use them for recreation are exposed to drug use, violence, and criminality, she said. And people who live in the encampments are themselves often victims of crime and violence.

Homeless people from all around are likely to flock to Hamilton, Ms. Pauls said.

It’s the only city in Ontario to formally allow park encampments, lawyer Sima Atri told The Epoch Times.

It may be the only city nationwide. The Epoch Times was unable to find mention of any other such city in government, legal, or other materials on the subject. Some cities, such as Abbotsford, B.C., allow tents in parks overnight but not during the day.

Although Hamilton’s decision appears singular thus far, at least one other city council has mulled a similar option recently. Halifax’s city council voted down a proposal on Sept. 12 to turn the city's Halifax Common park into a tent site for the homeless.

“Even before the amended protocol was passed, I was aware that homeless encampments in Hamilton have attracted homeless from other communities in the Golden Horseshoe, Greater Toronto Area (GTA), and Niagara Region,” Ms. Pauls said.

“My fear now is with a homeless encampment protocol, the homeless population in Hamilton will grow, and such a skewed number will provide a disproportionate pressure on the City to care for homeless individuals beyond our city boundaries.”

She echoed the call that has rung out from city officials across the country on the issue, who all say the provincial and federal governments need to provide funds to address homelessness.

At a June 27 press conference, Ontario Premier Doug Ford answered a reporter's question about Hamilton's encampment policy, which had not yet been approved at the time.

"We’ve given Hamilton over $27 million for shelters," he said. “You have to look at the communities around there, the families and kids who go to these parks. You can’t have encampments there—you just can’t. You don’t see them, obviously, in the winter. So they’re living somewhere,” he said.

Ms. Pauls also said she doesn't see the encampments in the winter, assuming the residents may have access to shelter elsewhere.

Charter Protections

Court decisions have said cities wanting to dismantle encampments must have shelter available for those displaced. Otherwise, it violates their right to liberty as outlined in Section 7 of the charter.

It interferes with the "fundamentally important personal decision to shelter oneself in circumstances where there is no practical shelter alternative,” the Canadian Bar Association (CBA) explains, citing a 2015 B.C. Supreme Court decision.

As with all charter rights, it must be balanced against the rights of others, and this is where the case-by-case applications come in.

Despite the 2009 landmark Victoria v. Adams case in B.C., encampments are still often dismantled in the province for safety reasons, especially when imminent danger is apparent, such as fire hazard.

Legal cases in Vancouver and Prince George in subsequent years have established the case law Justice Michael Valente relied upon in his Waterloo judgment this year, TVO reported.

Those cases established that alternative shelter must be "low-barrier" and "accessible." It's not just about having 500 spots for 500 displaced people, for example.

The 2009 case has stronger force as a precedent, TVO noted, because it was upheld by an appeal court, whereas the Waterloo decision was made by a lower court.

What defines "low-barrier" and "accessible" will likely continue to be determined in the courts, along with municipalities' power to remove encampments.

"Homeless encampments lack wrap-around supports and services to assist homeless individuals, such as mental health professionals," Ms. Pauls said.

"I continue to be opposed to homeless encampments in public parks," she said, calling them part of "ineffective patchwork solutions to a very serious problem."