Heegsma v. Hamilton (City), 2024 ONSC 7154 (CanLII)

Ramsay J. – #

The applicants are 14 homeless individuals who apply for a declaration that the City of Hamilton’s enforcement of its Parks by-law during the period from August 2021 to August 2023 breached their right under the Charter to life, liberty and security of the person (s.7) and to equal benefit of the law (s.15). They seek damages from the City.

The applicants say that they were evicted from encampments during the period from August 2021 to August 2023 in breach of the Charter, and that they suffered harm as a result.

The record consists of some 10,000 pages. These reasons do not reflect the massive amount of work that was done by both sets of lawyers. Their work has allowed me to deal with the issues in what I hope is a complete but concise manner.

I was reminded by counsel for the applicants that while the legislature represents the will of the people, the court holds the moral compass that is often the only protection for the most vulnerable. 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.

The by-laws and their enforcement

By-Law 01-219 provides:

3 No person shall enter into or be in any park between the hours of eleven in the afternoon (11:00 p.m.) and six o’clock in the forenoon (6:00 a.m.), except where after hours use of a park has been approved by the City.

12 Unless authorized by the Director or by permit, no person shall encroach upon or take possession of any park, by any means whatsoever, including the construction, installation or maintenance of any fence or structure, the dumping or storage of any materials, or planting, cultivating, grooming or landscaping, thereon.

17 Unless authorized by permit, no person shall dwell, camp or lodge in any park.

18 Unless authorized by permit, no person shall place, install or erect any temporary or permanent tent or structure in any park.

By-Law 97-162 provides:

12.1 For the purposes of this subsection:

“cease” means to stop or bring to an end.

“congregate” means to gather into a group of more than one person.

“obstruct” means to interfere with or make difficult of passage.

“officer” means a sworn member of the Hamilton-Wentworth Regional Police Service or municipal by-law enforcement officer appointed by the City of Hamilton.

12.2 No person shall congregate and sit or stand so as to obstruct the free passage of either pedestrian or vehicular traffic on any streets or sidewalks regulated by this By-law.

12.3 Any person who obstructs pedestrian or vehicular traffic on a sidewalk or street shall, when directed to do so by an officer, cease such obstruction.

[…]

12.5 Sworn members of the Hamilton-Wentworth Regional Police Service and municipal by-law enforcement officers of the City of Hamilton are authorized to enforce the provisions of this by-law.

Hamilton is a single tier municipality. It is not disputed that it had the authority under the Municipal Act, 2001, S.O. 2001 c. 25, to enact the by-laws in question. The by-laws were enforced in accordance with protocols in operation during three time periods.

From October 2020 to August 2021 (“the old protocol”) encampments were permitted in public parks as long as they were not on sidewalks or playgrounds. Upon receipt of a complaint the Outreach Team would speak with encampment residents and assess their needs, using a decision assistance tool which is, I take it, a form of questionnaire. The residents were given an “acuity score.” If they had a low score they would be given 14 days to leave, and they would be offered housing supports. If they had a high score they would not be given a deadline.

From August 2021 to August 2023 (“the encampment process”) the policy was again complaint driven. The Outreach Team would visit, offer supports and seek voluntary compliance. If there was no compliance a trespass notice would be served. The process called for police to execute the notice, but it is not clear that in fact they did. No one was asked to leave at night. City staff would clean up the park if the occupants had left. I find that they did not clean up a park when a resident was present. They did not dispose of property that had not been abandoned. I reject the evidence to the contrary.

Since 2023 (“the new protocol”) the policy has been that temporary shelters may be erected indefinitely in parks as long as they are not within a certain distance of sensitive areas, such as schools. There is an enforcement process involving multiple steps.

The position of the applicants is that the enforcement of the by-law during the encampment process period breached their rights because of two circumstances:

(a) They were kept from staying overnight when their were insufficient accessible shelter beds to accommodate them; and

(b) They were kept from staying during the daytime, that is, they were forced to pack up and move, potentially every morning.

Again, I find that they were not prevented from staying overnight.

If they had been, the City might have been in breach of s.7 of the Charter according to British Columbia jurisprudence (Victoria (City) v. Adams 2009 BCCA 563) which has been adopted by this court in Waterloo (Regional Municipality) v. Persons Unknown 2023 ONSC 670 and Kingston (City) v. Doe 2023 ONSC 6662. I say “might have been” because Adams dealt with the case where the by-law allowed the public to stay in parks overnight as long as they did not erect a shelter. The Hamilton by-law prohibits being in a park overnight.

To apply the protection of s.7 of the Charter to eviction during the daytime, I am asked to advance the jurisprudence to the next step. These reasons explain why I decline to do. It is implicit in my reasons that I disagree with the Adams and Waterloo cases, but it is not necessary to my decision to decline to follow them.

[…]

The shelter system and the enforcement of the by-law

Under any of the three policies people were never evicted as night approached, as the applicants largely confirm in their depositions. Where they state the contrary, I do not believe them. When they were evicted, they could take their chattels with them, or the City offered to store them, although not permanently. Mario Muscato and Linsley Greaves confirm this.

The City has spent millions of dollars on various programmes to help the homeless and on security to protect the homeless. The City’s shelter system is sometimes, but not always full to capacity. But there are overflow facilities available. The shelters do not allow animals, except service animals, because of concerns about allergies and aggressive dogs. The City’s budget for homelessness was $61.5 million for fiscal 2022. It has risen since. The City has installed washroom and shower facilities in some parks.

Indigenous persons are over-represented among the homeless. Women are not over-represented, but there are fewer shelter spaces for them, sometimes in smaller proportion than their share of the population. There are as well a significant number of Indigenous women who are homeless.

In September and October 2021 the occupancy rates of the City’s shelters were as follows:

In addition to the City shelters there are domestic violence shelters, the YMCA, the YWCA and the Hamilton Regional Indian Centre, but I do not have statistics as to capacity and demand.

It is impossible to be certain, and the numbers change from time to time, but it seems from the City’s records that there may be up to 2,000 homeless persons in Hamilton on a given night. The total number of City-run shelter beds could have been 950-odd. The City has identified 506 persons as having stayed in encampments from 2020 to 2021, perhaps 200 at a time. Between May and August 2023 there were from 117 to 165 persons in encampments at a time. As of June 2024 there were 271 people staying in encampments. Records between 2021 and May 2023 were lost to a cyber attack. I infer that there are homeless persons who stay elsewhere than shelters and encampments. They could be sleeping rough, staying in shelters outside the City system, couch surfing or staying short-term with family.

[…]

Section 7 of the Charter

In Adams, the court held that when people are not prohibited from sleeping in a public park, a by-law that prohibits the erection of an overnight shelter in the form of tents, tarps and cardboard boxes is overbroad and therefore in contravention of section 7 of the Charter. The issue of a right to set up a semi-permanent camp, as opposed to a temporary shelter taken down each morning, was not before the court in Adams: paragraph 99.

In the Waterloo case, Valente J. considered Adams and the British Columbia cases that followed it in connection with an encampment on a gravel parking lot. He found that there were insufficient shelter spaces in Waterloo and that it followed that the by-law, which prohibited erecting shelter, infringed the right to life and security of the person given by section 7 of the Charter and this “notwithstanding the tremendous and praiseworthy efforts the Region has made and is continuing to make to address the plague of homelessness.” He concluded that the law had developed to the point that the Region could not prevent an overnight temporary structure unless

(a) there was enough shelter space; and

(b) the shelter space was truly accessible in that it met the needs of the homeless population.

I have found that the City did not prevent anyone from staying overnight. I am asked to extend the right to stay in encampments to public parks in the daytime, that is, not to have to tear down and move every day. This extension is said to be conditional on the lack of accessible shelter space that was stipulated as a condition in the Waterloo case.

I find it impossible to extend this conditional “right”. First, I do not see the connection between the right and the conditions.

Some barriers to accessibility in shelters suggested to me in the evidence are:

(a) They do not allow animals;

(b) They do allow animals;

(d) They only allow couples;

(e) They do not permit substance use;

(f) They are not effective in preventing substance use;

(g) They do not accommodate persons whose mental health issues make it difficult to get along with people.

(h) They do accommodate such persons.

A combination of different shelters would be needed to eliminate these “barriers.” They would have to have private showers and storage space for belongings. This condition is impossible.

The condition set by the Waterloo case is also arbitrary: Some people will not stay in a shelter whether it is available or not. Also, there are many homeless persons who do not use either shelters or encampments, and there is no reason to think that they are all sleeping rough.

The applicants insist that it is only City-run shelters that are relevant to the equation. That is even more arbitrary.

Moreover, shelters also require occupants to move every day, one of the main reasons for preferring indefinite encampments. There is no logical connection between availability of shelter space and harm caused by eviction from encampments. The presence of adequate shelter space is a red herring.

Second, the life, liberty and security of the applicants are not put at risk by enforcement of the by-law. They are put at risk by homelessness. Encampments contribute to this risk. They are lawless, dangerous and unsanitary.

In all this we must not lose sight of the countervailing interest of preserving public parks. It was an important enough public interest that in the Toronto encampment injunction case Schabas J. found that it decided the balance of convenience in favour of the city notwithstanding the risk of irreparable harm: Black v. Toronto (City) 2020 ONSC 6398.

Finally, extending the freedom from enforcement to daytime or indefinite encampment would amount to expropriating property, or at least severely limiting property rights. City officials have noticed that since the implementation of the new protocol some occupants have become more territorial, or possessive of “their” camps. Extension of freedom from enforcement would have the effect of depriving the City of the use and enjoyment of its property.

For these reasons, I do not extend the prohibition on enforcement to daytime or indefinite camping.