Court case against Hamilton encampment policy moving ahead

The legal team representing 19 housing-deprived Hamiltonians, who are taking on the city’s approach to encampments, contends it is “inevitable” that their human rights-based court challenge will succeed.

Hamilton, by the accounting of the city at this writing, has three times as many unhoused people as it has shelter spaces — 1,545 to 515 shelter spaces. The protracted lack of spaces to live, and a city policy decision to resume preventing people from erecting shelters on municipal property, is being contested by a case arguing that the city is violating the Canadian Charter of Rights and Freedoms.

Waterloo Region was recently blocked by a judge from evicting residents from a vacant lot.

The 19 people — 17 of whom are unhoused according to a court document — filed a Charter claim against the City of Hamilton in November. They are represented by the Hamilton Community Legal Clinic (HCLC), as well as law firms Haki Chambers Global, and Ross & McBride. Ahead of a case management conference between both sides and a judge last week, the legal representatives shared they believe they will win a similar ruling if the case goes to court.

“The argument is a simple one: preventing houseless residents from erecting tents for shelter and protection where there are insufficient, accessible alternatives, violates the Charter of Rights and Freedoms,” a post from HCLC at hamiltonjustice.ca reads.

“The (Ontario Superior) Court accepted this argument in a recent decision out of the Region of Waterloo,” HCLC adds. “We believe it is inevitable a court will rule the same way in Hamilton.”

The City of Hamilton Housing and homelessness dashboard does not list how many people are living outside. Reports at city council meetings put that number in the 40 to 45 range.

From mid-2020 until fall 2021, a temporary court injunction barred the city from carrying out encampment evictions. The city successfully challenged it and resumed enforcement. There was also a concern that permitting tents would foster a de facto “secondary shelter system” that would set back city efforts to help people find permanent housing.

The city dashboard indicates 345 people — a group 22 per cent the size of the documented housing-deprived people — have been housed through a city-funded program during the last 12 months where data has been tracked.

On a month-by-month basis, that ranged from 18 to 60 people being connected with housing. But the city also tracks how many people have been housing-deprived for six months or more, and that group was never smaller than 409 people at the start of any month last year.

The elected leadership of Hamilton recently directed housing services staff to develop a new encampment protocol before April 30. They were to work with advocates and housing providers.

Councillor won’t request removals

Coincidentally, on the same day the Hamilton group and the city’s legal council met with the judge handling the case, Federal Housing Advocate Marie-Josée Houle announced a formal review of encampments.

“Although courts and human rights bodies are increasingly recognizing unsheltered homelessness as a human rights issue, people living in encampments are in some of the most vulnerable circumstances in our society,” Houle said in a statement posted to housingchrc.ca. “Their dignity and rights are frequently ignored. They face harassment and violence from police, bylaw officers, and the public. Most do not have access to basic services like clean water or heat. Some have suffered harm or have died as a result of exposure, fire, overdose, and other threats to life and safety.

“As a result, the Advocate is very concerned that some governments are not taking the necessary steps to protect people experiencing homelessness, particularly during severe weather. Dismantling encampments during the winter puts people’s health and their lives at stake. This is a serious violation of human rights.”

Ward 2 Coun. Cameron Kroetsch, who put forward the motion that calls for Hamilton to develop a new encampment removal, also averred that his ward office will not pass on requests for an encampment to be removed.

“There have been requests for the Ward 2 Team to ‘tell police and bylaw’ to remove an encampment from an area,” Kroetsch wrote at ward2hamilton.substack.com on Monday (Feb. 27). We will not make requests to police or staff to remove an encampment, and we hope the reasons for that are clear.

“I have been consistent and clear about my position on encampments both before and after I was elected. That position has not changed.

“I know not everyone will agree and I understand the frustration. It’s not possible for there to be alignment on every issue with every resident. We’re going to see things differently, at times, and I hope we can continue to disagree respectfully.”

Building social or supportive housing accounted for as much as 30 per cent of new builds in Canada around a half-century ago. It now accounts for about 3 per cent.

Kroetsch noted that all three levels of government “abandoning” that responsibility has helped lead to shortages and housing deprivation.

“It is going to take a long time to get back on track and for residents to start seeing significant impacts,” Kroetsch added in his newsletter. “That means a lengthy transitional period as the City starts to reprioritize housing and the services and supports that go along with it, during this term of Council. That transition will impact our houseless neighbours, more than many others, and it will remain our collective responsibility to look out for those who are in most need of our help in the meantime.”

In the private rental market, a paywalled report in the Toronto Globe & Mail on Monday also noted eviction applications by property owners across Ontario have soared in the last year or so.

Remedies suggested

The HCLC, meantime, has stated that it has suggested that the City of Hamilton allow tents within some parameters

• In a park (within the meaning of the Parks By-Law);
• at least 50 metres away from a playground, school or daycare centre; in groupings of no more than six tents; and
• at least 200 metres away from any grouping of no more than six tents.

The HCLC added it will soon provide another update about the next steps in the Charter claim and how legal counsel for the city challenges evidence brought forth to support it.