Residents’ complaints about encampments overblown, legal clinic argues in court challenge

Each side of the debate over tent encampments in city parks offered differing views in court on Thursday about the impacts those choosing to sleep rough are having on themselves and on the wider community.

A human rights-based court challenge, launched by five applicants represented by the Hamilton Community Legal Clinic, is asking for a permanent injunction to prevent the city from taking down tent encampments. The city, meanwhile, wants to be able to enforce its bylaw banning encampments.

It's ability to do so is on pause while legal proceedings unfold.

In a Superior Court of Justice courtroom, the city's lawyer, Michael Bordin from Gowlings WLG, argued encampments need to go for the following reasons: shelters are safer than encampments; residents are complaining about feces, needles, rodents and debris in parks; pets wouldn't be allowed in a space like a hospital so it makes sense they wouldn't be allowed in a shelter; fires have broken out at encampments; and when it orders encampments be removed, it gives those living in them ample time to move.

The Hamilton Community Legal Clinic, which is representing five applicants, refuted each of the city's points.

The clinic's lawyers, Sharon Crowe and Stephanie Cox, argued: there is not enough space in shelters for people living in encampments; some people are unable to function" in shelters; homeowners' complaints about trash and violence are overblown or rooted in NIMBYism" (not in my backyard); fires have not damaged private property; encampment residents feel safer at encampments versus shelters; and people who are trying to stay sober don't want to stay in a shelter environment where they might be re-exposed to drugs. And someone with a home who is separated from a pet while in hospital is different from someone who is homeless being separated from their pet.

Forcing people to leave encampments causes them irreparable harm," the lawyers argued.

Following a similar court challenge in 2020, a protocol was established that allowed for encampments to remain for 14-day stretches. (The city abruptly scrapped that in August, hence the new court challenge.)

Encampments have put homelessness on full display, the clinic lawyers argued.

It is understandable that people less exposed to these social ills find it uncomfortable," said Cox.

At one point, Justice Andrew Goodman noted he has trepidation" about telling an elected body - city council - to amend laws. The Superior Court does not makes laws," he said.

What we are asking for is prohibition of the enforcement of this bylaw in an area considered to be a park," Crowe said.

Days earlier, during a Tuesday city planning committee meeting, residents spoke out about their opposition to encampments.

One resident said homeowners feel threatened, intimidated and unheard when they try to speak out about encampment concerns.

Another resident said he understands exceptions needed to be made during the height of the pandemic, but enforcement needs to be brought back.

There is a fear factor" that residents are dealing with, worried about running into encampment residents when walking to work alone early in the morning.

Goodman said he will make a ruling as soon as possible. No estimate date was given. The ban on evicting encampment residents remains in place at least until he makes his ruling.

Katrina Clarke is a Hamilton-based reporter at The Spectator. Reach her via email: katrinaclarke@thespec.com