City wins court battle over Hamilton encampments
A judge has dismissed a court challenge that aimed to prevent the city from forcing people out of encampments in Hamilton parks.
No reasonable person in Canada would disagree with the proposition that homelessness, wherever and however it occurs, is a tragedy in Canada," Justice Andrew Goodman wrote in his 75-page ruling issued Tuesday.
But the narrow issue" at hand is whether the city's enforcement of its parks bylaw should be limited through a court order, Goodman added.
It is not a wide-sweeping review of the underlying issue of whether more should be done to help the homeless."
The Hamilton Community Legal Clinic mounted the human rights-based case two weeks ago on behalf of five people experiencing homelessness during the COVID-19 pandemic.
The Superior Court case pitted the testimony of doctors and outreach workers who care for people who live in encampments against evidence presented by city staff and shelter operators.
It also echoed a political battle with some city councillors regularly airing complaints from constituents over concerns with tents in parks, ranging from discarded needles to crime, fires and human feces.
But doctors, street outreach workers and legal clinic lawyers have contended dispersing people from encampments makes it more difficult to offer medical care and other crucial services amid a chronic shortage of shelter spaces and suitable housing.
In his ruling, Goodman wrote the case posed important, complex, and challenging social, economic and policy questions" that affect homeless and marginalized people.
There are no easy solutions," he added. These issues ought to be left to elected officials, health care and other professionals, social agencies and experts who are best equipped to address the welfare and needs of the homeless."
The legal clinic's case didn't establish that the five claimants will suffer irreparable harm" if an injunction restraining the city's bylaw enforcement isn't granted, Goodman stated.
Moreover, the city has taken and continues to undertake reasonable steps" to provide safe shelter spaces and accommodation.
Even at this stage of the pandemic," Goodman also wrote, the public interest in making parks available to everyone, outweighs the interests" of a sweeping order preventing" enforcement of the bylaw.
Most of the five homeless claimants have been offered - and in some cases, have accepted - options for shelter, he noted.
I appreciate that some people experiencing homelessness continue to distrust or fear the shelters. I do not pretend to fully understand the plight of the homeless."
But encampments are not places where the homeless should be residing," Goodman stated, noting a higher prevalence" of medical issues, including death, arise from sleeping outdoors than in shelters.
Homelessness, not shelters, leads to negative outcomes."
The court case wraps up with winter approaching, and as clusters of tents dot parks and green spaces - mostly in the downtown area.
The legal clinic launched its challenge after city council voted in a hastily-called emergency session Aug. 9 to scrap a protocol with partners that made provisions for the mental health and addiction issues of people staying in tents and allowed clusters of five tents to remain for 14-day stretches.
Coun. Jason Farr, the most vocal city politician on the issue, argued the protocol wasn't working and complained about a growing number of tents in his downtown ward.
Sharon Crowe, a lawyer with the clinic handling the case, told The Spectator encampment clearings of great concern" in September also sparked the court challenge.A similar case in the summer of 2020 resulted in an enforcement injunction and led to the protocol, which had been in place since last fall.
The city has moved to a six-step process that designates bylaw officers as the first point of contact" after complaints, instead of housing outreach workers. But that process still calls for efforts to arrange for housing or shelter.
More to come ...
Teviah Moro is a Hamilton-based reporter at The Spectator. Reach him via email: tmoro@thespec.com