Judge denies Kingston's application to clear encampment

An Ontario Superior Court judge has denied an application from the City of Kingston for an order to clear the encampment at Belle Park.

Justice Ian Carter found the city's ban on overnight sheltering was unconstitutional and, in his decision, added an exception to its bylaw allowing people who are homeless to temporarily put up shelters in parks.

He also ruled the city may apply for a new injunction.

John Done, a lawyer with the Kingston Community Legal Clinic, helped represent 14 named encampment residents and said they've had "few comforts" since the city first sought the injunction in June.

"I suspect that they'll take some comfort from this decision that they can continue to sleep in the home and the structures that they've put up," he said.

"But they must remain anxious, because the door is open for the city to commence further litigation."

City considers next steps

In a statement issued after the ruling, the City of Kingston said it's reviewing the decision and considering next steps, "including how to enforce the bylaw's ban on daytime sheltering in a way that is fair and respects the dignity and well-being of the people residing at the Belle Park encampment."

The city added it is "committed to finding safe, supportive housing for people experiencing homelessness."

Arguments for and against the eviction were made during a two-day hearing in October.

Lawyers for the city said the site was home to "unique dangers." It also stated encampment residents' claims they had a right to be close to the city's only supervised injection site amounted to them asserting property rights over the park.

Court heard that approximately 35 people lived at the site in about 27 shelters ranging from tents to tree houses.

Done said his clinic represents a fraction of an estimated 480 homeless or precariously housed people currently in Kingston, far more than the 166 shelter beds available in the city.

The question of shelter capacity has taken on new prominence following a Superior Court decision that blocked the Region of Waterloo from carrying out a similar eviction in January.

In that region, a judge ruled officials could not remove people living on the site until it has enough space for everyone who's unhoused.

That finding was raised during the Kingston case, but in his decision Carter said he wasn't bound by the other judge's decision.

Carter went on to write that the scope of the order, which the city sought, went well beyond what was needed under the bylaw, pointing out encampment residents "are entitled to be in the park" as members of the public.

He concluded section 11 of Kingston's bylaw, which bars "camping and the use of camping equipment" was unconstitutional.

To remedy that issue, Carter created an exception that clarified the prohibition on camping doesn't apply to those who are homeless erecting temporary shelters in parks — starting one hour before sunset and ending one hour after sunrise.

The judge also borrowed language from another case, Bedford v. Canada, saying the law loses "sight of its purpose"  when it "prevents the homeless from avoiding a serious risk of injury or death by erecting shelter overnight when there is nowhere else to go."

Lawyer calls case 'war against the poor'

Done said the city can choose to continue trying to evict these people who have nowhere to stay, or it can follow the approach of places such as London, Ont., which he said has tried to reduce the suffering of people who are homeless.

"There's no place to go. The evidence was unequivocal," he said.

The lawyer added the city has already spent considerable money litigating against the encampment residents.

"If it decides to continue its war against the poor, it has to decide how it's going to justify to the taxpayers that it rolled the dice and spent even more money as opposed to taking the high road," he said.