Hamilton, Ontario has voted to allow homeless encampments in parks, despite ongoing legal battles regarding the dismantling of these encampments. The number of homeless encampments across the country is increasing, and court decisions have established that cities cannot remove them in some cases. This was first established in a landmark court decision in British Columbia in 2009, which stated that removing encampments violates the charter right to “life, liberty, and security.” In January 2023, a similar Ontario court decision was made in Waterloo, further reinforcing the need for alternative shelter options when encampments are removed.
These court decisions have set certain criteria for cities to meet in terms of shelter availability. For example, cities may have to provide shelter for couples, allow people to come and go without curfew, and permit drug use onsite. “Low-barrier” and “accessible” shelter beds must also be available. Encampment residents and their advocates are increasingly taking legal action against cities attempting to dismantle encampments. The Coalition for Justice and Human Rights announced a lawsuit against the City of Edmonton on Aug. 31.
Hamilton itself is facing a charter-based legal challenge for previous encampment removals. In response, the city council made the decision to officially allow encampments in city parks. However, there are restrictions on these encampments, such as limiting them to five tents each and ensuring they are at least 50 meters apart. They must also be located a certain distance away from schools, daycares, playgrounds, and private property.
The decision to allow encampments has faced significant community opposition, with approximately 2,000 people attending public comment sessions and leaving nearly 16,000 comments on the issue. However, the city council cited a lack of other shelter options and legal concerns as reasons for their decision. Some councilors, like Esther Pauls, voted against allowing encampments, arguing that it exposes nearby residents to drug use, violence, and criminality, and it may attract homeless people from other areas.
While Hamilton is currently the only city in Ontario that formally allows park encampments, lawyer Sima Atri believes it may be the only one nationwide. Other cities, like Abbotsford, B.C., allow tents in parks overnight but not during the day. However, there have been discussions in other cities, such as Halifax, about implementing similar measures.
Critics of the decision, like Esther Pauls, have stressed the need for provincial and federal governments to provide funding to address homelessness. The right to liberty as outlined in Section 7 of the Canadian Charter of Rights and Freedoms protects the right to shelter oneself when there is no other practical alternative. However, this right must be balanced against the rights of others, and the availability of alternative shelter is a crucial factor.
Overall, while the encampment situation in Hamilton remains unique, the ongoing legal battles and court decisions provide guidance on the criteria cities must meet when considering the removal of encampments. The definition of “low-barrier” and “accessible” shelter, as well as the power of municipalities to remove encampments, will continue to be determined in the courts.