Superior Court begins to hear arguments for and against Belle Park encampment

"The law is against camping,” Justice Carter noted, referring to a City of Kingston bylaw prohibiting camping on public property.

But the question the judge is being asked to answer is far from that simple.

At the Frontenac County Courthouse on Monday, Oct. 30, 2023, the Honourable Ian Carter, Judge of the Superior Court of Justice, began to hear the arguments for and against dismantling the homeless encampment that has grown up in Belle Park around the Integrated Care Hub (ICH) on Montreal Street. Will McDowell and Nikolas De Stefano of the Toronto firm Lenczner Slaght LLP represent the City of Kingston, while William Florence and John Done of the Kingston Community Legal Clinic represent residents of the encampment.

At the crux of thematter is the constitutionality of Kingston Bylaw 2009-76, which states, “Camping and the use of any camping equipment is prohibited in all City parks,” and whether or not the City can use this bylaw as justification for dismantling a homeless encampment when Canadians have a constitutional right to overnight shelter.

McDowell began his statement of the facts according to the City with “a bit of an overview,” saying "the City is seeking an order permitting it to dismantle a homeless encampment located at the municipally-owned property called Belle Park.”

He went on to say that “the only encampment the City is concerned with is the encampment in Belle Park” and explained that “it is a large encampment with unique dangers that are of concern to the municipality.”

He described the encampment as having been in place for over two years: “Through the COVID-19 pandemic, the City waived the applicability of certain bylaws and then established a moratorium.”

Currently, he noted, there are approximately 35 individuals and 27 structures “of greater and lesser permanence,” and there have been physical structures, “not just tents,” in place continuously since the encampment “took root.”

He also emphasized that this encampment is in a park along a recreational trail.

McDowell then listed the City’s main concerns, saying he would go into them in detail throughout the arguments.

First, “Police do not visit the site of the encampment unless there is a call for service,” he said, “because they have faced hostility and harassment.” He cited police evidence stating that regular patrols by police “constituted an unacceptable risk to the safety and well-being of officers.”

Second, he noted the fire hazards inherent at the site, and that when Kingston Fire and Rescue have had to attend the site, they too faced considerable difficulties including harassment from the occupants.

Next was the fact that the encampment has been the site of considerable vandalism. City property has been taken and used for the construction of shelters, McDowell stated.

The encampment is also the site of fentanyl trafficking and drug use, and there have been concerns raised about human trafficking on the site, McDowell noted.

There is evidence that residents of the encampment have destroyed utility poles in search of copper wiring, according to McDowell, something that creates a significant risk of fire and electrocution.

McDowell said there is great reluctance on the part of police, the named respondents (who are living at the encampment). and the staff of the ICH to contact the authorities to report dangers and wrongdoings.

“But we say that in these circumstances the City is entitled to enforce its by-laws and clear the encampment,” he said.

McDowell then addressed the arguments he expected his counterparts to use against clearing the encampment, saying that they would fail to prove any violation of the Canadian Charter of Rights and Freedoms. Specifically, the sections his counterparts would cite, he predicted, were Section 7: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice," and Section 15: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [This] does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

McDowell argued that the respondents were effectively making claims to a property “in that the claims are intrinsically linked to the specific location of this encampment” and its proximity to a safe injection site. First, he noted, “the claim to the use of property in a way that tends to exclude others is not recognized in Canadian law"; a municipally owned park with recreation trails should be available to all citizens of the municipality. Second, there is no evidence, he argued, that residing in the encampment is “safer than the alternative.”

Next, the right to liberty does not allow individuals “to appropriate a piece of public property and to use it to the exclusion of others,” but applies only to those who are looking for temporary shelter, overnight, in the absence of living space.

Lastly, he said his opponents would fail in their Section 15 claim because they had not established any evidence to make the claim for discrimination.

After an exhaustive look at established case law, the court heard the beginnings of the arguments on behalf of the rights of the encampment residents.

Done stated that he wasn’t going to get into all the facts of the case, but he wanted the judge to focus on a few points.

First, the number of shelter beds in Kingston and the number of homeless people in Kingston was important.

“What is it that you have to compare against the number of shelter beds?” Done asked. “Is it just the number of people in the encampment, as the City is urging you to do? Or is it the number of people who are homeless in Kingston, as we are going to do?”

Second, if someone is homeless in Kingston and if they are a drug user, Done asserted, the safest place to be is in the encampment or in the Integrated Care Hub. The location of this encampment makes the disability --- in this case, drug dependency --- of some residents of the encampment of particular importance, he expressed.

Thirdly, other than the ICH, Done said, Kingston’s shelters fail to accommodate drug-using homeless people: “They do not allow their guests to use or be in possession of drugs or drug paraphernalia.”

Finally, Done said he would be speaking about the effects of the encampment residents' behaviour on the City. He said that the City and the court couldn’t attribute “any illegal or bad behaviour” to the encampment itself; rather, these behaviours are explained by the conditions of poverty, homelessness, and substance dependence.

At the end of today's hearing, Justice Carter, who had been asking questions throughout, said, “Let me say this: I have read all of the facts, I have gone through the evidence, and you can be assured I will go through it all again in detail before rendering a decision."

"It's likely apparent at this point that I'm struggling with a few things," he continued, adding that, as much as possible, he would like to have assistance with the points being argued, even if it meant taking more time.

Much of the arguments and evidence, Carter said, came down to "weighing the pros and cons of an encampment," as well as the question "Does the clearing of the encampment breach the Charter?"

But, he pointed out, the issue before him "is framed in terms of the constitutionality of a bylaw that prohibits certain activity." This is an important distinction, because it ensures that he doesn't "wade into" the creation of a "positive right" which has not yet been recognized in jurisprudence. However, he noted, "Of course, if I am being asked to do so, I will consider it."

Hearings continue Tuesday, Oct. 31, 2023, and Kingstonist will provide more in-depth coverage.

Michelle Dorey Forestell, Local Journalism Initiative Reporter, Kingstonist.com