December’s Superior Court decision, Heegsma v. Hamilton (City), is the most direct and straightforward decision to follow in the litany of encampment Charter case law.
In his 86-paragraph decision, Justice James Ramsey ruled that Ontario’s municipalities must follow the Charter of Rights and Freedoms Section 7 framework set by British Columbia’s Court of Appeal in Victoria (City) v. Adams, 2009 BCCA 563.
The Adams decision confirmed a trial court decision (2008 BCSC 1363) that homeless individuals have the Charter right to erect overnight tent structures when there are insufficient emergency shelter beds for all those in need of housing.
Justice Ramsey states the City’s encampment protocols are Charter compliant because “no one was asked to leave at night”1 and no one was “prevented from staying overnight”2 in parks.
“If they had been, the City might have been in breach of s.7 of the Charter.”3
Justice Ramsey ruled that there is no Charter right to erect temporary shelter during the day4.
He explicitly rejected applying the framework created in Waterloo (Regional Municipality) v. Persons Unknown, 2023 ONSC 670, in which Justice Michael J. Valente stated shelters must be ‘truly accessible’ to the homeless population5.
Justice Ramsey states meeting every condition of individuals (such as living in shelters as a couple, with pets, or using substances6) is “impossible”7 for the City to do.
He added that shelters do not permit people to remain during the day, and therefore, there is no right to semi-permanent erection of encampments.
Furthermore, he writes, encampments “are lawless, dangerous and unsanitary.”8
“For these reasons, I do not extend the prohibition on enforcement to daytime or indefinite camping,” Justice Ramsey concluded.9
Distinguishing from Waterloo Decision
The Waterloo case involved individuals’ encampment on vacant municipal land, which was not used for any purpose.
Justice Valente emphasized this specific fact in distinguishing his decision from previous encampment cases involving parks and/or public space bylaws, writing, “There is no need to consider how the impact of the Encampment residents sheltering overnight may impair the interests and rights of other residents of the Region.”10
(It can reasonably be argued that Valente’s low-barrier framework was not limited to vacant municipal land. Nonetheless, in Hamilton, Justice Ramsey wholly rejected all arguments for a low-barrier framework.)
The City of Hamilton Must Permit Overnight Tenting – Can Remove During the Day
Following the framework set in Victoria (City) v. Adams, the City of Hamilton must permit the overnight erecting of temporary shelter [tents] in parks when there are inadequate emergency shelter beds.
As the British Columbia Court of Appeal notes, municipalities can create regulations to direct overnight camping to appropriate locations.11 Many B.C. municipalities have created rules restricting tents to overnight hours.
Hamilton can remove encampments during daytime hours.
Hamilton City Council is expected to debate motions regarding encampment enforcement at its first meeting of 2025, scheduled for Wednesday, January 15, beginning at 9:30 a.m.
Footnotes:
- Heegsma v. Hamilton (City), 2024 ONSC 7154 (CanLII), at para 9, https://canlii.ca/t/k8h37#par9 ↩︎
- Ibid, para 12, https://canlii.ca/t/k8h37#par12 ↩︎
- Ibid, para 13, https://canlii.ca/t/k8h37#par13 ↩︎
- Ibid, para 67 to 79, https://canlii.ca/t/k8h37#par67 ↩︎
- The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670 (CanLII), at para 93, https://canlii.ca/t/jv6dc#par93 ↩︎
- Heegsma v. Hamilton, para 71, https://canlii.ca/t/k8h37#par71 ↩︎
- Heegsma v. Hamilton, para 72, https://canlii.ca/t/k8h37#par72 ↩︎
- Heegsma v. Hamilton, para 76, https://canlii.ca/t/k8h37#par76 ↩︎
- Heegsma v. Hamilton, at para 79, https://canlii.ca/t/k8h37#par79 ↩︎
- Waterloo v. Persons Unknown, para 105, https://canlii.ca/t/jv6dc#par105 ↩︎
- Victoria (City) v. Adams, 2009 BCCA 563 , at para 96, https://canlii.ca/t/26zww#par96 ↩︎
Production Details
v. 1.0.0
Published: January 6, 2025
Last updated: January 6, 2025
Author: Joey Coleman
Update Record
v. 1.0.0 original version
How very sad. Hamilton continues to fail our unhoused population.
Joey, thanks for spelling out for all what the City can and can’t do.
They can remove Encampments today and humanely process the individules in those Encampments with the current services available, place them somewhere in the hundreds of thousands of square feet of empty buildings in the City’s stable of Real Estate, including empty schools, and as in the Ruling,
Justice Ramsey wholly rejected all arguments for a low-barrier framework. That means an open air 24/7 drug shooting gallery by individuals with mental illness and a propensity to crime is what they can’t do.
So, what are they doing on a contaminated industrial site at Barton and Tiffany Street?
Chuck Farrauto