Hamilton encampment residents seek $445K from city over tent ban they say violated Charter rights

A group of Hamilton residents who've lived in encampments are taking the city to court over its ban of tents in parks, arguing their Charter rights were violated. 

The hearing began Monday in the Ontario Superior Court of Justice and will last three days. The 14 applicants seek a total of $445,000 from the city for the encampment ban that was in place between August 2021 and 2023. 

Their lawyers from the Hamilton Community Legal Clinic argued repeated evictions from parks violated their right to life, liberty and security, and was discriminatory as women, people with disabilities and Indigenous people were disproportionately impacted. 

Justice James Ramsey will decide the case in the weeks after the hearing. 

"The applicants don't live in encampments by choice," lawyer Wade Poziomka told the court.

"They want stable, secure and affordable housing … unfortunately there's a dramatic shortage. In the absence of housing options, the applicants have had to make hard choices in imperfect circumstances."

The city's ban resulted in encampment residents being evicted from their tents by bylaw or police officers day or night, the applicants argue. If they weren't allowed in shelters, or all beds were full, they'd have no choice but to sleep outside — exposed to the elements. 

They faced increased risks of hypothermia, dehydration and sexual and physical assault, and lost access to privacy, medical care and essential items they'd otherwise have if they were allowed to pitch tents, their lawyers told the court. 

The city's ban on encampments in public spaces ended last summer when council passed a protocol, or set of rules, allowing tents in some areas if they were a certain distance away from playgrounds, schools and private property, among other stipulations. 

The city denies any Charter breaches between 2021 and 2023 and will argue the case should be dismissed, according to the factum it filed with court. 

Tents were banned to protect the city's parks and public spaces, and economic and social wellbeing and the health and safety of the community, the court documents said.

The city denies it forces people to leave encampments at night, or that the ban directly harmed any people experiencing homelessness. 

Its lawyers will also argue this week that the city has spent "vast amounts of money" to support the needs of people who are unhoused, reduce harms they face and obtain housing, the factum said. 

The 14 applicants all experienced homelessness, attempted to live in encampments during the ban and rely on social assistance, their court documents said. Nine applicants are women, one of whom is transgender, and five are men. Over half of the applicants are Indigenous and two are Black — representing two communities disproportionately impacted by homelessness.