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 7, 2025
Last updated: January 7, 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
There are so many vacant lots schools etc.. that can be utilized to offer some shelter.
I ask you look at the stats regarding robberies, murder , crime. Most whom committ these crimes are NOT HOMESLESS. That’s a stigma.
You know what, the governments laws and the lack of providing a financial amount to people on o.d.s.p which was enough to pay for rent is the 1st and main problem …
They allow all these rentals being a small room to be rented at $1000 + a month which is another issue. Most of the homes that are renting out room are unsafe, illegal and a way of people to commit tax fraud.
So if I have a home I pay $3,000 month mortgage and simply put a few walls up in my basement for 3 bedrooms and set rules preventing the tenants to have visitors. The government needs to put a cap on this rental amount . They need to monitor the sites these listing are posted on and investigate them . These places are a sure way to hide illegals and also allow them to take these money’s and hide it from the government.
The governments needs to take responsibility for why these people are homeless and stop taking everything away and punishing them for being homeless. The public need to stop looking down on homeless people and start helping . Not every person homeless are drug addicted. Society has become so focused on hurting anyone they look down on because they simply can’t mind their business. . .
I agree 100%. The punitive actions are doing nothing to support anyone. How about offering purpose to the many that will gladly take it. Give them jobs, many house less are trades people.
They already have so little. Any person who believes that this is the life most of them want is crackers. Having no home, nothing to call their own. The shame they feel.
The community needs to come together and support them.
So if they take down the tents in the day time where do the individuals go??? Hang out on street???? This is inhumane. It is NOT their fault there are no affordable residence. What services would they use??? The ones that are at capacity, or require a certain criteria to be part of.
How about do what they did in Portugal. The WHOLE COMMUNITY came together and made it work for all.
For those who judge, shame, speak poorly of those struggling shame on you for your lack of empathy and human kindness.