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hclc’s delegation to the emergency and community services committee

TO: Chair And Members of the Emergency and Community Services Committee

Re: Dismantlement of Homeless Encampments

Thank you for approving our written delegation. We submit this delegation on behalf of the Hamilton Community Legal Clinic and we have further partnered with Wade Poziomka, a partner with Ross & McBride, to highlight concerns relating to the dismantlement of homeless encampments.

The Hamilton Community Legal Clinic has worked with HAMSMaRT and Keeping Six with respect to the ticketing of individuals experiencing homelessness for offences under the Emergency Management and Civil Protection Act (“EMCPA”) and related by-laws.

We appreciate that homeless encampments present unique challenges for the City, and that the City is required to respond to resident complaints with respect to same. In the midst of gaining compliance with EMCPA, the Trespass to Property Act, and local by-laws regarding the usage of park or public spaces, it is imperative to ensure that vulnerable groups, especially those who are experiencing homelessness, are not being penalized because of their socio-economic circumstances and/or disabilities, including mental health disabilities.

Throughout the duration of the pandemic, HAMSMaRT and Keeping Six have repeatedly implored the City to either not remove individuals from encampments, or to ensure that they are transitioned to stable housing. They have cited the CDC Guidelines, Interim Guidance on Unsheltered Homelessness and Coronavirus Disease 2019 (COVID-19) for Homeless Service Providers and Local Officials, (https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/unsheltered-homelessness.html), which recommend that people not be moved from encampments “unless individual housing units are available” (Emphasis Added). Without going into detail, the Guidelines further explain the personal and public health risks involved in displacing people during the pandemic.

We agree that there are significant health-related reasons not to remove individuals experiencing homelessness from their encampments. We further submit that there are significant legal reasons to refrain from this conduct. The issue of homeless encampments, specifically during COVID-19, is not unique to Hamilton. Other municipalities have had to grapple with how to respond to public concerns while protecting private and public health interests. In Toronto, a coalition of legal clinics and advocates for individuals experiencing homelessness recently filed a lawsuit against the City which alleged, amongst other things, that the City failed to provide physical distancing standards across the shelter system. The litigation alleged that, by failing to ensure physical distancing within the shelter system, the City had infringed on the shelter residents’ life, liberty, and security of the person, and their right to equal treatment (guaranteed under sections 7 and 15 of the Charter of Rights and Freedoms respectively).

The City of Toronto entered into an Interim Settlement Agreement and committed to numerous enforceable commitments relating to conditions in all shelter, respites, drop-ins and COVID-19 homelessness response hotel rooms operated or funded by the City. As of this week, the same coalition is taking the City back to court for failure to comply with the settlement terms. It is important to note that the declined capacity of the shelter system and failure to provide alternatives to congregate shelter has led hundreds of people to remain in encampments and to continue sleeping rough.

There is also precedent for jurisdictions moving in the right direction. In London, the City made the decision to allow temporary encampments and individual tents on municipal property for the duration of the pandemic with the ultimate goal of getting people housed. On July 7, Kingston City Council voted to extend by-law exemptions allowing an encampment to remain until at least July 31.

In British Columbia, the issue of dismantling homeless encampments as a Charter issue was specifically dealt with in two cases. In Victoria (City) v. Adams, 2009 BCCA 563 and Abbotsford (City) v. Shantz, 2016 BCSC 2437, the application of parks and streets bylaws prohibiting erecting a shelter was challenged primarily under section 7 of the Charter. The Courts found that, insofar as the by-laws prevented people from erecting temporary shelter for protection from the elements, this was a violation of their section 7 rights, and consequently of no force and effect. From our perspective, the right to erect temporary shelter for protection from the real and legitimate risk presented by COVID-19, when no other viable options for some individuals, presents a parallel fact pattern.

Housing is a basic human right. The right to adequate, safe housing, is further heightened during the era of COVID-19. Dismantling homeless encampments, in light of the significant risks to the individuals who are forced to move, infringes on their right to life, liberty, and security of the person. Given that many of the affected individuals are racialized, and/or have mental health, addiction and physical disabilities, these groups are also disproportionately impacted by displacement.

The City has a legal duty to accommodate individuals staying in encampments pursuant to its obligations under the Human Rights Code (the “Code”). As you know, there are many reasons why individuals “sleep rough” in encampments. Some of those reasons are unique to COVID-19 (a legitimate fear of exposure while in shelter). Other reasons for residing in encampments are directly related to Code-protected grounds. For example:

  • Some individuals have mental health challenges that effectively preclude them from functioning in a shelter setting;
  • Some individuals have drug or alcohol dependencies (addictions), and are ejected from shelters as a result of use (a symptom of their disability);
  • Some individuals are unable to give up an animal, often the only companion they have and a necessity for emotional regulation, because some shelters do not permit animals, and
  • Some individuals are married or in common law relationships, and most shelters do not accommodate couples.

The list of reasons why people may occupy encampments is extensive – what is clear is that those reasons are frequently related to Code-protected grounds. The fractures that exist in the shelter systems during the best of times are highlighted and exacerbated during the pandemic we are all experiencing. Rather than engage in knee-jerk reactions that results in dismantlement, it is imperative the City to work with social service organizations, local communities and experts to fully understand the situation and take steps to correct the problems with the system. The City needs to look at this situation holistically, instead of in a piecemeal fashion primarily focused on the rights of property owners and an unrealistic assessment of the threat posed by encampments.

It is essential that the City follow the principles set out in the Ontario Human Rights Commission’s “Policy Statement on a Human-Rights Approach to Managing the COVID-19 Pandemic” to ensure that everyone’s human rights are protected. Without these considerations, low income, racialized, Black, and First Nations, Inuit and Métis communities, persons with physical and mental health disabilities, youth, and the 2S & LGBTQQAI+ communities may be disproportionately impacted in the course of enforcement.

It is also essential that the City follow the principles developed by the UN Special Rapporteur on the Right to Housing in “A National Protocol for Homeless Encampments in Canada: A Human Rights Approach” calling for a rights-based response to encampments. Such a response requires that:

  1. All government action with respect to homeless encampments upholds the human rights and human dignity of their residents;
  2. Governments will not resort to criminalization, penalization or obstruction of homeless encampments;
  3. Governments must explore all viable alternatives to eviction and may not remove residents from encampments without identifying alternative places to live that are acceptable to them;
  4. Governments provide adequate alternative housing to all residents prior to any eviction.
  5. Residents will meaningfully participate in all decision-making processes that directly affect them and engage in any decisions regarding relocation;
  6. Relocation must not result in the continuation or exacerbation of homelessness, or require the fracturing of families or partnerships.

There have been several incidents of the City dismantling homeless encampments during the pandemic: from small groups or individuals along railways, to Sir John A. MacDonald, Jackie Washington and Ferrie St. While efforts were made to connect displaced individuals with supports, those efforts fell short of meeting actual needs. Several of the individuals placed in hotels or shelters were discharged shortly after for being unable (by virtue of disability) to conform to shelter and hotel rules. Others simply moved on, and have lost contact with the crucial medical and social supports previously accessed.

We acknowledge, and are thankful that the City has refrained from further dismantling in recent weeks. We also understand that there is an expiration date on current encampments, and that the City is facing considerable pressure from residents to move people along. The difficulty is that the City does not have a viable plan for many of those individuals. We therefore call on the City to immediately change its policy on homeless encampments as follows:

  1. The City will not dismantle homeless encampments and/or displace of its residents unless it has first arranged for and/or secured inside spaces such as shelters, hotels, interim housing and/or individual housing units in stable, secure housing with appropriate supports. We encourage the City to prioritize individuals experiencing homelessness for urgent housing placement. In the context of shelter and hotel placements, the City must consult with stakeholders in the homelessness/shelter community to determine what supports are needed, how to remove barriers from hotel stays, and how existing shelter rules may need to be changed in order to accommodate individual needs.
  2. Where inside spaces are not available, the City will not dismantle homeless encampments and/or displace of its residents. Such objective can be accomplished by one of the following initiatives:
    • The designation of specific parks/public lands wherein individuals experiencing homelessness are allowed to set up tents/temporary structures. The City should consult with stakeholders prior to the designation to ensure that the sites are appropriately accessible for individuals and their support network;
    • In the alternative, a streamlined, low-barrier, accessible process of issuing permits allowing for tents/temporary structures;
    • Where encampments are located on private property, refraining from any enforcement measures save and except where property owners have made complaints. Any individuals removed would then be directed to a viable alternative as set out in subparagraphs a. and b. above.

We acknowledge the complexity of homeless encampments and appreciate the fact that encampments are not a solution to homelessness. However, we submit that it is critical that the City not dismantle homeless encampments until it can provide encampment residents with adequate housing with appropriate supports. Failure to do this will result in a violation of the basic human rights and dignity of all encampment residents in the City of Hamilton.

Respectfully,

Sharon Crowe
Staff Lawyer
Hamilton Community Legal Clinic

Nadine Watson
Staff Lawyer
Hamilton Community Legal Clinic

Wade Poziomka
Partner
Ross & McBride

EST. 2018

Keeping Six – Hamilton Harm Reduction Action League is a community-based organization that defends the rights, dignity, and humanity of people who use drugs.