Court File and Parties

COURT FILE NO.: CV-23-188 DATE: 2023/11/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: THE CORPORATION OF THE CITY OF KINGSTON, Applicant – and – JASON ENGLISH, SUZANNE LAVIGNE, NORMAN SERO, MELISSA MILLIGAN, JUSTIN DANIEL, PATRICK PRICE, JAMES JOHNSON, TAYLOR WILKINSON, TABATHA LEEMAN, ZACHARY PRINGLE, TRINITY LIDDARD, VICTORIA LADOUCEUR, VINCENT SHAVER, PAUL LUYTEN, JOHN DOE and JANE DOE, Respondents – and – CANADIAN CIVIL LIBERTIES ASSOCIATION, Intervenor

BEFORE: Carter J.

COUNSEL: William C. McDowell and Nikolas De Stefano, for the Applicant John Done and William Florence, for the Respondents Alexa Biscaro and Erika Anschuetz, for the Intervenor Mercedes Perez, Karen Steward, and Jen Danch Amicus Curiae

HEARD: at Kingston, on October 30 and 31, 2023

Reasons for Judgement

Overview

[1] At the heart of this case is the tension between a city’s responsibility to maintain public parks for all its residents and the homeless population’s need to shelter.

[2] The City of Kingston (“the City”) seeks an order allowing it to enforce provisions of Parks By-Law Number 2009-76 (“the By-Law”) to dismantle an encampment that has arisen in a portion of Belle Park. Over the last several years, dozens of individuals have been sheltering, both day and night, in a portion of the park. The location of the encampment is not accidental. It is directly adjacent to a safe injection site and service hub located within the boundaries of the park.

[3] The provisions of the By-Law prohibit camping except under certain circumstances. There is no question that the residents of the encampment are camping and that none of the exceptions apply. In other words, they are in breach of the By-Law.

[4] In response to the City seeking injunctive relief, certain members of the encampment (“the Respondents”) take the position that the By-Law is in breach of the Canadian Charter of Rights and Freedoms and therefore cannot be enforced.

[5] Given the complex constitutional issues raised, the Canadian Civil Liberties Association (“CCLA”) was granted intervenor status in this application. Furthermore, amicus curiae was appointed for the purpose of delivering a factum and making submissions on behalf of persons living at the encampment who may lack capacity to instruct counsel and/or who have not retained counsel.

[6] The City says that the encampment has become a lawless, unpoliced zone that serves as a hub for fentanyl trafficking. It has also been the site of violence, dangerous property destruction and serious fire hazards. Given that that the encampment poses a serious risk to the safety of its occupants and the community, it is the City’s position that it cannot continue in its present state.

[7] The members of the encampment wish to stay there. They argue that the dangers are overblown and are not necessarily connected to the encampment. There is a strong sense of community, and it is conveniently located near services they require to survive. According to them, the positives far outweigh the negatives.

[8] It is not for this court to weigh the pros and cons of the encampment, but rather to determine whether the relevant provisions of the By-Law are in breach of the Charter. I conclude that they are to the extent that they prevent homeless persons from camping overnight in public parks. In light of this finding and given the proposed terms of the permanent injunction sought, the City’s application is denied. The City is free to bring an application for a permanent injunction on different terms – terms that comply with this ruling – if it so chooses.

Key Facts Not in Dispute

[9] Belle Park is a 44-hectare city-owned property outside of Kingston’s center, located between 661 and 731 Montreal Street. It rests on a covered landfill which was decommissioned in 1978. It was converted into a golf course at that time, although the course is no longer operational. It now contains three pickle ball courts and is adjacent to a bike trail.

[10] The park is located in a part of Kingston with a high number of homelessness and poverty reduction services. It is near the John Howard Society, the Salvation Army Drop-In, St. Vincent De Paul, City of Kingston Housing and Social Services, Providence Care and the Partners in Mission Food Bank.

[11] In early 2020, approximately 40 individuals erected tents and structures in Belle Park, forming a large-scale encampment. The City chose not to clear the encampment because lock-down restrictions and self-isolation requirements at city-funded shelters limited available space. Needs assessments for the individual occupants were conducted which led the City to conclude that a lack of shelter space was not the reason individuals chose to reside in Belle Park. City-staff issued notices in July of 2020 warning residents that camping constituted a violation of the By-Law and the Trespass to Property Act, R.S.O. 1990, c. T.21 (“TPA”). On September 1, 2020, these notices were enforced, and the encampment was cleared.

[12] In November of 2020, the current encampment sprung up in Belle Park, this time, immediately behind the Integrated Care Hub (“ICH”), a city-funded service provider offering consumption services, drop-in health care and short-term shelter, amongst other things. The ICH has been located in Belle Park since approximately October 31, 2020. The City played a role in determining where to place the ICH before it opened at its current spot on Montreal Street, by identifying potential locations that were suitable for the ICH to re-locate to.

[13] The encampment consists of tents, wooden shelters and other makeshift abodes straddling an emergency route called Belle Park Drive. They remain in place at all hours of the day. The area of the encampment does not contain recreational facilities such as a playground or dog park.

[14] In April of 2021, the City finalized an encampment Protocol which aims to secure the voluntary departure of occupants by providing outreach services which can connect residents to shelters and service providers. In May of 2022, City Council voted to suspend the application of the Protocol, effectively directing by-Law officers not to evict any homeless individuals from Belle Park until a “more permanent and safe housing option” was available to occupants.

[15] Following the issuance of a new report from City staff on June 29, 2022, City Council voted to approve a slightly modified version of the Protocol and directed that it be implemented. Pursuant to the modified municipal Protocol, which remains in effect, prior to enforcing an encampment eviction, “Street Outreach” staff and By-Law staff must visit the site to conduct needs assessments. They must then inform the Housing and Social Services Department of “individuals’ needs assessment”. Only after this needs assessment has taken place may By-Law staff issue a trespass notice and enforce that notice.

[16] Subsequent to the approval of the updated Protocol, the City’s By-law Enforcement department issued numerous notices on January 6, 2023, advising residents that they were breaching both the By-Law and the TPA. These notices indicated that structures and items left at Belle Park on January 11, 2023, would be removed and disposed of. They were never enforced. Rather, City Council approved a motion placing a moratorium on all enforcement action until March 21, 2023, and directing City staff to take measures to ensure that the encampment could be cleared as of that date.

[17] On March 21, 2023, the City’s By-Law Enforcement department issued a number of notices to occupants. This had the effect of shrinking the size of the encampment from about 70 to 10 residents within weeks. No further enforcement actions were taken. It is estimated that the encampment now contains approximately 27 structures and 35 occupants.

[18] The City’s “By-Name List” of homeless residents documented that in June of 2023 there were 480 unhoused people living in Kingston. The City has conceded that it has not been able to locate adequate shelter space for each unhoused individual residing in the municipality.

Evidence of the Respondents

[19] Suzanne (“Nikki”) Lavigne has been homeless for approximately four years. Prior to becoming homeless she owned a business, a house, and was in school. When her home was destroyed in a fire, her mental health deteriorated. She has depression and struggles with alcohol use. Receiving only $343 per month from Ontario Works, she is unable to afford the private rental market in Kingston. She has been unable to obtain consistent work due to her lack of permanent address.

[20] Ms. Lavigne has stayed at every shelter in Kingston. She has had to sleep in stairwells, port-a-potties, and sheds. In the four years she has been homeless, she estimates that she has been evicted from various locations 20 times, which she describes as mentally and physically exhausting. She has consistently had inadequate time to move her belongings. One of the reasons she prefers to stay at the encampment as opposed to a shelter is that she cannot stay during the day at a night-time shelter. Carrying her personal belongings from place to place is exhausting. If evicted, Ms. Lavigne expects she will try to set up a new encampment.

[21] Melissa (“Mae”) Milligan has been homeless for approximately one year. She lives at the encampment with her two dogs. She is a survivor of physical and sexual violence and spent time in an emergency shelter for domestic violence survivors prior to becoming homeless. She used to share an apartment with a roommate but was evicted after her roommate passed away. She then lived in her van until it caught fire, at which point she began sleeping outside. She has slept in a church shed and other Kingston parks, until being evicted from those locations. Ms. Milligan receives $200 per month from Ontario Works and works part time at the ICH. In her experience the number of shelter beds available fluctuates from night to night. She has been turned away from some shelters due to insufficient beds. Ms. Milligan is unsure where she will go if she is evicted and predicts she will try to set up a tent in a different area.

[22] Tabatha Leeman is a 22-year-old, non-binary person. They are Indigenous, and a member of the LGBTQ+ community. They have chronic pain, ADD, anxiety, depression and bipolar disorder. They also have a substance use disorder and use fentanyl approximately twice per day. They have stayed at the Kingston Youth Shelter but left when their girlfriend could not stay with them. They did not want to leave their partner to sleep alone on the streets, so they began to sleep on the streets together. Mx. Leeman has been turned away from adult shelters due to being too young, causing them to sleep unsheltered on the street. One of the main reasons they stay at the encampment is because the availability of shelter beds is not consistent, and there are not enough beds for all the people who want them. According to Mx. Leeman, shelters do not have enough space to rest and relax during the day. They only have hard chairs, which it tough on the elderly and people with disabilities. There are not typically spaces during the day for people who want to nap and people who want to socialize, so daytime shelter spaces are usually noisy. Mx. Leeman isn’t sure where they will go if they are evicted and may set up shelter in another area.

[23] Zachary Pringle is a 29-year-old Cree man, who has been homeless for approximately two and a half years. Mr. Pringle has anxiety, depression and a substance use disorder. Prior to becoming homeless, he was in an apprenticeship for auto body work and lived in an apartment with his partner and child. When that relationship ended, the cost of the apartment was too great for him to afford on his own and he became homeless. In the past, he has slept on park benches and concrete barriers. He also wandered during the day and night to make sure people did not steal his belongings. He would carry his stuff with him wherever he went. If he is evicted from the encampment, he will try to either camp in a different city park or be forced to leave the city.

[24] Victoria Ladouceur is a 29-year-old woman and mother of two children, who has been homeless for approximately five years. She has anxiety, PTSD, depression and a substance use disorder. She has been living at the encampment for approximately one year and a half. Prior to becoming homeless, she lived in a townhouse in the city of Belleville. She was arrested for dangerous driving in 2019 and became homeless upon release. She receives $750 per month from the Ontario Disability Support Program. She prefers living at the encampment to trying to find space at the city shelters. She worries that they will not have the space to allow her to stay with her boyfriend. If evicted from the encampment, she would try to camp somewhere else with her boyfriend.

[25] James Johnston is a 50-year-old man, who is homeless and lives at the encampment with his girlfriend. He has been homeless for two years, after falling behind on bills after his son died and his partner began to struggle with her mental health. Mr. Johnston suffers from chronic pain arising from a work-related injury. He received treatment for his pain at the Kingston Orthopedic Pain Institute; however, this treatment was insufficient to treat the level of pain he was experiencing. He started using street-fentanyl instead. On high pain days, he will use fentanyl every four to six hours, including throughout the night. On low pain days, he may use one to two times per day. He is not certain what he would do if evicted.

[26] Vincent Shaver is a 51-year-old Indigenous man who has lived at the encampment for almost one year. Mr. Shaver has diabetes, past injuries, mental health conditions and chronic pain. Mr. Shaver wants his own home but cannot afford the rent costs in Kingston. He has built a small cabin in the woods, further back from the main area. He has a small wood-burning stove inside his cabin. He says sleeping bags and warm clothes are insufficient to survive when it is -20°C outside. He has never used a shelter in Kingston and does not want to. According to Mr. Shaver they have the same issues in the encampment that you would see in a homeless shelter.

[27] Curtis Smith is a 33-year-old man who has been homeless for 14 years. He has lived in group-homes since the age of seven or eight and became a Crown Ward at age twelve. He has lived in Belle Park for eight years, both inside and outside the encampment. He has lived in the current encampment for one year. He has a shed with a lock. Mr. Smith has bipolar disorder, ADHD and anxiety. He also has a substance use disorder and is currently engaged in an addictions medicine program for his fentanyl addiction. Mr. Smith receives $750 per month from the Ontario Disability Support Program. He gave up looking for housing because it is too expensive. He has never stayed at a city shelter other than the ICH, nor does he want to.

Position of the Parties

[28] The position of the parties in this matter has evolved. This evolution has resulted in considerable confusion about the task that I must perform, but also a narrowing of the issues. It has also meant, as will be discussed further below, that there is somewhat of a disconnect between the evidence led and the justiciable issues.

[29] The City initially sought a permanent injunction pursuant to the common law ordering the resident of the encampment to within three days of notice of the order:

a. Vacate and cease operation of the property known as Belle Park/K&P Trail, located near 661 and 731 Montreal Street, Kingston, Ontario, as well as its surrounding areas;

b. Remove all tents, shelters, personal chattels, structures, and other things present at the encampment; and

c. Refrain from re-entering the encampment except as authorized by the City.

[30] At the conclusion of the hearing, the City indicated that it would be seeking to amend its pleadings to seek the injunction pursuant to s. 440 of the Municipal Act, 2001, S.O. 2001 c. 25. It has since brought a motion to do so, although the terms of the injunction it seeks remain the same. The Respondents have consented to the amendment.

[31] In response to the initial Notice of Application, the Respondents filed a Notice of Constitutional Question. The relief sought was wide ranging:

a. A declaration under s. 24(1) of the Charter that the rights of the encampment residents and other individuals living in Belle Park to life, liberty and the security of the person, guaranteed by s. 7 of the Charter will be infringed if the application and enforcement of the By-Law and TPA are applied to the encampment residents, and if the relief sought under the application filed by the City is granted.

b. Additionally, and in the alternative, a declaration under s. 24(1) of the Charter that the provisions under the By-Law prohibiting camping and other activities such as obstructing, hindering or interfering with authorized employees of the City, creating a nuisance or disturbing other people, and dumping garbage in a park, insofar as these provisions apply to the encampment residents and other homeless individuals living in Belle Park, violate s. 7 of the Charter and cannot be justified under s. 1.

c. Additionally, and in the alternative, a declaration under s. 24(1) of the Charter that the application of the By-Law and any proposed eviction enforcement actions under the By-Law or the TPA, constitutes discrimination under s. 15(1) of the Charter on the basis of disability.

d. In addition, a declaration that the use of the TPA and the By-Law to evict the encampment residents is contrary to Canada’s international human rights obligations, under the International Covenant of Economic, Social and Cultural Rights, 19 December 1966, 993 U.N.T.S. 3, and the Universal Declaration of Human Rights, UNGA, 3rd Sess, UN Doc A/810 (1948), to provide equal and non-discriminatory housing as well as security of tenure to all individuals experiencing homelessness, including the encampment residents.

e. In addition, a declaration that the use of the TPA and the By-Law to evict homeless individuals from their homes is contrary to the goals of the National Housing Strategy Act, S.C. 2019, c. 29, s. 313, aiming to improve the quality of life of all persons in Canada, particularly the homeless and those in the greatest need of assistance.

f. In addition, a declaration that under s. 52 of the Constitution Act, 1982, that the By-Law and the TPA are either inapplicable or of no force and effect to the extent that they are applied to encampment residents and other homeless individuals within the encampment as the provisions violate ss. 7 and 15(1) of the Charter.

[32] The practical effect of such declarations would be to grant the residents of the encampment a permanent right to use the property as they saw fit, including a right to obstruct, hinder or interfere with authorized employees of the City, create a nuisance, disturb other people, and dump garbage in the park.

[33] However, in the Respondents’ factum, the relief sought was far narrower in scope:

a. A declaration, pursuant to s. 52(1) of the Constitution Act, 1982 that the By-Law violates s. 7 of the Charter in that it deprives the unhoused residents of the encampment of life, liberty, and security of the person in a manner not in accordance with the principles of fundamental justice and is not otherwise saved by s. 1 of the Charter.

b. A declaration, pursuant to s. 52(1) of the Constitution Act, 1982 that the By-Law violates s. 15 of the Charter in that it deprives chronically unhoused encampment residents, and residents with disabilities of their right to the equal protection and equal benefit of the law without discrimination and is not saved by s. 1 of the Charter.

c. A declaration that the By-Law is inoperative insofar as it applies to prevent the encampment residents from living at and erecting temporary shelters at Belle Park when the number of homeless individuals in the City exceed the number of accessible shelter beds (emphasis added).

[34] Despite this evolution, the City argues that what is before the court is the constitutionality of the proposed clearing of a single encampment in Belle Park. It is submitted that the Notice of Constitutional Question raised four questions, each of which related only to the proposed state action of clearing the encampment in Belle Park. While it is conceded that a city-wide enforcement of an absolute prohibition on erecting temporary overnight shelter in municipal parks would violate s. 7 of the Charter, the City says the Notice did not seek a declaration that the By-Law or even the relevant provision in the TPA are unconstitutional. As a result, the broader issue of whether the By-Law is constitutional is not properly before the court.

[35] In the alternative, the City submits that s. 7 cannot be invoked to protect permanent, daytime sheltering in a public park. As a matter of principle, this would amount to the grant of a property right. In any event, the evidentiary record does not establish why life, liberty or security of the person would be engaged if the Respondents were prohibited from appropriating a portion of Belle Park by erecting permanent shelters on public land.

[36] The position of the amicus is that a specific “legal finding” that the “right to shelter” is not limited to the overnight hours has been made recently by a fellow Justice of the Ontario Superior Court in the decision The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670. This finding is directly applicable to the facts of this case. I am therefore bound by the principle of horizontal stare decisis to follow it.

[37] The Respondents submit that the “right to shelter” during the day, as a matter of law, was not decided in Waterloo. As a result, I am not bound by that decision. However, they invite me to extend this “right” based on the submissions of CCLA.

[38] According to the CCLA, the scope of the “right not to be deprived of shelter” extends to all hours of the day, whether or not shelter is needed for the specific act of sleeping. The need for shelter should be understood as independent from the need to sleep and meeting every individual’s basic need for shelter is a necessary precondition to ensuring that they are not deprived of security, liberty or the ability to flourish as persons. Several judges have taken note of the need for daytime shelter. In addition, case law has shown that there is a consistent lack of daytime spaces for the unhoused in Canadian jurisdictions, and that, when they do exist, they are often difficult to access and may have unpredictable hours. I am asked to find that the right not to be deprived of shelter under s. 7 of the Charter should be understood to encompass the legitimate need to rest and shelter during the day: it is not circumscribed to the act of sleeping nor is it confined to particular hours of the day.

[39] The Respondents and amicus also submit that the By-Law infringes s. 15 of the Charter on the basis of sex and disability.

Legal Issues

[40] In light of the parties’ positions, I will first address the nature of the state action at issue on this application, that is the By-law versus the clearing of the encampment. A determination on that issue will necessarily inform the Charter analysis that follows. I will then consider s. 7 of the Charter, the manner in which it has been interpreted by the Supreme Court of Canada, and the evolution of what have become known as the “right to shelter” cases. In so doing, I will address the effect of the City’s concession on s. 7 and whether I am bound by the decision in Waterloo. The next step will be to decide, upon a consideration of all of the evidence, whether a breach of the Charter has been established and, if so, the appropriate remedy. In light of my findings with respect to s. 7 of the Charter I will only briefly address the s. 15 Charter arguments. Finally, I will analyze whether the injunction should be issued on the terms proposed by the City.

Is it the By-Law or the Clearing of the Encampment that is the Subject of the Constitutional Challenge?

[41] The Notice of Constitutional Question asked two main questions:

a. Does the application of the TPA to encampment residents in Belle Park violate ss. 7 and/or 15 of the Charter?

b. Does the application of the By-Law to encampment residents in Belle Park violate ss. 7 and/or 15 of the Charter?

[42] These broad questions are set out at the commencement of the Notice and are ambiguous to a degree. However, the particulars of the constitutional challenge that follow provide clarity. The Respondents write as follows:

The By-Law prohibits activities related to camping and encroachment as well as obstructing, hindering or interfering with authorized employees of the City of Kingston, creating a nuisance or disturbing other people, and dumping garbage in a park. The effect of the Bylaw’s application to the encampment residents violates section 7 of the Charter, because it would deprive them of their right to life, liberty and security of the person in a manner that is contrary to the principles of fundamental justice.

The Trespass Notice also violates section 7 by seeking to cause the eviction of the encampment residents, in so far as such an eviction would deprive them of their right to life, liberty and security of the person in a manner that is contrary to the principles of fundamental justice.

Therefore, the By-Law prohibiting homeless persons from erecting temporary shelters in parks infringes the right to life, liberty, and security of the person, as guaranteed by section 7 of the Charter. The offending sections of the By-Law should be inoperative to the extent they prevent homeless people from erecting shelters in the encampment, since denying a necessary survival mechanism would be contrary to section 7. [Emphasis added.]

[43] In the Notice of Constitutional Question, the Respondents draw a distinction between the By-Law and the TPA. The challenge to the By-Law is founded on the basis that it prohibits homeless persons from erecting temporary shelters in parks. In contrast, the attack on the TPA relates to the eviction of encampment residents. In other words, the Respondents have challenged both the constitutionality of the By-Law and the clearing of the encampment.

[44] In its final written submissions, the Respondents did not seek a declaration that the TPA is unconstitutional. In supplementary submissions filed after the conclusion of the hearing, the Respondents clarified that a declaration of inoperability with respect to the TPA is unnecessary if the court finds the By-Law provisions are inoperable against the encampment residents. Regardless of whether or not a challenge to the clearing of the encampment remains in play, the issue of the constitutionality of the By-Law is squarely before me.

Section 7 of the Charter

Analytical Framework

[45] Section 7 of the Charter reads as follows:

Everyone has the right to life, liberty and security of person and the right not to be deprived thereof in accordance with the principles of fundamental justice.

[46] Establishing a breach of s. 7 of the Charter involves a two-step assessment. First, claimants must prove that the impugned laws deprive them of the right to life, liberty, or security of the person. Second, claimants must show that any such infringements are not in accordance with the principles of fundamental justice. Three primary principles of fundamental justice have emerged from the jurisprudence: arbitrariness, overbreadth, and gross disproportionality: Carter v. Canada (Attorney General), 2015 SCC 5, at paras. 54-55, and 72.

[47] The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly: Carter, at para. 62. In contrast, concerns about individual autonomy and quality of life are understood to fall within the ambit of the rights to liberty and security of the person: Carter, at para. 62. The right to life, for example, has been engaged where the clients of a supervised injection site were deprived of potentially lifesaving medical care: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, at para. 91.

[48] Liberty is engaged when state compulsions or prohibitions affect fundamental life choices. Liberty means more than freedom from physical restraint. It includes “the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference” and relates to matters that are “fundamentally or inherently personal such that … they implicate basic choices going to the core of what it means to enjoy individual dignity and independence”: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, at para. 85.

[49] The right to security of the person protects both the physical and psychological integrity of the individual. This right is infringed by “serious state-imposed psychological stress”, objectively measured, that need not rise to the level of nervous shock or psychiatric illness. A combination of any of the following factors – stigma, loss of privacy, stress and anxiety, possible disruption of family and social life, uncertainty as to outcome and risk of sanction – is sufficient to constitute a breach of security of the person: New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, at pp. 76-80.

[50] Once a deprivation of the impugned law or state action is established, the next stage of the s. 7 inquiry is to determine whether the infringement is in accordance with the principles of fundamental justice. The principles of fundamental justice set out the minimum requirements that a law that negatively impacts on a person’s life, liberty, or security of the person must meet. As Lamer J. put it, “The term ‘principles of fundamental justice’ is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 512.

[51] In Bedford v. Canada (Attorney General), 2013 SCC 72, [2013] 3 S.C.R. 1101, the Supreme Court reviewed the evolution of the principles of fundamental justice since the birth of the Charter and laid out a framework for analyzing claims. Three fundamental values that are engaged in this case are: arbitrariness, overbreadth and gross disproportionality. Although there is significant overlap between these three principles, and one law may properly be characterized by more than one of them, arbitrariness, overbreadth, and gross disproportionality remain three distinct principles: Bedford, at paras. 95-107.

[52] With respect to arbitrariness and overbreadth, the Supreme Court in Bedford stated the following at paras. 111-113, and 117:

Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual, in the sense that the effect on the individual bears some relation to the law’s purpose. There must be a rational connection between the object of the measure that causes the s. 7 deprivation, and the limits it imposes on life, liberty, or security of the person. A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests.

Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts.

Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.

[O]verbreadth [is] a distinct principle of fundamental justice related to arbitrariness, in that the question for both is whether there is no connection between the effects of a law and its objective. Overbreadth simply allows the court to recognize that the lack of connection arises in a law that goes too far by sweeping conduct into its ambit that bears no relation to its objective. [Emphasis in original.]

[53] For both arbitrariness and overbreadth, “the root question is whether the law is inherently bad because there is no connection, in whole or in part, between its effects and its purpose” (emphasis in original). This standard is not easily met: Bedford, at para. 119.

[54] Gross disproportionality asks a different question from arbitrariness and overbreadth: are the law’s effects on life, liberty or security of the person so grossly disproportionate to its purposes that they cannot rationally be supported. The rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure: Bedford, at para. 120. Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law (emphasis in original): Bedford, at para. 121. Courts are not to balance the law’s salutary and deleterious effects. Gross disproportionality is not concerned with the number of people who experience grossly disproportionate effects; a grossly disproportionate effect on one person is sufficient to violate the norm: Bedford at para. 122.

[55] The objective of the impugned law or state action must be defined for the purpose of the s. 7 Charter analysis.

[56] Several principles have emerged to assist a court in properly characterizing a law’s purpose. The focus is on the purpose of the challenged provisions, not of the entire act in which they appear, although a correspondence between those purposes may sometimes occur. The law’s purpose should be succinct, precise, and characterized at the appropriate level of generality, which “resides between the statement of an ‘animating social value’ — which is too general — and a narrow articulation” that amounts to a virtual repetition of the challenged provision, divorced from its context. A law’s purpose is distinct from the means used to achieve that purpose. To determine an impugned law’s purpose, courts may consider: statements of purpose in the legislation, if any; the text, context, and scheme of the legislation; and extrinsic evidence such as legislative history and evolution (R. v. Ndhlovu, 2022 SCC 38 at paras. 60 to 64).

The Genesis and Evolution of the “Right to Shelter” Cases

[57] The notion of a “right to shelter” in the context of s. 7 of the Charter first arose in the decision of Victoria (City) v. Adams, 2008 BCSC 1363, 299 D.L.R. (4th) 193. In that case, the issue concerned provisions in city by-laws that prohibited the erecting of temporary shelter on public property. In understanding how the law has evolved in this area, it is important to understand the nature of the prohibition. The by-laws did not prohibit sleeping in parks or public spaces. They did, however, prohibit taking up a “temporary abode overnight” (emphasis added). In addition, the parties agreed to proceed on the basis that the current state of the law was reflected in the combination of the by-laws and the city’s operational policy.

[58] I have emphasized the fact that the by-laws specifically prohibited “temporary” abodes and only “overnight.” I have done so because the precise wording of the by-laws appears to have driven both the evidence that was led in the case and the ultimate result. This in turn is relevant to the question of whether a limited “right to shelter”, restricted to temporary shelter only overnight, as a distinct legal principle has emerged, as some subsequent decisions seem to suggest.

[59] In Adams, Ross J. ultimately concluded that the by-law was in breach of s. 7 of the Charter. In so doing, she made a number of critical findings based on the evidence that was led, at para. 4, as follows:

a. There are at present more than 1,000 homeless people living in [Victoria].

b. The City has at present 104 shelter beds, expanding to 326 in extreme conditions. Thus hundreds of the homeless have no option but to sleep outside in the public spaces of the City.

c. The Bylaws do not prohibit sleeping in public spaces. They do prohibit taking up a temporary abode. In practical terms this means that the City prohibits the homeless from erecting any form of overhead protection including, for example, a tent, a tarp strung up to create a shelter or a cardboard box, even on a temporary basis.

d. The expert evidence establishes that exposure to the elements without adequate protection is associated with a number of significant risks to health including the risk of hypothermia, a potentially fatal condition.

e. The expert evidence also establishes that some form of overhead protection is part of what is necessary for adequate protection from the elements.

[60] As a result of those factual findings, Ross J. concluded that the prohibition on taking a temporary abode contained in the by-laws and operational policy constituted an interference with the life, liberty and security of the person of the homeless population in Victoria. The prohibition was both arbitrary and overbroad and hence not consistent with the principles of fundamental justice. Pursuant to s. 52 of the Constitution Act, 1982, Ross J. declared that certain provisions in the by-laws were of no force and effect only insofar as they applied to prevent homeless people from erecting temporary shelter: Adams, at paras. 194 and 239.

[61] It is of note that at no point in the decision does Ross J. state there is a free-standing constitutional “right to shelter”. The ruling was the result of applying the above noted s. 7 framework to the specific legislation at issue and in the context of the evidence before her.

[62] The decision was appealed to the Court of Appeal for British Columbia. The court upheld the decision, although took issue with one aspect of the s. 7 analysis and modified the remedy slightly. In particular, the court found that trial judge erred in finding that the by-laws were arbitrary. It could not be said that the prohibition on the erection of shelter bore no relation to the objective of the by-laws of maintaining the environmental, recreational and social benefits of urban parks. Nevertheless, the court agreed with the trial judge that the provisions of the by-laws were overbroad: Victoria (City) v. Adams, 2009 BCCA 563, 313 D.L.R. (4th) 29, at paras. 116-123.

[63] With respect to remedy, the court stated as follows at paras. 160 and 162:

The evidence in this case was directed at the need for homeless persons to erect temporary overnight shelter, in order to be able to sleep outside. The declaration granted should, therefore, refer to “temporary overnight shelter” rather than simply to “temporary shelter”. This should clarify the intention that the City is required to allow shelters to remain in place only for the overnight period.

The final issue with respect to the declaration arises out of the fact that the impugned provisions of the Bylaw are only unconstitutional because there are insufficient resources in the City of Victoria to shelter the homeless. If there were adequate shelter beds or appropriate designated areas outside of parks to accommodate the homeless, the Bylaw provisions that we are concerned with might well be valid.

[64] As a result, the Court of Appeal concluded that the relevant provisions of the by-law were inoperative only insofar as they applied to prevent homeless people from erecting temporary overnight shelter in parks when the number of homeless people exceeds the number of available shelter beds in the city of Victoria. The finding of the Charter breach was based on the evidence led at the hearing. The remedy was crafted to respond to the specific factual findings made. In neither the trial nor the appellate decision did the court purport to articulate a new “right” under s. 7. That this is so, is confirmed in the subsequent decision of the Court of Appeal for British Columbia in Johnston v. Victoria (City), 2011 BCCA 400, 22 B.C.L.R. (5th) 269.

[65] In Johnston, the appellant took the position at trial and on appeal that the homeless in Victoria were entitled by s. 7 of the Charter to erect and maintain shelters on city land for daytime use. In dismissing the appeal, the court noted that the Adams decision did not create a “right” to do anything. It noted that the differently constituted panel in Adams mistakenly referred to a right to erect temporary shelters in several places, but that such a right would amount to a property right, which the court in Adams had said was not the legal result. The court in Johnston held that the effect of Adams was to prevent interference with the efforts of the homeless in sheltering themselves at night on city property. This did not set up a presumed s. 7 breach for daytime regulation. The Applicant’s claim failed because he did not lead sufficient evidence of a s. 7 breach: Johnston, at paras. 1, 10-13, and 16.

[66] Since Adams and Johnston, there have been a number of cases in which homeless individuals have challenged prohibitions on erecting shelter on public lands. Most of these have been in British Columbia, although there have been a handful more recently in Ontario. In some cases, a party is seeking an interlocutory injunction so that while the legal principles are discussed, there is no final Charter determination: see British Columbia v. Adamson, 2016 BCSC 1245; Poff v. City of Hamilton, 2021 ONSC 7224. A trend in the case-law appears to have emerged in which the factual findings and tailored remedies from the trial and appellate decision in Adams have been treated as legal principles. This trend finds expression in the recent decision of Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49, in which Kirchner J. wrote the following at paras. 13-20:

The constitutional right as articulated in Adams was thus circumscribed in two respects: (1) the right is exercisable when the number of homeless outnumbered the available indoor sheltering spaces, and (2) the right to erect a temporary shelter is confined to overnight hours.

Since Adams, many municipal bylaws and government actions that seek to limit or restrict the ability of persons experiencing homelessness to erect and maintain shelters have come under challenge in this court, including in: Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC 1926 [Williams]; Abbotsford (City) v. Shantz, 2015 BCSC 1909 [Shantz]; British Columbia v. Adamson, 2016 BCSC 584 [Adamson No. 1]; British Columbia v. Adamson, 2016 BCSC 1245 [Adamson No. 2]; Nanaimo (City) v. Courtoreille, 2018 BCSC 1629 [Courtoreille]; Vancouver Fraser Port Authority v. Brett, 2020 BCSC 876 [Brett]; and, most recently, Prince George (City) v. Stewart, 2021 BCSC 2089 [Stewart].

The basic constitutional right as framed in Adams has remained largely unchanged. However, it is now recognized that it is not just the number of available indoor sheltering spaces that frames the right but also whether those spaces are truly accessible to those sheltering in parks. In Shantz, for example, Hinkson C.J.S.C. stated:

[82] Given the personal circumstances of the City’s homeless, the shelter spaces that are presently available to others in the City are impractical for many of the City’s homeless. They simply cannot abide by the rules required in many of the facilities that I have discussed above, and lack the means to pay the required rents at others.

More recently, in Stewart, Hinkson C.J.S.C. stated:

[74] It is apparent that very few of the emergency shelter beds are low barrier, and it appears that many of the homeless persons in the City are ineligible to stay in at least some of the shelters. While the City contends that the availability of 81 shelter beds in the City is sufficient to house the encampment occupants, I am not satisfied that these shelter spaces are in fact accessible to all of the occupants of the encampments.

The question of sheltering in public parks during daytime hours has also arisen in the cases since Adams, but the jurisprudence, thus far, has not extended the s. 7 Charter right to include it, at least not expressly. In Shantz at para. 276, Hinkson C.J.S.C. found “there is a legitimate need for people to shelter and rest during the day and no indoor shelter in which to do so” but held that a “minimally impairing response to balancing that need with the interests of other users” of the parks would be to allow overnight sheltering between 7:00 p.m. and 9:00 a.m.

However, in Adamson No. 1 and Stewart, Hinkson C.J.S.C. declined to grant injunctions to close specific homeless encampments and made no specific qualification that those sheltering in the parks could only do so during overnight hours. In Adamson No. 1, Hinkson C.J.S.C. did not squarely address the issue of daytime sheltering but nor did he tailor a remedy to require the encampment to be removed at sunrise.

In Stewart, he addressed the issue more directly, noting at para. 73 that the closure of shelter spaces due to COVID-19 resulted in scores of people having nowhere to shelter “in either the daytime or the nighttime.” He observed that these persons did not remove their tents or vacate the encampment each morning. In declining to grant the injunction, at least in respect of one, he did not consider or grant a more limited injunction that would restrict sheltering to overnight hours. He took judicial notice of the fact that “Prince George can be very cold in the fall and winter, and that people with nowhere warm to stay must find ways of keeping warm to stay alive”: Stewart at para. 64.

Thus, while neither Adamson No. 1 nor Stewart purport to expand the scope of the constitutional right to daytime sheltering, it was not specifically enjoined in either case.

[67] There is repeated reference in these passages to a “constitutional right” articulated in Adams. As previously noted, the Court of Appeal for British Columbia in Johnston specifically stated that Adams did not create a “right” to do anything. The rights that exist are the right to life, liberty and security of person and the right not to be deprived thereof in accordance with the principles of fundamental justice. I appreciate that some similarities may exist in cases in which homeless individuals are prohibited from sheltering and the expression “right to shelter” may act as a kind of shorthand. However, care must be taken in each case to consider the specific provisions of the legislation in question in the context of the evidence led in the particular case and through the lens of the s. 7 framework as articulated in the jurisprudence. Previous cases may provide guidance with respect to the types of evidence that will be relevant and the factors that will assist in the analysis, but they do not establish a “right to shelter” per se under s. 7 of the Charter.

The Effect of the City’s Concession that the By-Law Contravenes Section 7 of the Charter

[68] The City has conceded that an enforcement of an absolute prohibition on erecting temporary shelter in municipal parks would violate s. 7 as was found by the Court of Appeal for British Columbia in Adams. The precise legal basis for the concession has not been stated. Although I am not bound by the concession, it is my view counsel for the City was correct to take that position: M. v. H., [1999] 2 S.C.R. 3, at para. 45. That said, it is important for the court to articulate the reason for finding that such a prohibition would be in breach of the Charter and how that finding applies to the By-Law in this case.

[69] As a preliminary matter, the City argues that their concession does not necessarily lead to a finding that the By-Law is unconstitutional. Section 11 of the By-Law contains a prohibition on “camping and the use of any camping equipment”. The City submits that these prohibitions are meant to express a prohibition on activities which amount to individuals setting up camp on a particular piece of land to occupy it. To the extent that there is any ambiguity, the provisions of the By-Law should be interpreted such that they do not prohibit temporary overnight shelter but only permanent, daytime camping. This is consistent with the interpretive principle that where there are two plausible interpretations of a piece of legislation, the Charter compliant interpretation ought to be preferred.

[70] I would begin by noting that the term “camping” is not defined in the By-Law. Nevertheless, in my view the term is not restricted to permanent types of occupation. It is also meant to encompass more temporary situations. That is made clear by the wording of the exceptions in s. 11, which authorize “camping” as part of an organized special event and in designated camping in designated campsites at Lake Ontario Park by registered groups. Camping as part of a special event is not a form of permanent occupation. Nor is camping at designated campsites at Lake Ontario Park. Given that the use of the phrase “camping” in s. 11 is clearly meant to encompass the temporary erection of shelter, it cannot be interpreted to mean a more permanent type of occupation only.

[71] Charter values as an interpretative tool can only play a role “where the legislation permits two different, yet equally plausible, interpretations, each of which is equally consistent with the apparent purpose of the statute, it is appropriate to prefer the interpretation that accords with Charter principles” (emphasis added). However, where a statute is not ambiguous, the court must give effect to the clearly expressed legislative intent and not use the Charter to achieve a different result provision: R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 18. While there may be some uncertainty as to the precise meaning of the phrase “camping”, it cannot be said that one equally plausible interpretation is that it refers to only activities which extend into the daytime hours. There is simply nothing in the language of s. 11, or elsewhere in the By-Law, that supports this interpretation.

[72] As a result, a determination is required as to whether the provisions of the By-Law are in breach of the Charter. That determination must be based on the application of the evidence to the relevant legal principles. At this stage, that determination is confined to whether an absolute prohibition on erecting temporary overnight shelter in municipal parks would violate s. 7, as conceded by the City.

[73] In Adams, a significant amount of expert evidence was led with respect to the specific health effects of an inability to shelter overnight in the Victoria climate. A summary of that evidence contained at paras. 67 and 68 in the decision is set out below:

Dr. Stephen Hwang of the Department of Medicine, University of Toronto provided an expert opinion. Dr. Hwang is a specialist in general internal medicine with training in public health and epidemiology. His primary research interests are homelessness and health, access to home care for homeless persons and housing as a determinant of population health. The opinion that Dr. Hwang provided is as follows:

People who become homeless often have physical and mental health problems which worsen over the period that they are homeless. This deterioration in health is related to numerous factors, including a lack of stable housing, an adverse social environment, the near impossibility of maintaining health-promoting behaviours in the face of homelessness, and barriers to accessing appropriate health care. The state of being homeless also has direct adverse effects on health through an increased exposure to infectious and communicable diseases (e.g., tuberculosis and insect infestations such as bed bugs and scabies) and an increased risk of violence and victimization while living in shelters and on the street. For those living outside, exposure to the elements can lead to a number of serious and potentially life-threatening conditions. Homeless people are at risk for severe sunburn and heatstroke during the summer months. During cold weather, frostbite and hypothermia are major problems.

Homeless people often suffer from sleep deprivation due to an inadequate number of hours of sleep, as well as disturbed or fragmented sleep. For homeless people sleeping outside, sleep fragmentation is often related to external stimuli, such as bright lights, loud noises, and intentional efforts by other people to awaken or disturb them. A large body of research evidence has shown that inadequate sleep has numerous adverse health effects, including an increased risk of diabetes, cardiovascular disease, obesity, depression, and injuries, as well as the more commonly recognized problems of impaired alertness, attention, and concentration.

If homeless people who sleep outside are prohibited from erecting even the most rudimentary forms of shelter from the elements (e.g. tent, tarpaulin, or cardboard barriers), this would have clear and direct adverse impacts on their health. First, a lack of protection from wind and rain would increase the wind chill effect, which would greatly increase the risk of hypothermia. As has been documented in the research literature, homeless people are at particularly high risk of death from hypothermia, and half of all such deaths occur when the air temperature is above freezing (” Accidental hypothermia and death from cold in urban areas,” International Journal of Biometeorology, 1991). The wind chill effect plays a key role in such deaths. Second, prolonged exposure to cold and dampness increases the risk of skin breakdown and skin infections, particularly in the feet. In homeless people, exposure of the feet to wet and cold conditions can lead to immersion foot or trench foot, a serious condition that was first described among soldiers serving in the trenches during World War I. Third, recent research has shown that exposure to the cold increases the risk of developing respiratory tract infections, which are a major health problem among people experiencing homelessness. Fourth, a lack of shelter from the sun would greatly increase homeless people’s risk of severe sunburn and heatstroke during the summer months. Fifth, the lack of a tent or other structure to provide even a minimal degree of protection from the elements, light, and noise would result in even more disturbed and fragmented sleep, with the adverse health effects detailed above.

In summary, if homeless people who sleep outside are prohibited from erecting any form of shelter such as a tent, tarpaulin, or cardboard box, it is absolutely clear that this would have a substantial and potentially severe adverse effect on their health.

Brooks Hogya, a wilderness guide and primary care paramedic, provided an expert opinion concerning the health risks associated with sleeping outdoors, how these risks can be minimized and the sufficiency of individual, non-structural, water repellent covers with respect to these risks. Mr. Hogya’s opinion is as follows:

Hypothermia

The normal core temperature of the human body is 37° Celsius. If the body temperature drops to 35° Celsius or below a person is at risk of developing hypothermia. Hypothermia can occur at any time of the year, including summer months, particularly when it is raining or below freezing, but there is, of course a much higher risk in winter.

Individuals who are malnourished or dehydrated are at greater risk of hypothermia. In order to prevent hypothermia it is important to have proper clothing and equipment, to stay dry, and to have sufficient caloric and fluid intake.

With respect to equipment, when sleeping outdoors, at a minimum one should have extra clothing, a sleeping bag, a ground insulator in the form of a TheramarestTM or closed cell foam pad, and overhead protection in the form of a tent, or a bivy sack and tarp. A bivy sack is a waterproof fabric shell designed to slip over a sleeping bag, providing additional insulation and forming an effective barrier against wind and rain. A tarp is then strung over the bivy sack forming a tent-like protection. The size of the tarp required would depend on weather conditions. For example, a 2m × 3m tarp may suffice in mild weather, while a 4m × 4m tarp may be required in stormy weather conditions.

Sleeping on the ground causes significant conductive heat loss to the body. A sleeping bag on its own is not sufficient to protect against this. Thus it is important to have insulation under a sleeping bag in the form of a Theramarest TM or closed cell foam.

In the wilderness we always avoid sleeping on rock whenever possible. Sleeping on a surface such as rock or concrete accelerates conductive heat loss. A body will never warm up rock or concrete. The rock or concrete will keep sucking heat from the body. It is imperative to have good insulation if sleeping on such a surface.

After having appropriate gear, keeping nourished is the most important way to guard against hypothermia. Most adults living in a climate controlled environment utilize about 1,500 to 2,500 calories a day. Sleeping on the ground, without proper insulation and protection, can burn a few thousand calories, or more the colder and less protected the person is overnight.

In my experience as a wilderness guide, I have dealt with mild hypothermia on many occasions. The early signs of hypothermia include feeling cold, shivering and malaise. It is imperative that one take action right away to prevent this progressing. When caught in the early stage [a] person’s body temperature can be warmed up by applying heat to the body (for example applying hot water bottles), wrapping the body in more blankets or sleeping bag, and feeding hot food and liquids.

There is also a risk of frostbite in winter conditions when the temperature drops below 0° Celsius, or at higher temperatures in windy conditions. Frostbite occurs when the skin is exposed to cold. Skin exposed to wind cools more dramatically and frostbite can occur in temperatures when it is windy and below freezing.

There is little risk of contracting heatstroke (hyperthermia) in Victoria, excerpt it [sic] perhaps on a few occasions in extremely hot weather. However, even in the summer there is risk of hypothermia developing if one were to get wet on cool a night. It is still important to have proper equipment when sleeping outside in the summer.

Is a simple, individual, nonstructural, weather repellant cover such as a sleeping bag, blanket or other soft material sufficient protection from the elements when sleeping outside in Victoria?

In my opinion a simple, individual, nonstructural, weather repellant cover such [as] a sleeping bag, blanket or other soft material is not sufficient protection from the elements when sleeping outside in Victoria, or anywhere in our West Coast climate, except perhaps on the warmest of dry summer nights. To safely sleep outside in this climate one requires appropriate protection in the form of a tent or other structure to protect against rain, wind and snow. In addition, ground insulation is necessary to protect against conductive heat loss. [Emphasis in original.]

[74] The evidence about the specific need to shelter in this case is much more limited than it was in Adams.

[75] Dr. Andrea Sereda provided the following evidence relevant to the issue. Tents used in encampments provide an essential layer of protection from wind, rain, snow and sun. Without this layer of protection, there is an increased risk of weather-related ailments such as frost bite. One of the harms associated with encampment evictions are environmental/weather related ailments – frostbite, heat stroke, burns. People who have nowhere safe to sleep commonly have profound sleep deprivation which can impact physical and mental health, but also contribute to greater risk of death through mechanisms like overdose.

[76] The evidence of Vincent Shaver, one of the Respondents, is that sleeping bags and warm clothes are insufficient to survive when it is -20°C outside.

[77] In addition, I am prepared to take judicial notice that the weather in Kingston can be very cold in the autumn and winter.

[78] While the evidence here is much more limited than it was in Adams, when considered in conjunction with the City’s concession, it is sufficient to establish that exposure to the elements at night without adequate shelter can result in serious and life-threatening conditions.

[79] This engages the right to life. In addition, creating shelter to protect oneself from the elements is a matter critical to an individual’s dignity and independence. The state’s intrusion in this process interferes with the individuals’ choice to protect themselves and is a deprivation of liberty and security of the person within the scope of s. 7.

[80] In Adams, the Court of Appeal for British Columbia concluded that the prohibition on erecting overnight shelter was overbroad but not arbitrary. It did so because there were a number of less restrictive alternatives that would further the city’s concerns regarding the preservation of urban parks. The decision was rendered before the Supreme Court of Canada in Bedford clarified the meaning of overbreadth within the context of a consideration of the principles of fundamental justice. Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part.

[81] I am bound to apply the legal principles as set out by the Supreme Court of Canada in Bedford. The issue is not whether there are less restrictive alternatives that would further the City’s objectives. The issue is whether the By-Law includes some conduct in its scope that bears no relation to those objectives.

[82] The Respondents argue that the By-Law does not contain a purpose section, but its objectives can be understood with regard to the activities it restricts, which range from washing “a motorized vehicle” within municipal park boundaries; to dumping “garbage” or “animal excrement”, interfering with a bird’s nest”, “strik[ing] a golf ball”, and “foul[ing] a fountain”; to injuring “person or property”, possessing “firearms or offensive weapons”; to “camping and the use of any camping equipment”. Based on these prohibited activities, the purpose of the By-Law could be understood as to regulate the conduct in public parks to prevent damage to parks and promote their enjoyment.

[83] The City concedes there is no purpose section to the By-Law and did not lead any evidence of a specific legislative intent. It does not dispute the analysis employed by the Respondents but adds that on a consideration of that analysis the By-Law’s objective is to promote the safe use of the park and the protection of the park infrastructure.

[84] As noted by the Supreme Court of Canada in Ndhlovu, the focus is on the purpose of the challenged provisions, not of the entire act in which they appear, although a correspondence between those purposes may sometimes occur. While it is clear that some of the provisions in the By-Law relate to the safe use of the park, I am unable to say whether the prohibition on camping was enacted with that purpose in mind. I conclude that the purpose of the By-Law is to regulate the conduct in public parks to prevent damage to the parks and their infrastructure and to promote their use and enjoyment.

[85] It cannot be said that prohibiting the homeless population from camping overnight bears no relation to its purpose. Overnight camping has the potential to cause damage to the park and prevent others from using the park. The evidence led by the City on this application makes that clear. Therefore, the provisions in the By-Law are not overly broad.

[86] In my view, however, the By-Law’s effects on the life, liberty or security of the person are so grossly disproportionate to its purposes that they cannot rationally be supported. While the objectives of the By-Law are laudable, they are not so compelling that they can be secured at the expense of the lives of Kingston’s homeless population. The City has argued that the effects of the “clearing of the encampment” would not be grossly disproportionate to the purpose of so doing. That is because the dangers to the encampment residents posed by living in the encampment are significant. However, I have found that what is at issue on this application is the By-Law, not the clearing of the encampment. Evidence as to the negative impacts of the encampment has only a very limited role to play at the gross disproportionality stage of the analysis with respect to the By-Law. It has some value in demonstrating that the objective of the By-Law – to regulate the conduct in public parks to prevent damage to the parks and their infrastructure and to promote their use and enjoyment – is a valid one. However, I am only to consider the objective of the By-Law, not how well it achieves its object, how much of the population benefits or any ancillary benefits to the general population: Bedford, at paras. 121-123.

[87] To borrow the language from Bedford, a law that prevents the homeless from avoiding a serious risk of injury or death by erecting shelter overnight when there is nowhere else to go is a law that has lost sight of its purpose: at para. 136. As a result, I conclude that s. 11 of the By-Law in unconstitutional in so far as it prohibits homeless individuals from erecting shelter overnight.

Is the Waterloo Decision Binding?

[88] There is a further issue in this case, however. That issue is whether the prohibition on camping is in breach of the Charter to the extent that it prohibits erecting shelter not just overnight, but in the daytime as well. It is to that issue that I now turn.

[89] The amicus submits that I am bound to follow the “legal finding” made in the Waterloo decision that the “right to shelter” is not limited to the overnight hours.

[90] The Supreme Court of Canada has recently clarified that while horizontal stare decisis is not strictly binding in the same way as vertical (appellate) stare decisis, the ordinary principles of stare decisis should be followed as a matter of judicial comity. These principles govern the manner in which a s. 52(1) declaration issued by a Superior Court affects how courts of coordinate jurisdiction in the same province decide future cases raising similar issues. The court clarified that horizontal stare decisis applies to all questions of law decided by Superior Courts. In the constitutional context, a declaration by a Superior Court that a law is inconsistent with the Constitution is both a judicial determination of a question of law and a declaration that the law is “inoperable”: R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at paras. 44, 46-56, 61-66, and 68.

[91] In Waterloo, the by-law at issue included a prohibition against erecting any type of structure, including a tent, on Region owned property. In December of 2021, a small number of homeless people began erecting tents on a vacant lot owned by the Region. As here, the Region sought injunctive relief and the central issue became the constitutional validity of the by-law provisions. Ultimately, Valente J. found that the by-law violated s. 7 of the Charter and declared it inoperative only insofar as is applied to prevent the residents of the encampment from living on and erecting temporary shelters without a permit on the property when the number of homeless persons exceeded the number of accessible shelter beds in the Region: Waterloo, at paras. 157-158.

[92] The finding that the particular by-law in that case was unconstitutional is clearly not binding on me. I am dealing with a different by-law. The real issue is whether there are any questions of law decided in Waterloo that by reason of horizontal stare decisis I must follow.

[93] After referring to the above noted passages in Bamberger, Valente J. wrote that “[t]he essence of the British Columbia decisions is the establishment of a constitutional right to shelter oneself when the number of homeless persons exceed the number of available and accessible indoor shelter spaces within a given jurisdiction”: Waterloo, at para. 82. At no point in his written reasons, however, does he state that he is specifically adopting the “essence” of the British Columbia decisions as a principle of law. Rather, the approach he takes is to apply the specific evidence before him through the lens of the s. 7 framework – correctly, in my view. For instance, he found that the ability to provide adequate shelter for oneself is a necessity of life that falls within the right to life protected by s. 7 of the Charter “because the very clear and uncontroverted evidence before me is that exposure to the elements without adequate shelter can result in serious harm, inducing death” (emphasis added): Waterloo, at para. 96.

[94] On the issue of day-time shelter Valente J. wrote as follows, at para. 105:

Whereas I find that in the circumstances of the Encampment residents, the constitutional right to shelter is invoked where the number of homeless individuals exceed the number of available and truly accessible indoor sheltering spaces, I also find that the Encampment residents’ right to shelter is not limited to the overnight hours. I have reached this conclusion for two reasons. Like Chief Justice Hinkson found in Shantz, at para. 276, I find on the evidence that “there is a legitimate need for people to rest and shelter during the day” but, unlike the British Columbia’s Supreme Court’s Chief Justice, I find that there is no need in the case of the Encampment to balance their needs with the rights of the Region’s other residents. Unlike in Adams and Shantz, the Property is not a park or other space designed with the purpose of being enjoyed by the public at large. Instead, the Property is a vacant lot to be used by the Region as a temporary parking lot and lay down construction area at some undefined future date. Therefore, based on these facts, 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. [Emphasis added.]

[95] It is clear from this passage that the conclusion with respect to day-time shelter is factual in nature and not a legal principle. It is based on the evidence that was before the court. I am not privy to what that evidence was. In any event, I can only decide the key issues in this case based on the evidence that is before this court. As a result, I am not bound by the principle of horizontal stare decisis to find that the “right to shelter” extends to day-time hours.

Does the Evidence Establish a Breach of Section 7 of the Charter Beyond the Concession Made By the City?

[96] As previously noted, the Respondents led only limited evidence with respect to the effects of not being able to shelter. While some of the evidence would presumably apply equally to daytime sheltering as it would to nighttime sheltering, there is no specific evidence to that effect. In addition, the City has not conceded that a prohibition on erecting shelter on municipal lands during the daytime would be unconstitutional.

[97] The onus is on the claimants to establish a breach of the Charter. Assuming, without deciding, that a prohibition on erecting shelter in the daytime engages the right to life, liberty or the security of the person, the Respondents must demonstrate that the infringement is not in accordance with the principles of fundamental justice. The principles of fundamental justice set out the minimum requirements that a law that negatively impacts a person’s life, liberty, or security of the person must meet.

[98] The principle of fundamental justice engaged in this case is gross disproportionality. The Supreme Court in Bedford made clear that the rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure. That is why evidence as to the extent of the alleged deprivation is so important.

[99] The Respondents led evidence from three experts.

[100] Two of the experts – Dr. Kaitlin Schwan and Candice Christmas – provided reports that do not address the need to shelter, much less the specific need for daytime shelter.

[101] According to the Respondents, Dr. Schwan's evidence is relevant and necessary to assist the court in understanding the particular challenges faced by women and gender diverse persons in accessing traditional shelters. This is relevant to the court’s assessment of whether existing shelter spaces are accessible to encampment residents and also to the consideration of whether enforcement of the By-Law infringes s. 15 on the basis of sex. Ms. Christmas’s evidence is relevant and necessary to help the court understand the particular challenges faced by persons with addictions in accessing traditional shelters. This, too, is relevant to the court’s assessment of whether existing shelter spaces are accessible to encampment residents and to a consideration of whether enforcement of the By-Law infringes s. 15 on the basis of disability.

[102] During oral submissions, Counsel for the intervenor CCLA submitted that I need not decide the issue of what would constitute an “accessible” shelter space in light of the City’s concession that it has not been able to locate adequate shelter space for each unhoused individual residing in the municipality. I would further note that by virtue of the remedy they now seek – a declaration that the By-Law is inoperative insofar as it applies to prevent the encampment residents from living at and erecting temporary shelters at Belle Park when the number of homeless individuals in Kingston exceed the number of accessible shelter beds – the Respondents accept by necessary implication that there is no right to a permanent encampment in Belle Park and no right to live next to the ICH. If there were sufficient beds to house the homeless population in Kingston, the By-Law would no longer be unconstitutional. The City would be entitled to enforce the prohibition on camping, despite the fact that the Respondents wish to live communally near the ICH. As a result, the evidence of Dr. Schwan and Ms. Christmas is not relevant to the s. 7 claim, and I need not consider the City’s other objections to the admissibility of this evidence.

[103] The evidence of Dr. Sereda, as previously noted, does address the need to shelter to a limited degree. However, the main focus of her report are the following areas: the practical difficulties with delivering health care to the unhoused, the Health Centre’s Model of Care, the impact of encampment evictions on healthcare delivery, encampment evictions in London, advantages and disadvantages of living in a tent/encampment, examples of medical care provided to evicted encampment residents, advantages of living in an encampment versus living in a public space without a tent, advantages of living in an encampment versus shelter and experience attempting to access shelter for her patients. I agree with the City much of this evidence is irrelevant to the issues I must decide.

[104] With respect to the aspects of her evidence that do address the need to shelter, I find it admissible on the basis that it is relevant and necessary. Dr. Sereda is a properly qualified expert and there are no other exclusionary rules that would apply. The fact that Dr. Sereda has not visited the encampment in Belle Park is of no moment. The central issue in this case is whether a prohibition on camping in municipal parks would deprive homeless person of the right to life, liberty or security of the person in a manner not in accordance with the principles of fundamental justice. An expert need not attend a particular encampment to provide evidence on that issue. Nor does the fact that Dr. Sereda has been an advocate against the clearing of encampments necessarily disqualify her from giving expert evidence: see Black et al. v. City of Toronto, 2020 ONSC 6398, 152 O.R. (3d) 529, at paras. 31-37.

[105] In reviewing the affidavit of Dr. Sereda, I have ascertained that the following evidence is potentially relevant to the issue of the necessity of daytime shelter:

• Tents used in encampments provide an essential layer of protection from wind, rain, snow and sun. Without this layer of protection, there is an increased risk of weather-related ailments such as frost bite;
• One of the harms associated with encampment evictions are environmental/weather related ailments – frostbite, heat stroke, burns;
• Having a tent facilitates the ability to store and use medications, to complete hygiene and other basic self-care. Tents also allow for privacy from the public gaze and abuse from the general public, which can be very detrimental to the mental health of unhoused people;
• People who are unhoused have a tenuous and survival relationship to their possession. Survival items like tents, cooking and warmth tools, clothing and tents can take significant effort to obtain. When people living unhoused have to leave their tents, or their encampments are cleared, they are at high risk of losing all of their hard-won possessions. This affects people practically; they may have no shelter to return to if they leave for an x-ray or a hospital visit. It is also important to recognize that for people who have so little, belongings can also be part of one’s identity. People can lose a bit of their identity and self-worth as they repeatedly have fewer and fewer possessions;
• Given that shelters are routinely full and residents do not often have phones, they must walk with their possessions from shelter to shelter. It is very physically taxing, especially for those with physical disabilities to spend their days like this. It is less physically and mentally taxing to remain in a tent in one location; and
• Additionally, when people must leave the shelter in the early morning, they are left with nowhere to go to rest, decompress or regroup until they return at night simply to attempt to sleep. As a population that experiences exceptionally high rates of physical disability, encampments can provide reprieve from the need to constantly be moving and carrying belongings.

[106] In addition, the Respondents gave the following evidence:

• One of the reasons Suzanne Lavigne prefers to stay at the encampment as opposed to a shelter is that she cannot stay during the day at a night-time shelter. Carrying her personal belongings from place to place is exhausting;
• According to Tabatha Leeman, shelters do not have enough space to rest and relax during the day. They only have hard chairs, which is tough on the elderly and people with disabilities. There are not typically spaces during the day for people who want to nap and people who want to socialize, so daytime shelter spaces are usually noisy; and
• Zachary Pringle has wandered during the day and night to make sure people did not steal his belongings. He would carry his stuff with him wherever he went.

[107] The evidence before me does not establish that the seriousness of the potential deprivation is totally out of sync with the objective of the measure. I reach this conclusion for two reasons.

[108] First, the Respondents seek a declaration that the By-Law is inoperative insofar as it applies to prevent the encampment residents from living at and erecting temporary shelters at Belle Park when the number of homeless individuals in Kingston exceed the number of accessible shelter “beds”. The focus of the relief is on allowing camping when there are insufficient shelter “beds” in the City, not when there are insufficient places to go during the day. On the Respondents’ own reasoning, if there were sufficient “beds”, the By-Law would be constitutional even though some of the concerns raised by Dr. Sereda would remain, such as walking from shelter to shelter, and the possibility of losing personal possessions required for survival.

[109] Second, and more importantly, there is an almost complete absence of evidence with respect to the options homeless people have to shelter during the day in Kingston. According to Ruth Noordegraaf, the Director of Housing and Social Services at the City of Kingston, the hours of the City’s shelters are as follows:

a. In From the Cold Emergency Shelter – 24 hours;

b. Kingston Youth Shelter – 24 hours;

c. Lily’s Place – 24 hours;

d. Integrated Care Hub – 24 hours;

e. Concession St. Centre – 9 pm to 9 am;

f. Adelaide Drop-In – 9 pm to 9 am; and

g. St. Mary’s Drop-In Centre – 9 pm to 8 am.

[110] There is no evidence as to how many people can attend each of the shelters during the daytime, for how long they can do so and what services are offered at them. In cross-examination, Ms. Noordegraaf testified that there are additional dedicated daytime services in the community. The Salvation Army was listed as an example. It is unclear from the evidence whether it is the only one.

[111] The City argues that I can take judicial notice of the fact that there would be other places for homeless people to shelter during the day in Kingston. I am not prepared to do so. Whether there are public spaces such as libraries and post offices, and private businesses such as shopping malls and Starbucks, where homeless individuals can shelter during the day without fear of being evicted is not a “fact” that is so notorious or generally accepted as not to be the subject of debate among reasonable persons. It is also not a “fact” that can be readily and accurately ascertained with reference to sources of easily accessible and indisputable information: R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458.

[112] However, the onus is on the Respondents to establish the Charter breach. It is not simply a matter of extending the “right to shelter” to daytime hours. In the absence of any meaningful evidence with respect to daytime sheltering options, they have failed to establish that a prohibition on camping in public parks during the daytime is unconstitutional.

[113] That is not to say that a breach could not be established on the proper evidence. I disagree with the City that s. 7 cannot be invoked to protect daytime sheltering in a public park as this would amount to the grant of a property right. The ability to shelter in daytime is not a property right so long as the Respondents do not claim they could exclude anyone from city property, or determine the use of any city property, or seek to have public property allocated to their own exclusive use.

Section 1 of the Charter

[114] In light of my conclusion that the By-Law infringes s. 7, the question becomes whether it can be saved pursuant to s. 1 of the Charter, which reads as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[115] The criteria that must be established to justify the infringement of a right or freedom guaranteed by the Charter are: (1) a sufficiently important legislative objective; (2) a rational connection between the impugned provisions and the objective; (3) minimal impairment of the right or freedom in question; and (4) proportionality between the deleterious effects of the limitation and its purpose: R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 138-140.

[116] The onus is on the City to establish the applicability of s. 1, a test that will rarely be made out where a s. 7 breach has been found. The City concedes that if the court accepts that s. 11 of the By-Law prohibits temporary overnight shelter in all City parks it is “constitutionally problematic”. While the City has advanced arguments as to whether the clearing of the encampment could be saved by s. 1, it has not done so with respect to the prohibition on camping contained in the By-Law. As a result, I find that the breach of the Respondent’s s. 7 rights cannot be saved by s. 1.

[117] There will be a declaration that s. 11 of the By-Law violates s. 7 of the Charter in that it deprives homeless people of life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice and is not saved by s. 1 of the Charter.

Section 15 of the Charter

[118] In light of my finding with respect to s. 7, I need not consider whether the provisions of the By-Law breach s. 15 of the Charter. The City has conceded that a prohibition on erecting shelter for homeless people overnight is not in accordance with the principles of fundamental justice. Furthermore, the lack of evidence with respect to the need and options for daytime shelter applies equally to the s. 15 claim. A constitutional pronouncement in such circumstances would be unnecessary and may prejudice future cases: Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, 481 D.L.R. (4th) 581, at para. 181.

Remedy for Breach of Section 7 of the Charter

[119] With respect to remedy, the Respondents seek a declaration that the By-Law is inoperative insofar as it applies to prevent the encampment residents from living at and erecting temporary shelters at Belle Park when the number of homeless individuals in the City exceed the number of accessible shelter beds.

[120] The City submits that in the event I conclude that the By-Law breaches s. 7 of the Charter, I ought to follow the approach taken by the Court of Appeal for British Columbia in Adams. Any declaration arising from the City’s concession ought to be limited to a recognition of the fact that Kingston cannot rely on s. 11 of the By-Law to prohibit temporary overnight shelter unless and until it provides adequate shelter space.

[121] Both parties agree that I should fashion a remedy under s. 52(1) of the Constitution Act, 1982. In so doing, care must be taken to ensure that laws are declared of no force or effect only to the extent of the inconsistency with the Charter. As a general proposition, the court ought not to strike down portions of legislation which are neither unconstitutional nor so intimately connected to unconstitutional provisions as to be inseparable from them: Adams CA, at para. 158.

[122] One remedial option is “reading in.” The purpose of reading in is to be as faithful as possible within the requirements of the Constitution to the scheme enacted by the Legislature but also to respect the purposes of the Charter. Reading in is particularly appropriate where the legislation fails because it is not carefully tailored to be a minimal intrusion, or it has effects that are disproportionate to its purpose. Even so, reading in will not be appropriate if the question of how the statute ought to be extended in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis: R. v. Parker (2000), 49 O.R. (3d) 481 (C.A.), at paras. 200-201.

[123] In this case, the difficulty with the provision of the By-Law is that its effects are disproportionate to its purpose. Furthermore, the manner in which the By-Law could be revised is not at issue given the City’s legal concession. I conclude, therefore, that this would be an appropriate case for reading in. The question becomes what specifically should be read in.

[124] In submissions, both parties have focused on the particular encampment that has sprung up in Belle Park, as well as its current and future residents. The By-Law, however, is not unconstitutional because it prohibits the encampment residents from camping in Belle Park. It is unconstitutional because it prevents all homeless individuals from camping in any municipal park. If the remedy were restricted to only encampment residents, where would that leave the homeless individuals that did not wish to stay in the encampment but were unable to secure a bed at a shelter? Unlike the residents of the encampment, they would be forced to choose between putting their lives at risk or being cleared and/or prosecuted by the City. Such a remedy would grant special status to a select few who choose to camp on a particular parcel of land while leaving all others without protection. Any language that is read in should encompass all homeless people and should not be restricted to Belle Park.

[125] One final issue arises – whether I should declare the By-Law to be inoperable only in so far as it applies to prevent the homeless persons from erecting temporary shelters in public parks when the number of homeless individuals in the City exceed the number of accessible shelter beds. This was the approach taken by the Court of Appeal for British Columbia in Adams. The court wrote the following at paras. 162-165:

The final issue with respect to the declaration arises out of the fact that the impugned provisions of the Bylaw are only unconstitutional because there are insufficient resources in the City of Victoria to shelter the homeless. If there were adequate shelter beds or appropriate designated areas outside of parks to accommodate the homeless, the Bylaw provisions that we are concerned with might well be valid.

Section 52(1) of the Constitution Act, 1982 provides sufficient flexibility to deal with this last issue. In Schachter, the Supreme Court of Canada established that there are various tools available to a court when it finds a law to be “of no force or effect” in order to craft a remedy that covers the “extent of the inconsistency”. These include severance of portions of the impugned legislation, and “reading in” provisions as required. Schachter does not suggest that these are the only tools available for tailoring declarations to the extent of inconsistency with the Constitution.

A law may be found to be “of no force or effect” in at least two ways. First, the law may be struck down; this is the remedy that is applied to ultra vires laws, and is also, typically, the remedy applied when a law contravenes the Charter. In appropriate cases, however, a court may, instead, declare a law to be “inoperative”. This remedy is typically applied to provincial laws where paramount federal laws are in place. The provincial laws are not “struck down”, in the sense that they are, effectively, repealed; rather, they are made dormant for so long as paramount federal legislation remains in place, and automatically “revive” if and when the paramount legislation is repealed (see Peter Hogg, Constitutional Law of Canada, 5th ed., Supp., vol. 1, looseleaf [Toronto: Thomson Carswell, 2007] §16.6, at 16-19).

A declaration that a provincial law is “inoperative” while a paramount federal law subsists is not problematic. It is a simple matter to determine the status of the federal law. The situation in the case at bar is not so simple. There is no “bright line” test to determine whether resources to shelter the homeless in Victoria are sufficient to render the provisions of the Parks Regulation Bylaw once again constitutional. We consider that the appropriate manner of dealing with this problem is to allow the City to apply to the Supreme Court for a termination of the declaration if it can demonstrate that the conditions that make the Parks Regulation Bylaw unconstitutional have ceased to exist.

[126] In my view, to declare the By-Law inoperative in this manner would not be appropriate. The issues are extraordinarily complex. It would not be a simple matter to determine when the By-Law ceases to become unconstitutional. There are two difficulties in particular: how to calculate the total homeless population and determining the meaning of “accessible” shelter beds.

[127] On the first issue, the CCLA points out that there is a general consensus that homelessness surveys inevitably lead to an underestimate or under-reporting of the unhoused population. Even the “Point-in-Time Count”, which is considered to be the most comprehensive methodology for collecting data on homelessness, has severe limitations because it focuses on a single day and may quickly become obsolete as the homeless population fluctuates in a specific jurisdiction. As a result, the City could commence an application to declare the By-Law constitutional only to have the homelessness number change and render the application moot. In essence, the constitutionality of the By-Law would hinge on the results of periodic and potentially unreliable homelessness surveys.

[128] An already complicated exercise becomes even more so when attempting to define what constitutes an accessible shelter bed. In Waterloo, Valente J. noted that to be of any real value to the homeless population, the shelter spaces must be truly accessible. “If the available spaces are impractical for homeless individuals, either because the shelters do not accommodate couples, are unable to provide required services, impose rules that cannot be followed due to addictions, or cannot accommodate mental or physical disability, they are not low barrier and accessible to the individuals they are meant to serve”: at para. 93.

[129] How would a court ever be able to determine whether there were sufficient accessible shelter spaces in a municipality? It would need to know the needs of each and every homeless person in a region – for example whether they were part of a couple, had a disability, or were suffering from an addiction. It would then be required to determine how many shelter spaces fit those particular needs, keeping in mind that those needs could potentially change on a daily basis. This exercise is not only impractical; it is for all intents and purposes impossible.

[130] It is no answer, in my view, to suggest that all shelter beds be “low barrier”. The homeless population is not homogeneous. Their needs are diverse. As testified to by Tom Greening, the executive director of HomeBase Housing for 30 years:

I can also tell you – and this I overlooked in so many discussions in the City of Kingston, there are many homeless individuals who will never go to the Integrated Care Hub [a “low barrier shelter”], who do not like it there, who are afraid to go because of the level of perceived violence and safety issues.

So all of our programs and services appeal to certain elements of the homeless population and for other reasons, certain person in the homeless population, don’t like that shelter. And it applies to every single shelter. It’s not unique to anyone.

[131] In other words, there is not one type of shelter that can be built that would be truly “accessible” to the entire homeless population.

[132] In addition, such a declaration would essentially place the focus on creating more shelter beds. It is far from clear based on the evidence before me that this is the only, or even most appropriate, solution to the problem. As noted by the Court of Appeal in Adams, it is not just sufficient shelter beds but also appropriate designated areas outside of parks to accommodate the homeless that might affect the constitutionality of the By-law. The point being is that the City should be entitled to choose amongst various options in crafting a response to this court’s finding of unconstitutionality.

[133] For the foregoing reasons, I am not prepared to declare that the By-Law is inoperative only in so far as it prohibits homeless people from erecting overnight shelter in parks when the number of people exceeds the number of available shelter beds in the City of Kingston.

[134] To remedy the constitutional problem posed by s. 11 of the By-Law, an additional exception will be read in to clarify that the prohibition on camping does not apply to the erecting of temporary shelter in parks by homeless persons commencing one hour before sunset and ending one hour after sunrise.

The Injunction

[135] The City has sought a permanent injunction on specific terms. As a result of the amendment of its pleadings post hearing, the injunction is sought pursuant to s. 440 of the Municipal Act, 2001, which reads:

If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.

[136] Where a municipal authority seeks an injunction to enforce a bylaw which it establishes is being breached, the courts will refuse the application only in exceptional circumstances: Newcastle Recycling Ltd. v. Clarington (Municipality), 2005 ONCA 90, [2005] O.J. No 5344 (C.A.), at para. 32.

[137] In this case, I have concluded that s. 11 of the By-Law is unconstitutional and have read in an exception allowing homeless people to erect shelter overnight. As a result, the City is only entitled to injunctive relief to the extent that a breach of the By-Law’s prohibition on camping during daytime is established. There is no question that on the evidence such a breach has been made out.

[138] However, given that the City is seeking a permanent injunction, it still must establish that the scope of the terms of the injunction ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent: Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 444 D.L.R. (4th) 183, at para. 25.

[139] The scope of the proposed terms of the injunction goes well beyond what is required to prevent a continuation of the breach of the By-Law:

a. The City seeks an order that the residents of the encampment “vacate” Belle Park but as members of the public they are entitled to be in the park. Their mere presence in the park is not a breach of the By-Law.

b. The City further seeks an order that the residents remove all tents, shelters, personal chattels, structures, and other things present at the encampment. However, members of the public are not prohibited from having such items in the park; they are only prohibited from using the camping equipment. In addition, I have found that homeless individuals are entitled to use the equipment overnight. A blanket order for the removal of this equipment does not accord with their right to erect shelter overnight.

c. Finally, the City seeks an order that the residents refrain from re-entering the encampment except as authorized by the City. As noted above, as members of the public they have a right to use the park. Their mere presence in the park does not constitute a breach of the By-Law.

[140] I find that the scope of the proposed terms of the injunction do not ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven. I further find that it would be unfair to the Respondents for the court to attempt to craft different terms in the absence of fulsome submissions. As a result, the City’s application for injunctive relief is dismissed. The City may bring a new application for an injunction on terms that comply with this ruling should it choose to do so. While I am prepared to hear such an application, as I am not seized of this matter it need not be brought before me.

Costs

[141] The parties are encouraged to agree on the issue of costs. If they are unable to do so, the party seeking costs shall deliver costs submissions within 30 days of the release of this decision and the responding party shall deliver responding costs submissions within 15 days of receipt of the submissions of the party seeking costs. Reply submissions, if any, are to be delivered within 5 days of receipt of the submissions on behalf of responding party. The initial and responding submissions are not to exceed ten pages doubled spaced excluding costs outlines, offers to settle and authorities. Any reply submissions are not to exceed four pages. All submissions are to be sent to my attention by email to scj.assistants@ontario.ca.

Carter J.

Released: November 24, 2023

COURT FILE NO.: CV-23-188 DATE: 2023/11/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: THE CORPORATION OF THE CITY OF KINGSTON Applicant – and – JASON ENGLISH, SUZANNE LAVIGNE, NORMAN SERO, MELISSA MILLIGAN, JUSTIN DANIEL, PATRICK PRICE, JAMES JOHNSON, TAYLOR WILKINSON, TABATHA LEEMAN, ZACHARY PRINGLE, TRINITY LIDDARD, VICTORIA LADOUCEUR, VINCENT SHAVER, PAUL LUYTEN, JOHN DOE and JANE DOE Respondents – and – CANADIAN CIVIL LIBERTIES ASSOCIATION, Intervenor

REASONS FOR JUDGEMENT Carter J.

Released: November 24, 2023