Judge rules city can enforce encampment bylaw, attempt for an injunction fails

An attempt to get a court injunction barring the city from tearing down encampments has failed, with a judge ruling the city can enforce its bylaw against tents in public parks.

"No reasonable person in Canada would disagree with the proposition that homelessness ... is a tragedy," wrote Superior Court Justice Andrew Goodman in his 76-page decision released on Tuesday.

But, he added, evidence presented during the hearing "demonstrates that the city has taken and continues to undertake reasonable steps in order to make available safe shelter space and accommodation."

The Hamilton Community Legal Clinic (HCLC) was seeking the interim injunction on behalf of five people experiencing homelessness in Hamilton.

Its proposal was for groupings of up to six tents to be allowed in parks, so long as they were 50 metres away from playgrounds, schools or child care centres and at least 200 metres from each other.

"Taking away tents is not going to reduce or eliminate homelessness," legal clinic lawyer Sharon Crowe previously told court. "The only thing it will achieve is to make an already vulnerable group even more vulnerable."

In a statement issued shortly after the ruling, the city said it will return to enforcing the bylaw, with bylaw officers as the first point of contact.

"The city enforcement approach will continue take into consideration the safety and well-being of individuals experiencing homelessness, as well as the broader community needs, including access to green space for safe outdoor recreation," the statement reads.

People staying in encampments will not be ticketed unless "alternative options are exhausted," it adds.

The legal clinic lawyers argued they were not seeking a sweeping order that could tie the city's hands, instead they were asking for the judge to limit the "sweeping nature" of the city's bylaw.

But Goodman wrote in his decision that the application for an injunction "overreaches" by asking the court to prevent the city from exercising its "valid authority."

The question before the court was not whether more should be done to address homelessness, the judge said. Instead it was whether the city's bylaw should be limited.

The case touches on "complex, and challenging social, economic and policy questions affecting homeless and marginalized" people, he wrote.

"These issues ought to be left to elected officials, health care ... social agencies and experts who are best equipped to address the welfare and needs of the homeless."