A group of encamped Hamilton residents are taking the city to court over a ban on camping in parks, arguing that their charter rights are violated.
The trial, which began Monday in the Ontario Superior Court of Justice, will last three days. The 14 applicants seek a total of $445,000 from the city for encampment restrictions between August 2021 and 2023.
Their lawyers from the Hamilton Community Legal Clinic argued the repeated evictions from the parks violated their rights to life, liberty and security and were discriminatory because women, people with disabilities and indigenous peoples were disproportionately affected.
Justice James Ramsey will rule on the case in the weeks following the hearing.
“The applicants do not live in camps by choice,” attorney Wade Poziomka told the court.
“They want stable, safe and affordable housing … Unfortunately there is a dramatic shortage. With a lack of housing options, applicants are forced to make tough choices in imperfect situations.”
The city's ban resulted in encampment residents being evicted from their tents day or night by bylaw or police officers, the applicants argue. If they weren't allowed in the shelters, or all the beds were full, they had no choice but to sleep outside – exposed to the elements.
They faced an increased risk of hypothermia, dehydration and sexual and physical assault, and lost privacy, medical care and access to essentials if they were allowed to pitch tents, their lawyers told the court.
The city's ban on camping in public spaces ended last summer when the council passed a protocol, or set of rules, allowing tents in certain areas if they were a certain distance from playgrounds, schools and private property, among other conditions.
The city denies any charter violations between 2021 and 2023 and will argue the lawsuit should be dismissed based on the facts filed in court.
The tents were banned to protect the city's parks and public spaces, and the economic and social well-being and health and safety of the community, court documents said.
The city denies that it forced people to leave overnight camps or that the ban directly harmed people experiencing homelessness.
Its attorneys will also argue this week that the city has spent “huge amounts of money” to support the needs of homeless people, reduce the harm they face and get them housing, the figures said.
Trauma Underpins Case History
The 14 applicants all experienced homelessness, tried to live in camps during Prohibition and relied on social assistance, their court documents said. Among the applicants are nine women, one of whom is transgender and five men. More than half of the applicants are Aboriginal and two are black — representing two communities disproportionately affected by homelessness.
They are Kristen Hagsma, Darrin Marchand, Gord Smith, Mario Muscato, Shawn Arnold, Cassandra Jordan, Julia Lauzon, Amy Lewis, Ashley McDonald, Corey Monahan, Misty Marshall, Sherry Ogden, Jammy Pierre and Linsley Greaves.
Most applicants struggle with complex mental health issues, substance use, trauma and domestic violence, as well as a range of disabilities, the documents said. Only a few have received permanent housing since the first petition was filed with the court in 2021.
Here are three applicants who demonstrate the range of experiences and challenges of seeking shelter in Hamilton:
Witness a violent shelter attack
Marchand, 58, became homeless when his landlord threatened to evict him and he felt he had no choice but to leave his apartment in 2017.
In 2020 at the Salvation Army, it became increasingly difficult for her to live in a shelter after witnessing one shelter resident attacking another.
“He was so traumatized that he was admitted to a crisis center,” attorney Sharon Crowe told the court Monday.
Later, Marchand was banned from many shelters and lived in camps. He was evicted several times by the police or sub-legal authorities.
He had to sleep outside “roughly” and on one occasion, in December 2021, was shot in the shoulder, Crowe said.
“When Darrin can't camp and have access to a shelter, he walks around all day,” Crowe said.
“He thinks about his predicament and becomes depressed. He feels isolated … leading him to increase his substance use.”
He is homeless and told CBC Hamilton that he is currently staying at a men's shelter.
Sexual harassment outside city hall
Higgsma is a 31-year-old Aboriginal woman, who is the lead petitioner in the case. She became homeless in 2019 after escaping an abusive relationship.
In her experience, women's shelters are almost always full and, without a phone, she would have to walk from place to place to find a bed for the night, Crowe said.
He was also banned from hotel programs for missing curfew and for behavior related to his mental health and substance use disorder, Crowe said.
In 2021, she was staying at the camp when a bylaw officer told her to leave.
Over the next three weeks, without shelter, she was assaulted seven times, robbed three times, and sexually assaulted while sleeping on a park bench outside City Hall, Crowe said.
Higgs was walking all night trying to stay safe, she couldn't sleep.
“When Pal is unable to use the tent, she experiences: a lack of privacy even for basic needs such as changing and being out of the public eye,” Crowe said.
She is also exposed to the elements and feels a growing sense of hopelessness, which leads to increased substance use and deterioration in her mental health.
Exposure to the elements causes disintegration
Greaves, 54, is a black man who uses a wheelchair after having his left leg amputated below the knee in 2022, Crowe said.
He has experienced homelessness for more than 10 years and lived in a tent in Woodlands Park for nearly two years before bail officers gave him three days to leave in 2021.
When he didn't, “the city showed up with trucks and bulldozers and surrounded Linsley,” Crowe said.
He lost many of his belongings in the process, and later faced eviction from other camps, she said. He and about a dozen other people slept in the heating vent at the back of the courthouse before the vent closed.
He avoids shelters because he “feels like his past street life is 'coming back to haunt him'” and experiences racism, Crowe said.
“He is a target for theft, property damage and people trying to start fights,” she said.
Her toe had to be amputated because of frostbite, Crowe said.
Then, in mid-December 2022, he injured his left leg, which worsened when he was unable to stay dry, Crowe said. Finally, it had to be amputated.
“His leg damage has been devastating,” Crowe said. “He feels embarrassed and his mental health has been negatively affected.”
