Homelessness in Kingston, Ontario – timeline of actions

May 1, 2024 – Open letter to council from the Ontario Human Rights Commission warns that their approach could violate the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms

May 1, 2024

Mayor Bryan Paterson
City Councillors

City of Kingston
216 Ontario Street
Kingston, Ontario K7L 223

Dear Mayor Paterson and Councillors:

The Ontario Human Rights Commission (OHRC) understands that the City of Kingston has announced plans to require unsheltered homeless persons at Belle Park to dismantle their shelters and pack up their belongings during the day. I am writing to urge Kingston instead to adopt a human rights-based approach to respond to the issue of encampments.

The growing reality of encampments and unsheltered homelessness raises issues of public importance squarely within the OHRC’s expertise. The OHRC has been monitoring Ontario municipalities’ response to the crisis of unsheltered homelessness.

The OHRC recognizes the challenges municipalities face in addressing intersecting needs related to housing and homelessness, mental health and substance use issues, and poverty. All levels of government share responsibility, but municipalities are often on the front lines of addressing these systemic social problems.

There are almost 1400 encampments across the province and that municipalities are not adopting a consistent response to this growing concern. Some municipalities are seeking to implement a respectful and compassionate human rights-based approach. Others have emphasized enforcement which can involve municipal officials or police removing people, seizing, or disposing of possessions.

Some municipalities, including Kingston have applied to the courts for orders allowing them to enforce by-laws prohibiting encamping. Notably when municipalities have done so, courts have found that if there are not enough accessible shelter beds, the state cannot prevent homeless people from building their own shelter on public land without violating their Canadian Charter of Rights and Freedoms (Charter) right to life, liberty and security of the person. Courts have said that shelters are not truly accessible if they cannot accommodate couples, provide necessary services, accommodate mental and physical disability, or if they impose rules that cannot be followed due to addiction disabilities.

The OHRC is concerned that enforcing the daytime ban on camping could lead to breaches of the Ontario Human Rights Code and the Charter. Substantive equality means that municipalities must ensure their actions do not create or exacerbate disadvantage based on one or more prohibited grounds.

Demonstrating insufficient daytime shelter spaces is not the only way to establish discrimination. Adverse effects based on disability and sex, among other grounds, can result from having to take down shelters, pack up and store belongings or carry them around and then re-establish adequate shelter from the elements every night. Encampment residents, most of whom have physical, mental health and substance use disabilities, may suffer extreme hardship and increased risk of physical and Psychological harm. If they cannot comply, they may be subjected to Trespass to Property Act notices, fines, and arrests.

Notably, enforcing the daytime ban may also make it very difficult for people to live in the encampment at all, effectively, resulting in forced evictions. Displacing persons to living conditions where they are more exposed to the elements or at increased risk because they cannot access healthcare, social and harm reduction services raises human rights concerns. Women and gender diverse persons experience challenges finding accessible and safe spaces and face heightened risks of gender-based harassment and violence if displaced from chosen communities where they feel safest.

Municipalities need to take extra measures to ensure that their response to homelessness reflects their duty to respect, protect and fulfil Indigenous peoples distinct rights and a commitment to reconciliation. Indigenous peoples have rights under treaties, the Constitution and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). All encampments in Ontario are located on Indigenous
peoples traditional territories, engaging their distinct rights concerning land and self-determination. Also, Indigenous peoples are overrepresented among homeless people and more likely to be part of outdoor or unsheltered populations. Indigenous encampment residents and local Indigenous organizations, including those serving encampment residents or other unhoused residents in Kingston, must be meaningfully engaged in any measures regarding encampments. Actions that result in the forcible displacement of Indigenous persons in the absence of their free, prior, and informed consent violate UNDRIP.

In managing municipal parks and enforcing by-laws, municipalities are providing a service to the public. This public includes the unsheltered homeless population, as recognized in the Kingston decision. Any health and safety issues with encampments should be based on objective evidence, and not stereotypes. Steps to address legitimate health and safety concerns should be humane and tailored so that any adverse impact affects the rights of encampment residents as minimal as possible.

The OHRC encourages all levels of government to work cooperatively with each other and affected stakeholders, including encampment residents, community agencies and Indigenous organizations, to determine how best to fulfill the urgent need for housing and shelter services while addressing legitimate health and safety concerns. This, approach will help governments meet their legal obligations.

The OHRC’s Human Rights Based Approach Framework (HRBA Framework) helps those designing policies and programs meet these standards. Further guidance on how a human rights-based approach applies in the context of encampments has been provided by the Federal Housing Advocate and the UN Special Rapporteur on the Right to Adequate Housing. The federal government has recently released Canada’s Housing Plan and announced funds to support human rights-based community action plans that commit to a housing-first approach to ending encampments, and include supportive and transitional housing, housing-focused services, and rent supplements specifically dedicated to individuals living in encampments or experiencing homelessness.

The OHRC understands that Kingston and municipalities across the province want all their residents to have affordable, accessible, and dignified housing. However, requiring encampment residents to remove their shelter and belongings during the day exacerbates their marginalization and makes it more difficult to achieve this essential goal. Thus, the OHRC joins many other concerned citizens and organizations in calling on Kingston to adopt a human rights-based approach which focuses on the needs of the encampment residents and supports them to permanently transition out of homelessness.

The OHRC hopes that this letter is useful as the City of Kingston takes a decision in this complex, difficult societal challenge. The OHRC welcomes the opportunity to discuss and provide more information about the HRBA Framework and how it can be applied to the needs of Kingston’s unsheltered homeless population.

Sincerely,

Patricia DeGuire
Chief Commissioner
Ontario Human Rights Commission

cc: President, Association of Municipalities of Ontario

March 14, 2024 – City of Kingston to begin enforcement of daytime sheltering prohibition in City Parks

The City of Kingston, with support from community partners, will begin applying the Parks Use By-Law (#2009-76) during the week of April 2. This work begins today in a respectful, safe and empathetic manner. For people who have been sheltering in parks, this means that tents and other temporary shelters must be removed one hour after sunrise and cannot be erected until one hour before sunset. 

Following a court decision in late 2023, City staff will be applying the Parks Use By-Law in all municipally owned parks. Further, staff have been implementing procedures for dismantling permanent and/or semi-permanent structures erected in City parks, enforcing fire bans in City parks and establishing other procedures intended to protect the security of the City’s parks and infrastructure, address life safety concerns and promote the safe use of City parks.

We acknowledge enforcement of the Parks Use By-Law is difficult for people who are currently sheltering in City parks,

The City and its agency partners are committed to applying the by-law and doing so in a manner that maintains the dignity of people who are affected by this change.

Brad Joyce, Commissioner, Infrastructure, Transportation and Emergency Services with the City of Kingston