Clashing evidence about Kingston encampment at eviction hearing

Clashing arguments inside a Kingston, Ont., courtroom first painted an encampment on city property as too dangerous for patrolling police, before describing it as the only safe place for homeless people who use fentanyl.

The hearing to determine whether the city can evict dozens of people living in tents and makeshift shelters at Belle Park began Monday.

City lawyers made their case first, laying out 13 points that touched on what they described as "unique dangers" presented by the camp north of downtown near the Cataraqui River.

They also argued that claims of discrimination and a Charter right to be close to the city's only supervised injection site are instead preferences and assertions of property rights.

The order encampment residents are seeking "effectively makes the city a landlord for this property where … dangerous drug trafficking is going on," said lawyer William McDowell.

Not enough shelter beds

Legal representatives for the encampment were only able to lay out the facts as they see them before the hearing ended for the day.

They said the city can't peg lawlessness on the existence of the encampment and argued shelter spaces simply aren't available.

Court heard that approximately 35 people currently live at the site in about 27 shelters ranging from tents to tree houses.

They represent just a fraction of the roughly 480 people on the latest "By-Name List," a registry of those who are homeless or precariously housed, according John Done, who's representing 14 encampment residents.

He calculated there are just 166 shelter beds in the city.

The question of shelter capacity has taken on new prominence following a Superior Court decision that blocked the Region of Waterloo from carrying out a similar eviction in January.

A judge in that case ruled the region cannot remove people living on the site until it has enough space for everyone who's unhoused.

Questioned about available shelter space and the constitutionality of Kingston's bylaw against camping in parks, McDowell said the city is only seeking to remove the one encampment and there are enough beds for everyone living there.

He argued that approach is different than Waterloo, where the region was clear it would be using its bylaw to clear other sites too.

McDowell said another difference is that Waterloo failed to establish any dangers associated with the encampment.

City points to 'hostility' at site

McDowell spent much of the morning focused on safety concerns and evidence of problems around the site, including vandalism, violence and drug use.

He spoke at length about the harassment emergency crews have faced, referring to evidence that firefighters responding to calls at the encampment wear stab-proof vests.

Police have also faced hostility at the site and have determined regular patrols are an "unacceptable risk to safety" so officers don't visit unless called there, the lawyer said.

McDowell did seem prepared to make two concessions — that Kingston's bylaw is overly broad because it bans overhead shelter at night and that there are not enough shelter spaces in the city for everyone who is homeless.

However, he told the court the city's legal team would provide written submissions to spell out their exact positions.

Encampment is close to supports

Done said carving out already scarce shelter spots for encampment residents isn't practical.

He also pointed to the encampment being next to the Integrated Care Hub (ICH), which offers shelter spaces of its own, alongside a supervised injection site and staff who are trained to respond to overdoses.

Other shelters in the city don't allow visitors to consume drugs and don't have the same expertise, Done told the court.

"For someone who is using fentanyl, it's just not safe to stay anywhere else," he said.

Justice Ian Cater broke in at that point, asking if the lawyer was suggesting all fentanyl users in Kingston should be able to camp outside the ICH.

The judge interjected with questions throughout the day, parsing the wording of the bylaw and asking what specifically the lawyers were seeking for him to rule on.

Much of the evidence he heard seemed to weigh the pros and cons of encampments, Carter said, adding he's not an elected official.

Instead, he reminded the legal teams, his role is to address specific legal questions around the constitutionality of the city's bylaw.

Lawyers representing encampment residents are expected to continue making their arguments Tuesday.