The Community Legal Clinic of York Region has sent the following letter to Timmins Mayor Michelle Boileau and councillors about the recently approved bylaw banning overnight loitering in public parks.
This is further to my letter to you of May 13, 2024.
It is our understanding that Timmins city council has passed a bylaw which purports to prohibit loitering in parks between 11 p.m. and 7 a.m. The courts have repeatedly held that such bylaws, effectively banning overnight sheltering, contravene section 7 of the Canadian Charter of Rights and Freedoms and are therefore void and of no effect.
Perhaps the clearest rule that emerges from the recent court decisions respecting homeless encampment occupants is that municipalities are not permitted to prevent them from overnight camping in parks — unless the municipalities have first offered “truly accessible accommodation” to all of its homeless citizens - which means considerably more than a shelter bed, and considerably more than Timmins has offered.
This principle is so well established that William McDowell, the expert municipal lawyer who represented the City of Kingston in its recent encampment case, conceded that this was the law. Justice Carter agreed.
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 funded by
the Court of Appeal for British Columbia in Adams. Although I am not bound by the concession, it is my view counsel for the City was correct to take that position.
[116] The City concedes that if the court accepts that s. 11 of the Bylaw prohibits temporary overnight shelter in all City parks it is “constitutionally problematic”.
The Corporation of the City of Kingston v. Doe, 2023 ONSC 6662
John Mascarin, the expert municipal lawyer who recently advised the City of Sarnia in relation to its parks bylaw, gave the same advice.
For all the reasons set out above we strongly recommend against the eviction of encampment residents from City parks, including Rainbow Park. Evictions would expose the City to significant risk of litigation, given the judicial guidance in recent court decisions in Ontario.
The fundamental issue in each decision is whether there is appropriate and sufficient shelter capacity available for encampment residents to go. There must be sufficient quantitative capacity in the shelter system for all persons experiencing homelessness, but those shelter spaces must be “truly accessible” to the unique needs and circumstances of encampment residents.
(Read the full report here.)
Some of the cases that have followed this principle include:
- Victoria (City) v. Adams, 2008 BCSC 1363
- Vancouver Board of Parks and Recreation v. Williams, 2014 BCSC 1926 Abbotsford (City) v. Shantz, 2015 BCSC 1909
- British Columbia v. Adamson, 2016 BCSC 584
- British Columbia v. Adamson, 2016 BCSC 1245
- Nanaimo (City) v. Courtoreille, 2018 BCSC 1629
- Vancouver Fraser Port Authority v. Brett, 2020 BCSC 876
- Prince George (City) v. Stewart, 2021 BCSC 2089
- Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49
- The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670;
- Church of Saint Stephen et al v. Toronto (City), 2023 ONSC 6566 The Corporation of the City of Kingston v. Doe, 2023 ONSC 6662
It is extremely unlikely that Timmins city council has found an expert Ontario municipal lawyer who has credibly discovered a loophole to bypass this extensive body of legal opinion and judicial direction. If council is relying on such a legal opinion it would be wise to identify the lawyer and to make the opinion public, so council can demonstrate due diligence and good faith to the court which will ultimately rule on the bylaw. (If council refuses to produce this information the court will presumably draw the opposite conclusion.)
We would strongly advise you not to attempt to apply the new bylaw without first seeking a court order permitting it – as prudent councils in Kingston, Waterloo and Cambridge did.
Jeff Schlemmer
Executive director
Community Legal Clinic of York Region
Sharon Crowe
Director of legal services
Community Legal Clinic of York Region
