Hamilton judge rules shelter spaces aren’t shelter spaces if restrictions prevent people from using them

In a decision that could have implications in Hamilton and virtually every other municipality in Ontario, the Ontario Superior Court of Justice has shot down the Region of Waterloo’s application to evict residents of a homeless encampment in downtown Kitchener.

The essence of the argument by Mr. Justice Michael J Valente is that the city does not have sufficient shelter spaces to house the encampment residents, although he suggests that if such encampment spaces become available, there might be a different ruling. The principle of having sufficient shelter spaces as a prerequisite to breaking up encampments has been established in judicial rulings in BC and in Ontario.

The ruling makes a fundamental change in the way available shelter spaces are defined. He ruled that a shelter space cannot be deemed to be available if it excludes couples, people with addictions whose use on site. Valente wrote, “the available spaces are impractical for homeless individuals, either because the shelters do not accommodate couples, are unable to provide required services, impose rules that cannot be followed due to addictions, or cannot accommodate mental or physical disability, they are not low barrier and accessible to the individuals they are meant to serve.”

He noted research that indicated 95 percent of encampment residents are substance dependent. The judge, who was a partner in the Law firm Scarfone Hawkins, before his appointment in 2021, made specific reference to Hamilton’s encampment problem, citing a court ruling that allowed Hamilton to evict encampments in Jack Beemer Park. He noted that in Hamilton’s case evictions were “located in municipal parks and not in a vacant lot (as was the case with Kitchener’s encampment). Whereas the Ontario Courts found that there was significant public interest in ensuring that everyone had access to the parks, there is no such public interest in the Property.” He also noted that Hamilton had proved to the court’s satisfaction that there were sufficient shelter spaces. However, those rulings were made before Mr. Justice Valente opened up what appears to be a new definition of whether a shelter space is truly accessible.

Ther complete text of the judgment follows.