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The mayor of Kingston, Ont., says the city is planning to clear a homeless encampment from a park during daytime hours, after a court ruling protected the occupants from removal – but only overnight.

Kingston, a community of 130,000 people a three-hour drive east of Toronto, is one of several Canadian cities struggling with how to deal with encampments during a housing crisis that has exacerbated related emergencies of homelessness, addiction and mental health. Municipal governments have taken differing approaches, with some turning to enforcement and others setting up on-site service hubs or sanctioned locations for tents. In several cases, the courts have intervened.

In Kingston, the city council has expressed particular concern about an encampment in Belle Park, a 44-hectare piece of land on the waterfront. It first appeared in early 2020 during the COVID-19 pandemic, was cleared at the end of that year and then ultimately was re-erected. Today, the city estimates roughly 35 people live in the park, in an area next to a service hub that houses a supervised consumption site.

In June, the city applied for an injunction to remove the Belle Park encampment. In late November, a Superior Court judge denied that request, finding that prohibiting camping overnight would be unconstitutional – a conclusion that other judges across Canada have also reached.

But Justice Ian Carter limited his decision to overnight camping, since the case focused on the inadequacy of overnight shelter spaces, not daytime sheltering. The distinction prompted anti-poverty advocates to warn that the ruling left open a loophole for the city to clear out the park during the day.

Mayor Bryan Paterson said in an interview that the ruling is “reasonable and balanced,” and that he believes it “speaks to both sides: the right to shelter, but also addressing the concerns and safety issues that can come with a permanent entrenched encampment.”

He accepts the judge’s ruling that the city cannot ban camping in the park overnight.

“A daytime ban, to us, is a way to prevent an established permanent encampment that brings the public safety issues that we’ve seen with the encampment in the current location.”

Kingston spokesperson Kelsey Pye said in a statement that the city’s legal department is grateful for the court’s guidance on “extraordinarily complex issues.”

Though she did not provide a timeline for next steps, she said the city is reviewing the decision as it determines how to enforce the bylaw’s ban on daytime sheltering “in a way that is fair and respects the dignity and well-being of the people residing at the Belle Park encampment.”

John Done, a lawyer and executive director of the Kingston Community Legal Clinic, represented 14 encampment residents in the legal fight. Making a distinction between daytime and nighttime sheltering is “inhumane,” he said.

He believes the city’s interpretation of the ruling ignores the spirit of its intention.

While he is relieved his clients – many of whom struggle with disabilities or addictions, he said – will be able to continue sleeping in the park overnight, he fears that they will be shuffled out each morning, forced to lug around their belongings all day only to set back up in the same place at night.

He is also concerned that this workaround could be adopted by other cities looking for ways to crack down on encampments.

“Regretfully, now that that’s an outstanding question, I think cities will be very tempted to say, ‘We’re going to seek these injunctions because we’ll have leverage. If we can make it miserable for people to stay during the day, they won’t stay there during the night,’” Mr. Done said.

“We would have to count on municipal councils saying, ‘We’re not going to go to war against homeless people’ – which is what’s happening, when you add that extra layer of misery on their already challenging existence.”

An estimated 480 people are experiencing homelessness in Kingston, according to the city’s most recent data, submitted as part of the court hearing. During the court case, the city conceded that less than half that number of shelter beds are available. Mr. Done said there are even fewer options during the day.

Homeless shelters typically allow people to stay only at night. Many cities do not have permanent facilities for people to spend time in during the day, forcing them to wander libraries or malls to stay warm or cool. Any spaces that do exist are bare bones, and often open only during the most extreme weather.

“I’ve seen some of these places, and they’re not pleasant,” Mr. Done said.

In the midst of a national housing crisis, this decision is one that should matter to advocates across the country, argues the Canadian Civil Liberties Association, which also made submissions in the Kingston case as an intervenor (a party not directly involved).

Harini Sivalingam, director of the CCLA’s equality program, said the number of court applications and bylaw changes popping up to crack down on the rights of encampment dwellers has created a “whack-a-mole” situation for anti-poverty advocates.

The latest such ruling – which similarly upheld the rights of encampment dwellers to stay in parks amid a shelter shortage – was delivered earlier this year in a lawsuit filed against the Regional Municipality of Waterloo. A similar ruling in Victoria set that precedent in British Columbia more than a decade ago.

These cases, Ms. Sivalingam said, are of great interest to her organization, and they will continue to monitor any others that emerge.

“The unhoused are one of the most vulnerable and marginalized populations in our society, and so ensuring that their civil rights and human rights are protected is an important objective for our organization,” Ms. Sivalingam said.

As Kingston drafts its next steps in Belle Park, Mr. Paterson stressed that his concern lies with this one particular encampment, and said that his council has otherwise made record investments to support vulnerable people in their community.

“We’ve spent more than $18-million as a city over these last couple of years on different projects and services and housing options. And we’re committed to continuing to invest in that – but it’s something that, as a city, we’re not equipped to be able to solve,” he said in a phone interview.

“We need the provincial and federal governments to come to the table on this issue.”

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