I am not a lawyer. In my experience those with legal training are laser focussed and decisive. Me, at breakfast I dither over the choice of multi grain or whole wheat bread.
Given my lack of credentials some may find it inappropriate for me to be critical of court rulings.
But I can’t help myself when it comes to Heegsma v. Hamilton (City), 2026 ONCA 726
I just read the appeal on this case. The appeal judges were quite critical of the judge who oversaw the initial case which dealt with so-called homeless encampments in the City of Hamilton.
As we are all aware many people are forced to live in woefully inadequate circumstances
Cities are challenged on how to deal with the issue. Several years ago, after considerable debate, Hamilton adopted a by-law that prohibited the installation of tents and sleeping in its public parks.
There were protocols in place and requirements for officials to refer people to appropriate housing. That makes sense if there was appropriate housing but as has been determined in other court cases in Kitchener (to name one) there is not housing available.
So, in 2020 a group of fourteen people who were unhoused and living in encampments in Hamilton began a challenge the City of Hamilton’s by-law. They also disputed the City’s actions in removing them from public parks in Hamilton at various times between August 2021 and August 2023. The appellants argued they have rights under the Charter of Rights and Freedom.
Superior Court Judge James J. Ramsay disagreed. He found that the City’s by-law and actions did not violate the appellants’ Charter rights. And that, even if the municipality did, the Group of Fourteen would have no entitlement to damages unless the city had acted wrongly, in bad faith or in abuse of power, which he found it had not.
As I mentioned I am not a lawyer but the Appeal Court seemed to say that the judge did a poor job. Here, according to the Appeal Court, are just a few examples of the judge’s shoddy work.
1. His conclusions were stated without providing facts or evidence needed to support those conclusions. His comments lacked the required depth of analysis.
2. Judge Ramsay should have done a document-by-document analysis of the admissibility of various public documents. He should have assessed whether the documents themselves or other evidence in the record would allow the court to determine whether they could be admitted as public documents.
3. Evidence from people with mental health conditions and addiction issues was found to be unreliable based on impermissible stereotypes.
4. The judge assessed the credibility and reliability of the appellants’ evidence on a group basis with no analysis of their specific evidence.
5. The trial judge erred in his analysis of Section 7 of the Canadian Charter of Rights and Freedom. He misapplied the law and did only a “cursory expression of his disagreement with the appellants’ position with very little analysis or engagement with the evidence.”
6. In spite of evidence to the contrary, Judge Ramsay found that none of the appellants were forcibly removed from a public park at night.
7. The judge simply did not do what was required to determine whether the City breached the appellants’ Section 15 Charter rights. In particular the equality rights of the appellants who are Indigenous, women, or persons with a disability was not applied.
To be a judge in Ontario you need to have been a lawyer for ten years. This judge was a criminal prosecutor for 25 years. He was appointed to the bench in 2007 and has issued more than 400 decisions. And yet the Appeals Court has concluded his ruling was “lacking depth of analysis, relied on “impermissible stereotypes”, a “cursory expression of his disagreement” - these are serious concerns.
Now here is a problem.
The appeals court isn’t prepared to make a ruling on whether the appellants’ Charter Rights were breached. The Group of Fourteen asked for that ruling and asked for damages
“This would require the court to make findings of fact that should have been made by the application judge,” the Court wrote. But given the errors made by the application judge, it would not be appropriate for this court to substitute its own decision on the merits.
What is needed is another court case before a different judge. Resolving the issues in that case will require fact-finding, including findings of credibility, that are not appropriate for the Appeals Court.
I am not a lawyer. There were twenty of them involved in the appeal. The appellant had four. The City had two. The City of Toronto was represented by three. Kingston had one. There were other civil liberty and human rights groups who had standing as well.
You don’t have to be a lawyer to see this case is along way from being settled. The issue of how to deal with encampments and the larger issue of the need for more stable, affordable housing, won’t be solved in the courts
It is a political issue. There are well known remedies. Senior levels of government need to step up.
Will they?
As I write this piece, the Hamilton Spectator is reporting that mayor-elect Keanin Loomis is “reversing a decision to build affordable housing on a Stoney Creek parking lot amid an unprecedented housing crisis.”
Parking lots trump people’s needs apparently.
