TORONTO — A judge has denied a request by a group of homeless men and women to temporarily override a bylaw that bans them from living in Toronto parks during the pandemic.
Justice Paul Schabas made clear, however, that his decision was based on evidence gathered during the summer - when COVID-19 case counts were low - and was not to be taken as a direction to dismantle the encampments that have cropped up in city parks.
"It is now October and the incidence of COVID-19 has risen in what is described as a 'second wave' ... the city will have to consider how and when to enforce its bylaw having regard to the continued availability of safe shelter spaces and the impact of the encampments on the parks and the public," Schabas wrote in the decision released Wednesday.
Hundreds of men and women have left shelters over fears of contracting COVID-19 and have been living in encampments that have sprouted up across the city.
A city bylaw, however, bans living or camping in parks after midnight.
Fourteen individuals living in Toronto parks and two activist organizations banded together to ask Schabas for an interim order to allow homeless people to stay in encampments until a constitutional challenge of the bylaw is heard.
Schabas said the group did not meet the standard of establishing harm to the public interest that would justify suspending the city's ability to enforce its bylaw.
"The sweeping relief sought would unjustifiably tie the city’s hands in dealing with encampments that raise serious health and safety concerns for an indefinite duration, and would unduly prevent the use of parks by others," he wrote.
Derrick Black, one of the men involved in the case who lives in a tent in Moss Park, said he was disappointed in the decision.
"We will keep fighting, but we are worried about being kicked out now," he told The Canadian Press.
The case revolved around 14 men and women who were living in several encampments, including in Moss Park, Trinity Bellwoods Park and Allan A. Lamport Stadium Park.
The group argued it wasn't safe to stay in the city's shelter system and sought refuge in park encampments.
It said people living in those encampments had been subjected to shows of force by city officials and police. It also said many spots offered to the homeless by the city were in hotels or apartment buildings far from the services they need, including food and mental health supports.
The group argued that evictions from encampments during the pandemic violated their rights, while the city argued the Charter of Rights and Freedoms doesn't entitle members of the group to live in parks.
The group's lawyer, Selwyn Pieters, said he will await instructions from his clients about whether to continue the fight in court.
"We are obviously disappointed that we did not get the injunction we were seeking on behalf of our clients," said Pieters.
The city said it is continuing to work to make more spots available inside to those living outside.
"Today’s ruling does not order the city to clear encampments, rather the ruling does not prevent the city from clearing an encampment when shelter and housing options become available to those living in encampments or as required by the circumstances," the city said in a statement.
The fire department has responded to 189 calls for fires in encampments so far this year, the city said, compared to 73 calls over the same time frame in 2019. One person died in a fire in an encampment this year, the city said.
The city said it has moved about 950 people out of encampments since the pandemic began.
It has also made a significant effort to re-home thousands who used the shelter system by buying or leasing more than 30 buildings and hotels since the spring in an effort to reduce the spread of COVID-19 among the homeless.
A recently released winter plan for the homeless will see the city open up 560 additional beds to those living outside. That includes a plan to open up a respite centre with an open space for 100 people to sleep in, which advocates have criticized.
The city estimates there are 400 to 500 people living outdoors, but homeless advocates believe there are more than 1,000.
This report by The Canadian Press was first published Oct. 21, 2020.
Liam Casey, The Canadian Press
