In Heegsma v. City of Hamilton, 2024 ONSC 7154, the Ontario Superior Court delivered a significant ruling on the responsibilities and limits of municipal governments in managing public spaces while addressing homelessness and upholding Charter rights. The case involved a constitutional challenge brought by 14 individuals experiencing homelessness who alleged that the City of Hamilton’s enforcement of by-laws regulating encampments between August 2021 and August 2023 violated their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

In a considered judgment released in December 2024, Justice Ramsay dismissed the claims. He found that the City’s enforcement actions remained within constitutional bounds and reflected a reasonable, evolving response to a deeply complex and sensitive issue. While the case is now under appeal, the decision has already prompted national reflection on how municipalities can balance by-law enforcement with compassion, public safety and the rights of vulnerable residents.

Enforcing by-laws did not violate section 7

Justice Ramsay found that the City’s by-laws did not violate section 7 of the Charter. The City’s enforcement, which was not conducted overnight and thus allowed people to shelter temporarily, aligned with Charter protections. “The life, liberty and security of the applicants are not put at risk by enforcement of the by-law. They are put at risk by homelessness. Encampments contribute to this risk,”[1] Justice Ramsay wrote. He also acknowledged the City’s evolving response to homelessness, stating: “The City is trying to find a solution to homelessness in consultation with numerous others. It has attempted to address the problem with the old protocol, the encampment process and the new protocol.”[2]

Significantly, Justice Ramsay declined to expand section 7 of the Charter to protect to daytime or indefinite encampments: among other reasons, he explained that to do so “would amount to expropriating property, or at least severely limiting property rights.”[3]

It is also noteworthy that while Justice Ramsay commented that “[i]t is implicit in my reasons that I disagree with the Adams and Waterloo cases,”[4] he did not make a finding about those decisions: “it is not necessary to my decision to decline to follow them.”

Section 15 requires more than disproportionate impact

The applicants alleged that the by-laws had a discriminatory effect on Indigenous people, women and persons with disabilities—groups protected under section 15 of the Charter, which guarantees equality before and under the law. Justice Ramsay found no evidence of intentional or effect-based discrimination, stating: “The fact that a group is over-represented does not by itself prove illegitimate discrimination.”[5] The decision reaffirms that homelessness, while a serious social issue, is not in itself a protected ground under the Charter.

Public spaces must serve all community members

The Court acknowledged the competing interests at stake in public spaces, noting that parks are used by a broad cross-section of the community. Encampments, while often framed as necessary safe havens, can also pose public safety and environmental risks—including fire hazards, assaults, drug use and waste accumulation. This aspect of the decision supports municipalities in preserving public space access for all residents.

Respecting municipal autonomy

The Court acknowledged that the City’s policies evolved over time—from earlier enforcement protocols to its multi-step “encampment process” that was at issue. In recognizing the complexity of the City’s responsibilities, Justice Ramsay observed that “the City has limited resources and a duty to its housed constituency. I think I am well advised to leave them to it without interference. Micro-management by judges will not be productive.”[6] This underscores the Court’s reluctance to second-guess municipal decision-making in an area that demands ongoing coordination with multiple stakeholders and difficult resource allocation decisions.

Clarifying the path to intervention on appeal

In a related decision released in November 2024, the Court of Appeal for Ontario in Heegsma v Hamilton (City), 2024 ONCA 865, clarified the procedure for motions for leave to intervene, drawing a distinction between intervening as a “friend of the court” and intervening as a party; and clarifying that denial of intervention as a “friend of the court” is an interlocutory order which is appealable to the Divisional Court with leave – not the Court of Appeal. This procedural guidance brings some measure of clarity to the perennially complex issue of appeal routes.

Conclusion

Heegsma v. City of Hamilton offers municipalities greater constitutional guidance on by-law enforcement related to encampments. As the appeal proceeds, the legal framework may continue to evolve. For now, this ruling provides a practical foundation for cities striving to balance public space management with dignity and care for their most vulnerable residents.

Note: At the December 2024 hearing, the City of Hamilton was represented by Gowling WLG’s Bevin Shores and Jordan Diacur, with support from Jennifer King, Erin Farrell and Vivian Caldas.