In 2021, a group of individuals experiencing homelessness who were evicted from encampments in Hamilton parks filed a Charter challenge against the City of Hamilton. These Applicants argue that certain sections of the bylaws under which the City conducts evictions of sheltering people experiencing homelessness, as well as the discretionary enforcement conduct under those bylaws, violate sections 7 and 15 of the Charter. For s. 15, they argue that encampment evictions discriminate based on race and/or indigeneity, sex, disability, and marital status, either separately or in combination (i.e., intersectional discrimination).

In addition to asking the court to strike the bylaws or declare them inapplicable to people experiencing homelessness, the Plaintiffs are also seeking Charter damages (compensation) from the harms flowing from evictions. The plaintiffs have experienced a range of harms following evictions, including medical harms (both physical and mental), loss of possessions, and sexual assault.

As an intervenor, BCCLA’s submissions assist the court by providing a legal framework to support the Plaintiffs’ argument that they are entitled to Charter damages because the City had “clear disregard” their Charter rights. We agree that  “clear disregard” is the applicable standard for the conduct of a municipality given recent Supreme Court of Canada decisions on Charter damages. Municipal bylaws, as delegated legislative instruments, sit closest to regulations on the immunity scale. As such, state misconduct authorized by municipal bylaws attracts the immunity threshold of “clear disregard”, particularly where the bylaw’s underlying statute did not require the bylaw to authorize the state misconduct.

BCCLA argues that the definition of “clear disregard” must be recalibrated to mean negligence, specifically the penal negligence standard. This would help make Charter damages more accessible to everyone whose rights are violated by municipal conduct.