An encampment for unhoused people at Allan Gardens in Toronto on Oct. 21, 2022.Chris Donovan/The Globe and Mail
In a precedent-setting decision that will have implications across the province, the Ontario Superior Court of Justice has denied a municipality’s request to remove a homeless encampment on the basis that doing so – when there is no adequate indoor space – would violate the residents’ Charter rights.
The ruling, which was released Friday in a case involving the Regional Municipality of Waterloo, falls in line with a growing body of case law in British Columbia that has found denying a person the ability to set up shelter outside when space is not available inside infringes on their right to life, liberty, and security of the person.
“Just as the British Columbia cases have found … I conclude that the ability to provide adequate shelter for oneself is a necessity of life that falls within the right to life protected by section 7 of the Charter,” wrote Justice Michael J. Valente.
As a result, he found that the Region of Waterloo could not rely on a bylaw that it said prevented people from erecting temporary shelters on municipal land, when the number of homeless persons exceeded the number of available shelter beds.
However, Justice Valente also praised the region’s efforts to address the needs of its homeless population, and left the door open to it coming back to the court if in the future it is able to show evidence that there is appropriate shelter space.
In a statement released after the ruling, Region of Waterloo Chair Karen Redman said they are considering next steps: “Our commitment to supporting those experiencing homelessness continues, as we work to implement innovative and person-centred solutions, including our interim housing solutions and the development of a plan to end chronic homelessness.”
A key aspect of Justice Valente’s decision dealt with the idea of what it means for a bed to be “available.”
Shannon Down, who along with co-counsel Ashley Schuitema represented 16 members of the encampment in the proceedings, explained that the court found that the bed must be truly “accessible.” It’s not simply a matter of an open space on a spreadsheet. For example, she said, if a person is dependent on drugs, but a shelter doesn’t allow substance use, then is that an actual option?
Similar questions come up with people who are asked to abandon beloved pets in order to access a bed. Or with couples who may be forced to split up for the night.
Sean Simpell, one of the encampment residents, told the court what it would be like for him to be displaced: “It is my greatest fear. This encampment may seem like garbage to some people, but to the people living there, it’s everything.”
Ms. Down, who is the executive director with the Waterloo Region Community Legal Services, said she thought the testimony of expert witness Andrea Sereda was particularly convincing for Justice Valente.
Dr. Sereda, who is lead physician for the health outreach program at London InterCommunity Health Centre, spoke to the harms of dismantling encampments as well as the positive health and social benefits of allowing them when there is no other appropriate housing.
“What we find in London is that when encampments are torn down, health care teams lose track of those people,” she told The Globe and Mail. “If I diagnose someone with diabetes and I try to follow up a week later, I can’t find them. … When people are constantly moved, you can never get ahead of their health issues. It’s always putting out fires.”
There are other considerations as well: the mental-health impact of being displaced and othered, the loss of community connections, the loss of possessions and an increased risk of overdose.
Dr. Sereda said those who talk about the harms within encampments – the Region of Waterloo cited concerns about alcohol and drugs, physical violence, and the presence of barbecues and propane tanks creating a potential fire hazard – are missing the point.
“We need to address the underlying poverty, scarcity of need, food deprivation and lack of warmth – those are the problems people who live outside are trying to resolve.”
Sharon Crowe, a lawyer involved in continuing litigation against the City of Hamilton’s response to encampments, said she expects Friday’s decision to be very influential – even though some of the contextual nuances of the Waterloo case are not exactly the same. For example, in Hamilton, some of the encampments in question are in public parks.
Friday’s decision concerned a congregation of tents in a one-half-acre gravel parking lot in the City of Kitchener, which is within the Region of Waterloo. The property, which was not being used by the municipality, is surrounded by a transit station, a plaza, a rail corridor and a soup kitchen. These locational differences could shift the legal analysis.
Still, Ms. Crowe said there are many analogous factors, particularly with respect to the lack of accessible alternatives and the impact of displacements.
“The facts behind the Kitchener-Waterloo case are not unique to that region,” she said. “A big driving factor behind encampments is we’re in the middle of an affordable-housing crisis. Add onto that, many municipalities don’t have enough shelter beds to meet demands and they aren’t truly accessible for all the reasons outlined in the [Superior Court] decision.”
In fact, Ms. Down said Justice Valente’s ruling could impact cities outside of Ontario as well. Although other provinces are not bound by decisions from provincial courts in Ontario and British Columbia, the judgments would be considered “persuasive,” said Ms. Down.
“I think this is particularly true with Charter cases, because it applies across the country,” she said. “The decision is going to be a powerful tool for people who are arguing on behalf of those who are living in encampments.”
Julia Riddle, a lawyer at Arvay Finlay in Vancouver who was involved in a recent encampment case in that province said they are pleased to see that Ontario courts are finally catching up to what’s been happening in British Columbia. The lawyer identifies as non-binary and goes by they.
“I think one of the things I definitely didn’t understand before working in this area is the level of trauma that people experiencing homelessness deal with from being forced to move. Those of us who are housed have probably moved and lost our mind a little bit. If you’re homeless that’s magnified by a factor of thousands,” they said.
“The tremendous uncertainly of not knowing what’s going to happen next in your life, it really limits people from being able to do anything to change other factors in their lives.”