Last winter, tents began appearing on a property adjacent to the intersection of Victoria Street North and Weber Street West, in Kitchener by the GO station. By summer 2022, 100 Victoria was home to more than 60 tents and 50 residents. That’s when the region, which owns the address, issued an eviction notice.
But not everyone left, and the region went to the courts seeking an injunction that would allow it to clear the encampment. Arguments were heard at the Superior Court in November. At issue: whether the residents’ Charter rights would be breached by an encampment clearing.
On January 28, 2023, Justice M.J. Valente issued his ruling: to evict these residents when there was inadequate indoor shelter space would violate their rights to life, liberty, and security of the person under Section 7 of the Charter of Rights and Freedoms.
While this kind of argument has been tried in Ontario in recent years, the Waterloo ruling is the first time it has been successful. In British Columbia, however, a Charter-rights-based approach has been present for nearly 15 years, thanks to a landmark 2008 court case in Victoria.
TVO Today asked experts to discuss the decision, the legal precedents — and whether the Waterloo ruling will be a game-changer for unhoused people in Ontario.
Agenda segment, Feb. 6, 2023: What does Ontario law say about clearing encampments?
The Waterloo decision
In Canada, “it’s the courts who are setting the human-rights floor for municipal governments when it comes to encampments,” says Alexandra Flynn, a professor of law at the University of British Columbia. Many other countries have laws around when encampments can be displaced, but in the absence of such guidance, Canada relies on court decisions.
When Valente denied the Region of Waterloo’s request to evict unhoused residents from an encampment, he wrote in his judgment: “I find that despite the Region’s past and current impressive efforts to accommodate its homeless population, there are not sufficient shelter spaces.” Furthermore, Valente stated, the shelter spaces that do exist are not “low barrier or truly accessible,” a standard established by encampment cases in B.C.
Agenda segment, September 16, 2022: Can tiny shelters bridge the homelessness gap?
The Region of Waterloo is currently working to launch a tiny-shelter project to temporarily house people who face barriers accessing existing shelters. In an interview about that project in January (before the court’s ruling), the region’s commissioner of community services, Peter Sweeney, told TVO Today that there are about 1,000 unhoused people in the community and around 500 shelter spaces.
TVO Today contacted Waterloo Region’s communications office for comment on the decision and did not receive a reply before publication. However, the region issued a statement last week confirming it would not appeal.
The landmark Victoria case
British Columbia broke new legal ground on encampments in 2008, when the provincial superior court struck down City of Victoria bylaws prohibiting people experiencing homelessness from setting up tents on city property. In the absence of shelter spaces, the court ruled in a case called Victoria (City) v. Adams, not allowing homeless persons to erect life-sustaining shelter violated the rights to “life, liberty, and security of the person” established by Section 7 of the Charter of Rights and Freedoms. The next year, the province’s court of appeal upheld that ruling.
“Because it’s a court of appeal decision, it’s highly influential on other courts,” says Ga Grant, litigation staff counsel for the British Columbia Civil Liberties Association, which was an intervener in the case.
Agenda segment, June 25, 2021: Clearing homeless encampments
The judge’s decision in Adams relied on plain numbers — the available spaces in shelters compared with the number of unhoused people.
“The legacy of the Adams decision is that it’s a check on municipal action. It’s not a free-for-all for municipalities to make bylaws without any standards in place,” Flynn says. It clearly established the premise that municipal bylaws — like any other legislation — need to take human rights into account and are vulnerable to a Charter challenge when they do not.
It’s the courts who are setting the human-rights floor for municipal governments when it comes to encampments.
But Adams was just the start. “What was missing [from Adams] … was an understanding of the fact that just because there are a number of shelter spaces doesn’t mean those shelter spaces are actually accessible to people,” says Grant.
People who are unhoused often face barriers in accessing shelter space. Strict rules about behaviour, restrictions on keeping pets or staying with your partner, requirements around drug use that don’t align with principles of harm reduction, and potential danger from disease or violence are just a few reasons shelters can be inaccessible.
Agenda segment, Jan. 27, 2023: Is it time to rethink warming centres in Ontario?
Refining Adams
As Valente wrote in his Waterloo ruling, further jurisprudence in B.C. established that shelter spaces must be pragmatically accessible to those in need, otherwise they don’t constitute actually available sources of shelter.
Legal cases in Vancouver and Prince George laid the groundwork for the accessibility test that Valente relied on in his decision. Those judgments were made by the province’s superior court, which means they have less precedential value than those from a court of appeal.
These cases all dealt with what’s known as a “negative right” — that is to say, the right to create shelter for oneself where none exists. A positive right, such as a right to safe, stable, and affordable housing, is something different, says Estair Van Wagner, a professor of law at York University who researches and reports on homelessness and the right to housing.
Agenda sement, Jan. 13, 2022: How older men end up homeless
“This is not enforcement of a human right to housing,” she says. “This is not a broader victory in terms of who we want to be as a society and how we want to manage the very deep housing crisis that we’re in.” All these decisions establish, in her reading, is that the municipalities can’t interfere with people’s right to basic survival.
One knock-on effect in B.C., Flynn notes, was that Adams and the other encampment cases reframed the consequences of not having accessible shelters in some municipalities. The decision is now between having sufficient accessible shelter spaces or having encampments — not between having shelter spaces, whether accessible or not, and having people sleeping outdoors with no shelter. Still, it’s hard to say exactly what the B.C. rulings did for people experiencing homelessness in the province, she says, noting that a lack of data, the national housing crisis, and a surge in homelessness due to the pandemic make it difficult to measure the impact of any one factor.
What has changed, she says: unhoused people’s access to advocates such as lawyers and encampment-support networks. “Because of Adams, there’s this real stick that advocates can then bring to the courts or police officials or bylaw officers and say, ‘No, you can’t evict people. You don’t have accessible shelter spaces available.’”
Ontario’s path
There were efforts in Ontario to mount a case similar to Adams prior to the Waterloo decision, Flynn says, pointing to 2020’s Black et al. v. City of Toronto. In that case, encampment residents argued that an eviction would violate their Section 7 rights but could not get an injunction preventing Toronto from enforcing its bylaws against them.
In a 2022 report on encampments — commissioned by the Office of the Federal Housing Advocate — Flynn, Van Wagner, and their co-authors wrote that Ontario courts “are taking a markedly different approach than those in B.C., emphasizing the property rights of municipalities without consideration of the social context of encampments, substance use, the ongoing impacts of colonialism, and systemic discrimination against Black and Indigenous people in housing and policing.”
Just because there are a number of shelter spaces doesn’t mean those shelter spaces are actually accessible to people.
Toronto has used the 2020 decision to argue that its approach to encampments is constitutional. But Van Wagner says the city is on shaky ground.
“Legally speaking, that’s not at all what the Black decision decided. That was a preliminary decision. It would take a full hearing on the merits to determine whether Toronto’s framework is, in fact, constitutional,” she says. “I think Toronto is vulnerable in the same way that Waterloo was vulnerable in [the recent] decision.”
Agenda segment, Jan. 24, 2023: How can we confront homelssness in rural Ontario?
Lawyers representing encampment residents in Poff v. City of Hamilton say the Waterloo superior-court decision could affect that ongoing case, too. They argue that encampment evictions violate both Section 7 and Section 15 rights.
“There are a lot of overlapping facts in terms of Hamilton facing a similar affordability crisis and lack of shelter beds, and shelter beds being inaccessible to those who need them,” says Sharon Crowe, a lawyer working on the case who is affiliated with the Community Legal Clinic of York Region.The Hamilton Spectator reports that, following a case-management call last week, the City of Hamilton says it’s “open to a resolution.”
Van Wagner says the Waterloo decision brings Ontario closer to the B.C. idea that the exercise of property rights must be done in compliance with and by prioritizing basic human rights. “I wouldn’t go so far as to say that the Waterloo decision takes that fully on,” Van Wagner says. “What we do see, I think, is a more rigorous analysis of what evidence a city is putting forward and what kind of framework they are using to make these decisions [about encampments].”
She also points to greater engagement with evidence put forward by encampment residents “about what choice actually means in their context and what options are and are not available to them.”
This is not enforcement of a human right to housing.
Encampment residents provided testimony about the potential impacts of eviction in the Waterloo case. Jennifer Draper, an Indigenous woman who was noted as living in the encampment with her partner, testified that the shelter she’d formerly stayed at wasn’t accessible. She was assaulted and robbed, she said, and if she wanted to leave in the evening to spend time with her partner, “shelter staff threatened to give her bed away,” the ruling states.
Sean Simpell, another encampment resident, testified that he felt stigmatized for his drug use in shelters. In the encampment, he said, “I have privacy … and no one steals from me.” He testified that he fears losing everything if forced to leave the encampment, saying, “It is my greatest fear. This encampment may seem like garbage to some people, but to the people living here, it’s everything.”
What’s next for Ontario?
Flynn says that, “if anything, there will be more litigation” around encampment evictions in Ontario now.
Unlike the Waterloo decision, many Ontario cases deal with parks, and, historically, they’ve involved weighing arguments around the shared use of space. However, Flynn notes, a Vancouver case cited in Valente’s ruling has addressed that issue: the court found that recreational uses of a park are, legally speaking, less important than the right to basic safety and security of the person. “It’s not a 50-50 kind of balancing,” she says. “The people in encampments deserve and have greater legal protection.”
Going forward, she suggests, unhoused people and their advocates will likely point to the decision to push back against displacement by bylaw officers or other officials. “They might say, ‘Listen, I have an animal … so, therefore, you can’t do this.’ That issue might never be taken to court, but it stops the eviction from happening.”
This encampment may seem like garbage to some people, but to the people living here, it’s everything.
She says the ruling may lead to better engagement with people in encampments to discern their needs and with Indigenous communities to address the overrepresentation of Indigenous people in unhoused populations. It may also, she adds, result in better data collection and reporting, so that municipalities can reliably confirm the availability of shelter space.
What’s more, Flynn and Wagner say, the ruling could encourage the broader adoption of the federal right to housing, established in 2019 through the Trudeau government’s national housing strategy.
On February 23, the Office of the Federal Housing Advocate announced the launch of a review of encampments in Canada, stating in a news release that: “Canada must do better at meeting people's vital needs for shelter and safety. Responses to encampments must centre on people's dignity and their human rights, including their right to adequate housing.”
“This federal law exists, but it doesn’t apply at the municipal level,” Flynn says. “Hopefully, we can move toward that because that’s a much better way, as a country, that we can take a right that’s already been recognized [in law] ... and make sure that it’s being applied and furthered at the local level,” Flynn says. “We can do better. Canada can do better.”
Correction: An earlier version of this article misstated the full name of the British Columbia Civil Liberties Association. TVO.org regrets the error.
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