Statistics Canada reports that over one in ten Canadians have experienced some form of homelessness – either absolute (living in a shelter, encampment, other public space), or hidden (living temporarily with others or in a car due to lack of immediate prospects of finding more permanent housing.)[1]
In December 2024, the Ontario government announced it will dedicate up to $75.5 million to address homeless encampments by creating more emergency shelter spaces and affordable housing units.[2] Ontario’s Premier concurrently introduced the Safer Municipalities Act, 2024 bill. This Bill intends to clear Ontario’s encampments by increasing penalties for “people who deliberately and continually break[ ]the law”[3] and increasing police powers to address public drug use and repeat trespassing.[4] It is unclear where encampment residents may reside if there is a lack of accessible shelter space, if they do not qualify for affordable housing, or if the demand for affordable housing and mini-homes outpaces the supply of new units. Further, it is unclear how the unhoused (many of whom are experiencing financial precarity) will be able to pay for fines of up to $10,000 for taking refuge in encampments.
This article summarizes three recent cases concerning the legality of encampments, beginning with the landmark decision in Regional Municipality of Waterloo v Persons Unknown and to be Ascertained,[5] and concluding with its application to The Corporation of the City of Kingston v Doe[6] and Heegsma v Hamilton (City).[7] Taken together, these cases suggest that until there are policies to robustly address homelessness, unhoused Ontarians are increasingly turning to s.7 Charter litigation to advocate for their right to shelter, including in encampments.
Municipalities sought injunctive relief to prohibit encampments under their By-laws in Kingston and Waterloo, whereas evicted encampment residents in Heegsma sought a declaration that Hamilton’s By-law enforcement breached their s.7 Charter rights. In each of the three cases, the applicant – be it the municipality or the encampment residents – was unsuccessful.
The Promise of Waterloo
In Waterloo, the Region sought a prohibition against erecting structures on a municipally owned parking lot where many unhoused people were residing, through an injunction to restrain and enjoin encampment residents from remaining or re-entering this lot under s.440 of the Municipal Act.
Justice Valente dismissed the Region’s application and declared that the relevant By-law violated the s.7 Charter rights of residents in a manner not in accordance with the principles of fundamental justice and which could not be saved by s.1.
Justice Valente highlighted that the Region was short by 50% of the shelter spaces required to accommodate the unhoused population in same.[8] Further, he held that shelter spaces ought to be low-barrier and accessible to meet the diverse needs of unhoused individuals, including by accommodating couples, people with addictions and disabilities.[9]
In his Charter analysis, Justice Valente found that the prohibition of encampments infringed each of s.7’s three protected interests:
· Life – removal from the sheltering provided by encampments expose unhoused individuals to the elements and can result in serious harm, including death[10]
· Liberty – creating shelter for oneself is critical to one’s “dignity and independence;”[11]
· Security of the person – forcing residents to repeatedly tear down and relocate encampments creates the “risk of significant health problems, both physical and psychological in nature.”[12]
Waterloo noted that it is difficult to justify a s.7 breach under s.1, unless there are exceptional circumstances like “disasters, the outbreak of war, epidemics and the like.”[13] In this case, there were no s.1 justifications for the By-law’s infringement of encampment residents’ s.7 rights.
Counterarguments
A common argument in favour of evicting encampment residents is that alternative choices to shelter may exist. Justice Valente helpfully highlighted in Waterloo that the purported choice encampment residents face is “not one of freedom in the exercise of autonomous choice” but rather, enmeshed in a context with poverty, addiction, disability, and insufficient or inaccessible sheltering alternatives.[14] Focusing on personal choice skews the s.7 Charter analysis. When analyzing whether the By-law breached s.7, the proper question is not whether the “residents’ circumstances are self-made, but rather, whether enforcement of the By-Law will make the residents’ already dire predicament worse.”[15]
In contrast to the approach in Waterloo, Justice Ramsay in Heegsma relied on the City’s physician expert witness, who expressed concern for the “developing, false narrative that encampments are a safe alternative form of housing[…]”[16] In his s.7 analysis, Justice Ramsay considered the impacts of homelessness as a whole, instead of the impacts of the impugned By-law. This approach led to the finding that the encampment residents’ s.7 rights were not infringed when they were evicted under the By-law. Rather, “[t]hey are put at risk by homelessness. Encampments contribute to this risk. They are lawless, dangerous and unsanitary.”[17]
Kingston applied the s.7 analytical framework in a manner more aligned with Waterloo than Heegsma. Justice Carter found that the By-law’s effects on the s.7 rights of encampment residents are “so grossly disproportionate to its purposes that they cannot rationally be supported” and further, that evidence of the encampment’s negative impacts has “a very limited role to play at the gross disproportionality stage in the [s.7] analysis.”[18] Justice Carter emphasized that the By-law “has lost sight of its purpose” if it serves to prevent the unhoused from erecting shelter, to avoid serious risk of harm, while there is nowhere else to go.[19]
Orders
The following court orders in successful right to shelter Charter cases show the gradual expansion of the scope of the s.7 right, when considering municipal By-laws that prohibit encampments:
· Victoria (City) v Adams: [The By-law is] “inoperative […] when the number of homeless people exceeds the number of available shelter beds in the City[…]”[20]
· Waterloo: “I declare that the By-Law is inoperative […] when the number of homeless persons exceeds the number of available accessible shelter beds in the Region.”[21]
· Kingston: Justice Carter declined to make a declaration about the parameters for the By-law’s operability. He rejected the notion that the Court could determine “whether there were sufficient accessible shelter spaces in a municipality” because the needs of each unhoused individual are unique.[22] As such, having declared that the By-law breached s.7, Carter J. assigned the City to craft an appropriate remedy.
The Kingston decision demonstrates a more purposive interpretation of s.7 rights. It recognized that creating more shelter beds is not the only or best way to address homelessness. Justice Carter thus held that the number of available shelter beds should not be the sole metric used to assess whether a By-law prohibiting encampments is Charter compliant or otherwise to set parameters for the operability of an impugned By-law.
Despite this, in several recent Ontarian cases where encampment residents have applied for injunctive relief,[23] once the municipality proves there are sufficient beds to accommodate the city’s unhoused population, the By-law provisions are usually found valid, and the Charter challenge commonly fails.
Conclusion
This trio of decisions demonstrates the promises and limits of court challenges as a mechanism for securing a modicum of housing – even if in encampments. The real power lies in buy-in from our elected representatives in making robust policies and programmes to ensure that the life, liberty, and security of all individuals, as it relates to the essential need for shelter and appropriate housing, is respected and upheld. One such way to realize the right to adequate housing can be universal basic income, so that more Ontarians can afford rent.
[1] Homelessness: How does it happen? - Statistics Canada
[2] Ontario Investing in Housing to Move Vulnerable People Out of Encampments | Ontario Newsroom
[3] Ontario Restoring Safety to Parks and Public Spaces | Ontario Newsroom
[4] Ontario might not need to pass major encampments bill, housing minister says | Globalnews.ca
[5] The Regional Municipality of Waterloo v Persons Unknown and to be Ascertained, 2023 ONSC 670 [Waterloo].
[6] The Corporation of the City of Kingston v Doe, 2023 ONSC 6662 [Kingston].
[7] Heegsma v Hamilton (City), 2024 ONSC 7154 [Heegsma]
[8] Waterloo, supra note 5 at para 92.
[9] Ibid at para 93.
[10] Ibid at para 97.
[11] Ibid at para 101.
[12] Ibid at para 104.
[13] Ibid at para 129.
[14] Ibid at para 106.
[15] Ibid at para 107.
[16] Heegsma, supra note 7 at para 61.
[17] Ibid at para 76.
[18] Kingston, supra note 6 at para 86.
[19] Ibid at para 87, citing Bedford v Canada (Attorney General), 2013 SCC 72 at para 136.
[20] Victoria (City) v Adams, 2009 BCCA 563 at para 166 aff’g 2008 BCSC 1363.
[21] Waterloo, supra note 5 at para 158.
[22] Kingston, supra note 6 at para 86.
[23] See Black et al. v City of Toronto, 2020 ONSC 6398; Poff v City of Hamilton, 2021 ONSC 7224; Church of Saint Stephen et al. v Toronto, 2023 ONSC 6566.
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