Encampment ruling ripples through province

KITCHENER — A court ruling Friday that it would violate charter rights to remove unsheltered people from 100 Victoria St. N. is sending ripples across the province and further afield.

Shannon Down, executive director of Waterloo Region Community Legal Services, said this is the first time in Canada, outside of British Columbia, that a judge has ruled that an eviction would violate the charter rights of people experiencing homelessness.

Down and lawyers from the clinic represented several people living on regionally owned property at 100 Victoria St. N.

“I anticipate it will have some ripple impact in other provinces because … there haven’t been cases from other provinces where it’s been successfully argued that encampment evictions infringe charter rights,” Down said. “So this is the first case in Ontario and the first case outside of B.C.”

Down has been hearing from lawyers at other legal clinics across the province.

They “are excited at this development and … see this as something that’s going to be influential and have a big impact on housing and homelessness jurisprudence, so I think that within my colleagues in the province there’s a sense that this case is a big deal,” she said.

The Region of Waterloo was the first Ontario municipality to go to court seeking an injunction that would have allowed Waterloo Regional Police to remove and detain residents living at the site.

People have been living there since about December 2021. At its peak, the encampment had more than 70 tents housing at least 50 people at the corner of Victoria and Weber streets.

Derek Cook is director of the Canadian Poverty Institute at Ambrose University in Calgary.

“I was very encouraged by the court’s decision, as it affirms the inherent rights of all people to seek places of shelter, be that in tent cities, transit stations or other public spaces,” he said. “While acknowledging that such places are not appropriate forms of shelter, simply moving people from a place of shelter to no shelter at all places their life and safety at great risk, as the judge in this case confirmed.”

The region’s application was heard in Kitchener Superior Court in November.

Justice Michael Valente ruled the region’s bylaw relating to conduct on regionally owned properties violates unsheltered residents’ rights to life, security and liberty of the person, which are protected under the Charter of Rights and Freedoms.

The right to liberty covers choices around individual dignity and independence, lawyers for encampment residents said during the hearing in November.

Valente’s decision is based in part on what he felt was the region’s inability to prove it had enough space in shelters for all of the more than 400 people living unsheltered in the region.

Even if he did not to agree that charter rights would be violated, Valente said he still would have refused the injunction application because of the region’s lack of effort to connect with residents and meet their unique needs.

Sharon Crowe is with the Community Legal Clinic of York Region but previously worked at a legal clinic in Hamilton which is involved in a legal battle similar to what occurred in Waterloo Region.

Crowe continues to be involved in the Hamilton litigation, which started in 2020.

The Hamilton Community Legal Clinic sought a temporary injunction at that time to prevent the City of Hamilton from enforcing a bylaw that bans tents on city property. That led to the city’s encampment protocol which allowed clusters of up to five tents on city property for 14 days.

The previous Hamilton council voted in August 2021 to cancel the protocol and in November the Hamilton legal clinic launched a constitutional challenge of the bylaw.

The clinic will rely on arguments similar to those used in the Waterloo Region case. A hearing is scheduled for Feb. 23.

Crowe has been watching the Waterloo Region case play out.

“It’s significant, because it recognizes and validates the harms that people living in encampments and their supporters have been saying for years,” Crowe said. “It acknowledges the lack of safe alternatives, so it kind of rationalizes peoples’ choice to live in an encampment.”

The Waterloo Region ruling sets a precedent and starts the conversation around housing affordability as a national crisis, said Cameron Kroetsch, a Hamilton city councillor whose ward includes the city’s downtown.

In an interview with The Record Kroetsch said his council hasn’t yet discussed the Kitchener ruling and that he was expressing his own opinion.

Kroetsch doesn’t oppose encampments on municipal property, if the housing and other supports people need aren’t in place.

“Until we have the resources committed, until we have the housing in place for people to go to, it’s also our responsibility to ensure that people can shelter as best as they can otherwise. And if that means giving them space on municipal property to do so, I’m not personally opposed to that at all,” he said.

The City of London, Ont., said it is reviewing the decision but would only comment on its approach to homelessness.

“There are no individual ‘sides’ anymore — we are all on the side of ending unnecessary suffering and deaths on our streets, and improving overall community health, together,” said deputy city manager Kevin Dickins.

While the court decision is welcome, it doesn’t change things for people living outside in the region because they still need supportive housing, Down said.

“While I can celebrate this decision and go home at night to my bed, they’re still living in a tent,” she said.

The legal clinic will continue to support residents at the site and advocate to the region for improvements to reduce risks to residents of things like fires that happen when people try to stay warm.

With files from The Hamilton Spectator