Encampments and Charter rights: Upholding the right to life, liberty and security of the person in the Waterloo Region decision

July 27, 2023

Encampments and Charter Rights - Housing Tell Blog - NRHNIn July of 2022, the Region of Waterloo filed an application with the Superior Court of Justice to evict encampment residents living at 100 Victoria St. North: a regionally-owned vacant lot. The case was heard in the fall of 2022, with arguments between the Region’s lawyers and Waterloo Region Community Legal Services (WRCLS).

Representing some residents living at the encampment, WRCLS argued that the eviction would violate the Charter of Rights and Freedoms: specifically, section 7 on the right to life, liberty and security of the person, and section 15, on equality rights. In contrast, lawyers representing the Region argued that residents were in violation of a local bylaw prohibiting trespassing.

In the first ruling of its kind in Ontario, on January 27, 2023, the Ontario Superior Court of Justice Valente found that the Region of Waterloo’s attempt to evict encampment residents at 100 Victoria St. N was indeed a violation of section 7 Charter rights (but not a violation of section 15 rights).   

What does this ruling mean for the human rights of encampment residents and unhoused people in other municipalities across Canada? Read more to find out.
This Q&A-style blog was written by Laura Pin, Ashley Schuitema, Erin Dej, and Shannon Down, and was informed by the contributions of Char Lee and Jenn Draper. 

On March 7, Waterloo Region Community Legal Services (WRCLS) and the Unsheltered Campaign (an advocacy and mutual aid group based in Waterloo Region) hosted an online discussion of the Waterloo encampment ruling at the Laurier Centre for the Study of Canada.

The goal of the discussion was to share the perspectives of lived, legal, community, and academic experts involved in the case. During the panel discussion, we received many excellent questions from audience members we were unable to answer due to time constraints. This blog post responds to some of these audience questions.

We write this post in an environment where, despite some legal recognition of the rights of encampment residents, municipalities continue to pressure encampment residents to vacate, through restricted access and coerced removal. Community advocacy is more important than ever in supporting encampment residents and upholding their right to housing.

Question 1: What does the 100 Victoria verdict mean for other local encampments in Waterloo Region?

Answer: It is likely that this verdict would apply equally to other local encampments. People living within any encampment in Waterloo Region that is situated on public property are unlikely to be evicted because of this ruling. Although the City of Kitchener may have slightly different bylaws than the Region of Waterloo, the factual context regarding the inadequate shelter spaces within the Region continues to apply.

– Ashley Schuitema and Shannon Down, WRCLS

Question 2: So are people facing homelessness now allowed to camp on municipal property even when there are by-laws stating they can’t?

Answer: The short answer is yes. The long answer is that it is not that people are allowed to camp on municipal property, it is more that the municipality is not allowed to evict people that are camping on municipal property when there is a shortage of accessible shelter spaces in the community. Municipal by-laws against camping on municipal property are not necessarily unconstitutional on their own, but these by-laws become unconstitutional in the context where there is a shortage of accessible shelter spaces (not to mention lack of access to adequate and affordable housing). Unfortunately, municipalities may still move towards eviction and the encampment residents would have to respond with legal action alleging Charter violations.

– Ashley Schuitema and Shannon Down, WRCLS

With the National Housing Strategy Act of 2019 legally recognizing that “the right to adequate housing is a fundamental human right affirmed in international law,” and with the Federal Housing Advocate currently pursuing a human rights-based review of encampments across Canada, there is also potential for bringing court cases forward that allege a violation of the right to adequate housing in future. Afterall, “the practice of forced eviction constitutes a gross violation of human rights, in particular the right to adequate housing,” according to the UN Commission on Human Rights (1993).

Question 3: What about other municipalities: what does this ruling mean for them?

Answer: We believe other municipalities across Canada will be (or ought to be) looking closely at this decision when considering their own response to encampments on municipal property. Given the depth of the housing crisis across the country, it is likely that many, if not most, municipalities have insufficient shelter spaces to meet the needs of everyone experiencing homelessness in their community. This means that many municipalities would be at risk of a successful Charter challenge should they proceed with evicting encampment residents. This is a liability risk that any prudent municipality would likely want to avoid.

– Ashley Schuitema and Shannon Down, WRCLS

Question 4: I heard a homelessness expert say this is a terrible decision because it’s going to force municipalities to move more money towards the shelter system at the expense of funding for supportive/permanent housing. What are your thoughts on this?

Answer: Any decision that reiterates the human rights of unhoused people—their right to life, liberty, and security—is not a terrible decision. That said, this case and similar cases in British Columbia are built on evidence that there is not enough accessible shelter space available for everyone who is homeless in the municipality. Technically, this means that if a municipality can demonstrate that they have an adequate number of truly accessible shelter beds for everyone who is homeless in the city, they could meet the threshold to allow for an encampment eviction. However, there has been an incredible amount of advocacy in the last few years around transforming from an emergency response to homelessness to a housing-led (or Housing First) focus. As such, it is unlikely that municipalities will invest substantially in building many different kinds of emergency shelters to meet the accessibility requirements and are more likely to invest in a range of responses that include emergency shelters but also other housing models.

– Dr. Erin Dej, Wilfrid Laurier University

It also useful to consider Canada’s domestic and international obligations to progressively realize the human right to adequate housing for all. Under these obligations, every level of government must apply a “maximum of available resources” and “all appropriate means” to ensure access to adequate permanent housing for unhoused people, including shelter and encampment residents. This is a high standard for a wealthy nation like Canada. It would therefore be difficult to justify the deferral of funds from affordable and supportive housing towards emergency shelters, when in fact a multi-pronged approach is required that expands housing options across the housing continuum.

Question 5: How can service providers (people working in street outreach, shelters, hard reduction, bylaws, etc.) from other municipalities use this decision to advocate on behalf of the individuals living in encampments in our communities?

Answer: The ruling reinforces what many service providers already know: encampments are not an ordinary bylaw issue; they are a human rights issue as well. Hopefully service providers will be able to use the court’s decision to advocate for the application of a human rights lens in all engagements with encampments. A human right lens means starting from the position that unsheltered people have a right to exist in public spaces—and more than that, they are entitled to access to adequate, affordable, and permanent housing.

Here are two ways this might look in practice. First, if there is a safety concern, service providers can spearhead and advocate for solutions that reduce the safety risk but do not make it more difficult for encampment residents to meet basic needs for warmth, shelter, sanitation, water, etc. Second, service providers can ensure that there is clear and transparent communication with encampment residents that recognizes their autonomy and existence as rights holders. In other words, service providers can play an important role in recognizing that people living in encampments are making legitimate claims as rights holders to public space for shelter—claims that have a basis in domestic and international human rights law.

– Dr. Laura Pin, Wilfrid Laurier University and Char Lee, Unsheltered Campaign

Question 6: How far does this ruling bring towards housing as a right? What shortcomings remain?

Answer: While this ruling is an important step in recognizing the human rights of encampment residents, realizing the right to housing requires permanent, adequate, accessible, and appropriate housing for all people. When we unpack the “right to housing,” the shortcomings of the ruling become apparent. First, as noted above, the section 7 infringement hinged on an absence of accessible temporary shelter options, rather than the question of whether there were permanent housing options available to encampment residents. This means that if there were more emergency shelter spaces, and those spaces were more accessible, it is possible another court would find that there was no human rights violation, although people staying at emergency shelters are still homeless.

Second, operating in a “negative rights” framework, nothing in the court ruling obligates the Region, or any other level of government in Canada to take action to meet the housing needs of people experiencing homelessness. Finally, the failure of the section 15 equality rights challenge brought by WRCLS means that the ruling provides no recognition of how the harms of homelessness are differentially experienced by women and gender diverse people, disabled people, Indigenous peoples, and racialized individuals, despite experts presenting compelling evidence that these groups are disproportionately affected by the experience of homelessness.

With these points in mind, it will be important for future legal cases and advocacy to focus on expanding the right to permanent housing options for people experiencing homelessness, as well targeted measures to address the equity dimensions of homelessness.

– Dr. Laura Pin, Wilfrid Laurier University

Question 7: How can we encourage people around us to change their perceptions of people with housing issues?

Answer: We need to lead conversations with empathy. This can be difficult when people do not share empathy with others, but understanding the concerns and fears people have provides a starting place to have conversations about what we can do to meaningfully address those concerns. The myths around homelessness are deeply embedded in our society and so it takes a lot of work and patience to break those down. This means that it is rarely one conversation or one fact that will change people’s minds. Instead, it takes time for many people to process the multitude of systemic failures that have led to the individuals they see in front of them experiencing homelessness. The more we position people who are homeless as people first, the easier it is to see their connection with others. Often, people who are homeless share the same concerns as their housed neighbours – around safety, access to sanitation and hygiene facilities, and having places to go where they feel comfortable and welcome. Focusing on the root causes and solutions to homelessness can help us all meaningfully move the dial on homelessness.

– Dr. Erin Dej, Wilfrid Laurier University

Question 8: Right now, homelessness is not covered by section 15 (equality rights) of the Charter. But courts are able to read new grounds into section 15 that are analogous (or similar) to other section 15 rights, even if they weren’t originally included in the Charter. In the future, do you think courts are likely to adopt an understanding of section 15 that includes homelessness as an equality right?

Answer: Section 15 is the equality rights section of the Charter which states that “every individual is equal before and under the law and has the right to the equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”. The grounds listed in section 15 are the enumerated grounds but courts have also found that analogous grounds can be established, for example marital status and sexual orientation, in cases argued under section 15.

Tanudjaja v. Canada (Attorney General) was a case that attempted to establish that government policies and inaction, which led to inadequate housing and homelessness for the parties involved, was a breach of the section 7 and section 15 rights of the parties. The case was also an attempt to have the Courts find that homelessness is an analogous ground under section 15 of the Charter. Ultimately this argument was rejected at the Ontario Court of Appeal and the Supreme Court of Canada denied leave to appeal the case. Canadian courts have generally declined to impose a positive obligation on governments such as the right to housing as those choices are viewed as overstepping the role of the judiciary.

While the Tanudjaja v. Canada (Attorney General) case failed to establish that homelessness is an analogous ground for the purposes of s. 15 Charter interpretation, s. 15 still offers options for fighting government action or policy that is harmful to those experiencing homelessness.

Arguments can be made that someone who is homeless may experience disproportionate impacts from government actions or policies because of intersecting enumerated or analogous grounds (for example race, national or ethnic origin, sex, age, mental or physical disability, marital status or sexual orientation). Section 15 would be breached if a disproportionate impact based on an enumerated or analogous can be proven in court. For example, our argument was that women and gender diverse people living at the encampment who also had an intersecting ground of disability would be disproportionately harmed by the encampment evictions because there were less shelter spaces available for them and because they were more likely to face sexualized harm while tenting/couch surfing/etc. These arguments were made on the enumerated grounds of sex and disability, but the court did not really engage with these arguments.

– Ashley Schuitema and Shannon Down, WRCLS

While this ruling is an important step in recognizing the human rights of encampment residents, realizing the right to housing requires permanent, adequate, accessible, and appropriate housing for all people.

– Dr. Laura Pin, Wilfrid Laurier University


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