recent ruling in the Region of Waterloo declared that a bylaw permitting the eviction of unhoused folks violated their Charter rights to life, liberty and security.
The precedent-setting ruling by Justice Michael Valente of the Superior Court of Ontario prevents the Region of Waterloo from evicting an encampment community known as “Tent City” at 100 Victoria Street North that had about 70 residents at its peak during the summer.
This has brought Ontario one step closer towards recognizing housing rights, and could strengthen arguments against violence towards unsheltered communities in the rest of the province. But unsheltered communities and their advocates are not waiting on the courts to assert their right to a home, and worry the decision could further enshrine temporary housing solutions.
The Region had applied to the court for permission to enforce its trespassing bylaw on the public land that the encampment is resting on. The Waterloo Region Community Legal Services (WRCLS) then pushed back on the Region’s application on behalf of the encampment residents, arguing that the evictions would violate the residents’ Charter rights.
Justice Valente declared on January 27 that the bylaw is “inoperative” as long as the number of homeless people exceeds the number of available and accessible indoor shelter beds — which is certainly the case in Waterloo Region, where a 2021 Point in Time Count found almost twice as many unsheltered people as there are spaces in shelters.
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100 Victoria Street North is just one of three large encampments that unhoused communities have set up in Waterloo Region in the past year.
“I’m not living here to be a nuisance. I’m doing it because I don't have a place to live. And we all have a right to housing,” says Stephanie Davidson, a resident of Housing Now! Tent City in Willow River Park.
Unsheltered communities are asserting their right to housing by setting up visible encampments. One resident of 100 Victoria, who describes himself as “the Mayor of Tent City” said their choice of location is a strategic attempt to create more public pressure for housing rights.
“We put ourselves in a spot where they could see us deliberately,” he said in an interview in his homemade shelter. “We are tired of being put aside.”
A legal toolkit to fight encampment evictions in Ontario
WRCLS, who represented 100 Victoria residents through the legal proceedings, built their case on a series of rulings in Victoria, BC where courts recognized the eviction of encampments as a violation of residents’ Charter rights to life, liberty and security in 2008.
Justice Valente’s Waterloo ruling marks the first time this precedent has been recognized in Ontario.
The same argument failed in Toronto in October 2020, when 14 residents of various encampments throughout the city, including Moss Park and Lamport Stadium, asked to suspend the enforcement of by-laws preventing the erection of tents because of concerns regarding the difficulty of maintaining social distancing in shelters.
Specifically in the context of COVID-19, the encampment residents, supported by the Encampment Support Network, an ad-hoc group of individuals across the Greater Toronto Area that banded together to help their neighbours throughout the pandemic, argued that enforcing the by-law violated their Charter rights to liberty, equality, and constituted cruel treatment.
Judge Paul Schabas of the Ontario Supreme Court of Justice found at the time that the City of Toronto had taken adequate safety measures.
He also said that parks are “public resources, intended to be available and used by everyone,” and that encampments “impair the use of parks” by people who are not unhoused.
“People experiencing homelessness is an unfortunate reality,” Judge Schabas wrote.
Following Judge Shabas’s ruling, the City of Toronto and the Toronto Police led a strategically violent campaign against encampments in Trinity Bellwoods Park, Lamport Stadium, Allan Gardens and other encampments across the GTA, while unhoused advocates working in the shelter system pled for more support from the City.
In January, 2022 the Shelter Justice and Housing Network — a network of homelessness and housing advocates composed of shelter workers, volunteers and shelter residents — said that 50 shelters across the GTA were experiencing COVID-19 outbreaks and over 1000 people were sleeping outside every night.
The City and Toronto Police continue to evict encampments that spring up in pockets of the city today.
Though Shabas did not rule in favor of unsheltered communities, he did acknowledge the potential for some of the argument that evicting encampments infringes on their Charter rights.
“Concerns regarding the right to "security of the person" clearly arise in this case,” he wrote, noting that a 2020 eviction notice that the City issued to residents of Moss Park caused them “anxiety, physical and psychological distress, and [put] their health at risk.”
Another similar case is also unfolding in Hamilton, where one case argues that encampment evictions are discriminatory in addition to violating the rights to liberty and security of the person.
Nineteen unsheltered people — ten of them women, eight of them Indigenous, and two of them Black — are challenging the by-laws that are used to dismantle encampments in public parks. They’re arguing that homelessness disproportionately impacts marginalized groups, particularly Indigenous people and women, and that the evictions are therefore discriminatory.
Lawyers representing the unsheltered people said in their amended notice of application that, even with a housing allowance, ODSP and Ontario Works benefits are “insufficient.”
They also noted several problems with existing shelters: There is often a “complete absence of shelters which permit couples to stay together, and no shelter in Hamilton for Indigenous men, couples, youth or Two Spirit individuals.” Shelters also do not accommodate Indigenous cultural practices, and that their design “may reinforce intergenerational trauma,” according to the notice.
A problem of accessibility
The adequacy of shelter beds is key to this whole ruling. “I accept that it is simply not a matter of counting the number of spaces,” Justice Valante wrote in his opinion. “To be of any real value to the homeless population, the space must meet their diverse needs, or in other words, the spaces must be truly accessible.”
“The Region has their stats but the stats don't tell the whole story of how this system works,” Shannon Down from WRCLS said. The few open beds available any given night may not be accessible, for example, to couples who would be split up, or to recovering drug user who might have to share a space with active drug users.
The Region’s most generous calculation of open shelters shows a maximum capacity of more than 400 shelter spaces, still falling far short of needs. The encampment residents that WRCLS, however, said there are only 30 accessible beds — for a homeless population of more than 1000 — because some units need repairs, and because many of the shelters have a very low turnover, meaning they rarely have open beds.
“If shelters were adequate I wouldn't live in a tent in the winter,” Davidson reflected.
Justice Valente also refuted the Region’s argument that encampment residents’ “choice to live outside” negates their right to life, liberty and security. The choice is not made freely, he wrote, adding that its context is “characterized by poverty, drug addiction, disability, and insufficient shelter alternatives,” Justice Valente wrote.
The Region announced on February 23 that they would not appeal the decision. However, in a statement to the media, the Regional Chair of Waterloo Region said that the Region could apply again to Justice Valente should the efforts to “voluntarily move people” into shelter spaces prove unsuccessful.
The Mayor of Tent City said the Region has not contacted them since the ruling regarding next steps. “They could come to talk to us and we could work together on solutions.”
Addressing the symptoms, not the cause
Davidson said bylaw officers have respected boundaries a bit more since the ruling, and that she will be able to build a “bigger and better place” to stay in until she gets permanent housing. However, she also noted that “it feels like everyone has forgotten about [the ruling] and carried on as before… There is no push anymore. No rush to get housing anymore.”
Organizers have highlighted the difference between enshrining the right to housing and articulating the right to shelter. “The court case could be a negative if they think that a tent city is enough,” said an Ojibwe Tent City organizer.
“I hope the direction governments take is not to just build a bunch of shelter beds. People do not want to live in shelters,” said Down of WRCLS.
Mika, a community organizer with Voices from the Shelter Hotels in Toronto who asked to only be identified by their first name, also hopes future cases extend protections beyond encampments.
“The ruling is great, as it sets a precedent, and acts as part and parcel of our legal toolbox,” Mika said. “However, we certainly cannot expect to rely on this settler state's laws to get us out of the mess that is colonialism and capitalism.”
“We are on the ground, organizing and ramping up… but it's imperative that whatever strategy we implement, it comes directly from the residents,” Mika added.
As Down notes, the court system is unlikely to provide the right to housing anytime soon. “We have a fairly conservative court system where courts are reluctant to say that there is a positive right to housing,” she said.
In Toronto, unsheltered community members are working with groups like Voices to get people housing and keep people alive now. “We have to remember and relearn how to humanize our fellow peers in this class war in which we are pitted against one another,” Mika said.
Down adds that “people need to push governments to say we need to find housing. We are still not in a place for governments to mandate housing.”
A good place to start is to amplify and support unsheltered community organizing. The Ojibwe organizer we talked to called for a coming together of tent city organizers to discuss what to do next.
Mika echoed the sentiment. “We are definitely connected with other encampment organizers, beyond our locale. Movement-building is essential for the collective — the fight for liberation is for all of us.”
Editorial Note: Encampment residents and community organizers were anonymized on their request in light of the increased marginalization and criminalization that they experience.
*David Alton is a community organizer with multiple groups that advocate for housing rights in Waterloo.
Photo by Caleb Williams (Unsplash)