Encampment eviction cases are emerging in Ontario, following BC's lead
A group of 19 homeless people in Hamilton have brought a challenge under s. 7 and 15 of the Charter of Rights and Freedoms to municipal bylaws, which used to evict and dismantle their public-park encampments.
Citing case law from British Columbia, the applicants argue that when the number of homeless exceeds the number of available shelter beds, encampment eviction represents a violation of residents’ rights to life, liberty and security of the person.
While the case, Victoria (City) v. Adams, 2008, BCSC, 1363, established that where there are insufficient shelter beds, municipal authorities cannot evict a homeless encampment, and “a well-developed body or jurisprudence” has flowed from Adams, the Hamilton case seeks to push further, says Sujit Choudhry, counsel for the group of encampment residents.
While Adams concerned encampment use during sleeping hours, these claimants argue that their use is necessary during the day too. Along with shelter from the sun and a place to store their personal belongings, camp residents benefit from “mutual safety, mutual aid, mental health, personal care, and access to social services,” he says. “If they reside in a fixed location, it’s easier to provide them with supports for harm reduction and healthcare.”
The BC cases also have not pursued the s. 15 arguments, says Choudhry.
“What’s important about our case is the composition of the claimant group,” he says. “Seven are Indigenous women, and three are non-Indigenous women, so a majority are women. They also include in their number an Indigenous man, a Black man, and a transgender Black woman.
“The reason why that’s profoundly important is that these bylaws don’t just violate the right to life, liberty, and security of the person, under s. 7, but they’re also discriminatory because Indigenous persons and women are over-represented among Hamilton’s homeless.”
In addition to race and gender, the claimants argue that the bylaws discriminate based on marital status, sex, and disability because of their disparate impact.
Choudhry is head of chambers for Hāki Chambers Global, which has an international constitutional law practice. He acts for the encampment residents with Sharon Crowe of the Community Legal Clinic of York Region, and Wade Poziomka and Ashley Wilson of Ross & McBride LLP.
The amended notice of application said that the 19 residents’ homelessness results from inadequate Ontario Disability Support Program and Ontario Works benefit levels, breakdown of relationships, domestic abuse, and complex mental health, addiction and trauma. Another reason listed is Hamilton’s increasing housing precarity.
“If you look at our clients – there are many reasons why they’ve ended up on the street,” says Choudhry. “One of them is that they’ve been priced out of housing, and that’s a broadly felt issue.”
“Issues of housing affordability have always been linked to questions of homelessness. But there is a much broader public awareness and, we hope, judicial awareness of how pervasive these issues are. We’re hopeful that judges will be alert to how issues of housing affordability are linked to and lead individuals to need to create encampments so that they have somewhere to shelter because they can’t afford to purchase shelter on the rental market.”
At the end of January, a Superior Court in Waterloo found that a municipal bylaw the regional government sought to use to evict a homeless encampment was an infringement on s. 7 of the Charter. In that case, Justice Michael Valente said that the s. 7, “right to shelter,” jurisprudence has developed as homelessness has grown in Canada. Following Adams, he found that, without adequate shelter space, evicting the homeless encampment would force the residents to endure life-threatening elements without shelter and prevent them from the “dignity and independence” of creating shelter to protect themselves.
The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670 is the first time a judge in Ontario has followed precedent from BC that encampment eviction would constitute a breach of s. 7, says Shannon Down, executive director at Waterloo Region Community Legal Services, who acted for the encampment residents in that case.
“What’s disheartening about these this litigation is that I think Justice Valente has affirmed what we all had believed, which is that when a case was fully adjudicated in Ontario, that the Ontario courts would follow the BC courts,” says Choudhry. “What should happen now is that cities should stop resisting this litigation and should instead permit people to sleep in encampments or provide emergency shelter that is better for them.
“What we’re hoping to achieve is that city governments will create more shelter spaces and will create more affordable housing, and, in the interim, will let people shelter in encampments, so they have somewhere to sleep and live.”
