A Superior Court Judge in Waterloo has struck down the Region’s encampment bylaw in a decision with significant implications for Ontario’s municipalities.
In a 52-page decision released January 27, Justice Michael J. Valente ruled Waterloo’s plans to remove an encampment violates the Charter of Rights and Freedom‘s Section 7 right to life, liberty and security of the person.
“Because the By-Law prohibits the erection of shelter protection that is necessary to protect homeless individuals from risk of serious harm, and there is currently inadequate shelter beds in the Region, I conclude that it violates the Charter protected right to life,” Justice Valente writes.
Key to this decision, and differing from the Poff v. City of Hamilton, 2021 ONSC 7224 that upheld Hamilton’s encampment removal bylaws and practices are some key determinations:
- There are 1,085 experiencing homelessness in Waterloo, and only 416 emergency shelter spaces. (In the Hamilton case, the Judge ruled there was sufficient shelter capacity.)
- The needs of the Waterloo applicants were more pronounced compared to the Hamilton applications.
- The Waterloo applicants include persons suffering from drug addictions presented as evidence in the case.
- Traditional shelters fail to provide for these needs, including:
- Shelters “are impractical” because they do not accommodate couples;
- “impose rules that cannot be followed due to addictions”;
- “cannot accommodate mental or physical disability”
- The location of the encampment is a vacant municipal lot, not a park. Therefore, the Court does not need to determine the balance between public use of the park and the use of the park by encampments.
- The Court determined Waterloo’s “Risk Assessment” was “not well researched,” and an “insufficient reason to justify the clearing of the Encampment,” and “the Risk Assessment omits any consideration of the potential risks associated with the eviction of the Encampment residents.” [paras 37 to 46]
In the Hamilton case, Justice Andrew Goodman ruled, “There is no evidence that the shelter system does not have capacity to safely accommodate those currently living in the parks who wish to seek shelter.” [para 28]
Right to Shelter and Emergency Shelter Spaces
Justice Valente adopted much of the British Columbia rulings, which found a Charter Right to overnight outdoor sheltering when the number of homeless persons exceeds the number of indoor shelter spaces.
In his ruling, Justice Valente determined that spaces must also be “truly accessible.”
“I accept that it is simply not a matter of counting the number of spaces. 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 Justice writes in paragraph 93.
“If the available spaces are impractical for homeless individuals, either because the shelters do not accommodate couples, are unable to provide required services, impose rules that cannot be followed due to addictions, or cannot accommodate mental or physical disability, they are not low barrier and accessible to the individuals they are meant to serve.”
Encampment Location on Vacant Lands, Not Parkland
Justice Valente distinguished this encampment from others on the basis it is located on vacant land which the municipality plans to redevelop at a later date.
The Justice noted the Region “has no immediate need for the property.”
The Region plans to redevelop the land into a future transit hub. Presently, the Region wishes to use it as a parking lot.
Must Municipalities Provide Washrooms, Pest Control, and Other Supports to Encampments?
Paras 47 to 50 addressed complaints from neighbouring properties and the municipality’s concerns regarding rats and rodents, human waste, consumption of alcohol and drugs, use and storage of propane, and other nuisances.
Justice Valente asked, “does not the Region have some responsibility to take further steps to mitigate these risks?” before noting the municipality could provide pest control and washrooms.
“The problem with human waste could have easily been addressed had the Region facilitated earlier access to the washrooms located at St. John’s Kitchen and/or installed the two portable toilets on the Encampment sooner than it had.”
The Justice recommends the municipality provide education to encampment residents to improve their living conditions.
Harms From Removing Encampments
“I have found as a fact that there are not enough accessible shelter beds for the Region’s homeless population. If evicted from the Encampment, the residents will likely be forced to live in the rough or set up camp somewhere else because there is an insufficient supply of low-barrier accessible beds in the Region,” Justice Valente writes.
“In these circumstances, creating shelter to protect oneself is, in my opinion, a matter critical to any individual’s dignity and independence. The Region’s attempt to prevent the homeless population from sheltering itself interferes with that population’s choice to protect itself from the elements and is a deprivation of liberty within the scope of section 7.” [para 101]
“As I have previously stated, an order in the Region’s favour would therefore force the Encampment residents to choose between living outside in the rough or risk setting up an encampment elsewhere only to be evicted once again,” the Justice writes in para 104.
“The By-Law’s prohibition to the erection of temporary shelter exposes the homeless of the Region to risk of significant health problems, both physical and psychological in nature … I therefore find that the Region’s By-Law amounts to a deprivation of the security of the person.”
Region May Apply to Enforce After Providing Shelter Spaces
At numerous points in his ruling, Justice Valente praised the Region of Waterloo’s efforts and initiatives to address the homelessness problem.
The Justice ultimately determined the Region must do more.
This includes addressing each individuals needs on a case-by-case basis, increasing the number of shelter spaces, and providing spaces that meet the needs of all individuals.
Justice Valente states the Region of Waterloo can apply to have his ordered lifted once they improved their response following the ruling.
The Regional Chair states the Region of Waterloo is reviewing the ruling.
Production Details v. 1.0.0 Published: February 5, 2023 Last edited: February 5, 2023 Author: Joey Coleman Edit Record v. 1.0.0 original version