Encampment Precedent

Here is a longer version of an article I wrote that was published in the Hamilton Spectator on March 25th.  You may find it at https://www.thespec.com/opinion/contributors/2023/03/25/kw-encampment-precedent-could-apply-in-hamilton.html

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Last year in Hamilton a judge ruled that an encampment could be cleared from a city park as there were enough shelter spaces in the system to accommodate those living in the encampment.

It was a different judicial result in Kitchener when a ruling came down in January.
Justice M.J. Valente of the Ontario Superior Court of Justice ruled that the Region of Waterloo can’t evict people living in tents from a vacant lot the Region owns. It is believed that the ruling is precedent setting.  

You can read Justice Valente’s 51-page decision at https://www.thepublicrecord.ca/wp-content/uploads/2023/01/2023-ONSC-670-Ruling.pdf

The issue revolved around a vacant lot at 100 Victoria Street in Kitchener’s downtown.

The Region wants to use the space for a lay-down area for the construction of a transit  hub. 
Back in December 2021, Waterloo had evicted tenants from an encampment on Stirling Street East using steps they believed “were consistent with the requirements of a by-law.”

They did concede that “the manner in which these actions were carried out did not reflect the dignity of those living at the encampment.”  No kidding!  Staff enlisted the help of a road maintenance crew with heavy equipment to clear the Stirling Encampment. 

As a result, the Region felt the need to clarify how it might enforce its legal rights and so brought an application to seek the direction of the Court.

It was the Region’s opinion that the conditions at the encampment posed a risk to the health and safety of encampment residents as well as to that of others. As a result, the Region determined that the encampment had to be disbanded. 
What is it like in that encampment?  

Every individual will have their own story but one that Justice Valente heard from 32-year-old Kathryn Bulgin, homeless for approximately 6 years, is instructive.   Ms. Bulgin is a victim of both physical and sexual assault and currently suffers from drug addiction.   Before living at the Victoria street encampment, she slept in hotel rooms, shelters, behind dumpsters and couch surfed. 

For her and many others shelter bed accommodation can be “very stressful” because there (is) no certainty if a bed (will) be available.  Ms. Bulgin (does) not have a watch or phone.”  The result is that she can’t always return at a designated time to claim a bed. If evicted from the encampment Ms. Bulgin would simply move to another campsite.

This is an important issue that Justice Valente explores in considerable detail. Shelters don’t work for many people.

Dr. Andrea Sereda is a physician practicing at the London Intercommunity Health Centre in London, Ontario. In testimony, she cited five reasons why encampments have advantages over shelter use.  Encampments decrease isolation and risk of fatality and decrease forced transiency that increases the odds that the unhoused can maintain a connection to outreach services. They give people a sense of community. minimize sleep deprivation and provide physical and mental rest.

Interestingly staff challenged Dr. Sereda’s value as an expert because she had not talked to any residents of the encampment.  Staff’s contact with residents was far from comprehensive.  

As local governments are inclined to do, the Region developed policies and procedures that would apply to the estimated 1,100 individuals considered homeless in Waterloo..  Justice Valente had some praise for their work; he had some criticisms as well. For example, it seems staff presented data in a way that would justify their opinion.  Small actual increases in incidents calculated as part of a risk assessment at the encampment site looked a lot more concerning when presented as percentage increases.  

Advocates have long argued that housing is a basic human right.  In fact, the government of Canada supports the progressive realization of the right to adequate housing as part of their National Housing Strategy.

Section 7 of the Charter states that  “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Justice Valente took a look at the fairly extensive litigation that has occurred regarding the right to shelter as it relates to Section 7 of the Charter.  His conclusion can be summarized in a few words.  

The individuals encamped at 100 Victoria St. have a right to be there under Section 7. 

“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,” writes Valente.

Shelter Beds

Municipalities have made this argument for years.  It goes like this: “There are vacancies in the shelter system.  So people are able to stay in shelters.”  

But the actual number of shelter beds available or not available is contentious. 
Justice Valente picks this up recognizing “that it is not just the number of available indoor sheltering spaces that frames the right but also whether those spaces are truly accessible to those sheltering in parks.”

The Region made two other arguments that were rejected.

First, they contended that the Charter doesn’t apply because the encampment residents were looking to protect property rights, which are not Charter protected.  Not so, said Justice Valente.  They weren’t making such a claim.  Encampment residents just preferred to be close to services they regularly use.

Another Regional argument was that previous Ontario court decisions supported evictions.  But those decisions dealt with parks, where the broader public had an interest in using, not a vacant lot such as the site in question.

If evicted from the encampment where will residents go, Valente wondered. Likely to live rough or set up camp somewhere else.  What choice do they have?  Creating shelter to protect oneself is, a “matter critical to any individual’s dignity and independence.” By preventing this, the Region interferes with the “choice to protect itself from the elements and is a deprivation of liberty within the scope of section 7.”

Waterloo Region has decided not to appeal the ruling. 

Sharon Crowe, a lawyer involved in the Hamilton case,, is optimistic that the decision will be a catalyst for change.
  
“Not only are they not appealing, they are investing $163 million into housing and homelessness.”

The City of Hamilton is now back at the table talking with advocates. Hopefully, others will follow suit.