Ont. cities should expect wave of legal challenges after encampment ruling

Experts say Ontario’s precedent ruling could put pressure on cities to address the homeless crisis with better shelter and housing, while giving camp residents more clarity over evictions. protection.

A judge in Kitchener, Ontario, ruled last week, the first of its kind in a state, ruling that there is a constitutional right to seek outdoor shelter when there is no indoor space accessible and available. .

The decision will make Toronto “extremely vulnerable” to legal challenges, said Esther Van Wagner, an associate professor at York University’s Osgood Hall Law School.

City data dating back to 2018 shows the highest number of homeless people in the city in the last five years, with a record number of people entering the shelter system compared to those leaving.

There have been violent police evictions, shelter hotels have closed, and the shelter system is usually at capacity most nights.

Kaitlin Schwan, Executive Director of the Women’s National Housing and Homelessness Network, said that while residents of the Toronto camp had challenged the eviction in the 2020 case, circumstances since that decision, combined with this precedent ruling, make it a different story. said to have created a situation of

“I think there will be considerable pressure to ensure that precedent informs how the city moves forward in its involvement with the camp, and that future litigation in court will depend on this decision. , it’s very widespread,” said Schwann, who is also a senior fellow at the Canadian Observatory on homelessness.

The city has long argued that the encampment is unsafe and functions to support those living in shelters and other dwellings.

To date, Ontario’s courts have lagged behind those of British Columbia, which recognized the constitutional right of judges to protect themselves when the jurisdiction fails to provide sufficient space. rice field.

More than previous Ontario decisions, Kitchener’s decision not only checked the number of spaces available in the city, but also whether those spaces were truly meeting the needs of those experiencing homelessness. .

“Judges are looking at things like whether there’s adequate support for addiction and mental health, whether there’s space for couples,” Van Wagner said.

Judge Michael Valente ruled that the local trespassing ordinance violated the residents’ charter rights because there weren’t enough shelters, and about 50 people were removed from a homeless encampment on a half-acre vacant lot. It rejected the demands of the Waterloo area to retire.

Kitchener’s case also represents a “very important” departure from Ontario case law on what it means to “choose” to live outside, Van Wagner said.

Cities have often argued that camp residents are choosing to live outside when there are shelter options available. , said that circumstances such as poverty, disability, addiction and inadequate shelter options must be taken into account.

“Courts have tended to take the idea of ​​choice as kind of black and white,” said Van Wagner. “We see that the decision here gives us a more nuanced understanding of the fact that this ‘choice’ is being made in a very constrained context.”

A couple in Kitchener’s case testified about being separated from each other when staying in a shelter, people who used drugs pointed to the harm of abstinence-based policies, and others said they were being used on certain nights. We talked about the “weight of uncertainty” regarding possible shelter spaces.

The case is an “important first step” but far from imposing a positive obligation on local governments to provide shelter and housing, said Kaitlin Schwan, executive director of the Women’s National Housing and Homelessness Network. Stated.

As a result, she called it a “mixed victory” for the camp residents and their allies.

“That’s a very, very far way to actually realize housing rights in Canada,” said Schwann, who served as an expert witness in the Kitchener case.

Courts moved in this direction, as evidenced by the Kitchener case. This is because camp residents continue to organize and talk about the reality of what life is like outside, said Sima Atli, a lawyer for the Community Justice Collective who has represented camp residents. said. .

Atli said the ruling could put pressure on cities to address the homeless and encampment crisis by building housing and accessible permanent shelters. said it hoped it would mean residents would not face threats of violent eviction.

But she said the solution to the housing crisis will not come from the courts.

“It will come from people coming together to solve this problem and actually address the broader housing crisis problem in our cities,” she said.

This report by the Canadian Press was first published on January 31, 2023.