Ontario Judge Rules City Will Violate Charter If It Dismantles Homeless Camp

The homeless encampment in Kitchener, Ontario, in a file photo. (The Canadian Press)

An Ontario Superior Court justice has refused to allow the Region of Waterloo to dismantle a homeless tent city built on a half-acre empty gravel lot in Kitchener, Ontario, noting that shelters do not allow couples to stay together, and will not allow drug use and substance abuse.

In a 52-page ruling issued on Jan. 27, which could affect homeless camps in other parts of Ontario, Justice Michael Valente struck down the municipality’s bylaw and denied an injunction to enforce it. The Regional Municipality of Waterloo has a bylaw prohibiting any structure, including a tent, from being built on public property.

Valente ruled that as long as “the number of homeless persons exceeds the number of available accessible shelter beds,” the region’s bylaw is “inoperative” because it violates the Charter and deprives “the homeless residents of the Encampment life, liberty, and security of the person.”

His decision also quoted a B.C. case that stated: “Public properties are held for the benefit of the public, which includes the homeless. The government cannot prohibit certain activities on public property based on its ownership of the property if doing so involves a deprivation of the fundamental human right not to be deprived on the ability to protect one’s bodily integrity.”

The tent encampment was first built around December 2021 without the region’s permission. Within six months, the site had 70 temporary shelters, with roughly 50 people living on the city property at 100 Victoria Street North. A video on Twitter shows the homeless encampment.

The court summarized the situation of some of the encampment’s residents. Kathryn Bulgin, a 32-year-old with drug addiction who has been homeless for six years, said lining up for a shelter bed was stressful because it lacked certainty if there would be a bed. Having no watch, she said, she might not know the time to return to claim a bed.

Jennifer Draper, an Indigenous woman with depression, anxiety, and a panic disorder, uses crack cocaine and methamphetamines. She had been in a rental home with her three children, but lost her job and was evicted. Social services seized her children. Since, she has been living outdoors in the homeless encampment with her partner, another homeless man.

Sean Simpell told the court he has a drug addiction and has been homeless since getting out of jail in June 2020. He said as a drug user, he found it difficult to be around people in a shelter who were subjecting him to ridicule and who were very judgmental.

The court also summarized the plight of Andrew Zekai, an Indigenous homeless man with drug addictions who has been in and out of jail for the last seven and a half years. He said living in shelters was triggering for his drug use and worried about theft of his belongings. He gets safe injection supplies from the nearby drug consumption site.

Adequate Shelter

The property that is hosting the tent city is earmarked for parking for nearby transit stations.

By March 2022, the region hired a security company to respond to any disruptions and complaints from the public or nearby businesses as a result of the homeless encampment. By May, the region posted security at the entrance of St. John’s Kitchen to provide overnight washroom facilities. The cost to the city for security, garbage pick-up, and janitorial service to clean the washrooms totals roughly $80,000 per month.

Valente’s decision cited legal decisions out of the province of British Columbia.

“I am not satisfied that the Region has adequate capacity to shelter the approximately 50 encampment residents given that its shelters are not low barrier or truly accessible,” wrote Valente.

“Just as the British Columbia cases have found … so too do I conclude that the ability to provide adequate shelter for oneself is a necessity of life that falls within the right to life protected by Section 7 of the Charter.”

Valente said not only must the shelters have room, but they also have to be “accessible” to the individuals involved.

Homeless

In his ruling, Valente said he considered the evidence of Dr. Andrea Sereda, a London, Ontario, physician whose practice focuses on the homeless, addicts, and sex trade workers. “Most of Dr. Sereda’s patients are unhoused, living in encampments, staying in shelters, couch surfing, or any combination thereof. Dr. Sereda has provided health care to the homeless for 12 years,” said the judge.

Sereda’s evidence, as paraphrased by the judge, suggested that there were “advantages of living in an encampment over a shelter.” She listed that “couples or ’survival partners’ can remain together.” She told the court there are insufficient shelter options for couples, wrote Valente.

Sereda also said shelter stays were unpredictable and precarious, and often have “abstinence-based policies that refuse to adopt a harm reduction approach,” meaning they will not allow drug addicts to use on the property or stay when high or under the influence of substances.

Additionally, she cited that many shelters are for overnight, requiring individuals to leave and enter each day with “nowhere to rest and decompress,” and that they can be traumatizing for those with a “history of trauma or use” due to the “congregate setting of strangers.”

“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,” the judge wrote.

Valente also ruled that the “right to shelter” didn’t just mean overnight, and the encampment was not taking up recreation space or in a park, so it did not affect the rights of other residents of the Waterloo region.

The Region of Waterloo issued a statement on Jan. 27 following the judge’s ruling. Regional Chair Karen Redman said the region “will consider next steps and the impacts of this decision.”