A Summary of the Waterloo Encampment Decision

A Summary of the Region of Waterloo's Encampment Decision

By Tod Duncan

May 2023

On January 27th, 2023, Justice M. J. Valente of the Ontario Superior Court rejected The Regional Municipality of Waterloo’s application for an injunction to evict individuals who were encamped on Region-owned property due to those individuals being in breach of a local By-Law prohibiting such actions. While the Justice praised the valuable work that the Region has already done to address homelessness, he nevertheless denied the injunction on the basis that the By-Law violated the homeless residents’ Charter right to life, liberty, and security. More recently, the Region announced that it has decided not to appeal the ruling.

OMSSA will continue to monitor this issue and will provide updates to Members as needed.

The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670

The Property

The half-acre property where the encampment in question is located at 100 Victoria Street North (the Encampment) in the City of Kitchener. The property is a gravel parking lot surrounded by transit stations, a rail corridor, a commercial plaza, assorted businesses, and a church. Additionally, a soup kitchen called St. John’s Kitchen is located at 97 Victoria Street North and it provides free meals, a washroom, and other services to community members in need.

The property is eventually to be used as a parking lot to serve a new transit station, but no date had been set for construction to begin on this project.

The Encampment and its Residents

The Encampment at 100 Victoria Street North first began to take shape in December 2021. After six months, 70 shelters were erected with 50 people residing there. A local security firm had been hired to oversee the encampment and to attend to any issues that might arise between encampment residents and the public or surrounding businesses. A security guard was also installed at the entrance to St. John’s Kitchen to allow access to the washrooms there. The Region’s monthly costs for this security, as well as garbage pick-up at the site and cleaning for the washroom at St. John’s Kitchen was approximately $80,000.

Highly relevant to this case is the demographic make-up of the Encampment residents themselves. The composition of the Encampment was similar to the rest of the homeless population in the Region, meaning they are individual men, women and gender-diverse people, couples, members of Indigenous, racialized, and the 2SLGBTQ+ communities. Concurrently, many of the Encampment’s residents had disabilities, were substance users, and/or were survivors of domestic abuse.

Four Encampment residents were among the respondents who gave testimony about their experiences. What was common in their stories were the difficulties they experienced with the existing shelter system including challenges associated with theft, not being able to stay in spaces as a couple, judgement around their drug use, or simply being unable to return to a shelter at designated times to claim a bed.

The By-Law and the Encampment Policy

The Municipal Act empowers the Region with the ability to pass by-laws subject to the needs of the communities it serves. In 2013, the Region passed a by-law (the By-Law) that prohibited not only erecting structures on lands owned and occupied by the Region, but also prevented any illegal, dangerous, or flammable items that might cause damage or injury from being brought onto those lands.

Prior to issues arising with the Encampment, the By-Law had been used to regulate other encampment complaints, including in November 2021 to clear an encampment at 34 Stirling Street East in Kitchener. Regarding the clearing of the encampment at 34 Stirling, the Region’s enforcement staff were assisted by a road maintenance crew that used heavy machinery to remove the belongings of the people living at this location. A subsequent review of how the By-Law was used at 34 Stirling found the Region was within its right to evict the residents there, though it also recognized that the manner in which these actions were carried our did not reflect the dignity of those living at the encampment (The Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained, 2023 ONSC 670 at para 12 [Waterloo ONSC]). In light of this and a subsequent review of its encampments clearing process, on December 21, 2021, the Region adopted a supplemental policy, called the Encampment Policy, which helped provide further direction to the existing By-Law.

The Encampment Policy was structured around four principles that were meant to guide decision-making around when the By-Law would be used to enforce an eviction on an encampment. The four principles are:

The Region’s priority is to assist individuals to access safer, sustainable, and healthier alternatives, not enforcement. Enforcement will only occur after all reasonable support efforts have been attempted without success and with reasonable advance notice of the requirement to vacate a public space. In exceptional circumstances, however, more immediate intervention may be required to address public safety concerns.
Regional staff, supported by community social service agencies, will work with individuals living outside to respond to their individual needs on a case-by-case basis by providing access to services, supports and shelter. The Region will use a co-ordinated approach between Regional departments in responding to the needs and issues related to individuals living rough or experiencing homelessness.
The Region will engage in ongoing proactive communication with individuals experiencing homelessness, service providers, regional councillors, community agencies and other groups.
The Region acknowledges that individuals living rough cannot be forced to accept services and supports. However, the refusal of an individual to accept services and supports is not sufficient reason to prevent the enforcement of Regional by-laws. (Waterloo ONSC at para 26)

According to Justice Valente, the Encampment Policy effectively describes a two-step process. The first step is to exhaust all reasonable means of assisting residents experiencing homelessness before resorting the second step of enforcing the By-Law. Importantly, enforcement will be carried out in a way that proactively engages and supports those affected by the By-Law.

According to the Region, the Encampment Policy was used to guide their approach at 100 Victoria Street in the Spring of 2022. In particular, the Region sought assistance from a community-based health centre and from The Working Centre (the organization that operates St. John’s Kitchen) to provide person-centric supports. The Region also supported residents by having two Ontario Works caseworkers attend the Encampment three times a week through a six-week period. Finally, the Region also held four service fairs at the downtown YWCA, attempting to connect the local homeless population with community services in the area.

At the Council level, in June 2022, the Region passed a motion asking staff to find housing solutions for the homeless in the area. Within two months of that motion, the Region’s staff provided several recommendations focused on a strategy to end homelessness in the Region, on expanding existing approaches to homelessness, and on creating a managed hybrid/outdoor shelter model. These recommendations were adopted by Council in August 2022.

Risk Assessment

Of particular importance to the case is the fact that the Region completed two risk assessments to inform whether the By-Law should be enforced. While the majority of the risk categories were scored low or medium risk, the assessments determined the Encampment to be at high risk overall due to the fact that it contained significantly more than 20 tents and individuals on the site. The 20 tents and number of individuals, however, was not adequately justified according the Justice Valente.

Additionally, the assessments noted a rise in the number of incidents on site (18.77% increase) as well as events requiring intervention by Waterloo Region Police Services (116.33% increase) during the Spring of 2022. The risk assessments were central to the Region’s claim that the Encampment was a risk to the health and safety of the Encampment residents as well as to the community more broadly.

Justice Valente was not compelled by the Region’s findings from the risk assessments. He mentions that while it is technically true the percentage increase in both onsite incidents and events requiring police intervention rose during a two-week period in the Spring, the percentage increase that the Region provided hides the actual number of each: an increase of 0.18 incidents per day and 0.126 events per day involving police services.

What constituted an incident was also considered. When looking at the types of incidents included in the recorded data, 33 of the 136 complaints were innocuous according to Justice Valente and involved unauthorized guest belongings, suspicious persons, loitering, parking complaints, and unauthorized vehicle[s] (Waterloo ONSC at para 43).

Justice Valente noted that the risk assessments also failed to interview Encampment residents and instead relied on verbal reports from police, fire, and outreach services.

Finally, the risk assessments did not consider the risk to the Encampment residents should they be evicted from the site. Justice Valente concludes Because there is no comparative risk assessment, in my opinion, the Risk Assessment as a tool is not tethered; or, in other words, it has no way to measure the relative risk of choosing between eviction, allowing the Encampment residents to stay, or pursuing other options (Para 46).

Risks of Eviction

Expert witnesses for the Named Respondents in this case provided insight into the potential risks of removing residents from the Encampments. In particular, Dr. Andrea Sereda, a physician from the London Intercommunity Health Centre testified about the dangers of being unhoused and the relative advantages of living within an encampment. Health care is a primary challenge for the unhoused, not only because they are at higher risk due to exposure to the elements, existing health problems being exacerbated, an increased reliance on substance use, but also, because it is more difficult for the unhoused to access health care that might otherwise help them.

According to Dr. Sereda, there are inherent advantages to living in encampments that don’t exist for unhoused people forced into transience. Among those are the fact that it is easier for people in encampments to connect with community and social services, they are less isolated as encampments often have an inbuilt sense of community, and people are generally better rested both mentally and physically due to greater stability in these settings.

Finally, Dr. Sereda outlined the many advantages that encampments have over many shelters, including the fact that encampments allow couples to remain together, that they allow encampment residents to avoid precarity and unpredictabiility of accessing shelter beds, that shelters are often abstinence-based, and that shelters can re-traumatize individuals who have had prior negative experiences in congregate living settings.

Charter, Section 7 and the Right to Shelter

The central question in this case is whether or not the Canadian Charter of Rights and Freedoms can apply in an instance where a municipality is asserting its right to enforce a by-law. While legal counsel for the Region argued that the Charter does not apply, Justice Valente disagreed pointing to prior Supreme Court of Canada litigation and a decision in the Supreme Court of British Columbia which established the grounds for the Charter’s relevance in this instance.

The Charter section at issue is Section 7, which reads: "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."

The Supreme Court of British Columbia case Victoria (City) v. Adams, 2008 BCSC 1363 [Adams BCSC] is particularly relevant here as it established that public property is for the benefit of all members of the public, including those who are unhoused. As that decision makes clear, "the government cannot prohibit certain activities on public property based on its ownership of that property if doing so involves a deprivation of the fundamental human right not to be deprived of the ability to protect one’s own bodily integrity" (Adams BCSC at para 131). In other words, Adams BCSC established a ‘right to shelter’ on City of Victoria parks in instances where the number of unhoused people exceeds the number of shelter beds available.

Cases from the Supreme Court of British Columbia have since strengthened the Section 7 argument: Abbotsford (City) v. Shantz, 2015 BCSC 1909 [Shantz BCSC], Prince George (City) v. Stewart, 2021 BCSC 2089 [Stewart BCSC], and Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49 [Bamberger BCSC]. Whereas Adams BCSC established the right to shelter in a city park when there was a lack of shelter beds, the more recent Shantz BCSC, Stewart BCSC, and Bamberger BCSC decisions have expanded the right to shelter to consider whether the shelter spaces are truly accessible to people that are unhoused. Additionally, these cases have also begun to move beyond Adams BCSC insofar as the latter restricted the right to shelter to overnight hours.

Similar to arguments made in Black v. Toronto (City), 2020 ONSC 6398, 152 O.R. (3d) 529 and Poff v. City of Hamilton, 2021 ONSC 7224, the Region of Waterloo argued the BC decisions should not apply in this case because, according to their numbers, its shelter system can accommodate the more than 50 Encampment residents should they be evicted. While the Region claimed it has an additional 85 bed capacity, in reality, the Respondents suggest that there are only approximately 30 spaces available. The Region acknowledges that there are spaces that are included in their number where there is not high turnover and where the spaces are unavailable due to needed maintenance. In another instance, the spaces that are counted are for people who have COVID. A YWCA shelter, meanwhile, only has a small number of beds available and they are reserved for women or gender-diverse individuals. Likewise, another two shelters are only for youth. Finally, the YWCA offers motel rooms, but these are only available for families with children.

For the respondents, the shelter beds that were available were largely inaccessible to them. This is particularly true for those who are at risk of violence in congregate settings or who use substances. Both Dr. Sereda and Dr. Kaitlin Schwan, national director of the Women’s National Housing and Homelessness Network and senior researcher for the Canadian Observatory on Homelessness, provided evidence to this effect. There research insights were supported by testimony from the Named Respondents. Accordingly, Justice Valente writes: Having considered all of these accessibility factors, I find that, separately and cumulatively, they have the net effect of reducing the number of beds that would otherwise be available in the Region (Para 72).

With that, Justice Valente followed the decisions of the Supreme Court of British Columbia. In a key comment, Justice Valente writes:

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. 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. (Waterloo ONSC at para 93)

For Section 7 of the Charter to apply it must be determined whether the enforcement of the By-Law deprives life, liberty, and the security of the person. Justice Valente finds that each has been violated insofar as:

Providing shelter for oneself is a necessity of life particularly when exposure to the elements can be harmful;
The Region’s interference with an individual’s ability to erect a shelter to protect themself is depriving that person of liberty; and
An eviction by the Region would adversely effect the resident’s health and well-being and therefore would be a deprivation of the security of the person.

The Region advanced the argument that staying in the Encampment was a matter of personal choice and Section 7 should not apply. Justice Valente, instead, rejected this argument favouring the Respondents characterization of their choice as being mediated by poverty, drug addiction, disability, and a lack of shelter alternatives. In this sense, their choice was not autonomous, but instead determined by a set of very difficult conditions. According to Justice Valente, the question is not whether the Encampment residents’ circumstances are self-made, but rather, whether enforcement of the By-Law will make the residents’ already dire predicament worse (Waterloo ONSC at para 107).

Having found the By-Law violated the Charter rights of the Encampment residents, Justice Valente also accepted the argument of the Respondents that the By-Law was both overbroad and grossly disproportionate. The By-Law’s overbreadth, for instance, existed in the fact that it prohibits the Region’s homeless population from erecting a shelter regardless of the circumstances they are in and regardless of the accessibility of shelter spaces. Likewise, Justice Valente found that the By-Law was grossly disproportionate to its objective of preventing damage to municipal property and to securing the use and enjoyment of this property by others. The inability to recognize that encampment living has positive impacts, coupled with the harmful effects of evicting Encampment residents suggests that the collateral damage done by the By-Law, means that its effect goes beyond its original intent.

Finally, Justice Valente concludes his analysis of the Charter argument advanced by the Respondents by recognizing that the By-Law’s violation of Section 7 rights were not justified under Section 1.

Significance

There are several significant takeaways that can be gleaned from this first-of-its-kind-in-Ontario decision. The decision represents the need for a serious shift in thinking around how OMSSA Members will address the issue of encampments moving forward. Here are some of the most notable takeaways for OMSSA Members to consider:

Section 15(1) of the Charter

While the Respondents had advanced the argument that the By-Law violated Section 15(1) of the Charter, which provides equality rights to individuals based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability, Justice Valente rejected the argument that individuals experiencing homelessness are a protected group under Section 15(1).

Section 440 of the Municipal Act

Municipalities in Ontario have the right to enforce by-laws under the Municipal Act, and this right is only limited under "exceptional circumstances" (see College of Physicians and Surgeons of Ontario, 2018 ONSC 4815 at para 43). Justice Valente accepted the Respondent argument that the Region’s failure to follow its own Encampment Policy produced the "exceptional circumstances" which allowed him to refuse to grant injunctive relief.

Balancing Rights with Encampments in Public Parks

Because this case dealt with an encampment on otherwise unused municipal property and not a public park, Justice Valente notes that his decision does not consider the balancing of rights between encampment residents and those in the public who might also use the space. OMSSA Members may be able to anticipate future legal questions around this by exploring Shantz BCSC. In this decision, Chief Justice Hinkson balances the needs of the homeless with the rights of the public to use the park by limiting the time people are allowed to erect shelters to between 7:00 p.m. and 9:00 a.m.

In Bamberger BCSC, Justice Kirchner considers this balance in more depth. Not only does he recognize the right of the homeless to shelter overnight in the park, but also draws attention to evidence showing that daytime sheltering is a necessity. To remove ones belogings after sheltering overnight would be a significant hardship for many living in the park.

In both Shantz BCSC and Bamberger BCSC the Justices raise the possibility of municipalities using greater discretion to allow sheltering during the day. For instance, public property could be more effectively designated as developed or non-developed, where the latter would allow for both overnight and daytime sheltering (Shantz BCSC at para 278). Similarly, in Bamberger BCSC, Justice Kirchner notes that the General Manager of Park Board has the ability to designate spaces within parks as available to daytime sheltering.

While the by-laws and powers of particular authorities may be different between jurisdictions, it may be the case that future decisions related to encampments in Ontario will be forced to consider whether there is a right to shelter not only overnight, but during daytime as well. It is likely that some of these instances will involve public parks.

Diversifying Shelter Options and Finding Long-Term Solutions

Both Justice Valente and the Respondents acknowledged the excellent work that the Region has done to house the homeless population in the area. Despite this, the decision points to the need to develop shelter spaces that are truly low-barrier and allow access to those who use substances, are coupled, are gender-diverse, or who are challenged by living in congregate settings. While adapting the shelter system to this reality is important, the long-term solution to these issues may be in developing accessible and culturally appropriate supportive housing. In both instances, OMSSA Members will need greater support from their Federal and Provincial conterparts.

OMSSA Members may look to the Region of Waterloo for innovative solutions such at their recently approved hybrid shelter.

Data Collection and Dialogue with Encampment Residents

As is likely familiar to most OMSSA Members, social service challenges will not be solved without effective data collection and management. This may be particularly true of the challenges of addressing the needs of the unhoused. What can be concluded from Justice Valente’s consideration of the Region’s risk assessment, is that there needs to be a meaningful and sincere effort to engage the homeless population, as well as an assessment of the risks and harm this population would experience when by-laws are enforced, particularly if they infringe on their right to life, liberty and security of the person.

About the Authors

Tod is a highly skilled researcher who is passionate about communicating complex ideas in a clear and accessible way with several years of experience conducting research into labour relations and workplace human rights in Canada. Both at Lancaster House and at York University, Tod analyzed changes to Canadian labour policy and law, technology and its effects on the labour market, and emerging workplace issues such as disability and accommodation. Through this work, he has developed a clear understanding of the latest legal and legislative trends in labour relations in Ontario, as well as other governmental jurisdictions. This experience is strengthened by my own advanced-level independent research on Canadian multiculturalism and diversity for my PhD. Tod is proficient in a number of research methodologies, including interviewing, literature reviews, and synthesizing and interpreting data. He has performed a mix of quantitative and qualitative analysis, with a special focus on gleaning insight from raw data.

Blog categories: Encampments, Housing, Homelessness, Region of Waterloo