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Court Strikes Down By-Law Banning Encampment as Unconstitutional

Updated: Feb 3, 2023

Case Summary

The Regional Municipality of Waterloo v. Persons Unknown et al, 2023 ONSC 670

A court decision released last week states that municipal by-laws which prohibit persons experiencing homelessness from erecting encampments may be inconsistent with the Charter of Rights and Freedoms if there are insufficient or inaccessible shelter alternatives.


In a proceeding brought by the Regional Municipality of Waterloo against various known and unknown persons who resided in an encampment on municipal property, the Ontario Superior Court of Justice ruled on the question of whether Waterloo’s by-law violated the section 7 right to life, liberty and security of the person or the section 15 right to equality under the Charter. The encampment in question was located on a vacant municipal lot in Kitchener.


While dismissing the section 15 concerns, Justice Michael J. Valente concluded that the by-law violated section 7 and could not be saved by section 1 (which provides for reasonable limits on Charter rights). He struck down the offending by-law provisions and dismissed Waterloo’s application for an injunction to enforce the by-law.


The by-law under scrutiny, enacted in 2013, prohibited various activities on municipal lands. This included erecting, without authorization, any form of structure or bringing any dangerous, illegal, or flammable goods onto municipal lands. The stated purpose of the by-law was to prevent physical damage to the property, to prevent the disruption of municipal operations, and to regulate the use and enjoyment of the property by other persons.


In 2021, a policy was adopted by Waterloo to guide the application of the by-law to encampments. The policy required a two-step approach. The first step called for officials to reach out to encampment residents and to encourage and assist them to access safer and healthier alternatives, including housing, support services, shelter, and more permanent housing options. The second step required that enforcement occur, but only after reasonable outreach, support efforts, and notice to vacate the encampment had been given. Waterloo took a number of measures in accordance with this policy, including conduct a risk assessment, which found that the condition at the encampment posed a risk to health and safety of its residents and others. Waterloo concluded that the encampment had to be disbanded.


The court accepted evidence that there were 1,085 people experiencing homelessness in Waterloo at the relevant time. Of those, 412 were living on the street, 385 were provisionally accommodated or ‘couch-surfing’, 191 were accessing emergency shelters and 63 were institutionalized. The total bed capacity in Waterloo’s emergency shelters was just 416. It was estimated that 50 people were living in the encampment.


The Charter applies to municipal by-laws, and Justice Valente’s decision confirms that by-laws restricting the use of municipal property are no different. His decision quotes 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.”


After a review of prior Ontario decisions, the operative question in the section 7 analysis in this case turned on whether there were sufficient and “truly accessible” spaces for the homeless population and its diverse needs. Justice Valente wrote that “[this] is simply not a matter of counting the number of spaces. 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.”


Based on the evidence, Justice Valente determined that there were insufficient shelter spaces for the encampment residents, leaving them with no other option but to sleep outside. He also found that the right to shelter ought not to be limited to overnight hours, and that there was no need to balance the needs of the homeless with the rights of Waterloo’s other residents because the encampment location was not a park or other recreational space. He concluded that the by-law violated the section 7 rights to life, liberty, and security of the person, and could not be justified by the section 1 as being “reasonable and demonstrably justified in a free and democratic society.”


This decision follows a line of cases that has ensconced the “right to shelter” within the protection of section 7 of the Charter. It provides a thorough review of the factors the court may consider in reviewing tenting or nuisance by-laws that target persons experiencing homelessness. While the decision may yet be appealed, the reasons given by the court suggest that absent sufficient alternatives in the municipality to shelter homeless persons and realistically or practically meet their needs, by-laws which attempt to constrain the use of outdoor public space by these individuals may be vulnerable to attack under the Charter.


In a statement after the release of this decision, Regional Chair Karen Redman said that Waterloo continues to review the court's decision and consider its impacts. Certainly, for civic leaders and community advocates, this ruling puts the spotlight squarely on service providers, municipal budgets, and the province to improve their response to these growing challenges.


Our municipal practice assists clients in reviewing proposed legislation and litigating enacted by-laws for their legal and Charter compliance. Contact info@judsohowie.ca for more information.


This column appeared in the Kenora Miner & News on February 2, 2023.


Written by Douglas W. Judson

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