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Ontario judge denies request to clear Kitchener encampment citing Charter violation

The Ontario Superior Court building is seen in Toronto on Wednesday, Jan. 29, 2020. An Ontario court has denied a municipality’s request to clear a homeless encampment, building on recent decisions out of British Columbia that the judge says establish a constitutional right to available and accessible shelter spaces. THE CANADIAN PRESS/Colin Perkel

KITCHENER, Ont. — An Ontario judge has denied a municipality’s request to clear a homeless encampment, building on decisions out of British Columbia that he says establish a constitutional right for a person to shelter themselves if accessible indoor spaces aren't available.

The Region of Waterloo had asked the court to find that roughly 50 people living in a Kitchener, Ont., encampment were in violation of its trespassing bylaw. 

But in a ruling handed down Friday in the Ontario Superior Court of Justice, the judge found the bylaw violates the Charter rights of the encampment residents because of the region’s lack of adequate shelter spaces. 

Justice Michael Valente’s ruling cited a number of decisions delivered in British Columbia that he says establish a constitutional right to shelter when the number of homeless people exceeds available and accessible indoor spaces in that jurisdiction. 

"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," Valente wrote. 

"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."

The ruling comes after two decisions where Ontario judges ruled against residents fighting to prevent encampment evictions at city parks in Toronto and Hamilton. In those cases, the judges found there was adequate space to accommodate "all of the cities' homeless," Valente wrote. 

Meanwhile, the Region of Waterloo had about 416 shelter spaces and roughly 1,100 people experiencing homelessness, with that number having tripled from 2018 to 2021, the decision read. 

In following the B.C. cases, Valente found simply counting the available spaces was not enough. The spaces, he wrote, must also be accessible to individuals they are meant to serve. 

And on both points, encampment residents argued the region's shelter system was failing. 

Couples testified about being separated from one another when they stayed at shelters, people who use drugs noted the harm of abstinence-based policies, and others talked about the "weight of uncertainty" around available shelter space on any given night. 

"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.

The encampment at the centre of the case is set on a half-acre empty gravel lot the region intended to use as parking for nearby transit stations.

People started to pitch tents there in December 2021 and over the next six months around 70 dwellings were put up belonging to around 50 people, the decision said.

Encampment residents who challenged the eviction included an Indigenous woman who lost her job, was evicted from her home and had her three children apprehended by local family and children's services; a 32-year-old survivor of physical and sexual assault; and a man who had been homeless since he was released from jail in June 2020. 

"We respect each other, we consider each other family and we don't touch each other's stuff," one resident testified. 

The city hired a security firm in March to monitor the encampment and respond to any complaints, mostly from nearly businesses. On June 6, it posted a notice requiring residents to leave the property by end of the month. 

The city then made its application to the court in July to declare the encampment residents in breach of the region's bylaw. 

The judge found the municipality's "risk assessment," which it used to justify disbanding the encampment, only considered the risks of the encampment and not those associated with eviction. 

A director with the region said on cross-examination that the assessment was not well researched and did not consult residents, the decision read. 

Meanwhile, expert evidence brought by encampment lawyers addressed the risk of being homeless "in specific detail," Valente wrote. 

A doctor noted the ways encampment evictions can disrupt health-care service and bring risks of acute conditions such as heat stroke or frostbite. Dr. Andrea Sereda, a physician whose London, Ont., practice focuses on people experiencing homelessness, also noted encampments have benefits, including decreasing isolation and increasing consistent connections to outreach services, according to the ruling. 

Other experts noted women and gender-diverse individuals often report unsafe conditions in shelter spaces and avoid them as a result. 

Valente said the region fell short of its own policies related to encampments. It did not use all its outreach efforts to connect with residents or address their situation on a case-by-case basis. 

However, he did refer to the region's "tremendous and praiseworthy efforts" to address homelessness. He noted the municipality had increased its shelter space, doubled funding for street outreach and accelerated development of new affordable homes. 

Because he was "most impressed" with region's efforts, Valente said he was prepared to allow the region to apply to terminate his declaration when it can prove the bylaw no longer violated Section 7 of the Charter. 

This report by The Canadian Press was first published Jan. 30, 2023. 

Jordan Omstead, The Canadian Press

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