Critical Legal Issues for Homeless Encampments on Public Lands

With homelessness on the rise in many communities, the issues surrounding encampments have become a growing concern for municipalities, residents and advocates.

On February 6, the Ontario Bar Association presented “Critical Legal Issues for Homeless Encampments on Public Lands” as part of the municipal law program at the Ontario Legal Conference (OLC). A timely session featuring speakers with extensive experience on the topic, it proved to be a deep dive into previous case law that may – or may not – be signs of what lawyers can expect in the future as this issue plays out.

Here are a few of the important cases discussed, as well as the impact of the courts’ findings:

Victoria (City) v. Adams (2008)

The earliest case discussed, this involved an injunction brought against 70 encampment residents. At the time, more than 1,000 people were experiencing homelessness in Victoria, but there were only 141 permanent shelter beds, leaving hundreds with no choice but to sleep outside.

Defendants argued that a prohibition on erecting shelters in public spaces – in circumstances where there are insufficient alternative shelter opportunities for the city’s homeless – interferes with the right to life, liberty and security of the person pursuant to Section 7 of the Charter. The city took the position that the defendants were claiming a positive benefit in that they were requiring the government to provide an adequate alternative to sleeping outside.

The city noted that the Charter addresses depravation of rights, not positive benefits.

“The court rejected the city’s argument and held that the defendants were not seeking a positive benefit,” Jenna Morley, a partner at Loopstra Nixon LLP, said. “Rather, the defendants were claiming that based on the circumstances in which the number of homeless individuals exceeded the number of available shelter beds, it was a breach of Section 7 of the Charter for the municipality to prohibit homeless people from taking steps to provide themselves with adequate shelter.”

The court found:

1. The ability to provide oneself with adequate shelter is a necessity of life.
2. Exposure to the elements without adequate shelter could result in serious and life-threatening conditions.
3. Creating shelter to protect oneself from the elements was a matter critical to an individual’s dignity and independence. The city’s intrusion in this process interfered with the individuals’ choice to protect themselves and was a deprivation of liberty and security of the person within the scope of Section 7.

“Critically, the trial court noted that if there were sufficient spaces in shelters for the city’s homeless and the homeless chose not to utilize them, the case would be different and more difficult,” Morley said. “The court would then have to examine the reasons why the homeless people chose not to use these shelters.”

The Court held that the city’s bylaws prohibiting the erection of temporary shelter were both overbroad and arbitrary.

Black v. Toronto (2020)

Applicants in this case sought a motion for interlocutory relief to prevent the City of Toronto from enforcing its bylaw prohibiting camping and erecting tents/structures in parks. The injunction was sought specifically to prevent clearing of encampments during the pandemic; it did not try to strike down a section of the parks bylaw. Applicants expressed concern that the shelter setting created a risk of contracting COVID-19.

The Court accepted that ss. 7 and 15 of the Charter were engaged, but declined to make the order sought. The city had asserted that, as the owner and occupier of its parks, it had the right to refuse permission to install structures on its land.

“The Court suggested, although I’m not sure the applicants would agree with this, that by limiting the scope of their application, the applicants recognized that, outside of the pandemic, encampments that pose health and safety risks, and where they impair the use of the park by the public at large, should not be permitted,” Wendy Walberg, head of legal services for the City of Toronto, said.

The court found that the city had taken steps to expand the shelter system to accommodate physical distancing, and that there was no evidence the system lacked capacity to accommodate those living in encampments. Therefore, the court found that the “balance of convenience” weighed in favour of the City of Toronto.

“There’s another aspect to this case that I’ve seen in a few other cases, and that’s a deference to municipal government, and suggesting that municipalities should be permitted to make policy decisions about their own parks,” Walberg said. “The court suggested that the ‘city couldn’t have its hands tied and be prevented from managing its parks so that they are safe and accessible for everyone.’”

Poff v. City of Hamilton (2021)

This case involved five individuals experiencing homelessness at various times who had brought a motion to prevent the city from enforcing its bylaw prohibiting camping and the erection of tents or other structures in city parks.

A critical consideration in this case was the question of shelter availability. Applicants did not limit their sought relief to only a declaration in the context of the COVID-19 pandemic. They wanted the bylaw struck down as unconstitutional. At the time, shelter capacity was 108 per cent for women; 97 per cent for men; and 99 per cent for families.

The Court found no evidence that the shelter system does not have capacity to safely accommodate those currently living in the parks who wish to seek shelter. The decision also went into great detail about the steps the city took to provide assistance to people experiencing homelessness.

“What I would take from Poff, in conjunction with the Black case and the British Columbia cases, is that the facts are incredibly important,” Ajay Gajaria, a partner at Aird & Berlis LLP, said. “Despite our presentation being about encampments and municipalities and municipal bylaws, each of the cases spends a great deal of emphasis on the factual circumstance of the shelter availability and the accessibility of those shelter spaces.

“That’s a critical note in advising any municipality if the question is brought up: are encampments permissible or not permissible? It’s a more complex and factual based question based upon the guidance we received from a number of decisions.”

Regional Municipality of Waterloo v. Persons Unknown and to be Ascertained (2023)

Morley said that, in this case, the court made a significant departure from the findings in the B.C. cases and focused not only on the number of available shelter beds, but also on the accessibility of those shelter beds based on the specific needs of the individual.

The Court wrote: “Furthermore, 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.”

The Court also rejected the region's argument that the Court need only be satisfied that there is sufficient capacity in the system to accommodate the encampment residents. The Court found that there must be sufficient accessible shelter space for the over 1,100 people that were homeless in the Region, including the hidden homeless.

“This is a huge difference,” Morley said. “Instead of the region having to demonstrate that they had sufficient capacity in the system to accommodate the 53 people that were living in the encampment, they were required to demonstrate there was sufficient space in the system to accommodate the over 1,100 individuals experiencing homelessness in the region.”

The Court held that the Region's bylaw was inoperative insofar as it applied to prevent the residents of the encampment from living on and erecting temporary shelters without a permit on the property when the number of homeless persons exceeds the number of available accessible shelter beds in the region.

“You can see why this case was so highly publicized,” Morley said. “It creates a seemingly insurmountable hurdle for municipalities, and it requires that in order to enforce their bylaws against encampments, to know the specific needs and circumstances of every single homeless individual in the region and to be able to provide accessible shelter space for those individuals.”

Church of St. Stephen in the Fields v. Toronto (2023)

This case involved an encampment in front of the church. In this instance, the Court determined that the balance of convenience weighed in favour of the municipality.

It wrote: “The harm that residents of the encampment face is minimal however, because they have been offered accommodation in hotel shelters for an indefinite period of time. The balance of convenience heavily favours the respondent.”

The City had said it would only enforce the bylaw after offering all of those in the encampment alternative accommodation.

Walberg said safety was top of mind for the Court in this case as evidence of fire safety concerns had been raised. The Court reflected that it takes only seconds for a fire to cause injury and death, and that three fires had already broken out in the encampment, one razing it to the ground. It also reflected on the sub-zero temperatures at the time.

Walberg said the Court also distinguished both the Waterloo and Victoria (Adams) cases because, in both of those cases, the shortfall in shelter beds was significant (Waterloo could accommodate 50% and Victoria a maximum of 32.6% of those experiencing homelessness).

Toronto had a 3% shortfall which, “while … unacceptable, reflects a substantially better outcome than in Victoria or Waterloo.”

Each of these cases looked at the encampment issue a different way. But the speakers agreed that they all raised questions surrounding deference to municipal governments and whether general policy about how to address homelessness are best left for policy debates within legislating bodies and elections.

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