A ‘precedent-setting’ decision rules encampment clearing would violate Charter rights

Shannon Down, the executive director with the Waterloo Region Community Legal Services, argued the case along with co-counsel Ashley Schuitema, representing 16 people living at the 100 Victoria St. N. site.

The decision builds on cases in British Columbia, which have also found removing encampments infringes on Charter rights, under section 7.

“Our hope is that decision will influence or push other municipalities to take more of a compassionate approach and recognize that clearing encampments, all it really does is perpetuate harms to the people who are living in those encampments,” Down said. “And in most cases make their lives worse and increases the risk to them.”

Greg Cook, an outreach worker at the Toronto non-profit Sanctuary, called the decision a “step in the right direction” and “precedent setting,” in light of Toronto’s ongoing shelter space shortage.

Justice Michael J. Valente found that the region’s bylaw “violates section 7 of the Charter in that it deprives the homeless residents of the encampment of life, liberty and security of the person.” He added in the 52-page ruling that the “ability to provide adequate shelter for oneself is a necessity of life that falls within the right to life” that is protected under this section.

One of the encampment residents, Sean Simpell, was quoted in the ruling as saying he feared he would lose everything if forced to leave. “This encampment may seem like garbage to some people, but to the people living here, it’s everything,” he said.

During the height of the pandemic in 2020, Toronto advocates took the city to court to get an injunction to block the clearing of encampments in parks. They didn’t get it, but at the time Judge Paul Schabas said the ruling was based on the specific conditions in the summer, and the situation could change.

Sanctuary’s Cook noted that part of the reason why the court sided with those staying in the encampment is that there isn’t adequate space in the local shelter system there. The same is clear in Toronto, now that shelter data is public.

“I don’t think this will give everybody housing in the long term but I think it’s a step that forces governments, whether that’s municipal, whether that’s provincial, to do better as far as making sure that people have housing, which is really important,” he said.

City of Toronto spokesperson Anthony Toderian said in email Monday that the city is aware of the situation in Waterloo Region.

“City staff are carefully reviewing the decision released on Friday to determine if it has any impact on Toronto’s approach to encampment prevention, enforcement, or services offered to encampment occupants,” he added.