Toronto 'extremely vulnerable' to legal challenge after homeless encampment ruling, experts say

A precedent-setting ruling in Ontario could place pressure on cities to address the crisis of homelessness with better shelters and housing, experts say, while giving encampment residents more defined protections against evictions.

In the first decision of its kind in the province, a judge in Kitchener, Ont., ruled last week that there is a constitutional right to shelter outside when there are no accessible and available indoor spaces.

The decision makes Toronto "extremely vulnerable" to a legal challenge, said Estair Van Wagner, an associate professor at York University's Osgoode Hall Law School.

There are more people in the city who are homeless than at any time in the past five years and record numbers of people are entering the shelter system compared to those leaving, according to city data dating back to 2018.

Violent evictions have been carried out by police, shelter hotels have closed, and the shelter system routinely runs at capacity most nights.

Future legal challenges to rely on ruling, expert says

Kaitlin Schwan, executive director of the Women's National Housing and Homelessness Network, said that while encampment residents in Toronto unsuccessfully challenged an eviction in a 2020 case, the circumstances since that decision combined with this precedent-ruling have created a different set of circumstances.

"There will be, I suspect significant pressure ... to ensure that precedent informs how the city moves forward in its engagement with encampments. And future challenges in court will rely on this ruling and it's quite pervasive," said Schwan, who is also a senior researcher at the Canadian Observatory on Homelessness.

The city has long maintained that encampments are unsafe and that it works to help those living at the sites into shelters or other housing.

Until now, Ontario courts have been slow to follow the lead of courts in British Columbia, where judges have recognized a constitutional right to shelter themselves when a jurisdiction fails to provide sufficient spaces.

More than previous Ontario decisions, the Kitchener decision affirmed it's not just about how many spaces are available in the city, but also about whether those spaces truly accommodate the needs of people experiencing homelessness, Van Wagner said.

"We see the judge turn their mind to things like whether there are proper supports around addiction, mental health, whether there are spaces for couples," Van Wagner said.

Justice Michael Valente denied the Region of Waterloo's request to evict roughly 50 people from a homeless encampment on a half-acre empty gravel lot finding the region's trespassing bylaw violated the Charter rights of the residents in the absence of sufficient shelter spaces.

The Kitchener case also represents a "really significant" departure from Ontario case law around what it means to "choose" to live outside, Van Wagner said.

Ruling called 'critical first step'

Cities have often argued encampment residents are choosing to live outside when there's available shelter options. But in the Kitchener decision, the judge said that choice, in this context, must account for circumstances such as poverty, disability, addiction, and insufficient shelter alternatives.

"The courts have tended to adopt the idea of choice as a kind of black and white thing," Van Wagner said. "We see the decision here give us a much more nuanced understanding of the fact that this 'choice' is happening in a really constrained context."

Couples in the Kitchener case 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.

The case is a "critical first step," but falls well short of placing any positive obligations on municipalities to provide any shelter or housing, said Kaitlin Schwan, executive director of the Women's National Housing and Homelessness Network.

As a result, she called it a "complicated victory" for encampment residents and their allies.

"It says we're very, very far away from actually realizing the right to housing in Canada. We have so far to go," said Schwan, who acted as an expert witness in the Kitchener case.

The court has moved in the direction, evidenced by the Kitchener case, because encampment residents continue to organize and speak about the realities of what it looks like to live outside, said Sima Atri, a lawyer with the Community Justice Collective who has represented encampment residents.

Atri said the ruling could place pressure on cities to address the crisis of homelessness and encampments by building housing and accessible, permanent shelter spots. At the same time, she said she hopes it will mean residents will not face threats of violent eviction.

But she said the solutions to the housing crisis will not come from the court.

"It's going to come from people standing up together to organize around that issue and actually take on a much broader housing crisis problem in our cities," she said.