Regional Municipality of Waterloo v Persons Unknown and to be Ascertained

2023 ONSC 670 (CanLII)

Valente J. – #

Introduction #

The issue in this application of The Regional Municipality of Waterloo (the ‘Region’) concerns the prohibition against erecting any type of structure, including a tent, on the Region-owned property, municipally known as 100 Victoria Street North, in the city of Kitchener (the ‘Property’). More generally, however, the Region’s application touches on the unfortunate, complex and nationwide social issue of homelessness.

[…]

The By-Law #

It is undisputed that the Municipal Act gives the Region the express authority to pass by-laws respecting its public assets and the protection of persons and property (see , 9, and 11(2)). It is also acknowledged that the Trespass to Property Act, R.S.O. 1990, c.T21, as amended, ss. 3 to 8 (the ‘TPA') allows an occupier of premises to prohibit or regulate entry onto premises and that the Courts have recognized municipalities as occupiers.

Pursuant to the Municipal Act, the Region enacted the By-Law in December 2013. The By-Law prohibits certain activities on lands owned or occupied by the Region. The prohibited activities include erecting, without authorization, any form of structure on the lands as well as bringing any dangerous, illegal or flammable goods on the lands that are likely to cause injury or damage to the lands.

The purpose of the By-Law is to (i) prevent physical damage to the lands owned or occupied by the Region (the ‘Designated Premises’) (ii) prevent the disruption of the Region’s operations on the Designated Premises; and (iii) regulate the use and enjoyment of the Designated Premises by other persons.

The Region’s remedies pursuant to the By-Law are to lay a charge and/or exercise its available remedies under the TPA. These include issuing a written notice or posting a sign prohibiting the impugned conduct and/or requiring the person engaged in the prohibited activity to leave the property in question.

Prior to December 2021, the By-Law was used by the Region to address and regulate homeless encampment complaints. In late November 2021, the Region’s by-law enforcement staff attended at a homeless encampment at 34 Stirling Street East, in the city of Kitchener (the ‘Stirling Encampment’) to enforce the provisions of the By-Law prohibiting unauthorized occupation of Region-owned public lands. To assist with the eviction of the encampment residents, and because of certain health and safety con

While the Region’s Planning, Development, and Legislative Services and Legal Services Report to Regional Council of December 15, 2021 (the ‘December 2021 Report’), maintains that the steps undertaken to evict the Stirling Encampment occupants “were consistent with the requirements of the [B]y-law,” the same Report concedes that “the manner in which these actions were carried out did not reflect the dignity of those living at the encampment.”

As a result, the Region conducted a review of its then existing encampment eviction process and proposed a draft policy to Regional Council to supplement the By-Law as it specifically applies to homeless encampments. The draft policy was approved by Regional Council on December 15, 2021 (the ‘Encampment Policy’). The details of the Encampment Policy are discussed below.

100 Victoria Street North, Kitchener #

The Region acquired the Property in November 2012. The Property is located on the corner of Victoria and Weber Streets in the city of Kitchener and is approximately one-half acre in size. It is a gravel parking lot. The VIA Rail/GO Transit and bus stations are to the east of the Property, a commercial plaza lies directly to the west, and a Metrolinx owned rail corridor is to the north. To the south of the Property are a variety of businesses and a church, including St. John’s Kitchen, which provides meals during weekdays to persons in need.

In May 2018, the Region and the province of Ontario entered into a Transfer Payment Agreement for the partial funding of the King Victoria Transit Hub (the ‘Hub’). The Hub is a new train/bus station for the Region in close proximity to the Property. The Hub will require construction on Region lands. While there are no plans for any construction on the Property, the Region intends to use the Property in the short-term for additional motor vehicle parking for the VIA Rail and GO Transit stations across the street due to an anticipated increased use of the stations with the decline of the pandemic and as a lay-down area for the construction of the Hub. No evidence was, however, proffered by the Region respecting the immediate need for increased parking spaces to accommodate anticipated demand and although the evidence of Ellen McGaghey, the Region’s Director of Facilities and Fleet Management, is that the construction of the Hub is projected for spring 2023, Ms. McGaghey admitted in cross-examination that there is no firm construction start date.

 In the long-term, the Region intends to use the Property for approximately one hundred dedicated transit customer parking spaces for the new Hub train/bus station. As a term of the Transfer Payment Agreement, the one hundred dedicated parking spaces are required of the Region upon the completion of the first stage of the Hub. It is projected that the contractually required parking will be required some time in late 2024, but there is no firm completion date.

Homelessness in the Region #

In 2014, the Region was the first Canadian community to count the number of people found to be experiencing homelessness. In 2018, the federal and provincial governments mandated bi-annual “Point in Time Counts” of the number of people experiencing homelessness. Based on the Region’s Point in Time Count that was completed in September 2021, there were approximately 1,085 people experiencing homelessness in the Region. According to Kelly-Anne Salerno, Assistant Director of Housing Operations and Administration for the Region, the approximate 1,100 count is the most reliable information available on the extent of homelessness in the Region. According to the September 2021 Point in Time Count report, the number of people experiencing homelessness in the Region tripled from 2018 to 2021.

In addition to the number of homeless in the Region, the Point in Time Count report also contains data about the demographics of the homeless in the Region. Specifically, of the 1085 experiencing homelessness, 412 were living rough (living on the street, sleeping in parks or squatting in temporary shelter), 385 were experiencing hidden homelessness (provisionally accommodated; couch surfing), 191 were accessing emergency shelters and 63 were institutionalized. Of the individuals who completed a survey during the Point in Time Count, 75% had been experiencing homelessness for more than six months in the last year, 30% of those counted were women, 67% were men, 10% were transgender, Two-Spirit or non-binary. Additionally, of the individuals counted, 17% identified as Indigenous or First Nations and 15% identified as part of a racialized community.

The Encampment #

In or around December 2021, a small number of people began erecting tents on the Property without the Region’s permission. Over the following six months, approximately 70 temporary shelters were erected to house some 50 people on the Property (the ‘Encampment’). As of the hearing of the application, no current evidence was provided with respect to the number of tents and number of homeless persons living on the Property. The most reliable evidence is that, on July 27, 2022, the Region surveyed 53 residents living in the Encampment.

In March 2022 the Region hired Barber Collins Security to monitor the Encampment, to respond to any disruptions and to respond to any complaints from the public, and specifically, from the businesses located in the plaza to the south of the Property. In May 2022, the Region authorized the Barber Collins security staff to be posted at the entrance of the St. John’s Kitchen to permit overnight access to the washrooms located at this facility.

As of July 2022, the Region’s monthly costs associated with its response to the Encampment was approximately $80,000. This cost not only included security services, but also garbage pick-up and janitorial services to clean the St. John’s Kitchen washrooms.

[…]

The Encampment Policy #

The December 2021 Report recommending Regional Council’s acceptance of the Encampment Policy states that the By-Law “has broad application to a wide range of prohibited activities” and “[a]s a result, specific direction as to the timing and manner of enforcement is not set out in the bylaw.” The Encampment Policy, as adopted by Regional Council on December 15, 2021, is intended to provide that direction for enforcement.

The Encampment Policy seeks to guide Regional staff in providing outreach services to homeless persons living on the Region’s lands and to balance the need to provide “appropriate supports to vulnerable individuals and the civic responsibility of maintaining the use of these lands for the public and/or operational requirements of the municipality.”

The Encampment Policy specifies 4 guiding principles that are to be followed prior to undertaking any encampment eviction. These guiding principles, as quoted from the Encampment Policy, are as follows:

1. The Region’s priority is to assist individuals to access safer, sustainable, and healthier alternatives, not enforcement. Enforcement will only occur after all reasonable support efforts have been attempted without success and with reasonable advance notice of the requirement to vacate a public space. In exceptional circumstances, however, more immediate intervention may be required to address public safety concerns.

2. Regional staff, supported by community social service agencies, will work with individuals living outside to respond to their individual needs on a case-by-case basis by providing access to services, supports and shelter. The Region will use a co-ordinated approach between Regional departments in responding to the needs and issues related to individuals living rough or experiencing homelessness.

3. The Region will engage in ongoing proactive communication with individuals experiencing homelessness, service providers, regional councillors, community agencies and other groups.

4. The Region acknowledges that individuals living rough cannot be forced to accept services and supports. However, the refusal of an individual to accept services and supports is not sufficient reason to prevent the enforcement of Regional by-laws.

In practical terms, the Encampment Policy provides for a two-step approach prior to enforcement of the By-Law.

The first step calls for the Region’s Community Services department to reach out to persons experiencing homelessness to encourage and assist them in accessing safer and healthier alternatives, including housing, support services, shelter and more permanent housing options. The anticipation of the Region is that, over time, individuals who are being so assisted will choose these better alternatives and will voluntarily leave the Region’s encampments.

Step two requires that enforcement occur only after all reasonable outreach and support efforts have been provided without success and after reasonable notice of the need to vacate has been given. Once the prescribed protocols have been followed and a decision to evict is made, enforcement shall be completed in a way that respects both the safety of all concerned and the dignity of the individuals experiencing homelessness.

The Minutes of the December 15, 2021, meeting of Regional Council approving the Encampment Policy, record the solicitor for the Region, Jeff Schelling, having advised Council prior to their vote that the “new policy provides a greater emphasis on outreach and communication, with enforcement as a last option.”

Because Regional Council passed a by-law to confirm its action of December 15, 2021, the Named Respondents would have me find that the Encampment Policy has the authority of a by-law. While I do not agree that Regional Council’s confirmation by-law has the effect proposed by the Named Respondents, I find that the Encampment Policy supplements the By-Law by providing specific principles and processes to be followed when addressing homeless encampment issues.

[…]

Section 7 of the Charter #

Section 7 of the Charter provides:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The onus is on the rights claimant to establish on a balance of probabilities that the impugned legislation deprives him or her of either life, liberty, of security of the person, and that the deprivation is not in accordance with the principles of fundamental justice. Should the claimant be successful in this respect, then the burden shifts to the respondent, under section 1, to justify the deprivation as a “reasonable” limit that is “demonstrably justified in a free and democratic society: see Michaud, at para. 60. The same principles apply in regard to section 15(1) of the Charter: see Abbotsford (City) v. Shantz, at para. 226.

I add one qualification to the above analysis described by the Ontario Court of Appeal in R. v. Michaud, based on the statement of Chief Justice McLachlin in Charkaoui, who explained, at para. 12, that the first of the two steps to be established by the moving party are meant to examine whether “there has been or could be a deprivation of the right to life, liberty or security of the person.”

Section 7 and the History of the “Right to Shelter” Cases #

As homelessness continues to be a growing and problematic issue across Canada, the jurisprudence has continued to develop. In Bamberger v. Vancouver (Board of Parks and Recreation), Justice Kirchner summarized the development of the British Columbia caselaw regarding the ‘right to shelter’ at paragraphs 11-20:

In Adams BCSC, Madam Justice Ross found a Victoria bylaw prohibiting homeless persons from erecting temporary shelters in Victoria parks infringed their right to life, liberty, and security of the person, as guaranteed by section 7. She found the number of homeless persons in Victoria far outnumbered the available shelter beds such that many of Victoria’s homeless were forced to sleep outside. Despite this, the city’s bylaw prohibited anyone from erecting temporary shelters, including tents, tarps, or even cardboard boxes, in public parks, leaving them exposed to serious and life-threatening conditions and depriving them of their dignity, independence, and ability to protect themselves.

After a refinement of Ross J.’s order by the Court of Appeal, it was declared that the offending sections of Victoria’s Park Regulation Bylaw were “inoperative insofar and only insofar as they apply to prevent homeless people from erecting temporary overnight shelter in parks when the number of homeless people exceeds the number of available shelter beds in the City of Victoria”: Adams BCCA at para. 166.

The constitutional right as articulated in Adams was thus circumscribed in two respects: (1) the right is exercisable when the number of homeless outnumbered the available indoor sheltering spaces, and (2) the right to erect a temporary shelter is confined to overnight hours.

Since Adams, many municipal bylaws and government actions that seek to limit or restrict the ability of persons experiencing homelessness to erect and maintain shelters have come under challenge in this court, including in: Vancouver Board of Parks and Recreation v. Williams; Abbotsford (City) v. Shantz; British Columbia v. Adamson; British Columbia v. Adamson; Nanaimo (City) v. Courtoreille; Vancouver Fraser Port Authority v. Brett; and, most recently, Prince George (City) v. Stewart.

The basic constitutional right as framed in Adams has remained largely unchanged. However, it is now recognized that it is not just the number of available indoor sheltering spaces that frames the right but also whether those spaces are truly accessible to those sheltering in parks. In Shantz, for example, Hinkson C.J.S.C. stated:

Given the personal circumstances of the City’s homeless, the shelter spaces that are presently available to others in the City are impractical for many of the City’s homeless. They simply cannot abide by the rules required in many of the facilities that I have discussed above, and lack the means to pay the required rents at others.

More recently, in Stewart, Hinkson C.J.S.C. stated:

It is apparent that very few of the emergency shelter beds are low barrier, and it appears that many of the homeless persons in the City are ineligible to stay in at least some of the shelters. While the City contends that the availability of 81 shelter beds in the City is sufficient to house the encampment occupants, I am not satisfied that these shelter spaces are in fact accessible to all of the occupants of the encampments.

The question of sheltering in public parks during daytime hours has also arisen in the cases since Adams, but the jurisprudence, thus far, has not extended the right to include it, at least not expressly. In Shantz at para. 276, Hinkson C.J.S.C. found “there is a legitimate need for people to shelter and rest during the day and no indoor shelter in which to do so” but held that a “minimally impairing response to balancing that need with the interests of other users” of the parks would be to allow overnight sheltering between 7:00 p.m. and 9:00 a.m.

However, in Adamson No. 1 and Stewart, Hinkson C.J.S.C. declined to grant injunctions to close specific homeless encampments and made no specific qualification that those sheltering in the parks could only do so during overnight hours. In Adamson No. 1, Hinkson C.J.S.C. did not squarely address the issue of daytime sheltering but nor did he tailor a remedy to require the encampment to be removed at sunrise.

In Steward, he addressed the issue more directly, noting at para. 73 that the closure of shelter spaces due to COVID-19 resulted in scores of people having nowhere to shelter “in either the daytime or the nighttime.” He observed that these persons did not remove their tents or vacate the encampment each morning. In declining to grant the injunction, at least in respect of one, he did not consider or grant a more limited injunction that would restrict sheltering to overnight hours. He took judicial notice of the fact that “Prince George can be very cold in the fall and winter, and that people with nowhere warm to stay must find ways of keeping warm to stay alive”: Stewart at para. 64.

Thus, while neither Adamson No. 1 nor Stewart purport to expand the scope of the constitutional right to daytime sheltering, it was not specifically enjoined in either case.

The essence of the British Columbia decisions is the establishment of a constitutional right to shelter oneself when the number of homeless persons exceed the number of available and accessible indoor shelter spaces within a given jurisdiction.

While the Region acknowledges the British Columbia jurisprudence, it submits that these decisions have been distinguished by Ontario decisions on the basis of an obiter comment of the British Columbia Court of Appeal in Adams and the Region urges me to follow these Ontario rulings.

The British Court of Appeal stated, at para. 109:

We agree with the trial judge that prohibiting the homeless from taking simple measures to protect themselves through the creation or utilization of rudimentary forms of overhead protection, in circumstances where there is no practicable shelter alternative, is a significant interference with their dignity and independence. The choice to shelter oneself in this context is properly included in the right to liberty under .

However, the Court then goes on to comment in obiter as follows at para. 162:

If there were adequate shelter beds or appropriate designated areas outside of parks to accommodate the homeless, the Bylaw provisions that we are concerned with might well be valid.

In the recent Ontario decisions of Black v. Toronto (City), 2020 ONSC 6398, 152 O.R. (3d) 529 [Black] and Poff v. City of Hamilton, 2021 ONSC 7224 [Poff] homeless individuals sought an injunction to prevent the municipality from evicting them from city parks. In both instances, the Ontario Courts considered the British Columbia decisions and distinguished them on the basis of a factual finding that there were adequate shelter spaces to accommodate all of the cities’ homeless.

In Black, Justice Schabas found, at para. 149, that the city of Toronto had addressed the applicants' fears of COVID-19 in the shelter system “such that there are adequate safe alternatives to sleeping in encampments.”

Likewise, in Poff, Justice Goodman, at para. 235, differentiated the facts in Adams and from those before him on the basis that in the cases the Court found “there was insufficient shelter space in the city to house all the city’s homeless people.”. This, according to Justice Goodman, at para. 236, “is not the situation in .”

Given these factual findings, and in following the suggested path of the British Columbia Court of Appeal in Adams, the Ontario Courts ruled that there was no breach of section 7.

In the alternative, to urge my following the Black and Poff decisions, the Region submits that provided I find that there is adequate capacity in the shelter system to accommodate the residents of the Encampment, I should nonetheless find that the By-Law does not violate the rights of the Encampment residents.

Apart from the position that there are not sufficient available spaces in the Region to shelter its homeless population, the Named Respondents and Amicus Curiae submit that it is not simply the number of available shelter spaces that frames the rights but also whether those spaces are truly accessible to the homeless. They also argue that the Ontario decisions mentioned above are distinguishable from the case before me on the basis that the two encampments, each in the cities of Toronto and Hamilton, were located in municipal parks and not in a vacant lot. Whereas the Ontario Courts found that there was significant public interest in ensuring that everyone had access to the parks, there is no such public interest in the Property.

Based on the record before me, I find that despite the Region’s past and current impressive efforts to accommodate its homeless population, there are not sufficient shelter spaces. I find that the number of homeless persons in the Region far outnumber the available shelter beds such that many of the Region’s homeless have no alternative but to sleep outside. The most reliable evidence is that the Region has a homeless population of approximately 1,100 individuals. Excluding the motel spaces (because their availability is at the discretion of the motel operators and in many cases the rooms are available only to those with acute or severe medical needs or families), the most current information is that the Region has a maximum capacity of 416 shelter spaces. Even with the inclusion of the rooms at the YWCA and Working Centre (the Cambridge Shelter Overflow beds having already been included in the 416 available shelter spaces) the Region has a current capacity to shelter approximately 553 individuals (calculated on the assumption that each of the 23 families to be housed through the YWCA motel booking have 4 members). The available shelter spaces, unfortunately, fall short by some 50% of what is required. This result, in my opinion, does not equate to “adequate safe alternatives to sleeping in encampments” in the words of Justice Schabas.

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. Although not binding on me, I adopt and follow the decisions of the British Columbia Supreme Court in Shantz, Prince George (City) v Stewart and Bamberger, all of which hold that in order for the shelter spaces to be truly available, they must in fact be low barrier or accessible to accommodate the homeless population.

Finally, I reject the Region’s submission that, at the end of the day, in order to grant the relief it seeks, I need only be satisfied that there is sufficient capacity in the system to accommodate the Encampment residents. I reject this proposition because of the fluctuating and variable capacity of the system based on the Region’s own numbers. Furthermore, were I to be guided by this principle, and satisfied that there is a sufficient bed capacity for the Encampment residents on any given day, how does this approach respond to the many other vulnerable homeless individuals in the Region? It does not. The approach is particularly problematic in my view because the Region intends to be guided by this decision in its treatment of other encampments. Were I to accede to the Region’s submission, it seems to me I would be helping to create an immediate disadvantage for those who are homeless and living outside encampments. I am not prepared to do that. Finally, even if I were to accept the Region’s suggested approach, 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.

[Justice Valente went on to find that the by-law at issue violates the section 7 Charter rights of the claimants that it deprives the homeless residents of the Encampment of life, liberty and security of the person in a manner not in accordance with the principles of fundamental justice and is not saved by section 1 of the Charter. The Court found that the by-law was inoperative “insofar, and only insofar, as it applies 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."]