An Ontario Superior Court justice denied the Region of Waterloo's application to remove a homeless encampment from a municipally owned property, citing a lack of shelter space in the area.
In a 52-page decision released on Friday, Justice M.J. Valente stated that the municipality's request to remove tents and other erected structures from a half-acre, gravel parking lot at 100 Victoria Street North in Kitchener was against the residents' Charter rights.
The municipality argued that the encampment breached the region's bylaw that prohibits erecting any form of structure on lands owned by the Region, as well as bringing any dangerous, illegal or flammable goods on the land.
According to the ruling, a small number of tents began popping up on the property in December 2021. In the ensuing six months, close to 70 temporary shelters were erected to house approximately 50 people. The most recent reliable evidence, Valente wrote, was that there were 53 residents living in the Victoria Street encampment as of July 27, 2022.
During cross examination, Shannon Walls, Corporate Security Supervisor for Barber Collins Security, the security company hired to monitor the site and respond to disruptions and complaints, described the encampments as "dangerous and volatile," as well as "unpredictable." According to the Region, there were also risks posed by human waste, the presence of barbeques and propane tanks, physical altercations, consumption of drugs and alcohol, and repeated trespasses onto neighbouring commercial properties.
While acknowledging and validating those concerns, Valente questioned whether "closing the encampment simply moves all of the risks elsewhere."
The Region of Waterloo admitted that it does not have sufficient emergency shelter capacity to accommodate its estimated 1,100 homeless residents. And although the Region maintained that it has had a week-over-week surplus capacity since January 2022, with 85 beds available as recently as November 3, Valente found that to not be true, noting it is "likely less than the 53 individuals living at the encampment." This was largely due to "available" beds actually needing repairs, not being accessible to all, or being in a high-turnover shelter where beds are hard to secure through the Region's call centre.
Valente concluded that the Region's request to remove the encampment went against the residents' rights to life, liberty, and security because of the lack of shelter space available.
The judge noted, however, that if the Region of Waterloo can provide proof that its bylaw is no longer in violation of the residents' Charter rights -- ie. more shelter space is made accessible -- the Region can apply to terminate his declaration.
