On January 27, 2023, the Ontario Superior Court of Justice issued a decision stating that municipal by-laws that prohibit people experiencing homelessness from erecting encampments could be unconstitutional if there are not appropriate shelter alternatives available.  

The Court heard an application from the Region of Waterloo regarding their enforcement of a municipal by-law for an encampment on a vacant municipal lot. The Region’s by-law prohibits certain activities on municipal lands, including erecting a structure. The by-law is applied in two-steps. The first step requires staff to provide outreach to encampment residents to assist them in accessing housing alternatives, and the second is to pursue enforcement through providing notice to vacate, after all other options have been exhausted. 

The Region’s application seeks a declaration that those living on the property are in breach of the by-law together with interim and final orders restraining and enjoining them from breaching the by-law by remaining on the property pursuant to Section 440 of the Municipal Act.  

The court accepted evidence that the number of people experiencing homelessness in the Region of Waterloo at the time exceeded the shelter capacity. 

Justice Michael J. Valente ruled that the Region’s by-law is “inoperative” until the Region is able to provide “accessible” shelter space, stating it must “meet their diverse needs”.  He writes that, “despite the Region’s past and current impressive efforts to accommodate its homeless population, there are not sufficient shelter spaces”. 

The ruling further states that the by-law violates section 7 of the Canadian Charter of Rights and Freedoms which protects the right to life, liberty and security of the person. Providing adequate shelter is a necessity of life, and denying the ability to erect a shelter violates the right to life. It states that preventing people experiencing homelessness from sheltering “interferes with the population’s choice to protect itself from the elements and is a deprivation of liberty within the scope of section 7”, and that eviction would amount to “deprivation of the security of the person”.  

The decision may yet be appealed, but it may set an interesting precedent regarding the enforceability of municipal by-laws that constrain the use of public space while there is inadequate housing in the province, putting pressure on all levels of government to provide appropriate housing supports.  

The Regional Municipality of Waterloo v. Persons Unknown to be Ascertained, 2023