From Granby to Sherbrooke, via Saint-Jérôme or Chicoutimi, the glaring lack of affordable housing and the notable growth in the number of people experiencing poverty and homelessness are leading to an increase in the number of encampments throughout Quebec. However, cities regularly resort to evictions and dismantling of these sites. For example, on September 13, Radio-Canada announced that more than 240 encampments had been dismantled by the City of Montreal since the start of 2023 alone. In Gatineau, after tolerating a camp all summer on a designated site, the City is now asking for the dismantling of trailers installed on municipal land. But is this a legal practice?
Consistent case law
Canadian jurisprudence has been clear and consistent for fifteen years. As early as 2008, the Superior Court of British Columbia recognized in the Adams case that cities could not by regulation prohibit people experiencing homelessness from sheltering at night in order to protect their lives and safety when cities do not were unable to offer a sufficient number of places of refuge to meet their fundamental rights. Between 2014 and 2022, this same Court rendered eight decisions challenging municipal by-laws limiting or preventing the installation of shelters in public spaces.
In 2022, in the Bamberger case, the Court prohibited the dismantling of an encampment of 60 tents at CRAB Park, in Vancouver, by reaffirming the right of people experiencing homelessness to shelter there at night in the absence sufficient and truly accessible shelters. This last requirement confirms the constitutional right to protect oneself if the places are not adequate to truly meet the needs of people, in particular by taking into account their personal characteristics and those of their families and the need to store their goods essential to their life and their survival. Some shelters, for example, cannot accommodate couples or even animals, others impose conditions of abstinence from drugs or alcohol and many are not able to store goods or protect them against theft and destruction.
These principles were endorsed by the Superior Court of Ontario in the Regional Municipality of Waterloo decision rendered in January 2023. In this case, the city of Kitchener attempted to demonstrate that people experiencing homelessness who lived in an encampment did not respect not the municipal by-law and could be expelled. However, the regional municipality of Waterloo only had nearly 85 places for a population of more than 1,000 people experiencing homelessness. In addition, the available places did not meet their diverse needs.
In this context, the Court concludes that the dismantling violates people’s constitutional rights by exposing them to serious harm. The Court rejects the argument that people’s rights are diminished because they choose to experience homelessness or live in an encampment rather than comply with the conditions imposed by shelters. Indeed, the context in which these people are placed is rather “characterized by poverty, drug dependence, disability and handicap as well as insufficient alternative housing” (para. 106).
For the Superior Court of Ontario, the municipal by-laws which allow the dismantling therefore infringe on the rights to life, liberty and security of the person protected by the Canadian Charter in a manner which is not consistent to the principles of fundamental justice.
The Quebec situation
These precedents are likely to apply to the Quebec situation. Thanks to the action of the Traveling Legal Clinic, the Quebec courts have also been seized of these questions. In April 2023, the Superior Court of Quebec ordered the suspension of the expulsion of people experiencing homelessness who were sheltering under the Ville-Marie highway in order to allow the Ministry of Transport of Quebec to begin discussions aimed at relocate them while respecting their needs and rights. The injunction was eventually granted due to the significant risks associated with the ministry’s infrastructure and the Court of Appeal refused permission to appeal, but several questions remain unanswered. On October 25, the Superior Court suspended the dismantling of a camp located in Hochelaga-Maisonneuve.
In these circumstances, the City of Gatineau and all Quebec municipalities should exercise great caution before proceeding with the dismantling of camps. People experiencing homelessness who shelter there have the right to life and security. If the State is unable to provide decent housing and income and provide for the fundamental rights of its most vulnerable citizens, the least it can do is not prevent them from protecting and preserving themselves. their dignity.
In closing, we can only deplore the fact that, in a rich society like ours, the courts have become the last bulwark against the dehumanization suffered by people experiencing homelessness and poverty. The social safety net is in fact so thin that it now rests on the shoulders of the courts.