Court ruling on homelessness is a big step forward

It seems obvious: People who are homeless have human rights, just like any other person. Governments cannot discriminate against them just because they don’t have a safe place to sleep at night.

Nobody wants encampments in our public parks, including the people living in them. But homelessness is rooted in the same housing crisis affecting everyone in Canada. It’s a human rights crisis, regardless of government hallucinations that it isn’t.

As we know too well, until now, people who were forced to shelter outside in tents didn’t have the same rights as people with a traditional home. The Ontario Superior Court has taken a big step forward to fix this.

On May 21, the Court confirmed that cities have a duty to uphold the right to housing. What does that mean? If municipalities fail to provide enough adequate interim or long-term alternatives, they cannot prevent people from sheltering outdoors in public spaces.

The decision does not tell governments that they must accept encampments or that they can’t maintain public order. It simply says that if cities want to move people from an encampment site, they must provide adequate alternatives, such as shelter spaces, or another place to camp with basic health, safety, and dignity (e.g., washrooms, sanitation, access to health care). Cities can’t evict people from public spaces when they have nowhere else to go.

It’s hard to overstate how important this decision is. For the first time, it establishes in law that homelessness is similar to other conditions protected under the Charter and therefore has the same equality protections as we have for race, sex, disability, or national origin. These are characteristics that make people vulnerable to discrimination, but, practically speaking, they can’t do anything about. Homelessness isn’t a choice. It’s forced on people by many conditions that they can’t control.

The grounds that are listed in the Charter were never intended to be exhaustive; the writers knew Charter rights would evolve over time, as society itself does. By recognizing homelessness-related status, the Court didn’t intervene out of nowhere. It did exactly what it’s supposed to do: apply established Charter doctrine about systemic disadvantage. The right to housing has been legislated, explicitly or implicitly, in the National Housing Act, the Ontario Housing Services Act, and in municipal acts such as Toronto’s Housing Charter and Action Plan. It simply hasn’t been recognized by courts. This decision affirms the direction that governments were already heading.

Rights have always had to be hard-fought. Women’s equality, workers’ rights, family protections, religious freedoms – all have come in spite of vocal opposition. Along the way, courts extended protections to people who didn’t have them previously. It’s how the system is supposed to work. Rights aren’t a popularity contest.

Critics want to make this about encampments. They’re saying we’ll be forced to allow public disorder and crime. But none of that is true. Every municipality has every right and all the tools to protect public safety and ensure that public spaces are clean and usable. But they can’t just make people disappear because it’s cheaper and more convenient than solving the actual problem.

Cities have a variety of tools they can use to respond to encampments, including interim emergency measures. For example, London and Thunder Bay both moved encampments from unsuitable public spaces to alternative camp sites with access to washrooms and sanitation. Toronto is developing six new emergency shelters.

Governments still have the tools to solve the problem at a deeper level, too. For example, they can use bylaws to strengthen tenant rights, which can prevent people from losing their home in the first place. Homelessness and the housing crisis are a government policy choice, not a natural disaster outside our control. The solutions are there if governments choose to implement them.

We have tools to prevent people from falling into homelessness, and helping them get housed if they do fall. Governments can put resources towards increasing affordable housing, income supports for people to pay the rent, access to health care, access to mental health and addictions services, support for young people leaving care, and people leaving incarceration. The Court’s ruling doesn’t prevent governments from taking meaningful action – it means they must.

The Court’s decision is still new and might yet be appealed and further tested. This is another part of the democratic process that makes us stronger as a nation. We will be watching. In the meantime, we are hopeful. This ruling could be a major milestone on the path to advancing social and economic rights in law, and a mechanism that compels governments to act now to implement them.