Homelessness won’t be solved in the courts
Ruling on ‘right to housing’ won’t change reality
An Ontario judge struck what some see as a significant blow for the “right to housing” last week in a straightforward rebuke of Waterloo Region’s desire to clear a homeless encampment from public property in Kitchener, Ont., one of the region’s component cities. Essentially importing long-standing jurisprudence from British Columbia, Justice Michael J. Valente ruled that evicting people from such encampments when the jurisdiction has no suitable alternative shelter to offer them violates the Charter — specifically Section 7, which guarantees “life, liberty and personal security.”
Other observers have described the ruling more in terms of judicial overreach. “Excited to see the courts adding shelter beds to the Constitution and taking over urban planning, as our forefathers must surely have intended,” my colleague Colby Cosh sarcastically observed on Twitter.
I don’t think it’s either of those things, really. And I’m puzzled why Waterloo showed up in court with such a turkey of a case.
The issue of homeless encampments usually concerns parks. Local residents with homes quite reasonably insist they and their children shouldn’t have to deal with the camps’ sometimes alarming sights, smells, sounds and events. It’s a legitimate dilemma, both morally (especially if shelters are full) and practically: What’s the point in kicking people out of Park A if they can’t or won’t find anywhere else to go except Park B?
Waterloo wasn’t trying to clear a park, though, but rather a vacant lot at 100 Victoria Street North. You can see it in all its scrubby, gravelly, non-functional glory on Google Street View. it’s right across the street from a popular soup kitchen and resource centre for down-on-their-luck Kitchenerites. It’s a five-minute walk from a safe-consumption and drug-treatment centre.
In the long term, Waterloo intends to use the land as a construction staging area for a new transit hub — but there’s no confirmed start date for that. In the short term, it wants to use the land for 100 parking spaces. Surely that’s not so much of a dilemma. Many cities would gladly settle for such an encampment.
Furthermore, Valente concluded based on cross-examination of city witnesses, Waterloo got cute in arguing there was plenty of space in Kitchener’s shelter system. It counted beds that are reserved for certain individuals and not walk-ins, beds in units that are under repair, beds reserved for people with COVID-19, and beds that are only available to women, youth, families and people with certain medical conditions. Valente concluded the actual spare shelter capacity was “likely less than the 53 individuals living at the encampment at last count.”
Whatever municipalities’ legal and moral obligations are to the homeless, they have an inescapable obligation to face reality: If there’s nowhere indoors that homeless people are able or willing to spend the night, they’re just going to find somewhere else outside. It’s not as if that’s an irrational decision. Homeless shelters are miserable places. A man’s home is his castle, even it’s made of canvas.
Folks hoping for a “human right to housing” need to face reality as well, however.
It’s not an absurd idea on its face: There isn’t much that’s more fundamental to “life, liberty and personal security” than having a roof over your head. But as those advocates will tell you, Canada has already recognized this right, and more than once.
“It is declared to be the housing policy of the Government of Canada to recognize that the right to adequate housing is a fundamental human right affirmed in international law,” the 2019 National Housing Strategy Act declares. “Canada has recognized that adequate housing is a fundamental human right by ratifying the ICESCR (International Covenant on Economic, Social and Cultural Rights),” the Ontario Human Rights Commission notes — oh, and also “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”
Canada ratified the ICESCR in 1976. It doesn’t seem to have helped much.
For that matter, the precedent Valente imported from British Columbia dates from 2008. You don’t have to be a news buff to have noticed in the meantime that B.C. still has a rather severe homeless problem, and that it often manifests itself in city parks. Put simply, no act, treaty, covenant or judicial ruling can make it any easier to build the housing we need — something many Canadian cities are struggling and failing to do even for paying customers.
Real estate is real estate. It costs a fortune nowadays no matter what you want to do with it, and there’s fierce competition for it. The “gatekeepers” (as Conservative leader Pierre Poilievre aptly calls them) standing in the way of bog-standard residential developments are fearsome enough. Try to put new shelter beds or transitional housing where people think it doesn’t belong — i.e., anywhere that other people live — and the gatekeepers are downright terrifying.
Everyone wishes there was some end-run play, some shortcut, we could use to make things better. There isn’t. Waterloo Region is no better off for going to court than it was before. And declaring a “human right to housing” when no such thing exists in reality, and won’t for many decades at least, does nothing so much as mock the human rights we do actually enjoy.