Adequate Alternative Housing

There is no constitutional right to housing per se. Governments do not owe a positive duty to provide affordable, adequate or accessible housing to homeless and low-income persons and the Charter of Rights and Freedoms “does nothing to provide assurance that we all share in a right to a minimum standard of living”.

However, courts have held that the section 7 Charter liberty interest is engaged when a local government interferes with the “fundamentally important personal decision to shelter oneself in circumstances where there is no practical shelter alternative.”

These issues arise primarily in enforcement measures by local governments to remove or deter encampments of homeless people in municipal parks and other civic spaces. A municipality’s mandate to regulate its parks and civic spaces for the benefit of the public is tempered by the right of homeless individuals “to cover themselves with the most rudimentary form of shelter while sleeping overnight in a public place, when there are not enough shelter spaces available to accommodate all of the City’s homeless.”

Whether adequate alternative shelter is available is therefore a central issue in determining if a Charter right exists in a particular case. The question of adequacy pertains not only to the number of available shelters, but also whether the shelters are appropriate. Factors that may make alternative housing impractical include: 

• limits on the length of stay, curfews and restrictions on leaving and returning
• inadequate shelters designated for women
• drug abstinence and sobriety requirements, or that the person be “treatment ready”
• temporary bans for minor rule infractions (sometimes of indeterminate lengths)
• lack of permanent support services and resources
• charging rent
• outbreaks of violence

Courts have ordered the removal of encampments where adequate alternative housing was available in sufficient numbers to house the equivalent number of homeless people living in the encampment. Removing an encampment is also more justified when it is demonstrably a nuisance or hazard to individuals and imposes an unreasonable burden on public resources. For example, an encampment on the grounds of a courthouse was removed because of an increase in criminal activity, garbage, rats, feces and used needles, costs of additional police presence and complaints from neighbours (who had previously supported the encampment but withdrew support with the deteriorating conditions).

Bylaws Must Strike a Balance

Courts have tried to strike a balance between the competing interests over the use of public parks by protecting the right to erect shelters overnight, but in a limited manner. In striking this balance, courts have held that bylaws imposing a blanket prohibition on tents are unconstitutional in circumstances where the municipality has a lack of adequate, accessible shelter space to house the number of homeless people in its community.

Drafting bylaws to address encampments in municipal parks requires careful attention. Here are some considerations: 

• Bylaws prohibiting encampments at all times and in all places in the municipality can be too broad.
• Consider less restrictive options such as requiring tents to be taken down every morning (when the public is actually using the park) and to prohibit sleeping in sensitive regions. There is generally no right to erect a tent on public property during the day.

For example, Abbotsford allows camping in parks from 7:00 pm to 9:00 am “where there is no accessible shelter accommodation available in the City”. Sleeping overnight or camping is still banned in certain “community-wide parks” where many functions are held. The bylaw also lists types of places where a temporary shelter is not allowed, such as playgrounds, sports fields, cemeteries, pathways or washroom facilities.

Similarly, Victoria’s bylaws allow a “homeless person” to secure “a tent, lean-to, or other form of overhead shelter constructed from a tarpaulin, plastic, cardboard or other rigid or non-rigid material” within a park boundary between 7:00 pm and 7:00 am, except for certain restricted areas within the park (including a playground, sports field, footpath, a road within a park, environmentally sensitive area, or designated event or activity area).

See Appendix B for examples of bylaws prohibiting nuisances in parks but allowing overnight camping.