By Alexandra Flynn, Estair van Wagner, Heidi Kiiwetinepinesiik Stark

Encampments are a vivid illustration of the failure of governments in Canada to meet their human rights obligations to ensure everyone has access to adequate housing. The 2020-2022 point-in-time count showed a 20% increase in homelessness overall and an 88% increase in unsheltered homelessness from 2018. The right to housing is inherently linked with the fulfillment of other human rights and with basic human dignity. Thus, where the right to housing is violated, other human rights are often violated. Advocacy for the human rights of encampment residents then necessarily implicates a wider set of human rights. Legal advocacy is therefore a necessary part of a broader movement to realize human rights for all people. Canadian jurisprudence has centered on the right to life, liberty and security of the person protected by section 7 of the Charter of Rights and Freedoms, interpreted as freedom from government actions such as encampment removals. However, the rights involved draw from other sources of laws, including Indigenous and international legal frameworks. In this report we focus on the existing case law and legal strategies. Our objective is to identify arguments used to date, as well as opportunities for future legal advocacy on the issue of encampments.

Given the context of colonial dispossession and the vast overrepresentation of Indigenous Peoples in the unhoused population we highlight the relationship between the right to housing and Indigenous rights, both from a colonial Canadian legal perspective and from an Indigenous legal perspective. While we point to opportunities to engage with legal tools within the Canadian colonial legal system where they may be strategic and useful, we acknowledge the limitations of these tools. Therefore, we also highlight opportunities to connect advocacy about encampments with Indigenous legal orders and jurisdiction, including work being done by groups engaged in or considering litigation or advocacy on encampments. While there is limited research on the role of Indigenous law in encampments at present, in our view, this is an urgent area of advocacy to find long-term, sustainable, and human rights-compliant solutions to homelessness.

This report starts from the recognition that encampment residents are rights-bearers and must be centered in discussions on how to move forward. While it does not include testimony from those with lived experience it is informed by the long history of advocacy inside and outside of courtrooms by people unhoused people themselves and in partnership. This is critical in the context of encampments: when unhoused people claim public or private space to meet their basic needs it is essential that we acknowledge and respect their dignity and agency. Encampment residents are experts in their own lives. As we explain, meaningful engagement is the foundation of any human rights-based response. This includes respecting the structures of decision making that emerge in encampments, the trusted advocacy relationships developed with those around them, and principles of fairness that guarantee particular rights.

This report has been drafted to help inform legal practitioners and advocates about the state of jurisprudence in Canada relevant to homeless encampments. It highlights some of the limitations of jurisprudence to date and points to opportunities for future legal advocacy, highlighting the need to integrate Indigenous legal traditions.

Part One provides a background on the meaning of a human rights approach and the regulation of encampments in Canada.

First, we detail the connections between the right to housing and encampments in the Canadian context. We define what we mean by adequate housing, where the progressive realization of the right to housing comes from under Canadian and Indigenous legal frameworks, and provide a three-part framework for considering the right to adequate housing.

Second, we outline the current system of regulation of encampments in Canada. We explore the regulation of encampments based on international and domestic laws, highlighting that jurisdictionally fractured set of rules each seek to govern encampment residents, exacerbating their vulnerability. In this section, we distinguish between constitutional protections, legislation and bylaws that protect encampment residents, and those that seek to displace them.

Part Two sets out advocacy and litigation strategies in relation to encampments.

Third, we outline advocacy efforts in relation to encampments. In this section we explain the many ways in which advocates are seeking change in local policy-making, law reform, and enforcement. These efforts may - but do not always - rely on court decisions, and legal challenges are but one tactic used to advance the interests of encampment residents.

Next, we set out the case law concerning encampments, explaining the different approaches that have been taken since the seminal case, Adams v Victoria, was decided in 2009 setting out the current framework used by the courts. We explain court decisions in relation to injunction applications mainly brought by municipalities, Charter arguments, judicial review applications, shelter standards, public private property distinctions, and challenging enforcement. These cases were all decided between Adams and 2022.

We conclude by summarizing the legal framework related to encampments, with the gaps and opportunities for realizing a right to housing for those experiencing the most profound violation of that right, homelessness.

Ottawa: Office of the Federal Housing Advocate, Canadian Human Rights Commission, 2024. 56p.

 By: Lauren Dunton,  Jill Khadduri,  Kimberly Burnett,  Nichole Fiore,  Will Yetvin 

The number of people experiencing unsheltered homelessness, defined in this report as living in a place not meant for human habitation, has grown to more than 200,000 in recent years. That increase is driven by individuals who are not experiencing chronic homelessness. While not all individuals experiencing unsheltered homelessness reside in encampments, encampments have become emblematic of the rise in unsheltered homelessness. In particular, the number of unsheltered homeless individuals has increased since 2016. The problem is most acute in major cities, on the west coast, and in markets that have seen major spikes in housing prices. Even cities with declining unsheltered populations face pressure to address visible encampments in their communities. Exploring Homelessness Among People Living in Encampments and Associated Costs was launched as a joint effort between The U.S. Department of Housing and Urban Development’s (HUD’s) Office of Policy Development and Research and the Office of the Assistant Secretary of Planning and Evaluation at the U.S. Department of Health and Human Services (HHS). This study is intended to help policymakers and practitioners understand the nature of encampments, strategies for responding to encampments, and the costs associated with those approaches. The study offers a literature review, summaries of the four study sites, and a comprehensive final report documenting the full scope of the costs associated with the responses to encampments in the included communities. Underscored throughout the report is an understanding that a complex set of factors around housing precarity have contributed to the growth of encampments. Unsheltered homelessness is the tragic result of the country’s affordable housing crisis that stems from a combination of increasing rates of deep poverty and a lack of deeply affordable housing. Due to the impacts of structural racism, the affordable housing crisis is especially dire for Blacks and Latinos who are overrepresented among the homeless population. Within the homelessness system, shortcomings in emergency shelter policies and practices, a sense of community and safety within encampments, and a desire for autonomy and privacy contribute to some people’s preferences for encampments over shelters. The report shows that the four study sites have coalesced around a strategy that involves clearance (removing structures and belongings from encampments) and closure (requiring that people leave encampments) with support (resource-intensive outreach to connect residents with services and to ensure every resident has a place to go upon closure). Although this is the dominant strategy, outreach workers in at least one city highlight that this strategy exacerbates the challenges of moving residents to shelters or permanent housing, which research shows is the most cost-effective and humane strategy, long-term. The report also indicates that responding to encampments is resource-intensive for local governments, costing cities between $1,672 and $6,208 per unsheltered individual per year and requiring coordination across government and non-governmental actors. Since HUD funding is largely not being used for encampment related activities, city governments cover the vast majority of these costs out of their own budgets. This study was conducted before the start of the COVID-19 pandemic, which has likely worsened homelessness rates, while simultaneously increasing the urgency for finding safe housing for residents of encampments. At the same time, many homeless shelters have reduced capacity to abide by social distancing protocols, limiting options for those experiencing homelessness and potentially forcing more people into unsheltered homelessness and encampments. Future research on the characteristics and costs of encampments should integrate the perspectives of people with lived experiences in encampments. Research should also examine the racial inequities between those who live in encampments, how encampment residents are treated under the law, and who receives supports to enter shelters or housing. Finally, future research should seek to incorporate a fuller accounting of the cost to cities, including additional municipal costs (for example, from police, fire, and health departments), and the costs associated with residents’ trauma when faced with clearance and closure of encampments. This fuller accounting of the costs of encampments should also be compared to the cost of employing a Housing First approach to residents of encampments. Overall, this report reveals that communities need more resources and guidance for addressing encampments through a focus on outreach, engagement, and connection to housing with services. Suggested solutions in the report include expanding the capacity to place people experiencing homelessness into shelters and permanent housing. This suggestion aligns with the Administration’s belief in a Housing First approach that invests in homelessness prevention, rental assistance, supportive housing, and services to ensure stable housing acts as a platform for people to access employment, seek medical care, obtain care for behavioral health conditions like mental illness or addiction, and support children. This study provides useful information to help the field better understand a growing yet under-researched segment of the homeless population—information that we will incorporate into this Administration’s holistic vision for reducing homelessness.

Washington, DC: U.S. Department of Housing and Urban Development 2020. 78p.