Are homeless encampments legal in public spaces?
CBC Manitoba looks at legal judgments and government policies that address the issue
Theresa Bauer lives in an encampment, in a tiny tent under a bridge along the Assiniboine River.
"It's kind of shitty," she said, yawning after being harassed the night before in the camp. "I'd like my own place."
As a growing number of homeless encampments pop up in public spaces in Winnipeg and across Canada, governments and courts are setting ground rules on balancing the rights and needs of unhoused people with neighbours living around them.
End Homelessness Winnipeg's latest street census in 2022 found roughly 1,300 people are living in the city without homes, but the group's more recent estimates are as high as 4,000.
Emerging public policies — often stemming from legal decisions and the Canadian Charter of Rights and Freedoms — suggest people have the right not to be evicted from public spaces unless there are appropriate shelters to meet the needs of individuals in encampments.
At the international level, housing was recognized as part of the right to an adequate standard of living in the 1948 Universal Declaration of Human Rights, which Canada agreed to.
At the national level, the National Housing Strategy Act was enacted in 2019, recognizing housing as a human right.
Meanwhile, judges have ruled that Section 7 of the Canadian Charter of Rights of Freedoms, which protects the right to life, liberty and security of the person, includes housing rights, even if that "housing" is in an encampment.
In 2008, the B.C. Supreme Court set precedent in the case Victoria (city) vs. Adams by laying out two key criteria for eviction.
"Number 1 is that it applies at night, and that's because the court noted that sleeping is a basic human right that's essential for life, liberty and security of the person," University of British Columbia law professor Alexandra Flynn explained.
"The second [criteria] is that the shelter spaces have to be accessible, and there have to be enough of them to accommodate the people who would be evicted."
That means municipalities have to prove in court that the people they want to evict from an encampment would have housing that meets their individual needs.
An Ontario Superior Court judge recently determined one Kingston encampment's proximity to a service hub and a supervised consumption site was essential to people who lived there, so they couldn't immediately be moved.
In Winnipeg, the city only evicts encampments that are on private property or are causing an immediate risk to safety.
That has many Winnipeggers complaining the encampments keep them from visiting parks.
"We can't weigh the people who are using the park for leisure the same as people whose lives are at risk. We have to weigh the people whose lives are at risk higher," Flynn said.
Theresa Hunter, who lives near some encampments on the Assiniboine River, including the one where Bauer is based, said she's contacted the city hundreds of times about fires, garbage and aggressive behaviour.
Hunter said several people in her neighbourhood have been threatened and assaulted by people living in encampments, including her husband.
"Somebody asked him for a light," she said. "He didn't have one, and so he had a hatchet waved at him."
Hunter wants people moved out from the encampment, a view that is widely shared.
About half of Winnipeggers surveyed in a recent Probe Research poll don't think homeless people should be allowed to stay in encampments as long as they like.
"It's been five years of a lot of talk," she said.
"We haven't seen much action other than the camps growing," she said.
The city needs to do more, Hunter said.
"People need to have shelter and they need to be supported."
Having adequate support is a fundamental part of an emerging framework guiding Canada's response to homelessness: Homes must support each individual's needs, which can range from allowing pets to being able to use drugs.
This type of need falls under the legal premise of adequate or accessible housing.
"People need to have security of tenure. It needs to be habitable. For Indigenous folks, it needs to be culturally relevant," federal housing advocate Marie-Josée Houle said.
Experts say finding homeless people accessible and adequate housing improves their chances of staying housed.
But until adequate housing is available, governments have an obligation to provide safe drinking water, a place to cook and a place to keep warm or cool down, Houle said.
"We know that encampments are not the solution," Houle said. "But the answer to encampments is adequate housing."
For Bauer — who said she's lived mostly on the streets since she ran away from abusive foster homes when she was 12 — one of the stipulations for housing might be living near her family.
She recently found some of her relatives in Winnipeg, and they are now living in the same encampment where she stays.
"I'll probably still come out here [if I find housing]," said Bauer, whose family is from Pimicikamak and Pukatawagan First Nations in northern Manitoba.
Meanwhile, some neighbours like Hunter also say the camps often break municipal bylaws on things like fires and sanitation.
But courts have found these bylaws are less critical than the campers' constitutional right to life.
Instead, some cities — including Winnipeg — are stepping up to mitigate the risks the bylaws are meant to prevent.
Firefighters and police are doing regular check-ins, and the Downtown Community Safety Partnership launched a program this spring called mindful cleanups.
"We don't basically interfere into their privacy," said Sayyum Singh, who leads the Clean Slate team for DCSP.
"We try to just come over here and give them some donations, give them some garbage bags.
"That gives them motivation to clean up their space, and that's the way we can build a relationship with them."
The hope is these relationships ultimately help outreach workers connect people with housing.
Bauer said outreach workers have been talking about finding homes for her and others in the encampment, but it still hasn't happened.
"It's not easy to find a place," Bauer said. "Some have social anxiety, a lot of them [are] just scared to talk to workers and stuff. A lot of people just need help."
Bernadette Smith, Manitoba's minister of housing, addictions and homelessness, said the province is working on building more housing units that are barrier free.
"People need to be successfully housed with supports," Smith said.
The NDP government has housed over 1,000 people since November 2023, 625 of whom were homeless, she said.
Smith said she's seen what can happen when housing doesn't address people's needs.
"I would go to a shelter [and meet someone who was being] housed," she said.
"I would come back six months later and see that same person and I would ask them, 'Why are you back at the shelter?'
"And they would say, well, they didn't have the supports that they needed to be successfully housed."
For Winnipeggers like Theresa Bauer, a home that takes her specific needs into account would be life-changing.
"That's all we want is a safe place," she said.
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