Are homeless encampments legal in public spaces?

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.