Canadian Tent Encampments Win Precedent-Setting Legal Reprise

A elderly man walks a bicycle along a rail trail through the woods.
Recently, homeless people in Hamilton, Ontario have been chased further and further into the woods to camp. The legality of this persecution has now been called into question.

Across North America a strange kind of post-COVID vindictiveness towards homeless people seems to have set in. Jurisdictions everywhere have been passing laws to ban all kinds of activities such as camping and sleeping. There are also ‘lack of action’ laws — those that attempt to criminalize people experiencing homelessness for simply ‘being there,’ and if not there, then being anywhere else.

The U.S. State of California has been hampered in both physical and legal action against homeless people since 2018. That year, a ruling by a California judge gave people a right to sleep outside in public places, if a community was unable to provide them an alternative indoors.

This kind of judicial ruling carries weight as ‘common law’ in countries that have adapted a British system of justice. A superior level of law embodied in a Bill of Rights or a constitution might supersede a common law. But in 2019, the U.S. Supreme Court declined to overturn the California judge’s ruling and effectively extended the common law right exercised by people who are homeless to nine western states1.

The Supreme Court’s ruling has not bound the other 41 states of the nation. Nothing prevents judges overseeing cases brought against homeless people from finding they have a basic human right to sleep in public places if no better alternative is available.

Instead, a flurry of new laws and and legal challenges across the continent have not  extended human rights for people who are homeless. Judicial rulings currently tend to favour public safety (from fire, for example)2.

There has just been an important judicial decision about a human right to shelter in Canadian jurisdictions. Read more at CTVNews London: ‘Precedent setting case’: Southwestern Ontario judge rules homeless encampment can stay in park

You can read the judge’s decision here: Region of Waterloo v Persons Unknown CV-22-717- Reasons for Judgment – 27Jan2023 Valente J

Shannon Down is the Executive Director of Waterloo Region Community Legal Services. She has written about the case and the decision in Law Times: Kitchener Waterloo homeless encampment eviction stymied by section 7 argument


  1. For more read this article at the National Homelessness Law Center: Homeless Persons Cannot Be Punished for Sleeping in Absence of Alternatives
  2. Here’s and example from WMUR: Judge rules Manchester officials can evict people who live at homeless encampment.