By Estair Van Wagner, Assistant Professor, Law, York University, Canada
Forced evictions are a violation of international human rights law in normal circumstances. The global pandemic is anything but normal. Now, the destruction of encampments poses a significant public health risk.
Encampment residents continue to be framed as a risk to public health instead of having their heightened vulnerability recognized. British Columbia, for example, enacted a public safety order to dismantle encampments in Vancouver and Victoria using police powers. Concerned doctors stressed the need to “balance safety and the province’s wishes with trauma-informed practice.”
San Francisco has even created a “safe sleeping village” equipped with sanitation facilities.
All cities should follow that lead, starting with a moratorium on encampment evictions. The city of Toronto provides a good case for why this human rights-based approach is so urgent.
Toronto’s unprepared shelter system
Despite Toronto’s experience with SARS, the city’s shelter system was woefully unprepared to deal with the current public health crisis. Since the pandemic began, more than 500 people in the shelter system have tested positive for the virus, and more than a dozen shelters have reported outbreaks — one of which temporarily closed as a result. Four people have died. There is no universal testing.
Without the ability to physically distance in shelters, homeless people have been forced to camp outdoors. Yet the city has ignored calls to provide encampments with sanitation facilities to ensure people can follow public health directives.
Instead, the city of Toronto has used police to disproportionately ticket homeless people, forcibly remove them from public spaces and destroy their belongings. The uneven enforcement of lockdown rules, and claims to public space, was on full display when thousands recently gathered in Toronto’s Trinity Bellwoods Park and were met with little more than warnings.
While we applaud the measures taken by the city to provide temporary housing for those living in encampments, they are insufficient to house the growing number of encampment residents. And without safe shelters and universal testing, the city’s attempts to contain COVID-19 don’t justify encampment sweeps.
The right to housing in a pandemic
Under international law, everyone has the right to housing. While societies work toward securing the right to housing for all, cities must ensure there’s sufficient shelter space and uphold the human rights of encampment residents.
Prohibitions on tent encampments and evictions have been successfully challenged by housing advocates and residents in Canada and the United States. In a series of cases in British Columbia, courts have found prohibitions on shelters in public space violated Section 7 of the Canadian Charter of Rights and Freedoms. The shortage of safe and adequate shelter space has been a key finding in these cases.
Similarly, a U.S. court ruled it was cruel and unusual punishment to criminalize homeless people sleeping outside in cities with insufficient shelter space. Now, with shelters full and a failure to implement public health requirements, many cities are ripe for a successful tent city challenge.
In fact, in April, advocacy groups launched a constitutional challenge against the city of Toronto for the way it has operated shelters during the pandemic. As a result of an interim settlement with claimants, the city has agreed to ensure shelter beds are two metres apart and report on their progress — a necessary first step.
While not challenging the encampment sweeps directly, the case has highlighted the inadequacies of Toronto’s shelter system and its response to the pandemic. Indeed, the first and second progress reports confirm that many shelters continue to be at or over capacity.
Without sufficient safe shelter space and universal testing, cities are forcing people into encampments, limiting their ability to stay safe during the pandemic by continuing evictions, violating international human rights and probably domestic constitutional law too. Cities must do better.
Toronto, and all cities, should immediately declare a moratorium on encampment evictions and institute universal testing in shelters. As we continue to spend most of our time in the safety of our homes, those without access to private space or safe shelters have the right to stay safe in the public spaces we all share.
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