Northumberland Community Legal Centre responds to Cobourg Mayor Lucas Cleveland’s “Year In Review”

The Cobourg Encampment

During his meeting on December 5th, 2023, Cobourg Mayor Lucas Cleveland described people living in tents in Cobourg as an “illegal encampment”.  It is not accurate to call encampments illegal.

The Constitution is the highest law in Canada.  It includes the Charter of Rights and Freedoms which applies to everyone in Cobourg, including those who are unhoused.  Recently, the Courts have denied municipal applications to clear encampments based on local by laws that prohibit tents.

In the Waterloo decision, Justice Valente found that Region’s By law prohibiting tents or other structures on Region-owned property violated the encampment residents’ s. 7 Charter right to life, liberty and security of the person.  He indicates that:

“If evicted from the Encampment, the residents will likely be forced to live in the rough or set up camp somewhere else because there is an insufficient supply of low-barrier accessible beds in the Region. In these circumstances, creating shelter to protect oneself is, in my opinion, a matter critical to any individual’s dignity and independence.” [1]

More recently in the Kingston decision, Justice Carter found that the City of Kingston’s By law prohibiting camping is “unconstitutional in so far as it prohibits homeless individuals from erecting shelter overnight.”  He states that:

“To borrow the language from Bedford, a law that prevents the homeless from avoiding a serious risk of injury or death by erecting shelter overnight when there is nowhere else to go is a law that has lost sight of its purpose.” [2]

The number and accessibility of shelter beds in Cobourg is inadequate.  Therefore, people living in encampments are relying on their Charter rights to life, liberty and security.  In as much as the local by law prohibits people who are homeless from erecting tents or other structures, it is likely unconstitutional.  As a result, the Cobourg encampment is not an illegal encampment.

Even in situations where an encampment is in a public park, the courts have indicated that there has to be an appropriate balancing of the rights of encampment residents and other park users:

“At stake for them is nothing less than their s. 7 Charter right to life, liberty, and security of the person. This elevates their right to be heard above ordinary users of the Park, or even particular users of the Park, such as (to take counsel’s example) a soccer team whose game is cancelled when a field is closed for maintenance.” [3]

When any public statement describes the encampment as illegal, it may put the people living in the encampment in danger.  If encampment residents are perceived as breaking the law or as criminals, it may encourage behaviour toward them that could put them at risk.

During the meeting, Mayor Cleveland indicated that the encampment is costing the Town money because of visits by fire and by law officers. There is a cost to being homeless – some have paid with their lives, as happened recently in Mississauga.

We are grateful to Infrastructure Ontario for respecting the Charter rights of encampment residents and we hope that this will continue.  By closing houses, and forcing homeless folks off of Town and County property, officials have left people with nowhere to go.  Like all of us, encampment residents must have some physical space in which to exist.  Most would prefer to have homes, but we are living in the midst of a housing crisis.

Encampments should not be cleared.  However, encampments do not offer sufficient shelter especially during a Canadian winter.  We call on all levels of government to:

1. open buildings to provide more secure shelter to people who are homeless; and,
2. build truly affordable housing; and,
3. find creative ways to address the housing crisis.

In particular, we call on the Town of Cobourg to use its powers to make and enforce repair orders that would allow some of the encampment residents to return to their homes.

Refusal of services

The Mayor indicated that people in the encampment have refused services.  This is not accurate. Some have asked to be admitted to the shelter but the shelter was full, as there are more residents in the encampment than there are available shelter beds.   Sometimes, the services offered do not meet the individuals’ needs. In determining the adequacy of shelter services Justice Valente finds that the number of shelter beds is not the only factor:

“To be of any real value to the homeless population, the space must meet their diverse needs, or in other words, the spaces must be truly accessible. If the available spaces are impractical for homeless individuals, either because the shelters do not accommodate couples, are unable to provide required services, impose rules that cannot be followed due to addictions, or cannot accommodate mental or physical disability, they are not low barrier and accessible to the individuals they are meant to serve.” [4]

It seems that the shelter and the County recognize that the current shelter options do not meet the needs of all members of the community which is why they are pursuing a new option for a warming room, shelter space and transitional housing.  We hope that Transition House will use the proposed location at 310 Division St. to improve the accessibility of services for people who are homeless in Cobourg.

[2]  The Corporation of the City of Kingston v. Doe, 2023 ONSC 6662 para 87.

[3] Bamberger v. Vancouver (Board of Parks and Recreation), 2022 BCSC 49 para 63.

[4] Waterloo para 93.