The Gibson Decision: Reflections on Homelessness and Our Rights

Justice Gibson’s ruling on the 100 Victoria encampment is a good one, but it’s not the end of this story. It’s another milestone in the reckoning over homelessness in Waterloo Region, because it won’t solve homelessness. Courts simply can’t do that. It reminds us that people have rights, whether they have shelter or not. People are not a planning inconvenience or a public relations problem. “The homeless are not Other. They are Us. They are rights bearers no less entitled than any other Canadian citizens to the full benefit and protection of the Charter.” says Justice Gibson, and every leader and resident of Waterloo Region should be reflecting on that thought.

At the same time, the Kitchener Central Transit Hub matters. Good transit matters. Climate-responsible infrastructure matters. Connected, equitable, and lower-carbon communities matter.

The Gibson ruling does not stop the transit hub. It tells Waterloo Region how to proceed lawfully: create a safe tenting protocol, provide a lawful alternative site, honour the Plan to End Chronic Homelessness, and stop treating enforcement as housing policy.

Our local leaders should make two things absolutley clear. First, that they will not appeal this ruling. Second is that they will not participate in any attempt to override the ruling through section 33 of the Charter (the notwithstanding clause). The ruling rests on sections 7 & 15 of the Charter, and those sections are vulnerable to section 33. Regional Council cannot invoke the notwithstanding clause, but our provincial government in Queen’s Park can, and the Premier’s first response to the ruling showed no respect for the legal process and no commitment to the rights at stake.

Using the notwithstanding clause here would mean deliberately setting aside the life, security, and equality rights of unhoused people. It would be a statement that the province is prepared to suspend fundamental rights rather than require governments to do the hard, practical work of creating lawful alternatives. 

Regional Council should repudiate that strategy immediately! Tell the provincial government in no uncertain terms that the Region of Waterloo will not request, endorse, welcome, or rely on any provincial attempt to override this ruling through the notwithstanding clause.

A further part of this conversation that deserves attention is the uncomfortable lesson that our two-tier municipal structure is part of the problem.

In court, it was noted that the Region does not own much land downtown that could serve as an alternative encampment location or as an alternative staging area for the transit hub.

The Region is responsible for homelessness services, but the cities and townships control most of the relevant land and public space, and their mayors all sit on Regional Council. A safe tenting protocol would only be effective with support from both levels of our local municipal governance. What we see is a governance structure that allows responsibility to be passed back and forth as the crisis deepens. The mayors should bring their councils together around a region-wide safe tenting framework, rather than allowing each level of government to point to the other.

London and Thunder Bay were given as examples of municipalities that have taken steps toward safe tenting frameworks. Chatham-Kent has also done it. These are all single-tier municipalities. That does not mean Waterloo Region cannot act. It does mean our two-tier structure is making it easier for leaders to avoid hard conversation and decisions.

In the worst framing, our two-tier structure is an obstacle to addressing homelessness and to building the transit hub. In a more generous framing, it allows good people in different offices to wait for someone else to move first. Either way, the outcome is failure.

As I reflected on the ruling, I was fortunate to visit the Canadian Museum for Human Rights in Winnipeg. It is a powerful place to reflect on the gap between the rights we proclaim and the rights we are willing to honour. That is the test before Waterloo Region now. It is should not be whether we uphold rights when it’s difficult, but how we do it.

We can appeal. We can delay. We can wait for Queen’s Park to override rights. We can continue pretending that enforcement is a housing strategy. We can let our municipal structure become an excuse for inaction. Or we can do better.

Justice Gibson’s ruling is not the end of this story. We can pursue a safe tenting protocol. We can stop spending public money trying to litigate our way out of homelessness. We can implement the Plan to End Chronic Homelessness. We can build the transit hub without abandoning the people living nearby.