Encampments and the Charter Workshop: Charter Challenges, Systemic Barriers, and Indigenous Legal Perspectives
- ccsedu
- Jun 13
- 10 min read
Updated: Jun 23
by Aurora Lawrence and Jay Wai, J.D Candidates, University of Toronto. Originally published on the David Asper Centre for Constitutional Rights Blog on June 11, 2025.
June 13, 2025

On February 28, 2025, the Centre for Constitutional Studies at the University of Alberta and the David Asper Centre for Constitutional Rights co-hosted a “Encampments and the Charter” workshop in Edmonton. The event brought together legal scholars and advocates to examine the legal, social, and political dimensions of housing encampments (also called homeless encampments and tent cities) in Canada.
As encampments continue to grow in response to the housing crisis, they have faced a range of governmental responses—many of which are politically and legally contentious. The workshop explored both procedural and substantive legal issues, focusing on how provincial and municipal governments regulate encampments, and how such regulation is being challenged in court. Discussions centered on the application, advantages, and limitations of Charter rights challenges with respect to encampments, Indigenous legal traditions, and legal barriers to advocacy. In particular, participants discussed encampments as spaces of harm reduction and mutual aid.
Workshop presenters included Margot Young, Alexandra Flynn, Anna Lund, Martha Jackman, Estair van Wagner, Heidi Kiiwetinepinesiik Stark, Avnish Nanda, Chris Wiebe, Renee Vaugeois, Gerard Kennedy, Renée McBeth and Shaun Fluker. This blog post synthesizes the major points raised in the workshop.
Charter Application in Housing Encampment Litigation
At the heart of legal struggles between encampment residents and municipalities is the question of how the Charter applies and whether it adequately protects unhoused individuals from forced evictions, restrictive bylaws, and criminalization. One key constitutional issue raised at the workshop was how section 7 of the Charter has been interpreted in ways that limit government obligations toward unhoused individuals. Martha Jackman, a professor emerita of law at the University of Ottawa, examined how courts have treated section 7 as a negative right by focusing on state non-interference rather than recognizing a positive right to housing.
Jackman critiqued cases like Victoria (City) v Adams, which are often viewed as breakthroughs in the fight for encampment rights. By contrast, Jackman argued that they demonstrate the limitations of how courts engage with section 7 Charter claims. In Adams, the Supreme Court of British Columbia held that the municipality could not enforce a by-law that prohibited overnight sheltering in parks when there was inadequate shelter space.[1] This decision was subsequently upheld on appeal.[2] Jackman explained that the claimants in Adams were not arguing for a conditional right to remain in encampments only when there was insufficient shelter space. Instead, they raised the lack of shelter options as just one example of the broader and systemic violations of section 7—violations that also stem from inadequate social assistance, a lack of social services, and the absence of long-term housing. Yet the Court reframed their claim, making the right to remain in an encampment contingent on the availability of shelter spaces. By doing so, the structural argument was reduced into a narrow, site-specific right. Jackman argued that this judicial reframing reflects a broader failure of courts, not advocates.
Margot Young, a professor at Allard Law, described encampment residents as “constitutional castaways”, a term coined by former Chief Justice McLachlin to highlight judicial blindness to systemic inequalities faced by the impoverished.[3] Drawing from her observations at the CRAB Park encampment in Vancouver, Young recounted unconstitutional searches of tents, seizure of belongings, and intimidation by park rangers. This treatment of encampment residents appeared irreconcilable with the decision in Bamberger v Vancouver (Board of Parks and Recreation), which emphasized the need for participation and notice in administrative actions—protections that are routinely ignored on the ground.[4] Young noted that encampment residents face a litany of Charter violations, highlighting the need to recognize not just intersectionality within individual identity but also within the Charter itself. She emphasized that the rights engaged, such as sections 2(d), 7, 8, 12, and 15, should not be considered in isolation. Instead, courts must allow the values recognized in one right to inform and strengthen others, reinforcing Jackman’s call for reading section 7 through a section 15 lens to address systemic inequality.
Jackman referenced G. (J.) v. New Brunswick (Minister of Health and Community Services) to outline a path forward for judicial decisions. In G. (J.), Chief Justice Lamer held that decisions infringing section 7 must provide affected individuals with meaningful participation.[5] Similarly, Jackman argued that encampment residents must have a voice in legal processes that impact their rights. She further advocated for interpreting section 7 through a section 15 lens to ensure that remedies address systemic human rights violations rather than offering temporary solutions grounded in negative section 7 rights.
When the personal belongings of precariously housed people are seized by public or private officials, there are rarely clear processes for recovering them. Alexandra Flynn, Director of the Housing Research Collaborative and Associate Professor at UBC’s Allard School of Law discussed litigating claims for property rights as one potential method for bolstering future housing encampment push back against unlawful state actions. This is an area where there is currently little jurisprudence. Flynn suggested lack of effective remedies, and legal and procedural barriers that limit access to remedies, as reasons for this scarcity. Flynn emphasized that it is important to continue using all the available tools, including tribunals and small claims courts, when seeking remedies.
Procedural and Systemic Barriers
Building on these critiques of judicial limitations in encampment cases, litigator Avnish Nanda and Professor Anna Lund of the University of Alberta discussed the procedural and legal barriers they faced in their recent litigation work around homeless encampments in Edmonton and how those compare to the barriers Nanda has encountered in litigation over harm reduction programs. Referencing Margot Young’s essay, “Sleeping Rough and Shooting Up: Taking British Columbia’s Urban Justice Issues to Court,” they characterized litigation on homeless encampments and harm reduction programs as part of a broader movement for social justice, which Young defines as a “call for the alleviation of social and political exclusion, and the reduction of inequalities as a matter of justice, not merely charity, and as a matter of state, not individual, responsibility.”[6]
Nanda had worked on a line of cases where he sought interlocutory injunctions to stop legislation that reduced or obstructed access to government supports and harm reduction programs. The first of these cases, AC and JF v Alberta, laid the foundation for his later work and clarified the test for injunctive relief.[7] In 2020, Alberta lowered the maximum age eligibility of its Support Financial Assistance program for youth who were transitioning out of the child welfare system. Nanda challenged the amended legislation on the grounds that it violated section 7 of the Charter and sought an injunction to suspend the amendment. Compelled by the plaintiffs’ narratives, the Alberta Court of Queen’s Bench (ABQB) granted the injunction.[8] While the injunction was overturned on appeal, the Alberta Court of Appeal affirmed the traditional test for injunctive relief established in RJR-MacDonald, rejecting a more stringent test proposed in Alberta Union of Provincial Employees v Alberta where the government would benefit from a presumption that its legislation was constitutional.[9]
Encampment litigation across Canada relies on injunctions. In provinces such as British Columbia, municipalities must seek injunctions to remove encampments; conversely, in Alberta, the onus is on encampment residents to apply for injunctions to stop evictions. AC and JF was a significant decision because a more stringent test would make this prohibitively difficult for encampment residents to stop evictions. However, the workshop participants acknowledged Stepan Wood’s critique that the less stringent traditional test frequently allowed BC municipalities to obtain injunctions against encampments, prompting removals and evictions.[10]
The ABQB’s decision in AC and JF also revealed a litigation strategy—using narrative to bridge the gaps in the law. In later cases, Nanda again sought injunctive relief against legislation that shut down access to opioid treatment programs and supervised consumption sites, arguing breaches of sections 7, 12, and 15 of the Charter.[11] Not all the injunction applications succeeded, but the courts were willing to engage with the Charter claims. The parallels between encampment and harm reduction litigation make these cases valuable to draw from.
The issue of legal standing poses another barrier to encampment litigation. Renee Vaugeois and Chris Wiebe, co-founder and co-counsel for the Coalition of Justice and Human Rights respectively, reflected on their recent Charter challenge in Alberta which was struck down on standing. The Coalition applied for an interlocutory injunction using public interest standing to stop the City of Edmonton from evicting encampments. The City moved to strike the claim by challenging the Coalition’s request for public interest standing, and the City succeeded. The Alberta Court of King’s Bench refused to grant the Coalition public interest standing on the grounds that they did not have a “real stake or genuine interest” in the issue and that its litigation was not “a reasonable and effective means to bring the case to court” .[12]
Wiebe explained that the Coalition resorted to using public interest standing because the stigma of living in encampments and the frequent displacement of residents made it difficult to find someone who could act as a direct applicant. Moreover, the Coalition was concerned that courts would only consider the harm individual applicants were facing and disregard the harm the overall community would experience if evicted.[13]
Assistant Professor Gerard Kennedy from the University of Alberta examined recent court decisions dealing with public interest standing and noted that Alberta disproportionately denies standing claims. Judges seemed uncomfortable with granting public interest standing and would later dismiss claims on the merits, although these are separate processes. Courts tended to favour individual applicants and factual records that raise narrow issues to avoid any unintended consequences of granting public interest standing. However, this presented a significant issue for precarious populations where stigma and vulnerability prevent individuals from coming forward as direct standing applicants, as was the case in Coalition. Regardless, an individual claimant may not effectively be able to represent the interests of the community.
The workshop participants also acknowledged the adverse effects of litigation on encampments and their homeless population. Vaugeois noted that the City of Edmonton had increased encampment evictions after the Coalition decision and disbanded the Social Development Committee which brought different organizations together to talk strategically about dealing with shelter issues.
Indigenous Legal Perspectives
Indigenous people have been disproportionately affected by state actions to evict encampments, shut down harm reduction programs, and penalize homelessness through vagrancy bylaws. The fact that they are overrepresented in the homeless population may also trigger a section 15 Charter claim.
While the Charter’s limitations in protecting encampment residents highlight systemic failures, it is crucial to consider how Indigenous legal traditions offer alternative frameworks for addressing housing and community rights. Heidi Kiiwetinepinesiik Stark, Associate Professor at the University of Victoria, discussed how Anishinaabe law highlights collective responsibility of care which contrasts with settler individualism. The Indigenous legal perspective aligns with the understanding that unhoused individuals are part of a larger community and deserve care and support. By centering relational ontologies of care, policy decisions can better reflect our shared responsibility to one another.
Recognizing Indigenous law and jurisdiction can be especially important when encampments are situated on Indigenous land. Estair van Wagner, Associate Professor at the University of Victoria, and Stark highlighted the Beacon Hill Park Trust (Re) case where the Supreme Court of British Columbia had an opportunity to consider Indigenous jurisdiction and failed to do so.[14] Located on Lekwungen territory, Beacon Hill Park was granted to the City of Victoria in 1882 to be held in trust without regard to Lekwungen title.[15] During COVID-19, encampments grew, prompting city enforcement of prohibitions on daytime sheltering within the park. The Court ruled that encampments violated conditions of the park’s trust, focusing on property management rather than obligations to unhoused individuals or Indigenous governance.[16] The Songhees and Esquimalt Nations’ intervener status in the case was limited, excluding broader discussions of Indigenous jurisdiction and title.[17]
Notably, van Wagner emphasized how Beacon Hill Park was framed around private law, narrowing the scope of what was legally relevant. The Friends of Beacon Hill Park Society, a small non-Indigenous nonprofit, played a key role in this framing by arguing that encampments violated the trust’s terms.[18] Their position, which centered on preserving the park for public enjoyment, mobilized private law to exclude discussions of Indigenous jurisdiction, human rights, and obligations to unhoused individuals. Instead of recognizing the complex relationships between the land, Indigenous governance, and encampment residents, the Court deferred to a rigid interpretation of the trust. This case illustrates how legal frameworks continue to prioritize settler interests while limiting space for Indigenous law and authority.
Looking Ahead
The “Encampments and the Charter” workshop represented an important step in bringing together advocates and academics to address the constitutional law and systemic barriers housing encampment residents face. More conversations of this kind are needed to develop legal strategies that challenge the systemic inequalities. Indigenous law and legal traditions, which emphasize collective responsibility and care, offer a crucial alternative to the individualistic framework of the Charter. Centering these perspectives could help reshape legal approaches to housing and community rights in a more just and equitable way.
Aurora Lawrence and Jay Wai are 1L JD Candidates at the University of Toronto Faculty of Law and are members of the Asper Centre Encampments and the Charter working group.
[1] 2008 BCSC 1363.
[2] Victoria (City) v Adams, 2009 BCCA 563 [Adams].
[3] R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at 302.
[4] 2022 BCSC 49 at paras 64, 69.
[5] See 1999 CanLII 653 (SCC), [1999] 3 SCR 46 at para 81.
[6] Margot Young, “Sleeping Rough and Shooting Up: Taking British Columbia’s Urban Justice Issues to Court” in Martha Jackman & Bruce Porter, eds, Advancing Social Rights in Canada (Toronto: Irwin Law, 2014) 413 at 439.
[7] AC and JF v Alberta, 2021 ABCA 24 [AC and JF].
[8] AC and JF v Alberta (19 March 2020), Edmonton, ABQB 2003 04825 (interlocutory judgment transcript).
[9] Alberta Union of Provincial Employees v Alberta, 2019 ABCA 320.
[10] Stepan Wood, “Reconsidering the Test for Interlocutory Injunctions Affecting Homeless Encampments: A critical assessment of BC case law” (2024) 61:1 OHLJ 161.
[11] Tam v Alberta, 2021 ABQB 156; Moms Stop the Harm Society v Alberta, 2022 ABQB 24; Black v Alberta, 2023 ABKB 123.
[12] Coalition for Justice and Human Rights Ltd v Edmonton (City), 2024 ABKB 26 [Coalition].
[13] Poff v City of Hamilton, 2021 ONSC 7224 at para 137.
[14] 2022 BCSC 284 [Beacon Hill Park].
[15] Ibid at para 19.
[16] Ibid at para 134.
[17] British Columbia v Friends of Beacon Hill Park, 2022 BCCA 383 at para 65.
[18] Ibid at paras 48–49.
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