- In 2021, the City of Toronto utilized the Trespass to Property Act to issue suspension notices to encampment leaders, effectively prioritizing property owners’ interests over the rights and dignities of unhoused individuals.
- This action exemplifies a shift in contemporary society from public stewardship to property ownership, sidelining procedural fairness and due process.
- Suspension notices were identified as unlawful and unconstitutional, violating fundamental freedoms under the Charter of Rights and Freedoms. Their arbitrary and broad application, especially during critical times like the winter and COVID-19 pandemic, demonstrates an excessive use of legal tools against unhoused citizens.
Introduction
“How Far Can Cities Go to Clear Homeless Camps?” a recent NPR headline asked. “The U.S. Supreme Court Will Decide.” The article goes on to explain how the Court will hear a major case in April that will determine whether or not fining or arresting people with no shelter for sleeping outside constitutes “cruel and unusual punishment.”
Meanwhile, a recent study in Antipode, a top geography journal, examines how, north of the border, the city of Toronto tried a different tactic in 2021: serving suspension notices to unhoused people prohibiting them from entering city parks for one year, on the grounds of trespassing. The authors argue that, despite this veneer of legality, even these relatively milder actions are extremely problematic.
Read on to learn more about their research into Toronto’s trespass tactics, and what we can do to bring about fairer systems.
Background
Toronto, Ontario is Canada’s largest city, with a metropolitan area population of nearly 10 million. It is also a famously diverse and multiracial city: as of 2021, only 43.5 percent of residents in the city proper were of European descent.
But beneath the public relations image of a progressive paradise lurks a history of violence against poor and unhoused people: (Note: This post will refer to those without shelter as “unhoused” rather than the more common and stigmatized “homeless.”)
- In 1999, the city passed a Safe Streets Act targeting unhoused young people washing windshields at stoplights, with penalties including fines and imprisonment.
- In 2000, police used violence to attempt to disperse a peaceful protest against poverty at Queen’s Park.
- In 2010, police used tear gas, pepper spray, and mass arrests against protestors of the G20 Summit occurring in the city.
In the summer of 2021, with the city’s shelter system stretched beyond its capacities due to the COVID-19 pandemic and a longstanding housing affordability crisis, Toronto police attacked unhoused people who had built encampments in city parks:
- The raids became a major international news story, with broken bones and other serious injuries resulting.
- They also did nothing to alleviate Toronto’s housing crisis, only bringing embarrassment to the city and more suffering upon those who had nowhere else to go.
It was in the aftermath of these attacks that the Toronto City Manager’s Office issued Suspension Notices on October 4, 2021, to leaders of encampments, banning them from entering city parks and participating in community programs for a year. These notices cited the Trespass to Property Act, which, the study authors note, “[enables] municipal administrators to exclude those whose conduct allegedly disturbs the quiet enjoyment of property.” In other words, it is less a law to punish trespassing and more a law to punish disturbing the peace.
What are the consequences and implications of such an action? Study authors Farida Rady and Luisa Sotomayor investigated this particular case and found, through interviews with legal experts, that this was, at best, “a bizarre overreach of the City’s power.” At worst, it is an unconstitutional deprivation of unhoused people’s legal citizenship, creating a situation in which the City acts as a property owner rather than a public entity, and is able to impose upon the propertyless a status of permanent displaceability.
Methods
Rady and Sotomayor employ a mixed-method qualitative research approach to understand the impacts of suspension notices and encampment evictions on urban citizenship in Toronto, particularly during the COVID-19 pandemic. Here’s how the researchers went about their investigation:
- Document and Archival Legal Analysis: The researchers conducted a thorough review of bylaws, reports, and municipal documents to explore the historical and legal context of suspension notices in Toronto.
- Semi-Structured Interviews: Seven individuals closely involved with the encampments, including two community lawyers, one community legal worker, and four members of the Encampment Support Network (ESN), were interviewed. This approach provided diverse perspectives on the evictions and the use of suspension notices. Politicians were intentionally excluded from the interview process, given their perspectives are already widely accessible through mainstream media and public records.
- Participants and Interview Process: The interviews took place between March and May 2022, utilizing both in-person and virtual (Zoom) settings to accommodate participants’ preferences and availability.
- Data Analysis: By combining insights from document analysis with the rich, qualitative data from interviews, the researchers aimed to triangulate their findings, ensuring a robust understanding of the situation.
- Ethical Considerations and Challenges: The study’s design reflects a careful balance between the need for in-depth, qualitative insights and the ethical considerations of engaging with vulnerable populations and those advocating on their behalf.
In summary, through a combination of legal analysis and targeted interviews, the researchers aim to shed light on the complexities of urban citizenship, legal frameworks, and the lived experiences of those most directly impacted.
Findings
The study uncovers a complex web of municipal governance, legal frameworks, and the practical realities faced by unhoused citizens in Toronto, particularly in light of recent encampment evictions and the issuance of suspension notices. Here are the key takeaways:
Legal Foundations and Governance Responses
- The City of Toronto utilized private law, specifically the Trespass to Property Act, to issue suspension notices to encampment leaders, circumventing the lack of criminal law powers at the municipal level. This action highlights a shift from viewing the city as a public body to acting as a property owner, prioritizing the concerns of propertied citizens over the rights of unhoused individuals.
- The issuance of suspension notices and the decision-making process behind the encampment evictions were centralized and obscured, lacking transparency and accountability. The Office of Emergency Management, without prior experience in housing or shelter issues, played a crucial role, indicating a misalignment between the agency’s expertise and the task at hand.
Legal Precedents and Procedural Fairness
- The suspension notice policy, established in 2000, was found to lack procedural fairness in its application, as highlighted by the Ombudsman’s investigation into a similar case in 2005. The broad application of this policy against encampment leaders without adequate consideration of individual circumstances illustrates a disregard for fairness and due process.
- The Community Justice Collective identified the suspension notices as unlawful and unconstitutional, violating fundamental freedoms protected by the Charter of Rights and Freedoms. The arbitrary and overly broad application of these notices during a critical time of pandemic underscores the excessive and disproportionate nature of this legal tool.
Strategic and Arbitrary Enforcement
- The municipal government’s strategic mobilization of law to exclude unhoused individuals from public spaces reveals a discretionary and arbitrary approach to legal enforcement. This manipulative use of law serves immediate governance goals, highlighting a troubling aspect of informality in urban governance.
- The unenforceable nature of suspension notices and the discretion afforded to law enforcement further exacerbate the precariousness of unhoused individuals, who are left in a state of constant displaceability and exclusion from civic life.
Implications for Urban Citizenship and Social Exclusion
- The study argues that the municipal actions reflect a broader trend of “propertied citizenship,” where unhoused individuals are marginalized and their rights to public space and services are denied. This exclusion is deeply entwined with capitalist and settler colonial frameworks, reinforcing aesthetics and property values over human rights and dignity.
- The eviction tactics and legal strategies employed by the City not only violate the rights of unhoused citizens but also perpetuate a state of permanent displaceability, undermining the principles of urban citizenship and social inclusion. This approach prioritizes the interests of property owners and perpetuates systemic inequalities.
Displacement and Displaceability
- Displacement is an “involuntary distancing from rights and resources.”
- Displaceability is a susceptibility to being displaced.
- Therefore, the authors argue the arbitrary use of this Trespass to Property law creates a state of permanent displaceability among the unhoused population. It is a state in which the threat of displacement hangs over their heads at all times, “where illegalisation and displacement are always imminent.” The authors contend “the ultimate goal of this mode of governance is to ‘disempower people through repeated traumatizations, until they ultimately succumb to banishment.'”
Conclusions and Broader Implications
- The study concludes that the actions taken by the City of Toronto against unhoused populations represent a form of illegalisation and spatial exclusion, contributing to a broader understanding of permanent displaceability as a governance strategy. These actions are reflective of deeper societal and systemic issues, including capitalism, settler colonialism, and the prioritization of propertied interests over human rights.
- By examining the specific case of Toronto, the study contributes to a larger discourse on urban citizenship, governance, and the rights of unhoused individuals, offering insights into the challenges and implications of municipal legal actions in cities across the Global North. The findings underscore the need for more inclusive, fair, and humane approaches to addressing homelessness and urban citizenship.
What Can You Do?
With problematic legal shenanigans happening north of the border, you can bet more severe consequences will occur in the United States once the Supreme Court has staked out what is and isn’t possible in dealing with unhoused populations. As the study authors note, cities look to each other’s examples to legitimize what they do with unhoused people. Toronto, for example, cited similar legal tactics used in Philadelphia and San Francisco as justification for invoking the Trespass to Property Act. And, of course, now that “progressive Toronto” has gone to such dubious lengths to evict its unhoused population from city parks, cities across the political spectrum will now be able to point to Toronto as justification for their own evictions.
Add it all up, and it’s likely unhoused people are about to enter an ominous new era of legal and permanent displaceability. They will need our support more than ever. Here are some things you can do to help them:
- Advocate for Policy Changes: Push for changes in local laws and policies that criminalize unhoused individuals, such as the Trespass to Property Act used in Toronto.
- Support Legal Aid: Contribute to legal aid organizations that defend the rights of unhoused individuals and challenge unconstitutional actions.
- Volunteer at Shelters: Offer your time and skills at local shelters and organizations that provide services to unhoused people.
- Educate Others: Raise awareness about the issues faced by unhoused individuals and the systemic factors contributing to homelessness.
- Donate to Encampment Support Networks: Provide financial or material support to groups that assist encampment communities with essential supplies and advocacy.
- Challenge Stigma: Combat the stigmatization of unhoused individuals by promoting compassionate and respectful attitudes.
- Participate in Community Programs: Engage in programs that aim to integrate unhoused individuals into the community and provide support.
- Advocate for Affordable Housing: Support initiatives and policies that increase the availability of affordable housing options.
- Support Harm Reduction Services: Back organizations that offer harm reduction services, such as needle exchanges and overdose prevention, to protect the health of unhoused individuals.
- Engage in Political Activism: Participate in protests, rallies, and campaigns that demand justice and support for unhoused populations.
- Collaborate with Local Organizations: Partner with local groups working on homelessness to amplify their efforts and reach.
- Provide Direct Assistance: Offer food, clothing, hygiene products, and other necessities directly to unhoused individuals.
- Support Mental Health Services: Advocate for and contribute to mental health services that are accessible to unhoused people.
- Promote Inclusive Public Spaces: Encourage the development of public spaces that are welcoming and accessible to everyone, including unhoused individuals.
- Challenge Property-Centric Policies: Critique and oppose policies that prioritize property rights over the rights and dignity of unhoused individuals.
By embracing these actions and policies, we can advance toward the more inclusive, fair, and humane approach to addressing homelessness and urban citizenship Rady and Sotomayor call for–and toward a fairer and more just society in general.
What are your thoughts on the use of the Trespass to Property Act against unhoused individuals? Have you seen similar tactics in your city? Let us know in the comments below!
