Law360 Canada (June 11, 2026, 11:24 AM EDT) --

Harini Sivalingam

A recent judicial ruling recognizing homelessness as an analogous ground of discrimination under s. 15 of the Canadian Charter of Rights and Freedoms has come under fire as “judicial activism.” (Waterloo (Regional Municipality) v. Dugas, 2026 ONSC 2971.)

The case concerns a recent decision of the Ontario Superior Court of Justice that assessed the constitutionality of a site‑specific bylaw enacted by the Regional Municipality of Waterloo to clear an encampment of unhoused residents at 100 Victoria Street to construct a new transit hub.

In the landmark ruling, the first to do so in a Canadian court, Justice Michael Gibson found that being homeless was an analogous ground of discrimination, stating, “The homeless are not Other. They are Us.”

Housing advocates applauded the decision as a monumental step forward for equality rights. Others have criticized the decision as judicial overreach. They are mistaken and misunderstand equality jurisprudence.

The purpose of s. 15 is to advance substantive equality to meaningfully protect those who face systemic disadvantage. Rigid, formalistic approaches to equality that refuse to adapt leave behind the very communities the Charter was designed to protect — those who are at the margins of society.

It cannot be disputed that people who are unhoused are among the most vulnerable and marginalized populations in our society. They are exactly who s. 15 was meant to protect.

When the Charter was first drafted in 1982, s. 15 listed specific enumerated grounds of discrimination including race, national or ethnic origin, colour, religion, sex, age, and mental or physical disability. Many communities had to advocate fiercely to be included on that list.

Yet like any list, it was incomplete.

Our Constitution is a “living tree,” expected to grow and evolve as our society does. This principle ensures that we move toward progress rather than leaving us frozen in the past.

The courts recognized this and paved the way for analogous grounds — ones that are similar to those that were specifically listed. Over time, courts have recognized various analogous grounds of discrimination, such as citizenship status, sexual orientation and marital status.

This is not judicial overreach; it is the Charter functioning as it was intended to.

Canadian constitutional law defines analogous grounds as either immutable or constructively immutable, meaning traits that can be changed only at an unacceptable cost to personal identity.

However, the courts also consider whether a group has experienced historical stereotyping, prejudice or disadvantage, lacks political power or influence, or is recognized under other human rights laws.

Homelessness fits squarely within this framework. People who are unhoused face profound stigma, stereotyping and exclusion. Homelessness can arise from personal circumstances and systemic failures: lack of affordable housing, mental health supports, family breakdown, job loss or the need to flee violence. The characteristic is, for practical purposes, immutable for many who experience it.

Recognizing homelessness as an analogous ground of discrimination is essential to advancing substantive equality and ensuring that some of the most marginalized members of our society receive Charter protection. Unhoused people face discrimination in accessing services, employment and public spaces. Laws and bylaws that criminalize their existence often compound their marginalization.

This recognition of homelessness as a protected ground does not solve the housing crisis. But it does remind governments that their policy responses to homelessness must respect constitutional and human rights obligations.

The real threat to our justice system is not from judicial decisions that advance a rights-based approach to complex social problems. The greater threat to justice comes from governments feeling emboldened to enact measures that violate the fundamental rights of marginalized and vulnerable communities in the first place. It also comes from invoking the notwithstanding clause to override core rights and freedoms as a mechanism to bypass judicial scrutiny. And this is a threat to everyone, not just the unhoused.

An independent judiciary that can hold governments accountable to constitutional standards is not a flaw in our democratic system. It is its most essential safeguard.

When we dismiss judicial decisions that advance substantive equality as judicial activism, we do justice a disservice. We create space for elected officials to delegitimize courts whenever they disagree with a ruling, thereby eroding trust in the administration of justice.

The Charter was designed to protect the vulnerable and ensure equal treatment under the law. Recognizing homelessness as an analogous ground of discrimination honours that purpose. It acknowledges a reality that unhoused people in Canada live every day: that being unhoused makes them targets for discrimination, exclusion and mistreatment.

Recognizing this reality is not judicial activism. It is the Constitution doing exactly what it was meant to do: ensuring that equality rights extend to those who need them most.

Harini Sivalingam is a lawyer and the director of the Equality Program at the Canadian Civil Liberties Association. The CCLA was a public interest intervenor in the Waterloo encampment case.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@LexisNexis.ca or call 905-415-5811.