After weeks of public lobbying from a motley crew of mayors around Ontario, the Ford government unveiled its plan to tackle homeless encampments, which have bedeviled cities since the explosion of unsheltered homelessness during COVID-19. The plan includes new legislative measures and penalties, as well as new money for shelter spaces.
“Enough is enough, this has to stop and it will stop. Families deserve to play in and enjoy their parks and playgrounds,” Premier Ford said last week, surrounded by mayors who had publicly agitated for a law-and-order response to encampments.
Later that day Minister of Municipal Affairs and Housing Paul Calandra introduced Bill 242, the Safer Municipalities Act, which has two parts. The first creates a new provincial offense for using illegal drugs in a public space and gives police the power to arrest people who fail to comply with directions. If found guilty of the offense, people could be imprisoned for six months or pay a $10,000 fine — since we’re talking about the homeless here, it’s safe to assume that a lot of people are going to be sent to jail under this law.
The other part of Bill 242 amends Ontario’s existing trespassing law to add aggravating factors to the offense of trespassing, specifically targeting people who repeatedly return to places after some interval despite a trespass notice.
On its own, the law would be a blunt instrument to deal with homelessness: a purely law-and-order approach to a problem that deserves a more subtle strategy. So, it’s good that Bill 242 isn’t expected to bear the load of the government’s policy on its own. Ford also announced $75.7 million in new money to expand shelter spaces and help people move out of existing spaces. Most of that money, $50 million, will go to affordable housing projects that are close to completion but need a little provincial help to get over the finish line faster.
That $75 million is a rounding error on a rounding error in the context of a $200 billion provincial budget; understandably, some might consider the sum trivial or inadequate to the problem. That skepticism might even be warranted. But that’s not entirely the point of it. The money is meant to justify the penalties being levied under Bill 242: both parts of the plan go together, and the money defends the law enforcement side of the package when it’s challenged under the Charter of Rights and Freedoms.
We’ve already seen three notable cases from Waterloo, Kingston, and Toronto where encampment clearances were challenged in court. In all three cases, the legal question was whether municipalities were breaching the rights of homeless people under Section 7 of the Charter, which protects life and personal security. In Waterloo and Kingston, courts sided with people living in tents. As Justice Carter put it in the Kingston case, “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.”
The key words are “when there is nowhere else to go.” People living in encampments and their advocates successfully argued that it wasn’t sufficient for a municipality to show that it had shelter capacity in theory; it had to demonstrate that those spaces were realistically accessible to people with diverse and particular needs. They also had to be safe to stay in (not a given). In Toronto, meanwhile, the city offered hotel rooms (not just shelter spaces) to people living in an encampment on the grounds of the St. Stephen-in-the-Fields church in the city’s downtown, and the clearance was allowed to proceed.
The province knows these cases and has taken the lesson: laws meant to make it easier to clear encampments will still be subject to Charter scrutiny and will have better odds of being upheld by courts if the government can prove that it’s made real, good-faith efforts to preserve homeless people’s rights to personal security even as the government pursues legitimate public aims like restoring order to parks and other public spaces.
Nothing about the above obliges Ford’s critics to concede anything; the policy can still be good or bad, even if courts eventually uphold its constitutionality. But the relative care the government is taking on this file stands in stark contrast to another file that’s going to be subject to a Charter challenge: Bill 212 and its provisions removing three bike lanes in Toronto.
On bike lanes, the government will be asked to answer more or less the same question that cities have for encampment clearances: is this measure addressing a legitimate public aim in a way that’s proportionate to the harms it will cause? And the government is going to have to prove to a court’s satisfaction that there’s an actual evidence-based case for its policies, or that the harms are trivial. That will be difficult to do since a) the evidence of this jurisdiction (and nearly every other) contradicts the government, and b) the potential harms are substantial enough that the government felt the need to immunize itself and any contractors who do the work of removing the bike lanes.
The Ford government knows how to take the courts seriously when it wants to. The example of its anti-encampment package shows that it understands recent Charter precedents well enough to plausibly engineer a policy that will survive judicial oversight. Bill 212, on the other hand, shows that sometimes the premier and his advisors are just going to do what they want and let the chips fall where they may.
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