Legal experts concerned about promised encampment legislation

Legal experts are raising concerns about human rights violations as the provincial government promises more powers and stricter penalties to deal with growing encampments across the province.

On Thursday, Premier Doug Ford promised new legislation aimed at homeless encampments throughout Ontario and said he would be willing to use the notwithstanding clause if necessary.

His pledge came after more than a dozen mayors of major cities penned a letter asking him to take a tougher stance on encampments.

While some local mayors praised the move, some legal experts don’t share the same view.

“We’re quite concerned about the rights violations that could be potentially set out in this legislation and the ways that certain municipalities will use this new legislation to clear encampments,” Ashley Schuitema, incoming executive director of Waterloo Region Community Legal Services, told CTV News.

“To me, if someone were to take the matter to court, the province is going to intervene. And if this new legislation were found to be not constitutionally compliant or would violate people's charter rights, the Premier has indicated that he's willing to use the notwithstanding clause to override that. It's quite an aggressive bully approach,” she said.

A precedent setting case in Waterloo Region

The debate around encampments in Waterloo Region comes after a precedent-setting ruling last year.

In January, a judge denied the region’s court bid for an injunction to have a homeless encampment removed at the corner of Victoria Street North and Weber Street West in Kitchener.

The ruling noted the region did not have adequate shelter spaces for the people who were living in the encampment, and Justice M. Valente said evicting them would violate their charter rights to life, liberty, and security.

However, if Premier Ford decides to invoke the notwithstanding clause, the move will override that decision.

“I think municipalities already have the power that they need, but this will certainly embolden some municipalities to do those clearings that they've been wanting to do and have felt maybe restrained from doing based on our encampment case out of the Waterloo Region,” Schuitema said.

She said the judge’s ruling stated a municipality needed to have enough accessible indoor shelter space for people living in an encampment before they could clear it.

Housing accessibility has been an ongoing issue across the province.

“We have over 2,300 people in our community experiencing homelessness. We certainly don't have enough shelter spaces to accommodate everyone,” Schuitema said. “It would be a violation of people's rights to life if a municipality were to go in and clear people out because they need to be able to shelter themselves in order to live and in order to survive, particularly in winters like we have here in Canada.”

It's an issue The Working Centre sees every day.

“Last night we turned away seven people,” Joe Mancini, executive director of The Working Centre, said. “I think every night we are turning away people.”

He believes clearing encampments without offering adequate shelter elsewhere will put people in danger.

“What happens is people find multiple ways to either restart another encampment somewhere else, they push into other apartments. They look for places to squat. They go into people’s backyards. People are desperate to find another option.”

Opposition to the notwithstanding clause

Ford’s promise to use the notwithstanding clause if necessary is causing even more concerns about how the government treats its citizens.

“It was intended to be used sparingly, and certainly I would suggest that it's not something that should be used to override people's fundamental charter rights, the right to life. It's quite concerning if you have a government that's willing to override those rights of people,” Schuitema said.

“I do think it's an absolutely an overreach. I would hope that people would be concerned to see their government willing to override their fundamental constitutional right to life. And that should be really concerning for people. People should be worried about that - when you have a government that's willing to say, we don't care about people's rights, particularly the rights of some of the most vulnerable people in our community,” she added.

Meanwhile, a group of councillors have written their own letter, voicing their opposition to any use of the notwithstanding clause when it comes to encampment enforcement.