Premier proposing legislation to clear encampments and target illegal drug use

Ontario Premier Doug Ford is proposing stronger legislation for breaking up encampments.

The premier made an announcement in Toronto Thursday morning, with several of Ontario’s big city mayors, including Guelph’s Cam Guthrie and Cambridge’s Jan Ligget, standing behind him.

“To enhance penalties for people who deliberately and repeatedly break the law, the legislation will also make it crystal clear that it is illegal to use illicit drugs in a public space including encampments,” Ford said.

Ford is proposing a Restricting Public Consumption of Illegal Substances Act that would allow police and provincial officers to ticket or arrest drug users in a public space if they don't stop or leave when they're told to. The punishment would be fines of up to $10,000 or six months in prison.

“We're going to make sure that they're going to be treated appropriately. But that's up to the police. That's up to the courts to decide. I don't direct the police. I don't direct the courts. But this is going to give them the tools to make sure that people aren't using illicit drugs,” Ford said.

Ford is also proposing to amend the Trespass to Property Act to allow courts to consider continuous trespassing or the likelihood to reoffend as an aggravating factor when sentencing. Aggravating factors can raise the severity of a sentencing. Ford said the legislation doesn’t go as far as changing the penalties under the act.

“We can't accept going and taking someone out of the park and saying, 'Here's a shelter, and they refuse to go into the shelter.' That's unacceptable,” Ford said.

In Guelph, police have been cracking down on open drug use for months and council has banned encampments in the downtown core. The Guelph Police Service said it needs time to read the full proposal before commenting on this but the majority of those arrested for drug use downtown are provided information about resources and released without charge.

A lawyer and human rights professor at United College at the University of Waterloo said this proposal is a complete failure to understand the challenges facing people who are homeless.

“We've seen other countries do this sort of thing, the criminalization of simply existing and it has not been entirely successful or successful at all,” Anna Purkey, an associate professor and Director of the Human Rights Program at United College at the University of Waterloo said.

“There's a really easy solution for this, which is to provide a sufficient number of accessible shelter places. I get that that's not easy,” Purkey said.

Part of the announcement on Thursday is $75.5 million dollars for housing solutions. Waterloo Mayor Dorothy McCabe said punishing people living in encampments isn't going to solve the issue, but the funding for housing solutions is key.

"Penalizing people in my view isn't really the way that we're going to address this issue. The funding for housing and shelter and supportive housing is really welcome, and we support that. I think we also need, and as mayors have asked for, is a review of the mental health act. It's been 20 years since that's been reviewed," Dorothy McCabe, Mayor of Waterloo said.

“The legislation hasn't been challenged yet. We've just basically been threatened with this. So, it's pretty disheartening, I have to say,” Purkey said.

In January 2023, the Ontario Superior Court made a ruling in regard to an encampment in Kitchener, stating that removing homeless residents without having adequate shelter space available violates Charter of Rights and Freedoms in regards to the right to life, liberty and security.

The province wouldn't comment specifically on if this proposed legislation skirts the superior court ruling.

“Those other cases, they've been concluded. So, we're quite confident that this will be effective,” Doug Downey, Attorney General of Ontario said.

“I don't think that it gets around your charter issue, because if the circumstances have changed such that now there are insufficient available shelter spaces, then I don't see why that the Waterloo decision wouldn't stand,” Purkey said.

The premier has also made it clear he’s willing to use the notwithstanding clause to overrule any court decisions related to clearing encampments if needed. Purkey said it’s a slippery slope using that clause.

“It's part of a trend that we are seeing of provincial governments, but in particular of the Ontario provincial government, to use the notwithstanding clause. This was included in our constitution sort of as an escape valve. We learn about it as the nuclear option, the idea being that provincial politicians wouldn't use it because the political fallout of using it would be so severe. Essentially, we're talking about telling the Canadian public, ‘We understand that our action or our piece of legislation is violating your most fundamental rights, rights that are so fundamental that we chose to incorporate them into our Constitution. Despite that, we're just going to go ahead anyhow,’” Purkey said.