Premier Doug Ford is introducing new legislation aimed at giving local police services and municipalities increased legal authority to dismantle unhoused encampments.
Bill 242, which will amend Ontario’s Trespass to Property Act, will allow courts to weigh aggravating factors of reoffense and likelihood of reoffense to impose harsher sentences.
The Ford government says this is aimed at preventing an increasing number of encampments in the province from reemerging once they have been dismantled.
According to The Association of Municipalities of Ontario, there were at least 1,400 encampments across Ontario in 2023.
The proposed bill also gives local police services the authority to ticket people for the consumption of illegal drugs in public space with penalties of up to $10,000 in fines or up to six months of jail time.
Harini Sivalingam, Director of the Equality Program at the Canadian Civil Liberties Association, said the proposed amendments will criminalize and punish vulnerable individuals that have nowhere else to go.
“Homelessness is a crisis, not a crime,” Sivalingam said in an interview with rabble.ca. “These measures will only further criminalize people for being unhoused.”
Ford said he is willing to use the notwithstanding clause, which allows governments to override certain Charter rights for up to five years, to push the legislation through, should the bill face resistance from the courts.
Potential use of notwithstanding clause alarming, advocates say
Sivalingam said she’s concerned about the government’s willingness to use the notwithstanding clause to enact legislation that may infringe upon Charter rights.
“The Ontario government is willing to override basic human rights of Ontarians and invoke the notwithstanding clause to keep this legislation, once it’s passed, from being overturned by the court,” she said.
Sivalingam said that the bill, as it stands, could violate Section 7 of the Charter of Rights and Freedoms, which is the right to life, liberty and security of the person.
“When there is no shelter space for people to go to overnight, evicting them or dismantling encampments – the courts have already said that this violates people’s rights,” she said.
In January 2023, the Ontario Superior Court ruled that a Waterloo Region municipal bylaw could not be used to evict unhoused people from an encampment, as it violated their Section 7 Charter rights.
Sivalingam said a similar legal challenge could be mounted against Bill 242 – but if the bill is passed with the notwithstanding clause, it will be more difficult to challenge. Still, she said courts have a role to play in making people aware of the violation.
“It’s very dangerous to use the Charter overlay to try and circumvent or get around court decisions,” she said. “And it’s also easy to threaten or override the freedoms of vulnerable and marginalized groups.”
“But it’s important information for people to know – that your rights are being violated – so that they can make informed electoral decisions,” she added.
Unhoused people could be displaced
The Encampment Support Network Parkdale (ESNP) is a volunteer-run group of housed and unhoused community members that advocates and provides support for people living in encampments in Parkdale, a neighbourhood in Toronto.
Joey D’Angelo, who’s been a member of the ESNP since the summer, said the proposed legislation has many people living in encampments worried about where they’ll go next.
“That just gets discussed like kitchen table discussion,” they said in an interview with rabble.ca, when asked about what encampment residents are planning to do. “It’s hard to say where someone will go.”
D’Angelo explained that some residents are waiting on housing or shelter placements, but many may be forced to move further out of the city centre, which comes with its own risks.
“There is a concern that a secluded area is actually really dangerous for a person,” she said. “They’re not close to the city centre’s resources. They’re not within community. It runs the risk of someone dying and no one knowing or someone needing help and no one knowing.”
D’Angelo also expressed their concern about where unhoused people will be allowed to consume drugs, pointing to the government’s decision to close down 10 of the province’s 19 supervised consumption and treatment service sites.
Read More: Ontario to go ahead with consumption site closures despite auditor general’s report
“A population of people who are unhoused rely on the safe consumption sites as a place to be able to safely consume,” she said. She said the decision to close consumption sites is “at battle” with the criminalization of public consumption.
Diana Chan McNally, a community support worker who’s been working with unhoused people in Toronto for over 10 years, called the legislation “cruel” and “severe”.
“We’ve just seen that supervised consumption sites will be shut down,” she said in an interview with rabble.ca. “And now we’re criminalizing public drug use, understanding that we’ve taken away the spaces where people could actually go.”
McNally said the bill, if passed, leaves no place for unhoused people to exist – and punishes them for it.
“You don’t have a private space of your own. Now you’re being told that you can’t exist in public space either,” she said. “Well that means you would likely be thrown into jail and have harsher sentences, without an offer of shelter.”
McNally also emphasised that the legislation won’t remove encampments, just displace them to less harsh municipalities.
“What’s going to happen if this gets rolled out is that municipalities who take a harder line on this – and there are some where they absolutely just don’t want homeless people – they will push them out,” she said. “And, you know, the cities that don’t want to punish people will suddenly have lots more people within their borders that they will have even less resources to support.”
Bill 242 could also infringe on protest rights
Sivalingam warned that the bill could be used as a tool to suppress protest efforts.
“The focus of this has been to deal with unhoused encampments,” Sivalingam said. “But a corollary effect of it is that this can also be used as a tool to suppress protest.”
Like unhoused people, protesters could be subject to fines of up to $10,000 for trespassing, especially if they continue to offend or are considered likely to reoffend.
“It definitely has an impact on protest rights and freedom of expression,” Sivaligam emphasised, “even if the legislation is being introduced as a way of dealing with unhoused encampments.”
This year, a number of pro-Palestinian encampments were erected on university and college campuses across the country to protest educational institutions’ investments in Isreal. At the University of Toronto, protesters remained in an encampment on campus for over 60 days before being ordered to leave by an Ontario Superior Court Justice.
Lack of housing the core issue, say advocates
In October, 13 Ontario city mayors asked Premier Doug Ford to use the notwithstanding clause to override the Ontario Superior Court decision that prevents them from dismantling encampments if local shelters are at capacity.
Harini Sivalingam said that while she empathises with communities that are struggling with encampments, Bill 242 – and the use of the notwithstanding clause – is not the solution to the problem.
“This is not the right approach to dealing with the homelessness crisis, which really is a housing problem,” Sivalingam said. “People living in encampments need a housing solution. You don’t actually solve the housing crisis long term by criminalizing people who have nowhere else to go.”
McNally said that over 10 years, she’s seen more diversity in people who are accessing her services – but it’s become more difficult to help them get access to housing.
“It’s increasingly common to see people you would never expect to end up on the street,” she said. “The largest group of people that I’m seeing now are people who are over the age of 70.”
“More I’m seeing young people who can’t find a job,” she continued. “The demographics have diversified so much that I don’t think people really realize just who’s ending up homeless.”
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