The Decibel - Doug Ford’s plan to dismantle homeless encampments

Episode Date: December 10, 2024

This week, the Ontario government will be tabling new legislation that promises to give police more powers to arrest people who refuse to leave their homeless encampments. And to avoid potential legal challenges, Premier Doug Ford is threatening to use the notwithstanding clause if he has to.Jeff Gray covers Ontario politics and he explains what prompted this response from the Ford government and the consequences of the province potentially using the notwithstanding clause in this way.Questions? Comments? Ideas? E-mail us at [e-mail]

Municipal leaders have been facing a very real crisis. Jeff Gray covers Ontario politics for The Globe. The number of encampments, the number of people suffering from opioid addiction, mental illness and homelessness, this really has become a front-of-mind problem, which has affected big, small, medium-sized communities across Ontario. Mayors from Ontario's 29 biggest municipalities met earlier this year to explore how to handle the growing number of homeless encampments. During that closed-door meeting, they discussed what they wanted from the provincial government. There's a long list of things, among them funding for shelters and all that sort of stuff, but also some enhanced powers

to help them go and break up encampments. And there was on the table the idea that if needed, the government should use the notwithstanding clause to suspend parts of the charter to allow this action to take place. In the end,

this group of mayors decided not to ask for this, which caused Ontario Premier Doug Ford to respond. Shortly after that, though, Doug Ford himself, when asked about the encampments problem, said that

mayors should get some backbone, his phrase, and ask me to use the notwithstanding clause. And with that prompting, a small group of 12 Ontario mayors from mid-sized and smaller cities broke away from the bigger group's decision and sent Doug Ford a letter. These 12 mayors and a few others signed on after put those demands to him again, asking him to do a list of things to allow them to crack down on encampments and to be willing to use the notwithstanding clause. And now, Doug Ford has responded.

Jeff Gray is on the show to explain what the Premier of Ontario is promising to do about these encampments, the challenges of removing them, and how the controversial Not Withstanding Clause factors into it all. I'm Mainika Raman-Wilms, and this is The Decibel from The Globe and Mail. Jeff, thanks for being here. Thanks for having me. Let's just start by getting a sense of the issue that's really at the center of this situation, homelessness encampments. How do mayors in Ontario describe this problem?

Well, I mean, there's different language used across the province. need help, but they also get calls and they are responding to calls from people who don't like seeing tents in parks where kids are supposed to be playing and don't like the possibility of finding drug paraphernalia, sort of antisocial behavior, all these kinds of things in encampments. And I mean, the encampments go back now a number of years, but now we have these encampments and a growing crisis that is really linked with the opioid crisis and with the housing crisis when we have encampments in many, many big and small communities across the province. Do we have a sense of scale? How many encampments are we talking about? So the number that we've been using is a number from the Association of

Municipalities of Ontario, which says there's 1,400 encampments across the province. But the definition of an encampment could be a few tenths. It could be 100 tenths. So not all of Ontario's mayors, of course, see the problem in the same way as the 12 who wrote the letter that Premier Doug Ford is responding to. I think it's important to note that Toronto, Ottawa and Mississauga, their mayors didn't sign the letter. Those are the three biggest cities in the province. So, Jeff, what does it tell you that Ontario's biggest cities don't want to take the same approach? Yeah, I mean, that meeting that they had, they had a meeting behind closed doors.

And this is the leaders of the 29 biggest cities in the province. And they were there was a resolution on the table, which was we want to do a number of different things. I mean, there was also calls for more funding for mental health treatment, addiction treatment, shelter, supportive housing, all that stuff. But there was also calls for tightening the laws around trespassing and other things that would give police and local authorities more power to remove encampments. They have had some legal problems with charter challenges in actually going in and taking people out of parks. And so they wanted some more muscle to allow them to do that. And they wanted it explicitly stated that or the resolution that was put forward. It talked about using the notwithstanding clause so that if there was a court challenge, they could supersede that. So that meeting went on for hours and hours and hours. The press conference that was supposed to happen after with the mayors got delayed. And when they emerged, they had agreed only on the list of measures that they wanted, but they did not agree to call for the use of the notwithstanding

clause. So clearly mayors in that meeting, most of them, a majority of them, were not comfortable with the idea that we need to suspend constitutional rights in order to deal with this problem. It's only after that that these mayors who clearly have different point of view put out their letter asking the premier to do just that. Okay. So Jeff, as you're saying here, it's basically, it's a minority of big city mayors that have requested this, that have asked the province for more help. So then what did Doug Ford say in response? Then in his letter just last week, he said, I am going to bring forward legislation that will have enhanced powers, but he did not say he was going to use the notwithstanding clause preemptively. He said if it gets challenged in the courts, I will not be afraid of using the notwithstanding clause. OK. And to be clear, as you just mentioned, we're still waiting for that legislation to be tabled later this week.

So that's when we'll actually see specifics. But what do we expect that legislation to include? Again, we don't have all the details of what will be in there, but he talks about one thing. And these are all most of these are things that the mayor's also spelled out in their letter. So one of them is they want a law against public drug use. So one of the problems was with, you know, we've been back and forth on legalization of drugs and so on, is that there are laws in the books about drinking in public, right? Drinking alcohol. But there are no laws on the books about public drug use because drugs were illegal. So you didn't need a law about using

them because they were legal. So your possession was the only thing you needed to worry about. So in that context, the mayors and the premiers we're going to we're going to have a law that explicitly bans the use of drugs in public and also the idea that you could have jail time and arrest someone uh for repetitive trespass after police have told them to leave an area and if they come back okay so simply you know police told you to get out and you've come back that That is repetitive trespass. Yeah, I mean, this is a new thing that's been spelled out by the mayors they've asked for. So that would, I guess the idea behind that is that would assist in the clearing of encampments. and shelter programs, but the funding is promised with the word accountability, that there'll be some sort of strings attached that the new money has to go towards,

quote, dismantling encampments. Both letters also talk about new approaches to treatment and rehabilitation that prioritize pathways to recovery over incarceration. But the mayors had actually asked for a review of mandatory treatment. But reading the premier's letter, I don't see that in there. So we'll have to wait until Thursday to see what we're dealing with. Interesting. Okay. Jeff, can we talk about the legality of this? We've been talking about the trespassing part specifically there. I guess I'm wondering, what are the rules around camping in public spaces? So the rules on paper are you can't camp in a city park. But a number of court rulings decided that if you kick people with

nowhere else to go, homeless people, out of tents in a park, you are violating their charter rights to life, liberty, and security of the person. And there's been court cases in BC, Waterloo region here in Ontario, Hamilton, and Kingston, where local governments were seeking an injunction. They'd already told everyone to get out. They'd issued eviction notices from the park. And then they had sought a court injunction and were told that you can't do that because there's no accessible shelter space for these people to go. So things get complicated there. There's the number of shelter spaces you have, but then there's also this issue

of many of the people in encampments, some of them have been thrown out of existing shelters. Some of them are reluctant to go into them because they got attacked or they can be unpleasant places. And so, of course, they have a dog or something. A dog. They don't want to be split up from a partner. In COVID, we had the whole problem with worried about getting COVID. And of course, shelter systems had to expand into hotels and all sorts of things in that time. So what the courts essentially are saying in these rulings is you can remove people from a park, but you've got to give them a place to go. We'll be back in a minute. So Jeff, we've mentioned the notwithstanding clause here. I think it's worth just to kind of dig into this for a little bit and just remind ourselves what this is.

So, yeah, what is the notwithstanding clause again and what exactly happens when it's invoked? sort of compromise when the Constitution was repatriated in 1982 that allows governments to override courts when a court tells them that they have violated the charter, certain sections of the charter, not all of it. So basically, it kind of temporarily allows them to violate the charter. Yes. And that temporary is a key point. You have to, the legislature has to reaffirm the use of the Namaste clause every five years. So if you do it.

So it was designed, most experts agree, as a thing that would be used very rarely. And that normally you would, governments would heed courts when they were told that they had brought in a law that violated, you know, free press, free expression, freedom of assembly, freedom from arbitrary detention. So, and now there are two ways you can use the notwithstanding clause. You can move legislation that you're pretty sure is going to run afoul of a court challenge. So you just put the notwithstanding clause in at the get-go, or you wait till a court challenges and you lose a court battle over the legislation, and then you could bring it back with the notwithstanding clause in there. You could also, as often is the case, rewrite the legislation to heed what the court has told you and still achieve your goals,

but without tripping over constitutional rights. And in this situation, Ford said he's not going to use it off the bat. Is that right? That's right. Yeah. At least in his letter, he said that he'll move this legislation on Thursday. And if there are court challenges of his phrase, if the court interferes with us, then he's not ruling out using Section 33. So this is an interesting point that you just brought up from his letter, this use of this word interfere. Let me just read that section of the letter here, Jeff,

because I think this is important to address. So Ford's letter says, quote, Should the courts interfere with our shared goal of effectively addressing and clearing out encampments using these enhanced tools, with your support, our government is fully prepared to use the notwithstanding clause, end quote. So let's talk about that word interfere here. What does that mean? Well, with the notwithstanding clause,

I mean, you're dealing with the tension between these two branches of government, the courts and parliament. So the premier has made it very clear that he thinks in past incidents that he thinks parliament should be the boss and i mean that is true and that parliament makes the laws and it's up to the courts to interpret them but he's not shy about using the notwithstanding class he's the only ontario premier ever to invoke it And he's used it in the after he was elected in 2018,

when he, in the middle of Toronto's, and you'll remember that the premier was a city councillor in Toronto when his late brother was mayor. He decided that Toronto had too many city councillors and he decided that he would cut the number of them almost in half. And so he was elected in June. This was happening in July. They were in the middle of an election for the 44-member council. He decided to cut that down and a court ruled against him initially, a lower court, and the premier said that he would use

the notwithstanding clause to get his way. In the end, he did not have to go through with it because the Court of Appeal, in a preliminary ruling, kind of sided with the premier and then eventually did rule the Ontario government authority to do what it did to Toronto's council. The time that Doug Ford actually fully used the Notwithstanding Clause and it went into legislation that passed, got royal assent and took effect. Was when a court had in a long standing battle over the political advertising rules for what are known as third parties.

So non-political parties, unions and corporations and advocacy groups. A court had struck down Ontario's rules that limited how much money you could spend and when during an election and before an election. So the premier brought in his own rules and used the notwithstanding clause to make sure they took effect before the 2022 election. The other time, which was really made a lot of headlines was when he preemptively decided that an education union

shouldn't have the right to strike and should have a contract imposed on it. And that caused the labor movement, including unions that had been supportive of the premier to jump up and push back against that. And he withdrew that one. Okay. So this is kind of the latest then in a string of situations where he's considered at least the notwithstanding clause. You said, Jeff, that there's certainly the reluctance to use it isn't there. And Quebec, for a long time, used it in every bill they passed. And in fact, the premier of Quebec just the other day talked about maybe he needs to use it to stop people from praying in public. Comments that were aimed at the Muslim community in Quebec. So it's certainly the reluctance to use it that the people who drafted the Constitution seem to have had, seems to be fading.

Yeah. What does that tell you? That maybe that what was the standard is kind of, you know, slowly slipping away here. Well, it was always sort of a weird compromise. The idea, I think, when you try and explain the notwithstanding clause and you say, well, the Constitution guarantees all these rights, except if you say the magic notwithstanding word and then you don't have to. A lot of people wonder what's the point of a Constitution. And I think there are lots of people at the time who made that argument too. But it is this awkward compromise between the ideal of parliamentary supremacy that the people we elect,

they should be in charge, not judges and courts. The system is sort of set up to put a balance of powers, division of powers. That's the idea, to keep one from being all powerful. And so there has to be a check on governments.

At the moment, I think we're just in this period of flux where we have governments like Ontario's that, you know, the premier slogan, get it done, not a big fan of procedures, courts, rules, restraints. He wants to go out there and quote, get it done. So if court's getting his way, he has this tool. He's called it a tool at his disposal. I think for the sort of established tradition in the country is that this is not a tool you'll pull out of the drawer unless it's really an emergency. Yeah. Jeff, let's come back to the issue at hand here. So Ford wants these homeless encampments gone. Where does his government want people living in them to go? We talked a little bit about kind of the shelter issue before. What's the plan here? but sort of subcontracts a lot of this stuff, particularly in homelessness, to municipalities and other agencies. And the province has put more money into homelessness

in the last few years. So the budget for shelters and that kind of thing is over $700 million a year, although in the last year or two, they've reduced the amount of money for social housing but addressing the sort of acute crisis on the streets they have found themselves caught in a battle over supervised injection sites so they the premier has said many times that he hates them uh i mean many many experts and and people in harm reduction and so on say that they're necessary to keep people who are addicted to drugs alive so that in the hopes that you could maybe get them into treatment. But this was something Ontario just did at the end of November, right?

Tabled a bill that basically cut the number of those sites. They had capped them for a long time at whatever. I think it was 25 of them or thereabouts. Their recent changes now, we'll see a bunch of them close. The reason being that they're within 200 meters of a daycare or a school. The writing is on the wall for the other ones, I think. And they also, they don't want any new ones applied for. They don't want anybody, any health agencies applying to get ottawa to approve um and fund

these kinds of things so they've they've instead come up with this thing they call a heart hub homelessness and addiction recovery treatment hubs that uh are a new concept that don't have uh supervised consumption sites but instead are meant meant to get people into addiction and mental health treatment. Okay, so this idea of these heart hubs, though, this is kind of part of the proposed solution. Yes. And so there'll be new beds, you know, but critics say, it's not enough. The government has faced a lot of criticism from people in that world, who say that if you reduce access or cut off completely, the ability of these people in that world who say that if you reduce access or cut off completely the ability of these people in this population to go and do drugs in a supervised consumption site,

you are going to have people overdosing in alleyways without a nurse there, without naloxone to revive them, and you're going to have more overdose deaths. What does the political opposition in Ontario say? We've talked a lot about the Ford government's strategy here, but what do his opponents say about this? Essentially, this government has done nothing for six years and should have put lots more money into housing and homelessness long ago. What Doug Ford is proposing is a heavy-handed approach, which I

think, you know, at the end of the day, if you don't have places for people to go, you can't arrest your way out of this crisis. There has to be a plan. Otherwise, you're moving the problem from one location to a different location. So I want to better understand what the plan is. Both opposition parties, I mean, they're not interested in enhanced police powers or using an outstanding clause to clear encampments. But on the other hand, they both do say that we don't want people sleeping in parks. Nobody wants that. Yeah. So just lastly here, Jeff, I mean, like you're saying, solving homelessness is undoubtedly a difficult task and governments at all levels are really struggling to to make substantial progress here. But I guess what does it say about Doug Ford's approach that he's really focused on police powers and and possibly suspending people's rights?

Yeah, I mean, part of it is that we are in this weird possible pre early election phase sometime in 2025. We're going to have an election in Ontario, possibly. We're not supposed to have one until June 2026. But there's lots of indications that we will go to one early. So he has been focusing on some of these hot button issues. I mean, obviously, the government sees this as an issue that it needs to tackle and needs to be seen to be tackled. Jeff, thank you so much for taking the time to be here. Thanks for having me. That's it for today.

I'm Mainika Raman-Wellms. Our producers are Madeline White, Michal Stein, and Allie Graham. David Crosby edits the show. Adrian Chung is our senior producer, and Matt Frainer is our managing editor. Thanks so much for listening, and I'll talk to you tomorrow.