As calls from Ontario towns and cities grow louder for an urgent and coordinated plan to tackle homelessness encampments, Premier Doug Ford is toughening his rhetoric on the issue and hinting solutions could come through the courts, even as his attorney general admits a legal fight over the issue would be complicated.
The number of encampments in downtowns large and small across the province has grown in recent years, with mayors demanding solutions. Local leaders have asked the government to consider funds for more housing, mental health treatments and even legislative changes to force people in mental health crises to seek treatment.
Municipalities have found they have few tools to effectively remove tents and temporary homes set by people experiencing homelessness, and the Association of Municipalities of Ontario believes a total of 1,400 encampments were reported across Ontario in 2023.
The municipal association has been asking for the government to come to the table with a holistic solution to the issue — linking housing, mental health and addiction supports to the removal of temporary homes.
But the province appears to be leaning into quicker and more controversial tools, with Ford recently urging mayors to ask him to use the notwithstanding clause to pass legislation to deal with encampments and overrule any court ruling that found it unconstitutional.
The Waterloo ruling
At the beginning of last year, an Ontario judge denied a request by the Region of Waterloo to find around 50 people living in a Kitchener, Ont., encampment in violation of the area’s trespassing laws.
The judge denied the request and said evicting people under the bylaw would violate a constitutional precedent set by decisions in British Columbia that established a right for a person to shelter themselves if accessible indoor spaces aren’t available.
More than a year after the ruling blocked the southern Ontario municipality from laying trespassing charges, Ford referenced the decision and unexpectedly promised the province would get involved.
“The courts sided with the other folks when Waterloo brought them to court,” Ford said in September at an unrelated news event in Cobourg, Ont., where the municipality is similarly struggling to clear an encampment.
“We’re going to challenge that, we’re going to challenge that court case. Because you can’t have people setting up encampments in beautiful neighbourhoods.”
Ontario, however, appears to have limited standing — if any — to intervene in the ruling and help the municipality appeal the Waterloo ruling handed down at the beginning of the year.
Immediately after Ford made the comments, his office said the government was “looking at all options” available to it. At Queen’s Park, weeks later, Ford’s attorney general told Global News there was no way to do what the premier had promised and weigh into the ruling.
“As a court decision, it’s been decided,” Attorney General Doug Downey said.
“So, what we’re working on with Municipal Affairs is addressing the issues that are being expressed by the big city mayors and others. It’s not necessarily a court process that we’re looking at but we are trying to deal with the issue… We don’t have standing in that case.”
Asked if he could rule out all legal routes, Downey said he “never” speculates.
The Region of Waterloo also told Global News it was “not aware” of any attempts by the province to get involved in the decision.
Overriding the courts
As the legal routes considered by the province appeared to narrow — or disappear entirely — Ford laid a gauntlet down to mayors in Ontario frustrated by encampments: ask me to override the legal process.
“I have an idea, why don’t the big city mayors actually put in writing that they want the province to change the homeless program, make sure that we move the homeless along, and why don’t they put in (to) use the notwithstanding clause, or something like that,” Ford said at an unrelated event at the end of October.
“Let’s see if they have the backbone to do it — if they really want the homeless situation to improve.”
The notwithstanding clause allows the provincial government to override a court decision, even if the judiciary throws a law out as unconstitutional. Its use has been rare and controversial — the government most recently used, and then abandoned, the measure to end an education workers strike in 2022.
Despite the potential backlash, just two days after the premier made the suggestion, a group of 13 mayors sent him the letter he had requested.
The 29-member Big City Mayors’ Caucus had failed to reach consensus on a similar request but the mayors of several major cities — including Brampton, Guelph, Barrie and Windsor — all signed onto a request.
The letter asked the province to become an intervenor on any court case that could impact the ability to remove encampments, make it explicitly illegal in law to take drugs in public in the same way drinking alcohol in public is forbidden and change the Trespass Property Act to make it easier to jail people who repeatedly trespass, among other requests.
It is not yet clear what the province intends to do in light of the letter or how it plans to address the promises the premier has made at the podium.
Asked about Ford’s comments about the Waterloo ruling, his attorney general’s position the province cannot currently get involved and the notwithstanding clause request, the premier’s office said all options are on the table.
“The Waterloo ruling has limited the options available to all levels of government, both municipal and provincial,” a spokesperson said. “As a result, we are currently exploring every legal tool available to the province to clear encampments and restore public space and safety.”
Calls for a broader strategy
While 13 of the province’s 400-plus mayors have penned a letter to the premier asking him to bypass the courts and make it easier to quickly remove encampments, the group that represents most municipalities has a different request.
The Association of Municipalities of Ontario, along with the Big City Mayors’ caucus, has been asking for a root-cause strategy for homelessness that targets housing issues, mental health and addiction together.
For months, the group has advocated for the province to change course to look at the bigger picture. The request is one that asks the government to think about coordination as much as increasing funding that goes to towns and cities.
The association’s president, Westport, Ont., Mayor Robin Jones, said that powers to move people out of encampments without a broader plan will do little to solve the issue.
“Where do they get moved to?” she said.
“When I was a young girl, we had a boxer dog and boxer dogs have those little tails and she used to chase her tail and she never caught it. That’s how I feel — this is just one of these spirals. We’re going to move them from A to B but where is the support, where is the help?”