2 weeks Ago By Adam Zivo
Poverty activists are condemning Doug Ford’s Ontario government for threatening to use the Canadian Charter of Rights and Freedoms’ notwithstanding clause to clear homeless encampments. Invoking the clause, however, is an entirely justifiable response to a recent, precedent-setting Superior Court ruling that used shaky logic to grant encampments borderline-immunity from public accountability. In 2022, the Region of Waterloo applied for an injunction that, if granted, would have allowed the municipality to clear a notorious homeless encampment containing approximately 50 residents.
Neighbours had complained that the encampment was a hub for drug use, violence and filth (i.e. feces and discarded drug paraphernalia), despite the municipality spending $80,000 per month servicing the site with security guards and janitorial services.
But the Ontario Superior Court ruled against the municipality in January 2023, after the case’s presiding judge, Justice Michael J. Valente, determined that there were too few shelter spaces to absorb displaced residents. As these residents ostensibly had nowhere else to go, the judge accepted the argument that clearing the encampment would violate their Section 7 Charter rights (“the right to life, liberty and security of the person”).
While the Charter does not specifically protect homeless encampments, a 2008 B.C. Supreme Court ruling (“ Victoria vs Adams ”) interpreted Section 7 as granting homeless people a “right to shelter.
” The underlying rationale was that, without basic shelter, individuals risk being exposed to life-threatening conditions that deprive them of dignity and the ability to protect themselves. As such, the ruling barred the City of Victoria from clearing encampments until enough shelter spaces existed to provide alternative accommodations. Since then, the B.
C. Supreme Court has repeatedly affirmed and expanded this right , along with the requirement for shelter beds. While this jurisprudence is not binding upon other provinces, it has nonetheless informed legal debate in Ontario.
When the City of Hamilton moved to clear an encampment in 2021, for example, several residents attempted to avoid eviction by suing the city on the basis of their Section 7 rights. Their case ultimately failed when the judge determined that adequate shelter space existed. But this Charter challenge succeeded against the Region of Waterloo and, in doing so, established the first case in Ontario where an encampment eviction was blocked on Section 7 grounds.
On the surface, this might seem like a good thing. Surely, it is reasonable that displaced people be guaranteed a place to go, but the details of the case are far more contentious than casual observers may realize. The Region of Waterloo made enormous efforts to ensure that, were an eviction to occur, it would be done as humanely as possible.
In the early summer of 2022, two municipal case workers visited the encampment 18 times over six weeks, cumulatively speaking with 38 residents. Four service fairs were held at a nearby YWCA, just a 15-minute walk away from the encampment, where residents could be connected to housing services. Later that summer, the municipality also approved several measures expanding shelter capacity.
The Region of Waterloo was confident that it could clear the encampment because, by its own estimation, there were more than enough shelter spaces to absorb displaced residents — as high as 85 spaces for these 50 individuals. Justice Valente disagreed, though, and found that many of these spaces were inaccessible. In some cases, his criticisms were understandable: some beds were reserved for youth or families, or were already allotted to other users.
However, he also claimed that many shelter spaces were inaccessible because they were “abstinence-based” and did not permit on-site drug use. This was unreasonable. It is hard to argue that unfettered drug use should be allowed in homeless shelters, especially because these spaces are already plagued with safety issues that scare potential users away.
Prohibition is a reasonable measure to keep users, and staff, safe. There was no strong evidence in Justice Valente’s ruling justifying his position that shelters must permit drug use to be truly accessible. The judge predominantly relied on the opinions of Dr.
Andrea Sereda, a controversial harm reduction activist who testified that encampments are often preferable to shelters. Sereda cited a 2020 study, entitled “Focus on Safe Supply,” which interviewed just 43 homeless drug users and found that 91 per cent of them “indicated that permitting substance use on site in shelters is essential or important.” But anyone who works in addiction, or has had a loved one struggle with drug abuse, knows that addicts are, generally-speaking, expert manipulators who will say anything needed to access drugs.
With this in mind, it is unclear why Justice Valente did not treat this data, which was low quality to begin with, more skeptically. While it is true that addicts would like homeless shelters to function like drug dens, that does not entail that they have a human right to this kind of space. Preferences and rights are not interchangeable: you are not entitled to something simply because you want it.
Numerous hints throughout the ruling suggested that the encampment residents (of whom an estimated 95 per cent were addicts) could have accessed local shelters but voluntarily chose not to because they prioritized drug use. Of the four residents who provided court depositions, one said that he preferred living in the encampment because it was near a supervised injection site, where he could get drug paraphernalia. Another testified that, as a drug user, he “found it difficult to be around other people in the shelter who were very judgemental.
” Rather than interrogate these matters, Justice Valente’s analysis was consistently credulous and impractical, even when addiction was not the primary focus of discussion. The judge claimed, for example, that “adequate safe alternatives to sleeping in encampments” were unavailable because the Region of Waterloo only had enough shelter beds for 50 per cent of its total homeless population. Yet it is obvious that not every homeless person is interested in using shelters, as demonstrated by the fact that some excess shelter capacity already existed.
The shortfall identified by the judge was thus grossly exaggerated, and his proposed remedy (a shelter space for every single homeless person) would have almost certainly created a large number of unused beds. In one revealing paragraph, the judge wrote that, even if the municipality could demonstrate that it had enough beds for displaced residents, he still would not permit an eviction because doing so would fail to address the needs of other homeless individuals in the region. He expressed concern that, were the municipality to use his ruling to evict other encampments, this could disadvantage other homeless populations by denying them shelter space that would be used up by displaced individuals.
While Justice Valente’s concerns may be laudable, it is not his place to meddle so deeply into the municipality’s homelessness and addiction policies, which should rightfully fall under the domain of local councillors and provincial parliamentarians. Encampment evictions should not be used as a bargaining chip so that an unelected judge can push for broad or contentious reforms (i.e.
expanding drug use in shelters) without public consent. The notwithstanding clause, or Section 33 of Charter, is meant to be used as a democratic backstop against judicial overreach. Given the specifics of the Region of Waterloo case, and the concerning precedent it created, Ford’s threats to use the clause to protect future evictions is appropriate.
National Post.
