'Fantastic': Windsor’s mayor applauds premier for encampment response

Windsor Mayor Drew Dilkens has received the response he was after when he joined 11 of his peers across Ontario imploring Premier Doug Ford in an open letter to provide new supports to help address the growing number of encampments across the province and the issues that come with them — including the extraordinary step of using the notwithstanding clause if necessary.

On Thursday, Ford outlined he would be willing to pull the escape hatch lever, otherwise known as Section 33 of the Charter of Rights and Freedoms, to enact new legislative measures should courts stand in the way.

“Fantastic,” said Dilkens, in an interview with CTV News. “That's precisely what we asked for.”

Dilkens said new supports and tools are needed to address the complex web of issues surrounding encampments including homelessness, substance abuse, and mental health.

He argues, in addition to new legislative tools, the threat of the notwithstanding clause is necessary to counter a court ruling that requires municipalities to find appropriate accommodations for individuals before forcing eviction.

“I just think it’s so un-Canadian to leave people out in a tent when there is space available but, it’s also really unreasonable to think that we’re going to have the perfect accommodation for every person who’s in an encampment,” said Dilkens. “That doesn’t exist, that will never exist.”

The notwithstanding clause allows Parliament or provincial legislatures to temporarily override certain other sections.

In January 2023, Ontario Superior Court Justice Michael J. Valente rejected an application from the Region of Waterloo to evict residents of an encampment on Region-owned land, arguing they were in violation of a bylaw. Justice Valente denied that injunction on the basis individual rights to life, liberty, and security would be denied, as guaranteed by the Charter.

The Region of Waterloo subsequently announced it would not appeal the decision.

Valente’s ruling reads, in part:

If the available spaces are impractical for homeless individuals, either because the shelters do not accommodate couples, are unable to provide required services, impose rules that cannot be followed due to addictions, or cannot accommodate mental or physical disability, they are not low barrier and accessible to the individuals they are meant to serve.

Because the bylaw prohibits the erection of shelter protection that is necessary to protect homeless individuals from risk of serious harm, and there is currently inadequate shelter beds in the Region, I conclude that it violates the Charter protected right to life.

His verdict also references a case involving the City of Windsor.

The Region need not ordinarily establish inadequacy of damages or irreparable harm and the balance of convenience favours the granting of the injunctive relief because the Region is presumed to be acting in the best interests of the public and a breach of the law is considered to be irreparable harm to the public interest: see The Corporation of the City of Windsor v. Persons Unknown, 2022 ONSC 1168 at paras. 51-56 [City of Windsor].

Dilkens, who was called to the bar in 2012, believes it’s a ruling that went too far.

“If someone has a drug addiction, which is a large percentage of the people who are in encampments, if they have a drug addiction and they're not allowed to use drugs in the shelter system you can't force them to leave the encampment,” said Dilkens. “I mean, it's gone so far, the premier in his letter today said, ‘Enough is enough.’”

Mayors’ letter

Dilkens was joined by Chatham-Kent Mayor Darrin Canniff in signing the letter which asked for several measures to be enacted, in addition to the potential use of the notwithstanding clause.

Those included requesting the province become an intervenor in court cases dealing with encampment issues, strengthen existing mandatory community-based care supports, and to create a Drug and Diversion Court system.

While the Ontario Big City Mayors (OBCM) renewed its call for the province to step up to address the growing homelessness and mental health crisis at the time the letter was sent, it did not pass a resolution supporting the use of the notwithstanding clause.

OBCM Chair, Marianne Meed Ward, issued a statement today in response to the premier’s letter. In it, she commended the response on several issues and reiterated the body’s non-support of the use of the Charter escape clause.

“Specifically, we are pleased to see a commitment to additional funding for shelters, to transition people out of encampments; prioritizing treatment and rehabilitation over incarceration; prohibiting open drug use in public spaces; and joining court cases to advocate for the needs of Ontarians,” she wrote on X. “We also note the premier has said he does not expect legislation invoking the notwithstanding clause will be needed.”

Dilkens says open drug use has become a more prevalent problem in Windsor — without an acceptable solution.

“Now we have people doing crystal meth and fentanyl on our main street and the court system is not handling that appropriately,” said the mayor. “So, it's right for the province to step in; give police more tools to be able to deal with this very complex situation.”

The letter from the initial dozen mayors drew a response from 41 councillors across Ontario, including Chatham-Kent’s Alysson Storey, a Ward 6 councillor, decrying the call for the use of the notwithstanding clause over human rights concerns.

The list would grow to include Windsor’s Kieran McKenzie, the city councillor for Ward 9, and Chatham-Kent’s Michael Bondy, also a Ward 6 councillor.

New legislation

The new legislation is set to be tabled next week in the provincial legislature.

Premier Ford released his response to the open letter from the mayors on social media, outlining some of the measures that will be included in the bill.

• Greater service manager accountability and alignment with provincial and local priorities
• Additional funding to create more capacity in our shelter systems, supported by the new accountability measures to ensure these funds support dismantling encampments
• Explicitly and unequivocally prohibiting the use of illicit drugs in public, with new tools and authorities to help police enforce this prohibition
• Enhance penalties for people who deliberately and continually break the law
• New approaches to treatment and rehabilitation that prioritize pathways to recovery over incarceration in the cases of minor and non-violent drug-related crimes

“I think they sound reasonable on paper and I’m just happy that the premier is continuing to be in tune with the pressures that municipalities like ours are facing,” said Dilkens.

Ford’s letter also outlines $378 million in funding to create 19 new Homeless and Addiction Recovery Treatment (HART) Hubs.

The City of Windsor is looking to secure one of those 19 hubs and Dilkens expects an announcement within the first three months of the new year.