When Judges Become Social Engineers

When judges become social engineers, democracy starts to wobble.

Gavin and Stephen examine the Waterloo homeless encampment decision as a major example of courts moving beyond traditional Charter review and into the realm of public policy design. 

What began as a dispute over a municipal bylaw and a public parking lot becomes, in their view, a much larger warning about judicially engineered social outcomes, the constitutionalization of housing policy, the weakening of elected municipal authority, and the possibility that governments may increasingly respond with tools like the notwithstanding clause.

Listen For:

00:00 Is housing now a protected Charter right in Canada?

7:15 Why did Waterloo lose the ability to clear a homeless encampment?

13:11 Could this decision create new constitutional rights around housing and income?

19:27 Are courts replacing elected governments in homelessness policy?

30:41 Could the notwithstanding clause become the next battleground?

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Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Stephen Thiele (00:00):
You'd be shocked by the comments or the findings of this court. Basically, the judge finds that housing is a protected right. And that's the first time I have ever seen that in Canadian law and that that's a protected Charter right.

Gavin Tighe (00:39):
Hello and welcome to the next episode of Beneath the Law. Gavin Tighe here with Stephen Thiele. Stephen, how are you doing?

Stephen Thiele (00:46):
Oh, I'm so so. I'm a little bit under the weather, my friend Gavin, what can I tell you?

Gavin Tighe (00:53):
That's just because you're back in the land of perpetual winter from the sunny climes of other far more exotic destinations. Good for you though.

Stephen Thiele (01:05):
Well, it was good to get away but still had to do some work and that's just the way that life is. But I was in a sunnier location and enjoying a hobby and visiting a wonderful, wonderful couple of museums where Gavin, one of these museum owners found $450 million in treasure coins. So I'd like to be going back there soon.

Gavin Tighe (01:32):
Yeah. Well, that sounds like a pretty good day. So I guess this fellow is not sleeping in a tent.

Stephen Thiele (01:40):
No. Well, that fellow is dead, but he's definitely not sleeping in a tent and I actually didn't see any tents, but I think we will be talking about tents.

Gavin Tighe (01:51):
That's always amazed me when we talk about tents. You have to wonder, I got to tell you, and listen, there's no doubt that homelessness is a terrible affliction, but if you had to be homeless, I don't know that I'd pick Canada. Got to tell you, I can think of a lot of tropical beaches that would just be really great to lie out on. But hey, maybe that's just me that a cold street corner, Portage and Main in Winnipeg would not be my choice.

Stephen Thiele (02:26):
Well, I don't know, Gavin. I guess maybe the laws are different in some other countries that if you pitched a tent and started living in it, somebody might do something, i.e. the police and they might remove you from your temporary abode.

Gavin Tighe (02:43):
Yeah. I have to say, look, we're really becoming the old geezers of the internet on this podcast, but look, there've always been, bad thing to call it, hobos or bums or whatever you want to call it. Whatever generation has their name for people who are down on their luck. But I have to say that it's become an absolute epidemic in urban centres across Ontario. It's beyond comprehension. I don't know if that's a... I mean, many people will point fingers all over the place, but I can't recall a time where there have been more social safety net sort of handouts by government for all sorts of outreach programs. If you name it, programs that did not exist 30, 40 years ago and yet homelessness and people living on the streets is at, certainly from an anecdotal perspective, an all time high to the point where it's mind boggling to me how many people are literally living on our streets.

(03:55):
 It makes no sense when we supposedly have this great system that protects them, certainly more than it did 30 years ago.

Stephen Thiele (04:02):
Well, look, it makes no sense, Gavin, given the size of Canada, one, and we have a significant social safety net. I mean, and we don't have the density. We're not a country with billions of people where you see shanty towns.

Gavin Tighe (04:23):
Well, you do now.

(04:27):
 You're seeing shanty towns within cities, but I mean, they seem to be... I mean, the only thing I can think of, and I'm certainly not pretending to be a social scientist, although as we're going to talk about in this podcast, it seems that law school qualifies one to be a social scientist. But in any event, the only thing I can think of is drugs that we've seen a complete evolution, a devolution in drugs from what they were 30, 40 years ago to what they are today. Fentanyl, basically synthetic heroin, has become so prolific on the streets and various derivations of it with meth and all sorts of other lovely cocktail ingredients that have just destroyed people's lives to the point where I guess that is their existence, is just living from, frankly, one fix to the next.

Stephen Thiele (05:41):
Well, and it's a very addictive drug. It's not like the classic, I guess, heroin or cocaine that people were addicted to in the past, but...

Gavin Tighe (05:49):
I don't think it's cocaine. I think it's fake heroin. I think it's fentanyl, which wasn't around 30 years ago. It is around now. Anyways, what we see is frankly a blight on urban centres all across Ontario for sure. I mean, you see it in California, certainly it's very, very significant there. I was in New York City recently. I did not see a significant amount of homelessness. There's certainly nothing relative to the size of Toronto. One would've thought if it were directly an issue that you'd see that amount, but you didn't really see that as opposed to Toronto, which is frankly, downtown core is at the point of being almost overrun in certain places with homeless people. And we're going to talk about a case today that came out just last week out of the Regional Municipality of Waterloo. And I've been down in various centres in Southwestern Ontario, London, Kitchener, Waterloo, Windsor, and there's a significant homeless problem in that part of the province.

Stephen Thiele (07:01):
Yeah. And quite frankly, Gavin, I don't understand that. That's not where I would be heading if I were a homeless person, but it could be the drug. I don't know.

Gavin Tighe (07:15):
Maybe this case explains it because what we saw and what happened for many people who've been following the news cycle was the most recent case out of Waterloo was an order from Superior Court that basically prohibited the city from clearing out a homeless encampment, which has been on this site for five, six years at a minimum, maybe longer.

Stephen Thiele (07:46):
At least five years.

Gavin Tighe (07:47):
Which is a public parking lot. So a public parking lot has been completely taken over in the city of, I guess it's Kitchener in the District Regional Municipality of Waterloo. And the city has been basically rendered powerless to clear it out.

Stephen Thiele (08:08):
Yeah. They've been in court battles, I guess, for the last three or four years with a couple of different bylaws. We actually may have spoken about the original decision. We certainly blogged about it three years ago where the judge issued an injunction on the general bylaw and then Waterloo or the Region of Waterloo went back and created a site specific bylaw for this gravel parking lot. And that's gone to court now. And as you said, a decision came out and in a nutshell, the court found that the site specific bylaw was unconstitutional. So I'm not sure what the Region of Waterloo is going to do there.

Gavin Tighe (08:56):
Well, I mean, it struck me as odd from a legal perspective that the way this progressed originally was that the regional municipality, I have to be clear, it's a regional government, it's the city governments and the regional government, but the regional government actually went to court for an order to say, I guess, the blessing of the court on the constitutionality of its bylaw and ended up with an injunction against itself that it couldn't enforce its bylaw. That's a remarkable turn of phrase that you go to court and end up with an injunction against you. It's not someone else seeking that injunction. It's that you're the one who started the court proceedings. How do you explain that?

Stephen Thiele (09:47):
I don't understand procedurally what the lawyers for the Region of Waterloo are doing. I would've rather been in a respondent position rather than being an applicant, but maybe the history of this entire case is such that the government lawyers or the regional lawyers decided that they would actually test their bylaw and they lost. And it's a little bit incomprehensible to me given that they're the applicant, that they appeared not to have enough evidence because I really find, Gavin, that this case turned on expert sociological kind of evidence about homelessness and that the bylaw couldn't pass the test that these experts basically came up with or with respect to their evidence of the impacts of homelessness, et cetera, and how many bed spaces were available and not available and that that really impacted the judge's reasons and he struck down this bylaw as being unconstitutional, even though it wasn't passed in bad faith.

Gavin Tighe (11:09):
Yeah. I mean, I think the case really to me marks the latest, the high watermark of social engineering by the courts to basically overrule the duly elected democratic government, in this case, the municipal government, from implementing what are effectively municipal bylaws. I mean, I would've thought that a pretty simple municipal bylaw would be... If I can't leave my car in the parking lot indefinitely without paying, I would assume that if I put a tent in the parking lot, I can't either. My car, I can't leave my car there. So in other words, I can't use the property for my own purposes that doesn't belong to me. That seems to me a pretty basic proposition of any property owner, including a municipality. And it would seem a pretty basic proposition that a city can enforce its own bylaws in the sense that if my car overholds in the parking spot, they can tow it.

(12:22):
 And so I don't know, here we have people who were squatting, for lack of a better word, in the parking lot for years and the city has basically been left, too bad. They basically have a constitutional right, constitutionally protected right, to camp in the parking lot. I mean, I think it's a remarkable proposition when we think about the evolution of the law. And it is an evolution. These cases started out in British Columbia, the Abbotsford case. And what began as a narrow constitutional protection against freezing to death outdoors has evolved into courts increasingly supervising homelessness policy itself. And I think the Waterloo decision is one of the clearest examples of that shift.

Stephen Thiele (13:11):
Well, look, I think certainly if you're a conservative, you'd be shocked by the comments or the findings of this court. Basically, the judge finds that housing is a protected right. And that's the first time I have ever seen that in Canadian law and that that's a protected Charter right. So are we now heading down some kind of slippery slope of what courts are going to find in other cases in terms of what are protected rights under either Section 7 or Section 15 of the Charter? Is guaranteed income now a Charter right?

Gavin Tighe (14:01):
Maybe. I mean, I think what the case does is it moves Canada away from equality before the law toward differentiated constant treatment based on socioeconomic status. And that socioeconomic status is not a class of differentiation which was constitutionally protected before like race, religion. The rights based upon your economic position were not, I would've thought, protected. Apparently there's a new theory that they are, that Section 15 protects them.

Stephen Thiele (14:40):
Well, that's certainly what the judge finds. I guess the Supreme Court of Canada has been making certain decisions and there's a recent one, Kanyinda, I guess it's what it's called, where the judge relies on that. Although I find that case to be completely distinguishable because that was discrimination based on gender. This case is not discrimination based on gender.

Gavin Tighe (15:12):
Although that was part of the analysis, was that there was a failure to consult with what were apparently considered to be affected groups. I think there were Indigenous groups, LGBTQ groups. The reasoning was they were overrepresented in the homeless population, therefore you had a duty to consult with those groups before passing any law. Isn't that part of the analysis?

Stephen Thiele (15:43):
That is part of the analysis, but what I find remarkable is who do you consult with if you're dealing with...

Gavin Tighe (15:51):
The title of proceedings is against “persons unknown.” How do you consult with people you don't know who they are?

Stephen Thiele (15:57):
So are they supposed to consult with social agencies or...

Gavin Tighe (16:02):
Advocacy...

Stephen Thiele (16:03):
Groups? Those groups?

Gavin Tighe (16:05):
Exactly. So I think it's important for us, let's just sort of take a step back. I just want to... I mean, the evolution of where we are now from where we started really started I think with a case called Victoria v. Adams back in 2008, which was originally a British Columbia case. It was, relatively speaking compared to the most recent decision, quite restrained. And what the court started out there was to say if there aren't enough shelter beds, homeless people have a Charter right to erect temporary overnight shelter. That's very different than an encampment. It's to sort of say, “Well, if it's minus 10 and you don't have a place for me to sleep, I have a right to wake up in the morning and to survive the night and to put up a tent to do it.” And it was framed as a basic survival issue, not a constitutional right to occupy public land indefinitely.

Gavin Tighe (17:02):
Then we had the Abbotsford and the later BC cases, which the courts gradually expanded the doctrine, and judges started looking not just at shelter numbers, but whether shelters were practically accessible or appropriate, whatever that means. I don't know exactly what that means, just to say whether or not it was preferable to homeless people to stay in their tents or whether they preferred to go into the shelters. And there was all sorts of evidence, “Oh, well, people steal my stuff. I'm in the shelter. I don't want to go there.” Pausing parenthetically, that if my admittedly uneducated and unresearched thesis is correct that drug addicts tend to be overrepresented in these shelters, one of the things I think that happens in, or rather in these encampments, one of the things that happens in shelters is that they take your drugs away and you can't use when you're in the shelter.

(18:00):
 Of course, when you're in your tent and the encampment, you're free to do whatever you like. So I mean, looking at this from the perspective of a drug addict, what do I prefer? Do I prefer a setting where I'm free to use my drug to which I'm addicted and basically is my life, or do I go into a shelter bed where I can't? I mean, I think ultimately that's probably, again, my uneducated, unresearched, but I think common sense perspective would be that's probably why, if I had the choice, and I'm not saying people have choices, that's part of the thing is that they didn't have a choice, but one can see why one would prefer one over the other. Then we have the Waterloo decision in 2023 and what that was, was the court scrutinized municipal decision making in detail. The judge looked at addiction issues, disabilities, trauma, shelter suitability, and the practical consequences of being evicted from the encampment.

(19:03):
 And at that point, the court's really no longer simply enforcing negative rights in the sense that you have a right not to die overnight because of the cold. They started to really get into the shaping of public administration policy. I think the latest chapter in that now is really about how far should the courts go.

Stephen Thiele (19:27):
No, I don't think the court should actually be involved in public policy making, but this decision certainly suggests that. It's an 88 page decision, Gavin. And I got to tell you from a research lawyer perspective, how many cases did the judge actually cite and rely upon? Less than five? Yeah. No, but it really...

Gavin Tighe (19:50):
No, but it's experts. We have the dictatorship of the expert.

Stephen Thiele (19:57):
It reads like an essay.

Gavin Tighe (19:59):
No, the experts that were called in these Section 7 cases, we do have the bike lane case here in Toronto, which has been argued in front of the Court of Appeal, but a decision is reserved. I do think the bike lane case may give us some guidance on where the appeal courts see this going, but at this point... And look, I want to be fair here. I mean, we both have views on this. I agree and my own personal viewpoint is courts are not social policy makers. That's why we vote governments in. That's what a democracy is about, when we don't elect our judges. Judges are there as a bit of a check and a balance on government in regard to the Charter, but they're not there to replace government. And I think that courts are responding to what they perceive to be real human suffering.

(20:56):
 And no judge wants a situation where people are forced into life threatening conditions and they will say that the courts have stepped in because the government's failed to solve the problem, but sympathy does not eliminate constitutional limits on judicial power, in my view. And I think if we're not butting up against them, we're pretty much over them.

Stephen Thiele (21:19):
Well, again, Gavin, when you read what the judge says about the temporary encampment, it's not a great place in terms of this particular encampment that's spanned...

Gavin Tighe (21:35):
Over five years. These...

Stephen Thiele (21:36):
Are horrible places. There's been deaths, physical violence, the use of drugs and basically grants an injunction to keep the encampment in place. It's filthy. There's rat droppings or mouse droppings, there's urine, there's feces, there's all kinds of things. No, this is disgusting. So how are you helping these people? And quite frankly, there's a potential health issue within the vicinity of that encampment.

Gavin Tighe (22:11):
Yeah. I mean, I think that from a legal perspective, many people have different views on homelessness and the causes and its remedies, but I think from my perspective, it's really the democratic concern here is not who is more compassionate. It's really what is the institutional role of the court? What is the institutional role of the democratically elected government? And I mean, the judge even talked about this, but are the courts getting into the institutional role of the government? Are they getting in their lane, to quote the judge? And I think they are.

Stephen Thiele (22:57):
I think he's definitely crossed into a different lane.

Gavin Tighe (23:00):
I mean, remember, one of the things that governments deal with when they're talking about resolving social problems like homelessness, or addressing them, I know it's resolving. I mean, these are band aid solutions. Homeless shelters aren't resolving homelessness. I mean, they're band aids that get you through the night. They're not solutions that change lives, I wouldn't think. But governments have to deal with a whole series of issues. Who's going to pay for it? Where's it going to go? How are we going to implement these policies and what is our budget to do it? I mean, it's easy for a court to say, “No, you shall provide these spots.” But without any consideration of how are they supposed to do it, who's going to pay for it?

Stephen Thiele (23:49):
Well, and in that regard, if you look at the statistics that are quoted in the decision, the Region of Waterloo more than doubled its spending on trying to accommodate people who are homeless. They have unsheltered support workers who are trying to work with people who are homeless who may have various kinds of disabilities, whether it's an addiction disability or mental health disability. The Region has been spending a lot of money. And with respect to this particular site, they're nearly spending a million dollars.

Gavin Tighe (24:33):
No, but with no success, because what the statistics that were put forward in the hearing is that despite the fact that they've doubled their spending, they've also doubled the number of homeless people. So if the purpose of the spending is to theoretically reduce homelessness, it ain't working. This throwing more money at these kind of problems to address what I'm going to call the temporary fix of get you through the night. And look, getting through the night is pretty important. You can't get it to next week unless you get through tonight. I'm not discounting that, but these permanent put more band aids on is not working.

Stephen Thiele (25:15):
Well, and maybe statistics mean anything. It's a misallocation of where the funds are going. Maybe we need to spend the funds in bricks and mortar. Maybe you need to, I hate to say it, but maybe you need to look at institutionalization and turn the clock backwards for people who have mental health issues instead of allowing them to live on the street like we're continuing to do at this point in time.

Gavin Tighe (25:44):
I mean, maybe the advent of fentanyl, et cetera, maybe I'm right. Maybe that has changed things fundamentally, but human beings haven't changed in a long time. There have always been, sadly, people with mental illness, people who have difficulty in socializing. And again, there's no doubt, anecdotal or not, there is no doubt that homelessness is a million times worse now than it was 30 years ago. So what were they doing 30 years ago that they're not doing now or what are they doing now that they weren't doing 30 years ago that is the cause and effect?

Stephen Thiele (26:27):
Well, if you were a right wing person, you would say that a certain federal government allowed too many people into the country, that created this homeless crisis.

Gavin Tighe (26:41):
And densities. No, I don't believe that for a minute. I mean, I think that just misses the point too.

Stephen Thiele (26:46):
You're forgetting the commercials from the last election, Gavin.

Gavin Tighe (26:50):
No, I think the reality of it is that if there was an economic model to build houses, there would be lots of people who would build them. If there was money to be made in building houses, you'd find thousands of people willing to do it. The problem is that what you get into with affordable housing is you're saying what, build houses that you're going to lose money building, and nobody's going to do that. I mean, that's a whole other conversation. We have lots of room in this country. It's a big place. And if there was enough incentive, people would build it. But I come back to the point that this sort of, “Oh, we need more of this. We need more of that. We need more support on this. We need support on that.” It just seems to me that what the result of that has been, if maybe not, but there sure are a lot more homeless people than there were before all these supports existed.

(27:39):
 So has it made it easier to let people fall into homelessness? Has it become more comfortable? You don't get arrested. There's no vagrancy law anymore. People don't get arrested if they're on the street. I mean, they certainly did 30 years ago. If someone was wandering around, they'd be in the back of a police car. I think now the police don't go near them. So maybe that's the answer. Maybe you're right. Maybe it has institutionalized it. Maybe it is the fact we bring back the old vagrancy laws. Maybe we make it a crime again to sleep on the street. But these injunctions, these rulings say that that would be unconstitutional.

Stephen Thiele (28:19):
Well, I don't know. Well, you probably would have it being declared unconstitutional, but look, I don't think this decision actually helps the... And I think it's 20 campers in this parking lot. It's not very many, but we're not helping these 20 people very much. There...

Gavin Tighe (28:41):
Are more lawyers in the courtroom than there were. So it seems... If you look at the title of proceedings, there must have been 30 lawyers there all being paid. If you took the money on the litigation, you would be able to buy these people hotel rooms.

Stephen Thiele (28:56):
No, but look, I mean, Gavin, perhaps maybe somebody needs to begin to think outside the box with respect to solutions to deal with people who are homeless. There's lots of land available in Canada. There's lots of land available, I'm sure, in the Waterloo Region to maybe provide spaces that are not as horrible as this particular parking lot seems to be. But to also provide some supports. I don't know.

Gavin Tighe (29:32):
But I mean, downtown Toronto, homeless people seem to be at large. Just go down to Union Station. Exactly. In the heart of the city, they're not out in some forest in the middle of Northern Ontario where there's nobody for a hundred miles. So homelessness is an urban problem in urban centres and that's where homeless people seem to gravitate towards for whatever reason. I think that ultimately, the problem you're going to run into is if governments can't pass legislation to deal with this, what other tools do governments have? If the courts are going to say your legislation dealing with homelessness, i.e. time to move on, is unconstitutional, what are governments supposed to do?

Stephen Thiele (30:32):
I don't know. It's a great question, Gavin. I think at the end of the day, all governments can really do is allocate more and more money to this.

Gavin Tighe (30:41):
I think we're going to see with a lot of these social engineering decisions, which is where the court replaces its policy judgments for those of elected officials. Municipalities can't use the notwithstanding clause, but provincial governments can certainly do so. Well,

Stephen Thiele (31:00):
And you and I talked about this. The one key fact about this parking lot is that it was supposed to be used, or it has a future use, to expand the transportation network in that area. Premier Ford is extremely upset with this decision. So what does Premier Ford do now? Does he go to the Region of Waterloo or Kitchener and say, “We'll buy your parking lot,” and then pass his own law to say that we're clearing this encampment and use the notwithstanding clause?

Gavin Tighe (31:37):
That's one route that could be taken. But look, for those of us who believe in, look, I believe in democracy and I believe in the Charter. It is possible to believe in both. I oftentimes do not agree with governments and their position, but I like the fact that every four years I get to vote them out. I like courts that review laws and I like that, but I don't want to be governed by a judiciary that's not elected no more than I want to be governed by a monarchy that's not elected. So I think really this has always been my fear is that when courts push beyond the reasonable limits of what the Charter is intended to protect, it will only bend so far before it breaks. And if it becomes too easy and too politically comfortable to use a notwithstanding clause because of decisions that the majority of people disagree with.

(32:44):
 And I would suggest that if a poll were to be taken, most people would disagree with the outcome here. It becomes a lot easier for governments to pull that trigger and just use the notwithstanding clause kind of like they do in Quebec almost routinely. And in any event, I hope that doesn't come to pass, but I do think that courts and judges need, with power comes responsibility.

Stephen Thiele (33:16):
But on that note, Gavin, there is a potentially scary, I'm going to put that in quotes, decision that will be coming out from the Supreme Court of Canada. Yeah. And the...

Gavin Tighe (33:30):
Interesting...

Stephen Thiele (33:31):
With respect to the Hack decision... scope of the notwithstanding clause.

Gavin Tighe (33:36):
Right.

Stephen Thiele (33:36):
So does the court then narrow that too?

Gavin Tighe (33:39):
Well, listen, the other part is I can't recall which of the justices, but one is retiring and that decision has to be released before I think October and there's a provincial election in Quebec and I wonder if that decision comes out and the court purports to limit the ability of the provincial government in Quebec. I think you're going to see that to be a significant election issue in Quebec and one that might, I mean, Canada and Quebec separation has been a bit of a sleeping dragon for a few years, might awaken it.

Stephen Thiele (34:20):
Well, they didn't sign onto the Charter in Quebec and...

Gavin Tighe (34:23):
No, but the release valve has been the notwithstanding clause. And if that's limited, if it's taken away from them or purported to be taken away from them, I think that could be a serious election issue in Quebec. We'll see what comes out of the Supreme Court of Canada on that.

Stephen Thiele (34:40):
And anyway, look, this is careful. Yeah. No, this is a remarkable decision. We've got the premier talking about it. What I find remarkable in the decision as well, Gavin, is that it doesn't speak to what other judges have said, that the Charter does not protect illegalities. And the judge just kind of sweepingly says, “Well, even though the city is an occupant under the Trespass Act, they still have to be bound by the Charter.” So does that mean anybody can now trespass on public lands if it breaches their Charter rights? That's what he seems to suggest. Other courts haven't found that. So I would commend the Region of Waterloo probably appealing this decision and this one will end up in the Supreme Court of Canada as well one day.

Gavin Tighe (35:40):
Yeah. I think there's going to be a lot of roads leading to Ottawa with regards to all this. Anyways, we are way over time. This was a hot topic of the moment. We thought that our listeners would enjoy our perspective or not. Many people will disagree with us, think we're completely unfeeling and uncaring and unsympathetic. I think the answer to that is we're not. Just have different views on how to solve the problem. In any event, always brings it back to the one point, Stephen. We're all living under this, but if no one is above the law, everyone is beneath it. Thanks again. Thanks to Doug Downs, our producer. Please rate us on wherever you get your podcasts and until next time, have a good day and watch where you camp.