The Community Legal Clinic York Region has sent their legal opinion to Council, and shared the letter on their Twitter account.
We apologize – ALT text was not provided for the images posted publicly, and there is no link we can find to the letter on their website – we have transcribed the content of their letter below.
June 20, 2023
Mayor & Council
City of Barrie
70 Collier Street
Barrie, ON L4M 4T5
Dear Mayor and Councillors,
Re: Bills 67 & 68 in relation to charitable donations
We are writing to express serious concerns about the legality of the proposed bylaws set out in Barrie City Council Bills 67 & 68, which purport to ban giving basic aid on public property to anyone experiencing homelessness.
As you know, much of Canada is in the midst of an unprecedented affordable housing crisis. Rental rates have skyrocketed. More and more Canadians are losing their homes because they can't afford rent, or because landlords are pursuing eviction in order to increase the rental rate.
At the same time, social assistance rates remain woefully inadequate, forcing recipients of Ontario Works and Ontario Disability Support Program to live far below the poverty line. When these individuals are evicted in this rental market, they face a bleak and uncertain fate: they cannot afford rent, the waitlist for social housing is years long, and shelters are full. Increasing numbers are becoming homeless, through no fault of their own.
Given these circumstances, the attempt to prohibit rendering aid through the proposed bylaw effectively criminalizes charity meant to provide the necessities of life, by private citizens. There is no state expenditure involved. To our knowledge, this move is unprecedented in Canada and would set us on a dangerous and dark path.
In these circumstances, any such bylaw would infringe the Canadian Charter of Rights and Freedoms, in particular section 2 (a) and (d) (freedom of conscience and religion and freedom of association), and section 7 (the right to life, liberty, and security of the person).
We Canadians have a right to express our consciences by giving aid to homeless fellow Canadians. That right is consistent with a free and democratic society, as protected by our Charter. We cannot be prosecuted for exercising that right.
In our view the proposed bylaws are unlawful and will be struck down by our Courts, but not without first inflicting grievous harm on your most vulnerable citizens.
The legal landscape around security of the person is rapidly evolving. Courts are increasingly aware of the broad scope of section 7. Section 7 has repeatedly been the subject of encampment litigation in BC and Ontario, where the Court have found that depriving an individual of the right to use a tent where there is both a lack of shelter space, and a lack of shelter spaces that are accessible (i.e. able to meet the individual's needs) is a breach of section 7 rights.
The proposed bylaw goes even further than the subject of the encampment litigation, as not only does it prohibit the distribution of tents and tarps, it takes the unconscionable step of attempting to cut off food and monetary donations to the homeless. It is the very definition of an attempt to deprive the most vulnerable individuals to the right of life, liberty, and security of the person. Barrie residents who experience being unhoused have the right to obtain the necessaries of life as a Constitutional right.
We urge you to reconsider passing these bylaws and ask that you instead send them back to Committee for careful second thought and appropriate amendment. This will avoid both the infliction of unnecessary suffering on your unhoused neighbours, and incurring of substantial legal fees in defence of bylaws which cannot stand in our free and democratic society.
Director of Legal Services