Open Letter to Barrie City Council
Mayor Nuttall, Councillors, CAO Prowse,
We are writing in response to last Wednesday’s Direct Motion Without Notice, directing the City’s CAO to consider several options to address chronic homelessness in the City of Barrie.
Engage Barrie Organization (EBO) was founded on the principles of an equitable community, empowered people, and an engaged local democracy. Any time those principles are under threat, it is within our mandate to speak up.
EBO was pleased to see the effort toward potential funding of social services, including cooling and warming centres and food security programs. It is our view, however, that the positive aspects of this motion are overshadowed by profound issues with how this motion was brought forward, as well as several of the clauses it contains – putting this motion in conflict with Council’s own 2022-26 Strategic Plan, bypassing its “Responsible Governance” pillar while doing nothing to address its “Affordable Place to Live” pillar.
This motion was presented as a motion “to address chronic homelessness,” yet there is no clause within the motion that offers relief from or prevention of homelessness – it only addresses what is to be done for or to individuals who are already experiencing homelessness.
Most disturbingly, a significant number of the clauses instead criminalize homelessness, as well as criminalizing anyone offering assistance to those experiencing homelessness (sections 1.d-f, in particular). Others take away what little control and choice homeless individuals have over their own lives (e.g., 1.b.i. & ii.)
Had the movers of this motion taken the time to consult with community experts on homelessness, or brought it forward under standard Council Procedure, there would have been an opportunity for the public, community experts, and the partners to the City’s existing 2021-24 Community Safety and Well-Being Plan to point out the harms many of these clauses would cause – not just to our neighbours experiencing homelessness, but to the organizations working hard to address the housing crisis, and to any Barrie residents or visitors wishing to help out a fellow citizen in need.
Use of Direct Motion Without Notice
Before getting into the contents of the motion, we have many concerns about the method in which it was introduced. As Mayor Nuttall noted regarding a later Direct Motion Without Notice at the same meeting:
“what we don’t want is to have 15 Items for Discussion that aren’t Items for Discussion because we’re using them as direct motions every week… We do have some processes we can use with regards to these types of items, and I think it will make it a lot cleaner and easier too, as we’re discussing it, because it gives everyone the time, but also gives everyone the wording and opportunity to [examine the issue ahead of time].”
That time would have been appropriate and appreciated for such a lengthy and complex motion as this one, as well as the opportunity for more prepared and fulsome discussion.
Earlier in this term, Council amended the Procedural Bylaw in order to ensure proper notice about bringing forward items, to avoid last-minute surprises, and ensure transparency and good governance. Bypassing the spirit of this amendment calls into question the Council’s commitment to accountability, transparency, and responsible governance.
Direct Motions Without Notice are meant to be used only when there is an urgent timing matter – for example, a grant deadline that will be missed if the item goes through the standard procedure, or an unexpected emergency situation. Yet no such justification was given by the movers for bypassing standard procedure in introducing this motion. Typically, when enforcing rules of order, a Chair must hear an argument for the urgency of a motion in order to rule on its admissibility. (If ruled against, the drafter of the motion can either appeal the ruling of the Chair, or can introduce it in a more appropriate manner. ) This surprise introduction of such a lengthy and complex motion circumvented proper procedure, taking away the public’s right to comment, the chance for experts to weigh in, Council’s ability to have an informed discussion or debate, and once again calls into question this Council’s commitment to the democratic process.
Any justification for making this item a Direct Motion Without Notice is further undermined by the fact that there was time for Mayor Nuttall to put a slideshow presentation together on this subject, not to mention Councillor Nixon’s statements to Barrie Community Media that this motion had come forward after “several months of discussions” among Councillors, and that all Council members, including the Mayor, had seen the “final wording” on Monday. There is absolutely no reason why the public, community partners, and media could not have been similarly informed in advance that this motion was coming forward, and given knowledge of its content in the Agenda.
Judging from the content of the motion, as well as the subsequent reaction of the community organizations who work with people experiencing homelessness, this motion was put together without consultation with any of these stakeholders, who were also kept from making comment or deputation before this motion was passed.
Section 5.4 of the City’s Code of Conduct states that “Members should be committed to performing their functions with integrity, accountability and transparency”. Section 5.10 states that “Council is responsible for and dedicated to providing good and effective government for the public in an open, accountable and transparent manner.” Pushing this motion through as a Direct Motion Without Notice instead of following standard procedure calls both those sections into question.
This Direct Motion Without Notice and the discussion around it also appears to put Council in a breach of Section 5.12.c, “Must uphold the law and conduct themselves with the highest degree of ethical behaviour and integrity” (more on upholding the law, below), and 5.12.e, “Must seek to advance the public interest with honesty and treat members of the public with dignity, understanding and respect.”
Bypassing the City’s Procurement Bylaw
Clause 3 of this Direct Motion Without Notice is also concerning, as it directs the CAO to similarly bypass the City’s Procurement Bylaw (which the movers refer to as the “purchasing bylaw”) when awarding any items or services required. This strips away yet another layer of “checks and balances” that the City has in place to protect both the City’s residents and taxpayers. Circumventing the Procurement Bylaw takes this City further away from the “Responsible Governance” pillar of its own 2022-26 Strategic Plan, especially the point about ensuring accountability and transparency.
Motion Contrary to Established Provincial and Federal Law
As per the City’s Code of Conduct 5.12.c, members of council “Must uphold the law and conduct themselves with the highest degree of ethical behaviour and integrity” – yet many of the clauses in the motion (in particular, 1.d & e) appear to be contrary to both established Ontario Law and the Canadian Constitution.
As written, this motion could have legal ramifications for the City as well as for its ratepayers, residents, and visitors – the latter due to possible fines that could come from inadvertently violating bylaws in the motion, if they are implemented.
To pass such a motion – particularly without notice or much discussion on these ramifications – is a dereliction of duty. The City's legal counsel should have been consulted on the possible liability of such policies in the motion, just as much as the public, community partners, service organizations, grassroots groups, and human rights experts (such as the Ontario Human Rights Commission) should have been consulted before approving this motion.
Directing Actions Outside of City Jurisdiction
Clause 1.f, regarding the placement of signs on off-ramps, directs staff to undertake actions outside of the City’s jurisdiction, and would place the City in violation of the Ontario Highway Traffic Act. (Jurisdiction of the highway off-ramps was covered at length in 2022 by prior Council, while discussing Motion 22-G-119, also regarding panhandling.)
Criminalization of Self-Sheltering
The Ontario Superior Court of Justice ruled this January that a municipality prohibiting people from living in a tent or other form of shelter is a breach of citizens’ constitutional rights, if that municipality has not provided alternative safe, adequate, accessible and appropriate accommodations. Section 93 of Justice Valente’s decision notes that:
“...it is simply not a matter of counting the number of spaces. To be of any real value to the homeless population, the space must meet their diverse needs, or in other words, the spaces must be truly accessible. 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.”
In Section 96, Justice Valente concludes that:
“the ability to provide adequate shelter for oneself is a necessity of life that falls within the right to life protected by section 7 of the Charter. …I have reached this conclusion because the very clear and uncontroverted evidence before me is that exposure to the elements without adequate shelter can result in serious harm, including death.”
Earlier in the judgement, Justice Valente cites expert testimony about the increased safety of individuals in encampments, and how preventing or disrupting them can be retraumatizing, thereby continuing and exacerbating the issues that prevent some individuals from attaining adequate housing. Also cited, expert testimony that a resident whose only accessible shelter is taken away is more likely to require hospital care (for both physical and mental health issues), and less likely to be in a position to find permanent, secure housing. So this approach Barrie Council is proposing would in fact exacerbate chronic homelessness, not address it in any productive way.
Criminalization of Mutual Aid / Providing the Necessities of Life
There are similar issues with clauses 1.d.ii & ii, and 1.e, in that they criminalize the provision of the necessities of life to individuals in need.
As Mayor Nuttall stated in his NewsTalk 1010 interview on Wednesday, “we don’t see [aggressive panhandling] actually happen in the City of Barrie…it hasn’t been reported to date.” And as he also indicated, Ontario’s Safe Streets Act already restricts where panhandling may take place (e.g., it is illegal to solicit people in vehicles on a roadway, at bus shelters, etc.), and prohibits aggressive behaviour while panhandling. Therefore bringing in new bylaws to address this behaviour is unnecessary – and the way this motion is worded, potentially puts the City at risk of several legal challenges, as would its prohibitions to distribute food, grocery products or shelter items in public spaces.
By the wording of clauses 1.d & e, a citizen would be prohibited from handing someone a bottle of water on the street on a 35-degree day, or a sandwich to someone experiencing a hypoglycemic emergency, or a tarp during an ice storm – this motion proposes legislating the withholding of necessities of life from our fellow human beings, and would most certainly never survive a Section 7 challenge.
Panhandling has already been deemed “a form of expression” by the courts, according to University of Windsor Professor of Law, Richard Moon. So a bylaw restricting panhandling completely could be seen as a violation of freedom of expression under the Canadian Charter of Rights and Freedoms, on top of the Section 7 challenges already outlined above.
The Canadian Bar Association also notes that anti-panhandling bylaws may be challenged using common law arguments such as breach of fairness, bad faith, or anything that infringes on constitutionally protected rights and freedoms (such as freedom of expression, freedom of association, and the right to life, liberty and security of the person).
Violations of the Accessibility for Ontarians With Disabilities Act and Ontario Human Rights Code
The language that some members of Council chose to use while discussing this motion appear to be in breach of the City’s Code of Conducts, Section 20.3 “Members shall abide by the provisions of the Human Rights Code, as amended, and, in doing so, shall treat every person, including other Members, employees, individuals providing services on a contract for service, students on placements, and the public, with dignity, understanding and respect.” and Section 20.4, “In accordance with the Human Rights Code, as amended, Members shall not discriminate against anyone on the basis of their race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status, or disability.”
To be clear, the Ontario Human Rights Code specifies that mental health and addiction are included – and protected – under the term “disability.” Discrimination against people based on their mental health or addiction, past or present, is illegal.
That being said, not all people experiencing homelessness have mental health or addictions issues, and those who do have mental health or addictions issues may not be assumed to be violent or dangerous or criminals. This demonization of vulnerable people is both discriminatory and unethical.
While justifying the need for this motion, there were several inferences by Council members that crime in Barrie has increased (despite evidence to the contrary being repeatedly presented to Council from the Barrie Police Services), and several inferences that it has been people from the homeless population responsible for this increase – yet no documented examples were provided of either inference, only examples of (unfounded) fears. Inferring that a rising crime rate is due to the behaviours of people experiencing homelessness is demonstrably false. Proposing a set of new bylaws based on unsubstantiated assumptions and fears is not only unjustified, it is discriminatory, and in violation of the Ontario Human Rights Code.
Further, as shown by the research of the COVID-19 Policing and Homelessness Initiative (www.covid19-phi.ca), bylaws that target people experiencing homelessness (e.g., anti-sheltering, anti-panhandling legislation, etc.) are highly discriminatory, as many of the groups protected by the Ontario Human Rights Code are over-represented in homeless communities.
The City’s Integrity Commissioner, in a previous ruling, warned that making a “blanket statement that stigmatizes individuals suffering from mental illness, addiction and homelessness,” or “having disrespected a category of Barrie citizens” would be in violation of the City’s Code of Conduct.
In Conclusion
As outlined in this letter, we speak for a community of people who are concerned about the anti-democratic nature in which this motion was introduced and passed as well as the content of the motion and its ramifications, which were poorly constructed at best and inhumane at worst. We believe Council's egregious decision warrants this response.
We urge Council to move reconsideration of this Direct Motion Without Notice, so that proper consultation may be undertaken, and so the language of the motion can be amended to better address the stated goal of ending homelessness.
Sincerely,
The Board and Members of Engage Barrie Organization