BATHURST QUAY RESIDENTS CONCERNED
CENTRE FOR EQUALITY RIGHTS IN ACCOMMODATION
FEDERATION OF METRO TENANTS' ASSOCIATIONS
EAST YORK TENANTS' ASSOCIATION
CONTENTS
Monday 7 March 1994
Tenants and Landlords Protection Act, 1993, Bill 20, Mr Runciman / Loi de 1993 sur la protection des locataires et des locateurs, projet de loi 20, M. Runciman
Greenwin Property Management
Henry Verschuren, manager, legal services
Tenant Advocacy Group
Kenneth Hale, representative
Bathurst Quay Residents Concerned
Fiona Stewart, representative
Centre for Equality Rights in Accommodation
Bruce Porter, coordinator
Leilani Farha, law student
Federation of Metro Tenants' Associations
Deborah Wandal, policy coordinator
East York Tenants' Association
Mary Jo Donovan, president
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
*Acting Chair / Président suppléant: Cooper, Mike (Kitchener-Wilmot ND)
*Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
*Duignan, Noel (Halton North/-Nord ND)
Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
Mills, Gordon (Durham East/-Est ND)
Murphy, Tim (St George-St David L)
Tilson, David (Dufferin-Peel PC)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Callahan, Robert V. (Brampton South/-Sud L) for Mr Murphy
Cooper, Mike (Kitchener-Wilmot ND) for Ms Akande
Jackson, Cameron (Burlington South/-Sud PC) for Mr Harnick
O'Neil, Hugh P. (Quinte L) for Mr Chiarelli
Perruzza, Anthony (Downsview ND) for Mr Mills
Runciman, Robert W. (Leeds-Grenville PC) for Mr Tilson
Clerk / Greffière: Bryce, Donna
Staff / Personnel: McNaught, Andrew, research officer, Legislative
The committee met at 1411 in the St Clair/Thames Rooms, Macdonald Block, Toronto.
TENANTS AND LANDLORDS PROTECTION ACT, 1993 / LOI DE 1993 SUR LA PROTECTION DES LOCATAIRES ET DES LOCATEURS
Bill 20, An Act to protect the Persons, Property and Rights of Tenants and Landlords / Projet de loi 20, Loi visant à protéger la personne, les biens et les droits des locataires et des locateurs.
The Chair (Mr Rosario Marchese): We'll begin with Mr Runciman, with an opening statement.
Mr Robert W. Runciman (Leeds-Grenville): Thank you. I have some very brief comments to open the afternoon.
During the second reading debate on Bill 20 in the Legislature, there was some opposition from government members, and I was speaking to a number of them who opposed the legislation. Afterwards, they had indicated that if I had introduced a resolution rather than a bill, they would have had no difficulty in supporting it because they agreed with the intent of what I was attempting to do.
I didn't believe a resolution was appropriate. I felt that this was an extremely serious matter, and the only way that it should be dealt with, in my view, was through introduction of a bill and then an opportunity to have a public hearing process so that members from all three parties would have an opportunity to hear from people out on the front lines, people who are dealing with these kinds of problems on a day-to-day basis: police officers, tenants, landlords, social workers and so on.
There were a number of, I think, legitimate concerns raised in the debate. I acknowledge the weaknesses. I know that Mr Winninger led the debate for the government members who were opposed to the legislation and he raised a number of valid points. We've attempted since that time to address those concerns that he raised and others through a number of amendments which you all have in front of you now.
We don't have, obviously, the resources in opposition that the government has to deal with these things. I don't think I can be criticized in terms of introducing the bill and then tabling a number of amendments now when we take a look at the government's own legislation: for example, the employment equity legislation, where following introduction and second reading, the government brought in something like 100 amendments with all the resources available to government. So we've tried to acknowledge the concerns and address them through the amendments. What's the need for this kind of legislation? Hopefully, we're going to hear answers to that question in the next couple of days, but I want to say just a few things for the record.
According the 1994 report Drug Use in Metropolitan Toronto by the Metro Toronto Research Group on Drug Use, crack cocaine is the most prevalent drug seized on the streets of Metro and represents almost half of all drug seizures. Some 2.2 kilos of cocaine were seized in the second quarter of 1993. That's the highest since monitoring began in 1989. Cocaine use was linked to 39 deaths in 1992, three times the number in 1986. Heroin was linked to 60 deaths, thanks to the extremely high levels of purity available. Heroin seizures jumped by 37% in 1993 and now account for 10% of all drug seizures.
According to a Metro Toronto police officer in district 5, it's an open market in the Regent Park area. People are approached in the street for buys in broad daylight; an average of three to four traffickers a day are being arrested by police. In district 1, the officer said that heroin in the Queen and Ossington area is as accessible as crack is in the Regent Park area.
Clearly the use and sale of drugs is of serious proportions. Bill 20 is designed to make it as difficult as possible for traffickers to use rental units as a home base to make the drug system work. By not doing everything possible to oust drug dealers from public housing and privately owned units, we are in effect subsidizing these people, condoning the havoc their activities wreak on families, including their own, their neighbours and society at large.
In the next two days we will hear about drug dealers using two or more apartments in a single building to conduct business: one apartment to cook up the drugs, another to take orders, a third to keep the money. We will hear about shooting galleries. Those are apartments where 30 to 40 people at a time are in the apartment using illicit drugs. We will hear about the problem of dirty needles and the spread of AIDS. We will hear about how these dealers threaten neighbours, threaten children, threaten everyone around them.
Bill 20, I acknowledge, is far from perfect, but it is an attempt to acknowledge and do something about a very serious problem affecting many communities across this province. I hope the next three days will not see a lot of partisan jousting, but a real and meaningful effort to try and come to grips with a most serious problem.
Mr Robert V. Callahan (Brampton South): One of the observations I would make here, and maybe you can address it, Mr Runciman, is that in reality you can have a drug trafficker or a drug importer who perhaps is the male of the family, and you've got a wife and several children who live in that accommodation who, as I read this act, would also be homeless as a result of the actions of the perpetrator. I think that's one of the places where I find it difficult, particularly if this took place in wintertime or whatever. Where do they go? I think the idea is a good idea, but I think that possibly you've overlooked that. That can be remedied in some way by amendments to the act.
But it's kind of like some of the other pieces of legislation that this province has passed where they are attempting to remedy a serious situation. I can think of situations such as the amendments that were made to the Highway Traffic Act in terms of impaired driving. There's no question that impaired driving is a very serious situation in this province, but the net effect is that you've got people who blow .08 getting the same thing as people who blow 300 and are almost dead. Many of them are truck drivers and in effect what happens is, when you take their licence away for a first offence for a year -- and I'm speaking, I guess, about something that we did ourselves, our government brought in -- you in fact put these people on welfare.
So I think we have to be very careful. I agree this should not be a partisan bill. This should be a bill to rectify something that's a very serious issue, no question about it, but I think that we should all be prepared to look at it and try to craft it in such a way that we don't spread the net too far or too wide to catch the innocents of the world as opposed to the people who are the real troublemakers. That's my major concern.
Mr Runciman: Very briefly, I know that's a valid concern and certainly I indicated at the outset that there are some weaknesses in the legislation. Hopefully we can address those. But the other side of the coin I guess is that those families, the children in those situations that Mr Callahan described, are also victimized the moment drugs come into their home, and I think we also have to recognize that and somehow come to grips with it.
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Mr David Winninger (London South): I certainly agree with Mr Runciman that we should not make this a partisan issue, because I think all parties have an interest in enforcement of the law and specifically in enforcement of our drug laws.
I appreciate the amendments that Mr Runciman put forward in response to some of the arguments raised at the debate on second reading. There are a number of concerns, I think, that we're going to articulate during the course of these hearings.
I certainly endorse Mr Callahan's remarks about the potential and the danger in fact of evictions of entire families of drug dealers, and in many cases, as you undoubtedly know, Mr Runciman, drug dealers often prey on single mothers and use their accommodation in some cases for dealing in drugs.
What happens once the drug dealer and the innocent co-tenants are ousted from their tenancy? What happens in that case? Won't the drug dealer simply move on to another unsuspecting single mother or other co-tenant and subject them to the same danger?
It doesn't solve the problem in any way; it simply moves it from one residence to another. That's certainly a major concern.
We know there have been a number of drug seizures recently. We know that prosecutors are vigorously dealing with drug charges. We see that in the media and we know it from our everyday experience.
We also know at the same time that there's a much less onerous burden of proof where a tenant violates the terms of a lease or violates the Landlord and Tenant Act by, for example, carrying on an illegal act on the premises. In that case now a landlord may apply for eviction based on the carrying on of an illegal act as well as the interference with the quiet enjoyment of other tenants.
We would also question why we need such a heavy hammer to deal with offences that can be dealt with under the Landlord and Tenant Act in a summary manner, because part IV of the Landlord and Tenant Act was designed to deal with landlord-tenant disputes in a summary manner. I question why we need to resort to the criminal courts.
The first amendment you put forward, introducing the words "in the Ontario Court (General Division)" in subsection 1(1), is not very helpful, and I say that because to my knowledge and in my experience the provincial courts deal with at least 90% of all drug charges, and I know why you amended that section because of the jurisdictional problem and the constitutional problem with provincial court judges being clothed with the jurisdiction of what should be section 96 judges, and the Supreme Court ruled on that fairly unambiguously back in 1979.
You might be dealing, if you're lucky, with 10% of the offenders who are able to elect on up to the General Division. You're not going to be able to deal with 90% of offenders who pass through the provincial courts. I know why the amendment's there, but I don't find it particularly helpful.
The Chairman indicates that my time is up. There are many other points that we can raise in relation to the bill but perhaps we can raise them through the course of the hearings or during the clause-by-clause.
Mr Runciman: I think we'll hear through the course of the hearings that there is a problem. Mr Winninger has mentioned the Landlord and Tenant Act, but clearly it's not working. I think that's what the evidence will indicate, and my view is that there may be indeed some problems with this legislation but I don't believe as a Legislature, as a government, we should be leaving the problem the way it is. My response essentially is, let's find some answers.
Mr Callahan: I just have a query of Mr Winninger. You raised the comment as to why Mr Runciman changed subsection 1(1).
Mr Winninger: I think I know why he changed it.
Mr Callahan: I don't quite follow that because that is exactly what the Highway Traffic Act does and there's no jurisdictional question there at all. Upon a conviction for impaired driving or over 80, it triggers a one-year suspension of your licence. I don't see what difference there is between that and this original proposal that would have any jurisdictional difficulties.
Mr Winninger: As you know, with the Highway Traffic Act it does trigger an administrative response, ie, the suspension of the licence. Back in 1979, the government of the day introduced a bill that would have allowed provincial court judges to issue eviction orders to tenants. That was challenged, and the argument was made and accepted at the Supreme Court of Canada that provincial court judges don't have constitutional jurisdiction to issue eviction orders.
Mr Callahan: Maybe I can find that case for them afterwards and relay it to them.
Mr Winninger: Yes. Anyway, that's your answer on that question.
Mr Callahan: Okay. That's fine.
The Chair: Besides that, we'll find other opportunities to raise other questions like this and answers from different people at the appropriate time.
GREENWIN PROPERTY MANAGEMENT
The Chair: Mr Verschuren, Greenwin Property Management. You have half an hour for your presentation. We ask people to make it as long as 15 minutes to allow five minutes per caucus. Please begin.
Mr Henry Verschuren: Thank you, Mr Chair. Thank you to the Vice-Chair and the honourable member for allowing me to come here today.
Greenwin Property Management is a large landlord in Toronto. We have about 15,000, give or take, suites in the Toronto area. I'm the manager of legal services, and as such I'm responsible for all the actions before the Ontario Court (General Division) under the Landlord and Tenant Act.
I've given some materials out prior to today. I know that you're all very busy. So what I have done in the formatting of this is put in a quick reference guide. I have summarized every section of the bill and made some proposals as to amendments there. On the first page after the table of contents, you'll see it's called Quick Reference Guide. For quick reading, if you want just the essence of what I'm saying, you'll find it laid out in that course.
I want to thank Mr Runciman for one thing. I've read the handout from the Federation of North York Tenants Associations. They agree that the intent of the bill is acceptable, they say. I think for the first time an MPP has been able to get landlords and tenants to agree on something.
In any event, I'll start going through the beginning of the act. I'd like to start with application.
The application of this act, with respect to Mr Runciman, I think is narrow. I would like to see it broadened. It specifically talks about sections 4 and 5 of the Narcotic Control Act. There are a number of happenings in residential situations in this province that are ancillary to drug problems but are not under the Narcotic Control Act; for example, assaults, break and enters, sexual assault, prohibited weapons. In my experience, if you've got a drug problem, you also have a weapon problem at the same time. Therefore, I'm suggesting that the application of the act be expanded.
The other aspect of it is, with respect specifically to the Narcotic Control Act, sections 4 and 5 speak of trafficking. It does not speak of possession, which is section 3 of the Narcotic Control Act, and I think that should also be applicable here.
Now, should we terminate a tenancy simply for possession? I think that depends on the degree of possession. I'll show you in some court cases I've submitted to you today where that can be a problem. If we're talking about a very small quantity of drugs, that in all likelihood would not affect the other tenants. But the Narcotic Control Act recognizes that. It gives a prosecutor the option of proceeding either by way of summary conviction or by way of indictable offence. The more serious cases obviously go by way of indictable offence, which is why I'm suggesting that the application be changed to include indictable offences under the Narcotic Control Act, whether they be in section 3, 4 or 5, and indictable offences under the Criminal Code, such as assault, sexual assault, break and enter etc.
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I have some difficulty with respect to the jurisdiction of a prosecutor, and I think Mr Callahan raised part of it with respect to the innocents involved. The question is this; it's quite simple: Can a presiding judge in a criminal court issue an eviction order against someone who was not a party to the criminal proceedings? In other words, son or husband is convicted of trafficking but the wife or mother is also subject to eviction.
I suggest that there's no jurisdiction for that. I also suggest, for those who are concerned about the eviction of innocents, that it's a very simple matter, and it can be dealt with in regulations: that the writ of possession is worded in such a way that it names the person to be evicted. It's done in the landlord and tenant court now if it's requested.
The other question that we need to ask ourselves is, are the innocents necessarily innocent? In tab A I've given you two examples.
Case A, Metro Toronto Housing Authority v Smith: The Divisional Court in Ontario ruled on an appeal that a mother was to be evicted because her son was convicted of trafficking. Their reasoning was that she knew what was going on and she simply chose to ignore the actions that were going on in her own home. However, in that same paragraph we see Metropolitan Toronto Housing Authority v Jackson, where the mother was not aware of the son's activities and the application to evict her was dismissed, notwithstanding the criminal conviction of the son.
The point I'm trying to make here is that there is some discretion, which I don't see in this bill, under the Landlord and Tenant Act, and I'm dealing specifically with the powers of the court, which in the bill as written is subsection 1(6).
The amendment that I'm proposing is that a judge hearing an application under this act have the same discretion as a judge hearing a matter under the Landlord and Tenant Act. I specifically refer to clause 121(2)(b) of the Landlord and Tenant Act, where notwithstanding the fact that either the prosecutor or the landlord has made their case from a legal standpoint, the judge can still refuse to terminate the tenancy. This is also where, as I mentioned earlier, the judge could at that point issue a writ of possession against one of the occupants of the apartment as opposed to all of them.
That is something that needs to come out on a case-by-case basis. I think the best way to legislate that is to give the discretion to the judges to do that.
I also am concerned about how a prosecutor's application would work with respect to a landlord. What I envision here, as you'll read in my summary, is something that's not happening now. My friend to my left asked, "Why do we need this bill?" It's quite simple. Landlords in this province now do not have the resources to successfully evict drug dealers or people who commit break and enters or people who commit assaults.
The reason for that is very simple. Our main source of evidence is our other tenants, and our other tenants are rightfully afraid to come forward. It's very rare that we can convince tenants to testify in open court against their neighbours because we can't offer them any assurances afterward. However, the way this bill is drafted, we may be prevented from doing that in any event, even if we can convince them.
I think Mr Runciman has dealt with that in the last of the amendments that he put forth today, but what normally happens is that the police start a separate investigation and they work entirely independent of the landlord; again, rightfully so. They don't know at the beginning of an investigation whether the landlord's involved or not. They don't want to tip their hand. These are usually undercover operations and the landlord's the last to know.
What I would like to see is the police and the landlords working together. We can do that by not preventing landlords from applying at the earliest opportunity but by encouraging them to do so and the evidence that's produced at that hearing be used in a criminal proceeding -- we have this under "Evidence" and it's lengthy, so I'm going to summarize and let you read it -- and vice versa, the evidence used in a criminal proceeding be allowed to be used in a landlord and tenant matter in the Ontario Court (General Division).
The problem does arise in terms of the standard of proof. Criminal proceedings are beyond a reasonable doubt. Civil proceedings are on the balance of probabilities. That does not affect the evidence. If I state to you today under oath that I saw John Smith dealing drugs in the hallway of my apartment building, my testimony won't change whether I'm in a civil or a criminal proceeding. The conclusions that the judge may draw from that will change and whether or not that's sufficient for an eviction will change, but that's up to the judge and we need to allow them to do that job. But what is often called upon by the courts, and I have heard the justices of the General Division ask for this specifically, is that they want the best evidence available to be presented to them. My amendments that I'm proposing with respect to evidence will accomplish that. We're not duplicating here; as a matter of fact, we're cutting down a lot of time and we're notifying everyone of what would transpire.
Landlords' applications I think must be preserved, but I think we also can work it in with this bill because, as I say, I do have a problem with the prospect of an innocent being a party to a criminal proceeding. If they're not charged, I don't think a criminal court has jurisdiction to execute a writ of possession against them. So there are certain types of applications that a prosecutor will be able to do and the rest must fall under the landlords.
What I do not see in this bill -- and again, with respect to Mr Runciman, because a lot of this is based on case law and on my experience in the court and unless you're an expert in the common law surrounding this area, you may not necessarily know about these things. But the Rent Control Act in Ontario and the Landlord and Tenant Act have a commonality in terms of the definitions of exactly who is a tenant and what residential premises are and who's a landlord and I think that it is worthwhile to define the same parties under this act and I suggest that it be done in the same manner as two previous governments have done in terms of the amendments to the Landlord and Tenant Act and the introduction of the Rent Control Act and that they be the same definitions.
I also suggest from technical standpoints that you're going to require notices to be served of an upcoming application. I believe the words are under subsection 1(2), prosecutor's application, "and on reasonable notice to the tenant." How is that going to be done? Let's keep it simple. Let's keep it common throughout the province and make the service provisions under this act the same as the service provisions under the Landlord and Tenant Act so that these matters are covered.
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What I'm suggesting to you is that the bill needs to be passed. I'm very pleased to hear that there isn't going to be any party-jousting about this, but the bill also needs to be amended as Mr Runciman has suggested. We need to combine the forces of the landlords and the prosecutors rather than divide them, rather than have one prevail over the other and in fact turn an eviction proceeding from three months in Toronto, which is a long time compared to the rest of the province, to a couple of years. That does absolutely nothing to protect the persons and properties of tenants and landlords.
Due to the time, I'll stop at this point. That's a brief overview. It's all contained in the materials. There are summary sections for you. The essential thing is read tab A. If you're going to read anything, read tab A, because these are the court cases that would not be applicable if Bill 20 is passed as written.
Paragraph (b) on page 2 of tab A talks about a case where a tenant was convicted on 11 separate charges of possession, and the court terminated the tenancy. Under the current wording of Bill 20, this court case would not proceed.
We've talked in terms of whether it can proceed before a criminal action is concluded. On the next page, page 3 of tab A, we see case (d). Police using a search warrant found a loaded handgun in the rental unit. You'll notice in this case there's no mention of drugs, but we are talking about a loaded handgun. If the crown was to proceed under an indictable offence here, Bill 20 as currently drafted would not apply.
Paragraph (e) is where we have a break and enter, a tenant breaking into other tenants' apartments. We're talking today about the protection of the property and rights of these tenants, but this kind of case would not be covered by Bill 20.
Those are all my submissions verbally today, but again, I ask you to read the written submission too.
Mr Runciman: I want to commend the witness on the time and effort he's put into this. This is the first time I've seen this and I think it's an excellent presentation. I'm not just saying that, because essentially he's supportive of the intent of the legislation although he's certainly drawn a number of weaknesses to our attention. He's not only done that, but he's proposed ways in which it can be changed and remedied. So I very much want to compliment him.
I just wonder if he might address a couple of the things that Mr Winninger mentioned. Mr Winninger was saying that this is only going to impact on perhaps 10% of the problem. I think he may want to elaborate more, but you were listening to that. What's your response to that contention?
Mr Verschuren: I'm not sure that I agree with that contention at least in terms of the way that I propose some amendments here. There may be a constitutional problem, and I think that's something for the committee to straighten out. I hear from Mr Winninger that there is and I hear from Mr Callahan that there isn't, but notwithstanding that, under the amendment that I'm suggesting, we would see more power in terms of landlords' applications, which would be heard in the General Division. I think then you're going to be dealing with a lot more than 10%.
What you need to do is to be able to take the evidence that had been used in a criminal proceeding and apply that to the civil. It's done now. We're not breaking any new ground here in terms of that. I think with the proper notice etc to each party and the right to cross-examine, which needs to be there as well, it's something that can save a lot of court time and still deal with the number of cases that we need to deal with here.
Mr Runciman: One other comment that Mr Winninger made, and I'm sure he'll want to pursue this, is, paraphrasing Mr Winninger: "What's the good of this? All we're doing is moving the problem from one landlord to another. They're simply going to go into another apartment building." How do you respond to that?
Mr Verschuren: There's some truth to that. Absolutely. They will pack up and move down the street. I've seen it where I've thrown them out of one of our buildings and they're in the building across the street. I'm in court on another case and watching the same people get thrown out of there. I have had a quandary, a dilemma, about that. But I think, in my discussions with police officers in any event, the landlords' aim is the same: We need to shut them down.
The Honourable Mr Justice Sutherland, and I'm going to paraphrase him, stated in a case of ours in his reasons that drug dealers hide in the shade, and what we need to do is to cast light upon that shade and expose them. Once you throw light upon what's happening, it will stop.
I think that position strengthens the reason for this bill, because what we need to do is to have a mechanism in the province where large landlords like Greenwin Property Management who have someone like me on the staff, and smaller landlords or landlords who own single-family dwellings etc, can protect their fellow tenants by something that gives them the mechanism to do it. Yes, they're going to go across the street, but with this bill we'll be able to throw them out of there very quickly too. Let's make it as difficult as possible for these people.
Mr Winninger: I'm sure Mr Runciman, who was probably pleasantly surprised that his bill got to committee, will be even more gratified that you've now provided us with a 30-page guide to a two-page bill, and a very weighty one at that.
I still have considerable difficulty with the direction you're heading in, and perhaps I'll repeat and expand on why.
Right now, the Landlord and Tenant Act deals with illegal acts, it deals with interference with quiet enjoyment, and it deals with harm to other tenants or risk of harm to other tenants, just those three tests for eviction. It's dealt with in a summary way, but it does involve civil hearings.
One of the procedural concerns I have around this bill is that right now our courts are swamped with criminal cases. We've gone a long way towards remedying the pre-Askov situation by hiring more judges, by hiring more prosecutors and more support staff, and we've got the waiting time down to what the Supreme Court said was reasonable, or less: eight to 10 months or thereabouts.
What we're going to have here is criminal courts not only dealing with what they're established to deal with; they're also going to be conducting hearings. There may be some truth in what you say about using the criminal evidence in the civil proceeding or perhaps even the civil evidence in the criminal proceeding. Many judges are generalists and they can hear many kinds of cases in the General Division, but you're going to have judges who are principally trained to deal with criminal cases dealing with civil matters. It's going to swamp the courts even more because instead of doing what they're supposed to do, which is conducting trials and guilty plea hearings and sentencing, they're going to be dealing with landlord and tenant disputes. That's one concern I have.
You say, and I think this in fact buttresses my argument, that there needs to be more discretion in Mr Runciman's bill, and why not invoke the discretion that applies under the Landlord and Tenant Act? Well, why are we reinventing the Landlord and Tenant Act to deal with one particular kind of offence? You come before the committee today and say: "You shouldn't just stop with trafficking. You should be dealing with possession, and why not deal with a litany of other offences as well?" So you're going to have what can become some very complex proceedings, and even trials, of landlord and tenant issues being dealt with in criminal court. What's your answer to why we need this bill? Well, you say the landlords don't have resources.
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I'm sure Mr Callahan would confirm the fact that criminal courts are very reticent to enforce civil remedies. In fact many, many times they've just shied away from dealing with civil matters. They say, "That's not the role of the criminal courts." Even if it was, I guess I have to say to you, if the landlord doesn't have resources to enforce the Landlord and Tenant Act and take these matters to hearings, how is the poor tenant going to be able to defend these proceedings? Certainly most landlords I've had experience with have far superior resources, infinitely superior financial resources to the tenants who are defending.
You're probably asking, "Is there a question in this?" I guess my question to you is, if you're suggesting there should be the same discretion in the Landlord and Tenant Act, if you're suggesting that we should invoke further illegal acts under the bill, basically you're reinventing the Landlord and Tenant Act. I would suggest to you that your focus might be on the Landlord and Tenant Act and not on this kind of bill that tends to merge criminal with civil remedies.
Mr Verschuren: By way of response, I'd like to direct your attention to subsection 1(5), "Evidence", the way it's drafted now: "The court that hears a prosecutor's or landlord's application under this act shall take notice of the evidence admitted in the criminal proceeding."
We don't have to do things twice. The evidence is already in. We're talking about different hearings, more hearings. That's not the case. This is more or less an administrative matter, if anything, but you're not going to be prolonging any criminal proceeding in this province by adding this bill, because you don't need to submit the evidence twice, you only need to submit it once.
The court and in all likelihood probably the same judge -- because the judge who hears the trial will be the judge who does the sentencing -- has already heard it once. The evidence is all there, and the poor tenant who can't defend himself will have the same resources that he has now. He has the right to be defended and he has the right to defend himself too, but if that's his choice, that's his choice.
Mr Winninger: One ancillary question: You talk about bringing these criminals out of the shadows. Surely that's what the criminal process is designed to do and, when they're finally convicted and sentenced, there are three principles normally invoked: One is deterrence, one is retribution or punishment and one is rehabilitation.
Why would you somehow put these people in double jeopardy? Once they've served their sentence, once they're ready to re-enter society, why should they not have a residence to go back to? This is aside from all the other concerns about their moving on to other residences and plying their trade elsewhere, if that's their inclination.
Mr Cameron Jackson (Burlington South): Their trade? Are you talking about drug dealing as a trade?
The Chair: Go ahead. Just --
Mr Jackson: I just wanted to clarify, sorry.
Mr Winninger: It's okay. He's out of order and I am in order.
The Chair: It's clarification. Sorry, go ahead. Mr Winninger may not have heard it.
Mr Winninger: Mr Runciman just won't let him on the speakers' list.
The Chair: No, Mr Winninger, he's asking for a clarification.
Mr Jackson: On a point of order, I was clear --
The Chair: Just go ahead, ask your point of clarification.
Mr Jackson: Through the Chair, I apologize I didn't go through the Chair. "Plying the trade." Are we talking about drug dealing as a trade for this individual to ply? I just want to understand.
Mr Winninger: Sorry. I wasn't using it --
Mr Callahan: It's certainly not a profession.
Mr Winninger: He wants clarification. I wasn't using it as a term of art, but if that happens to be how he makes his money, and most drug traffickers, to my knowledge, don't traffic in drugs for free, that may be his trade.
Mr Jackson: Thank you for the clarification, Mr Chairman.
Mr Verschuren: In terms of what you were suggesting, the criteria are in the criminal proceedings. I think there's one more that you've missed and you see it more predominantly in bail hearings, and that is the safety of the general public. That definitely is an issue in a bail hearing, whether or not they're going to reoffend or there's a worry about flight.
Mr Winninger: But a judge can issue an order restraining that individual from associating with anyone the judge sees appropriate.
Mr Verschuren: What we're asking under this bill is that the judge issue an order that this individual refrain from associating or going anywhere near. It's like a restraining order.
Mr Winninger: But a judge can already do that.
The Chair: Mr Winninger, we're running out of time. Sorry. Mr Callahan.
Mr Callahan: I think the best thing that could happen is that we should provide housing in the pen for these people who commit these crimes. But quite apart from that, I share Mr Winninger's concern about this, and I want to look at the jurisdictional issue because putting this in the General Division in my community is just going to cause total havoc. In Toronto there was a complaint in the newspaper today about the 30,000 or 40,000 civil cases that are backlogged.
I think that in looking at this what we might give consideration to is the fact that under the federal Criminal Code if a person is convicted of an offence where someone has been injured or their property has been damaged, the prosecutor, on application by the aggrieved party, and I guess on notice to the accused, can make an order remedying that by providing a damage claim against them, and that can be filed as a civil judgement. You don't have to go through all this secondary gobbledegook.
I think what we should be looking at very seriously is the question of trying to eliminate the largest amount of litigation from our courts, or we're going to break the camel's back. We've already done it, I think. That may be why the drug dealers are out there being able to roam the universe so freely, because we can't get them on for trial fast enough.
I really think we should think about that, as to whether it might not be more expeditious to do that. I don't want to take any wind out of your sails, Mr Runciman. I think, as I said at the outset, your attempts here are certainly worthwhile, but the more I think about it the more concerns I have in terms of putting more of a burden on the courts.
It might even be possible to do this. I mean, I've seen husbands who've been thrown out of their houses for a year because of an alleged assault and not been able to come back in their houses for a year. That's done in a bail hearing. So I don't think there's anything unique about putting people out of their property accommodations, but I think the way we do it has to be the most expeditious, fair but expeditious, and with less resort to court systems that are just totally overburdened now.
I don't think we have the resources to do it, and I think we'd be in fact giving the drug dealers a leg up by imposing anything else in our courts and preventing the courts from getting on with the business of the day, which is to give these guys -- have to be equal time for, I guess, these guys and ladies -- permanent accommodation in federally funded or provincially funded institutions.
That's just a statement, but I think we should think about that. It's kind of like when I was on municipal council. We used to pass bylaws endlessly, but we never had the resources to send anybody out to enforce them, so they just became nice political tools, but they were useless.
People relied on them, and of course by relying on them they were misled down the garden path into thinking that they had rights, which they didn't. I think eventually you get to the point where there are no rights. You've got so many rights out there that they can't be enforced. You're at the back of the line.
I think we have to be very cautious about that, that we try to craft a remedy that perhaps is easier. As I said, similar to the situation -- although I disagree with the minimum suspension that the Highway Traffic Act imposes, because that doesn't give anybody the right to look at the facts of the case and determine the more serious reading should get a greater suspension than the less serious reading. But I think we should be looking at trying to craft that type of almost automatic reaction or, in the alternative, going to the feds and asking them for an enlargement of the sentencing provisions that would allow this type of thing to be dealt with that way.
Mr Verschuren: What I would ask all of you on the committee to do is to read in the submission carefully with respect to evidence. What I'm suggesting to you is that if we can use evidence from one proceeding to another the court time will be less.
I gave an example earlier about if I were a tenant testifying that I saw John Smith dealing drugs in the hall. Well, I only need to do that once in the criminal proceeding and then a transcript of that goes over to the other court, rather than my testifying twice and going to two different courtrooms and saying the same thing in both courtrooms. What conclusions get drawn from that evidence in each courtroom are going to be different in terms of the weight of evidence, but we can save a lot of time by allowing the evidence to be admissible in both.
The Chair: Thank you for taking the time to give your presentation to us today.
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TENANT ADVOCACY GROUP
Mr Kenneth Hale: Mr Chairman, I'm here on behalf of the Tenant Advocacy Group. It's a coalition of legal clinics and tenant groups that's been working in the Metropolitan Toronto area for the last 10 years or so to protect the interests of tenants. We try to protect the interests of tenants through going to court and representing them in court, going to the various tribunals that affect the rights of tenants in the relations with their landlords and by coming before this Legislature and other lawmaking bodies to discuss the laws that are being made that are affecting tenants.
We've talked about the bill in detail and what kind of response we were going to make to it. We are acutely aware that substance abuse has a devastating impact on low-income individuals and families, and we're not just talking about narcotics. But because we see the results of these kinds of problems every day in our work, in broken families and broken individuals, we oppose Bill 20. We urge this committee to recommend the bill not be enacted. We think it's an unconstitutional bill, it's an unnecessary bill and it's an unconscionable bill. We'd like to review with the committee why we think that.
First, unconstitutionality: We believe that the bill can't be brought into force because of constraints on Ontario's power under Canada's Constitution. I realize that many members of the Legislature don't agree with this, as I saw from the debate. They seem to think this is some kind of trick that people are pulling on them. But the fact is the Ontario Court of Appeal, in a case called Reference re Residential Tenancies Act in 1979, dealt with this very issue. That decision was later affirmed by the Supreme Court of Canada and the Court of Appeal said that provincially appointed officials cannot evict tenants.
If people recall that bill, it was introduced by Mr Davis's Conservative government and passed by the Ontario Legislature after extensive public consultation. It created the Residential Tenancy Commission that was going to deal with residential landlord and tenant disputes, rent regulation, eviction, repairs. It had some good ideas in it but there was a lot of concern as to whether or not the province had the power to set it up and to take power away from federally appointed judges and give it to provincially appointed officials. An application was made to the Ontario Court of Appeal for their interpretation of what the Constitution said on this question.
One of the questions that they asked was, "Is it within the legislative authority of the Legislative Assembly of Ontario to empower the Residential Tenancy Commission to make an order evicting a tenant as provided for in the Residential Tenancies Act?" They also asked another question about mandatory orders, which isn't really relevant here. But as you're aware, the Constitution divides the legislative powers between the federal and provincial governments, and section 96 of the Constitution provides that, "The Governor General" -- that is, the federal government -- "shall appoint the judges of the superior, district and county courts in each province."
The Court of Appeal went on to explain that this is a limitation on the authority of a provincial Legislature to confer jurisdiction on provincially constituted tribunals that they appoint the members to, and basically this Legislature can't confer powers that were the same as section 96 courts exercised at the time of Confederation.
The Supreme Court of Canada, we think, took the limitation even more seriously. Mr Justice Dickson wrote about the importance of preventing provinces from interfering with the rights of the federal government under this section. He characterized it as, "What was conceived as a strong constitutional base for national unity through a unitary judicial system would be gravely undermined," if the provinces were allowed to chip away at these powers.
It's our opinion that it doesn't matter whether you call the body the Residential Tenancy Commission or whether you call it the Ontario Court of Justice (Provincial Division). If the members of the body are appointed by the provincial government, they can't take over the functions of a section 96 court.
The Supreme Court said: "Provinces cannot avoid the limitations of section 96 simply by taking a traditional section 96 function, simplifying procedural matters, and then transferring the jurisdiction to a non-section 96 tribunal. If this could be done, section 96 would be stripped of all force and effect."
The court had to decide whether or not the power to make eviction orders was one of those traditional section 96 functions. If it was, the law passing it would be invalid. As you can see on page 6 from two quotes, they said yes, this is exactly the same power that the courts have exercised since before Confederation.
The Court of Appeal characterized section 96 as one of the pillars of our independent judiciary. They felt that laws which give provincial officials this power offend against the limitations contained in section 96 and are ultra vires.
We went back to the situation that we had before this act was enacted and what continues today. The landlord and tenant part of the General Division hears eviction cases. Every day they evict about 100 people. They don't seem to have any difficulty in getting through this portion of their workload.
If you want to give a provincially appointed judge the power to evict tenants, you certainly can do that. All you have to do is get the people of Canada to agree to a constitutional amendment. But, as you may be aware, it's not the easiest thing in the world and people aren't that keen on having constitutional amendments made, despite how valuable they might be to the operation of the country.
I ask you not to shed too many tears about the problem of not being able to pass this bill, because the bill is not necessary. We've heard a lot of complaints, especially from more conservative elements in our society, that we're being avalanched by floods of useless laws and redundant laws. Well, this is another one of those useless and redundant laws.
As I'm sure you've heard a number of times, subsection 107(1) of the Landlord and Tenant Act provides that where,
"(b) a tenant at any time during the term of the tenancy exercises or carries on, or permits to be exercised or carried on, in or upon the residential premises or any part thereof, any illegal act, trade, business, occupation or calling;
"the landlord may serve on the tenant a notice of termination of the tenancy agreement to be effective not earlier than the twentieth day after the notice is given."
Then we have subsection 107(3), which permits the landlord to apply to court forthwith when such a notice is served, and subsection 107(4) reduces the notice period to 14 days if there have been previous notices.
In our opinion, these provisions are far superior to what Bill 20 proposes. They permit an eviction both where an illegal act is carried on or where it's permitted to be carried on, providing remedies against people who are wilfully blind to what's going on in their home.
Secondly, the existing law permits an eviction for any illegal act, not just for contraventions of two sections of some law that the bill's proponents consider are especially important.
Thirdly, they permit the eviction to proceed immediately upon the illegal act being discovered. You don't have to wait till the offender's sentencing hearing.
Fourthly, we have the "balance of probabilities" as opposed to "beyond a reasonable doubt."
Finally, the decision whether or not to evict somebody is made in a kind of framework where the interests of the community and the interests of the individual are balanced, or attempted to be balanced, and not in a forum where we're setting it up to punish somebody, which is, I think, the major purpose of sentencing court.
We've heard what the problem with the Landlord and Tenant Act remedy is: It requires a landlord to take action to protect people. We run into daily situations where the landlord is unwilling to do anything to protect his or her tenants from any kind of threats to their safety and security.
But I don't think the proper way to address it is to hand over responsibility for managing the building to the crown attorney's office. Irresponsible landlords hurt tenants when they fail to make repairs, when they fail to carry out maintenance, when they fail to deal with any kind of disruptive behaviour by tenants or outsiders.
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There are some rare cases where these are contraventions of sections 4 and 5 of the Narcotic Control Act, but the vast majority of problems have nothing to do with sections 4 and 5 of the Narcotic Control Act. Bill 20 does nothing for that vast majority of problems. In fact it may even encourage landlords to take an irresponsible attitude by saying, "The crown attorney will evict this person if they need to be evicted."
If some bill was to come forward proposing an effective means for tenants to hold landlords responsible for proper management of their building, we would be the first to endorse it, but the crown attorney's job is to prosecute criminals, not to act as substitute property managers.
Finally, I'd like to turn to the unconscionable aspects of the bill. Our opinion is that all this bill is is an attempt to score political points by exploiting a sensational issue without proposing anything of substance to remedy the problems that the issue is supposed to be about.
We believe it's irresponsible of members of the Legislature to act as if there isn't already a provision that's going to deal with the eviction of drug traffickers and then to propose a solution which has no hope of working.
We think substance abuse is an extremely serious topic and we would welcome serious legislative proposals to address it, but we think this bill makes a mockery out of the work that's being done by people who are really concerned with the welfare of substance abusers in their communities.
We also think that with all the talk of the many serious problems this province faces, to be wasting the time of this committee and of our organization and of everybody concerned with this bill is kind of ridiculous. It seems to be occurring just because members of the Legislature are afraid that they're going to be characterized as supporters of the drug menace if they don't stand up and say this thing is not an appropriate piece of legislation.
The part we really find to be unconscionable is the idea of splitting our communities along the lines of property owners and non-property owners and having one standard of punishment for tenants and one standard of punishment for home owners. We in the tenant movement have fought for decades to try to entrench the principle that somebody who rents a home has the same rights as a person who owns their home: They have the same right to vote, they have the same right to use public facilities, they have the same right to privacy, they have the same right to a fair trial. We think the same principle means they should be facing the same kinds of penalties if they're convicted of a crime as those who own property.
Trying to bring back these old distinctions between tenants and land owners which we see being used throughout history to cheat tenants out of their full participation in society is an unconscionable thing to do. When you look at it in the context of the fact there's existing legislation to do this and there's obvious constitutional flaws in the bill, I think the bill sort of says something very unpleasant about what you think of your constituents and the people you were elected to serve.
We're asking that you put this bill to sleep at this point at this committee and not let it take up further time of the Legislature.
The Chair: Mr Duignan, three minutes per caucus.
Mr Winninger: Are you calling the question?
Mr Noel Duignan (Halton North): Thank you for coming and making, I believe, an excellent presentation, because I believe your presentation outlines some of the difficulties I have with this particular bill. I believe it's just a political statement and doesn't address the real issues that are out there today.
In fact, if you turn to subsection 1(1) of the bill, it states, "If a person is convicted of an offence under section 4 or 5 of the Narcotic Control Act...that was committed in connection with premises that he or she occupies as a tenant," his or her tenancy may be terminated. Do you believe that the words "is connected with" are too vague and probably would violate the Charter of Rights and Freedoms?
Mr Hale: I don't know that I can really say that. I mean, I think that's kind of a criminal law question. I don't do criminal law. I think it is somewhat vague, but if that was all that was wrong with the bill I wouldn't be down here complaining about it.
Mr Duignan: The problem with this bill is that if you had a family living in a tenant situation where the son or daughter is convicted of an offence, in fact the whole family could be turned out in the street. Is that your interpretation of the bill too?
Mr Hale: That's certainly what I think it would accomplish. Metropolitan Toronto Housing Authority has tried to take a very hard line against drug selling in its units, and sometimes what it comes down to is evicting a whole family for the sins of either a son or a boyfriend; you're evicting somebody who has lived there for most of her adult life and has otherwise been a good tenant.
Mr Duignan: Presently, under the Landlord and Tenant Act, if there is a good reason to think that a tenant is trafficking in drugs, the tenant may be evicted under that particular act. Only a civil standard of proof is required, no criminal conviction is needed and no jurisdictional issues arise. I believe the remedy is clearly tied to carrying on an illegal activity on the premises. So in fact the present act goes a long way to deal with that issue, which this bill doesn't because this bill could tie something up in the courts for one heck of a long time.
Mr Hale: For all the reasons I've stated, I think that the present provisions are much more effective in dealing with problem tenants who break the law, including the Narcotic Control Act, than this would ever be.
Mr Callahan: Mr Hale, I raised your point about families being thrown out but you deal with this every day. How many drug traffickers have been evicted from residential tenancies that you're aware of?
Mr Hale: I have actually no idea.
Mr Callahan: You see, I'm not, I suppose, as suspicious as you are of Mr Runciman's reasons for doing this. I think when you're dealing with drug traffickers you're dealing with guns, you're dealing with the obtaining of evidence which is very dangerous because you have to turn in the guy who's the drug dealer next door and suffer the possibility of being shot yourself. It's a very frightening experience. It's a little different than prostitution or damaging the property or having too many cats or dogs. I think you can have those now on the premises.
It's a serious danger and I think it's really something the feds should co-opt. I had suggested earlier that it should be made part of that section that allows for compensation orders to be made by the convicting court. In light of that, what I want to know is, since the courts can make a compensation order and it can be filed as a civil judgement, why is that constitutional when a provision such as that being enacted by the federal Parliament would not be constitutional? I may ask our legislative counsel about that in a second.
Finally, you know what this brief tells me? This brief tells me that this whole country is so hung up with the division of powers that we're prepared to allow our courts to be used ineffectually because the minute you do something, you try to bring something before provincially appointed judges, somebody takes you to the Supreme Court of Canada, as they have here, and says, "No, only a section 96 judge can do that."
If we want to use our judiciary and our judicial resources to their ultimate, maybe this country had better wake up and realize that you can't keep talking about these fine lines of divisions of responsibility or we're going to get nowhere. We're going to have real problems. I think that's what that tells me, this whole thing.
I would like to see something where this whole issue, particularly with drugs -- because I think it is an important issue, it's a dangerous issue, it's an issue where people are afraid to report on their neighbours because they could get killed. That's how serious it is.
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I'm a lawyer by profession, but I say we're stopped by a lot of this legal mumbo-jumbo and we better start realizing that this is not an exercise in futility. Maybe we can get the federal people to sit up and take notice and realize that this is a significantly important enough issue that should be dealt with in some way within the proceedings of the prosecution for the drug dealer so that these people don't have to testify twice, don't have to take the chance of being rubbed out or removed from the jurisdiction so they can't testify the second time.
I think it's about time we took hold as legislators of what should be done for this society and not keep being bogged down by these artificial things. I hate to say the Constitution is artificial; it's not. But certainly section 96 judges in the times of 1867 never envisaged crack cocaine, heroin, speed and all the rest of this stuff, or guns and Uzis and all the rest of it.
I think maybe it's time we sent a message to our counterparts that maybe this is a matter that Mr Runciman may not succeed in doing provincially but it's certainly something we should be looking at federally because I think it's necessary.
Mr Hale: If I don't raise it now, if this thing got enacted --
Mr Callahan: I agree. It's a waste of time. Why waste taxpayers' money in having it constitutionally challenged? I agree with you. I'm not disagreeing.
Mr Hale: By saying I don't know how many drug dealers get evicted, I didn't mean that there weren't any. I think there's a substantial number of them that do get evicted but the main evidence that is used to evict these people isn't the little old lady next door; it's the police officer who did the raid on the house. It's the police officer who is getting paid to come to criminal court and getting paid to come to civil court if that's what's necessary.
I don't buy this argument that the rest of the poor tenants are cowering in fear. The police officers come and give the evidence and the person is out. A lot of times when they know that they've been convicted or that the police have them pretty well nailed, it may not even take an eviction application; it may just take an eviction notice because they're probably well aware.
I just have to also comment that the big-time drug dealers that we imagine driving around in their Ferraris and Mercedes-Benzes, presumably these people can scrape the resources together to buy a house or a condominium somewhere and we're not doing anything about them. I think if you're talking about terminating tenancies, you're talking about fairly small-time people. Although they may be destructive in their own little area, you're not getting at the root of the problem.
Mr Runciman: There's a brief comment, no questions. There's an old saying that I used once in the Legislature, never get into a peeing contest with a skunk, and I think that's appropriate today.
Mr Hale: Is he talking about me, Mr Chairman?
Mr Runciman: At our political retreat we discussed our treatment as politicians with witnesses who appear before us. I'm obviously offended by the tone of this presentation. It's very nasty -- political overtones. He's questioning not only my motives but the motives of every member of the Legislature who voted for this.
I don't mind members or I don't mind witnesses having strong feelings about an issue, but certainly I don't think the approach this witness has taken today is appropriate at all.
Mr Hale: I'm sorry you feel that way.
Mr Jackson: I guess the bottom line is all three political parties offered support for this bill or it wouldn't be before the committee.
Mr Hale: I think my comments apply to all of them then, because I don't think that it's an honest response to the problem that you claim to be trying to deal with.
Mr Jackson: Can I ask you then what you mean on page 11 when you say, "the work being done by people who are truly concerned with the welfare of substance abusers and their communities." I think we're generally familiar with that work, but what work is being done to protect those families who are contacting members of Parliament to say, "How do we make our communities safer?"
I don't want to get into the social contract and less policing, less community-based policing, less foot patrols, less interactive police work. That's not what this is about here today, but surely someone in your capacity, who's an advocate for tenants' rights, has to be as equally concerned about those tenants who are breaking the law as you are with those tenants who are concerned about the safety because they're complying with the law.
I understand your mandate is to respond as a lawyer for all tenants whether they're breaking the law or not. That's not the issue we're dealing with here. We're dealing with those families we're trying to protect, who are reaching out to us.
Mr Hale: First, I don't think that proper resources are being granted to tenant communities to organize themselves, to protect their own interests.
Mr Jackson: How would they protect themselves?
Mr Hale: I think having tenant associations that have some kind of authority and clout independent from the landlord is one reason.
Mr Jackson: Fine. So they say that. They have the authority now to say that tenants A, B and C are breaking the law and will they contact the police. In your capacity as a clinic, you have tenants who obviously approach you and say: "This is the nightmare going on in our block of units. What can you do as our legal advocate? What can you do to help us?"
What do you say to tenants who have had a gunshot go through a room and end up in their apartment and they're living in fear? This is going on. What do you tell a tenant who comes to you with that problem? You certainly don't give them a lecture on empowerment and new models of involvement.
Mr Hale: I haven't had that particular question asked of me, but if I did --
Mr Jackson: You haven't?
Mr Hale: I think the perception of the amount of gun use in this country is influenced by things coming from south of the border. I will not deny that there are guns going off in the city from time to time, but I haven't had the experience. If I did, I would encourage those people to contact the police. I'm sure the police would be extremely interested and would not just leave these people out in the middle of nowhere.
One of the problems we see is that sometimes these problems are perceived by the police to just be disputes between neighbours and aren't problems that the police have to deal with. Sometimes you can invoke the magic words "drugs" and "guns," and maybe the police will become interested, but a lot of times the police consider that this is some dispute between tenants and they're not interested in coming. When they do, I think that's the appropriate place.
The landlord shouldn't have the power to search somebody's home to determine whether they are in possession of illegal drugs. We give that power to the police and the police have to take people's complaints seriously. If the police aren't responding to tenants' cries for help, I don't know why they're not.
I think this is a matter that should be taken up at the police services board if people aren't getting proper service, because tenants certainly are paying their share of property taxes to pay the salaries of the police officers who are supposed to be protecting them. So I don't see why your constituents aren't getting the protection they deserve.
Mr Jackson: I wanted to ask a question of research, if I may. It was on the point of the merging of Civil and Criminal Code activities. I understand this is currently occurring in Quebec. Because of the Civil Code influences, I know it's occurring on various criminal offences where the Civil and the Criminal Code proceed in tandem. That is occurring in Quebec today.
I wonder if we could make an inquiry to see if something similar to that is dealing with the issue around eviction, because I know it's occurring with rapes, assaults and various other things. It's also contained in my Victims Bill of Rights, which I hope some day this committee will look at.
The Chair: Mr Hale, thank you for coming today. We appreciate your taking the time to do that.
Ms Margaret H. Harrington (Niagara Falls): Mr Chair, I object to one member of the committee calling the witness a skunk. I don't think that's appropriate.
BATHURST QUAY RESIDENTS CONCERNED
Ms Fiona Stewart: Good afternoon. My name is Fiona Stewart. I'm here today to represent the Bathurst Quay Residents Concerned. We're a group of residents who live on the Bathurst Quay. For those of you who don't know what the Bathurst Quay is, it's a small parcel of land that is made up entirely of social housing projects, either co-ops or Cityhome. There are no private landlords presently on the quay, although condominiums are planned to be built. I just wanted to give you a bit of history.
We're very concerned about this legislation.
Mr Anthony Perruzza (Downsview): Whereabouts is it?
Ms Stewart: The Bathurst Quay is across from the Island Airport, so it's at Bathurst and Lakeshore.
I usually don't get the liberty. I know I've given deputations before some of you already this year and I'm getting somewhat, for lack of a better term, deputated out. However, this is the dumbest piece of legislation I have ever given a deputation to.
Mr Winninger: Careful. You might be called a name.
Ms Stewart: That's okay; I don't mind. I'm a skunk.
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The Chair: Let the deputant speak. Go ahead, please.
Ms Stewart: We are gravely concerned about this legislation. Bathurst Quay has suffered a number of problems since its inception. We recognize that there are drug problems not only in our neighbourhood but in every neighbourhood across this province. Rather than waste the time and money to pay politicians to sit here today to listen to this bill, we wish you'd put the money into drug prevention. You're wasting everyone's time, and I'm really quite upset about it. That having been said, I will tell you why we're so concerned about this bill.
This bill only covers tenants. I'm a tiny bit afraid to say it doesn't cover people who live in co-ops, because if I say that, gosh, someone's going to make an amendment so that it will. I've heard there was a deputation given previously about tenants not wanting to come forward, who would not give evidence against one of their neighbours. I was in the unfortunate situation at one time where I lived in rented accommodation, and unfortunately for me there was a crack house next door. It wasn't very nice. It kept me up all night.
I didn't have a problem; I would have loved to have gone to court and testified against this person, because I put up with it for almost two years. However, it was in a co-op situation and we deal with things in co-ops a little bit differently. One of the people did leave through their own free will. Our board of directors mediated with the other person and we came up with a solution that has worked. You don't always have to bring the law into these things. Sometimes you do.
Additionally, this legislation smacks of discrimination. I would assume the member who wrote the bill lives in a home that he owns and is not a tenant, because tenants are the only people who are going to suffer through this legislation. Maybe if you covered it to everybody, all those people in Rosedale who have the big bucks who are actually probably the people we should be going after and not somebody who is selling dime bags of things -- I'm certainly not promoting or saying that I am in favour of drug abuse. I'm not. But if Kim Campbell can come out and say she smoked pot, well, where did she get hers from?
Mr Callahan: She's history, though.
Ms Stewart: She's history, but I believe her counterpart has also admitted to the use of marijuana, although I think he didn't deny that he didn't think it was illegal at the time.
This legislation will cause so many problems for tenants. For instance, it's not an instant solution. This is a social problem. What do you do? Down at the Quay we've consulted with the police on many occasions and they say, "Evict." Our response is no, we're not going to evict and leave a family behind. I live in 14 Division and I've often said to the community relations officer, "Sure, we'll take the drug problem out of 14 Division and we'll take it over to 51 Division." This is a social problem, for God's sake. People are going to live somewhere.
In fact, if people are worried about taxpayers, here's a good scenario. An 18-year-old man gets arrested. His mother and two younger children live in the accommodation. The whole family gets evicted. She ends up in a women's shelter. The 18-year-old, who perhaps has been found guilty of trafficking, gets a very minimal sentence. He can't even go to the shelter with her. He ends up in a youth shelter, and the younger siblings may very well end up in the custody of CAS because the mother simply cannot cope with all the problems she is facing. Well, wow, isn't that a nice scenario? What a great way to deal with social problems and what a terrific way to keep taxpayers' dollars down.
I don't know if you're aware of how much it costs to house someone in hostels these days. Most families these days are put out in the motel strip on Kingston Road, and it's a pretty damn expensive bill, not to mention that families shouldn't be living in motels on Kingston Road. So I can't tell you how appalled I am by this legislation.
There are ways to deal with drug problems. I have worked very hard within my own community to help combat drug problems, and I am a firm believer in drug prevention. I work on a committee -- not this particular committee but another committee on the Quay -- with a woman from the drug prevention office at the city of Toronto. At the community centre, of which I'm a member of the board of management, we have funds that are directed through the city of Toronto for drug prevention.
This bill is so politically opportunistic I find it absolutely appalling. Drugs have become the issue of the 1990s. Elections are coming up, so let's all get on the drug hysteria bandwagon and let's all get the small-time dealers out of neighbourhoods, because you can be assured that people who are the big-time drug dealers are living in fancy neighbourhoods and not in rented accommodation.
You also come into another dilemma with the Condominium Act. With the condominiums, you've got people who own condominiums and then you've got owners who are renting out condominiums. So you've got two different types of tenants or two types of individuals even in a condominium.
I really soul-searched about whether or not coming here today was a complete waste of time, and I actually thought I had better things to do, but then just in case people are really bizarre enough to recommend that this go for third reading I thought, "Well, I will come." I just didn't bother killing any trees in the process. Therefore, you will not find anything in writing. I would strongly urge the committee to drop this bill and concentrate on the prevention level. That's about all I have to say.
Mr Alvin Curling (Scarborough North): One of the things I prize in this democratic process is that we can all put our case forward, respecting each other. I don't really believe in taunting about being stupid and what have you, because I have never seen a suggestion that is stupid, really. I think people have their view to put forward. I don't agree, of course, with most of the things that the Tories said and furthermore with many things that the NDP has done, but it's a matter of respect for all that.
But I could ask you this question: With the drug situation -- I'm talking about the criminal element of it; I'm not talking about the preventive aspect of it -- is there a concern about the criminal element of drugs within residences?
Ms Stewart: With the residents of my community?
Mr Curling: Any community, because this bill is not Bathurst Quay legislation.
Ms Stewart: I can only speak about my own community. I'm not willing to speak about other communities, because I don't live in them. I do live in a very densely populated community with a large number of subsidized units, and I can tell you the experiences that I've witnessed over the last year.
Once I saw someone make a drug deal. So I went up to a police officer with a friend, and I said to him, "Oh, there's someone making a drug deal over there." He said, "Oh, I'll report it to major crimes." While that person could have been arrested at the time, we were not being served. It was what they call a scout car, a marked car, and they would not get involved in the situation. They just simply were going to refer it.
I know that the police association is speaking tomorrow, and what I strongly favour is community policing, because in my neighbourhood we have a lot of racial tension and there's a lot of discrimination, and people are afraid of the police.
Mr Curling: But you haven't answered my question. Is the drug activity high or low in your community?
Ms Stewart: I walk my dog every night. I've seen one drug deal in five years.
Mr Curling: So, no, you don't have high drug activity.
Ms Stewart: No, I'm not saying that. I think a lot of it goes on behind closed doors.
Mr Curling: You don't know?
Ms Stewart: I don't know.
The Chair: I have Mr Callahan on the list as well.
Mr Callahan: You've raised -- I'm sorry, go ahead. I had the last round.
The Chair: Mr Curling, just a reminder, that's all. Go ahead if you want to continue.
Mr Callahan: Go ahead, Alvin, use it all.
Mr Curling: Well, thanks.
Mr Runciman: He wants to draw a picture for you.
Mr Perruzza: Please do. Paint it in simple colours.
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Mr Curling: I really can't go over it again because you just woke up, so therefore the fact is that I was asking really -- I think you've answered that you don't know; I'll go as far as you don't know if there is a crime problem about drugs in your community. You say that you saw one and that even when you reported it, the police didn't take a serious approach to this.
Ms Stewart: That's why, as I said, I'd like to see community policing.
Mr Curling: You can't speak about any other area, to say there is a --
Ms Stewart: I'm speaking for myself. I can speak in terms of I've been involved in housing for over 10 years now and I've managed large properties in the inner city. How seriously were drugs an issue? I've managed both private non-profits and cooperatives. In co-ops, we tended not to bring the police in a lot of the time because we tended to see it as a social issue rather than -- yes, we saw it as a criminal issue but we wanted to resolve it in some way that made everyone's life better.
When I managed a private non-profit, I saw a huge amount of drug abuse, of drug dealing, and crack cocaine terrifies me. I want to say that our organization agrees with the Tenant Advocacy Group in terms of we know there'll be charter challenges over this. We also agree with the submissions that will be given by the Centre of Equality Rights in Accommodation and the Federation of Metro Tenants' Associations.
Mr Curling: Time doesn't permit me, really, but when I was the Minister of Housing I had the opportunity to go to many of these places, and many of the tenants indicated to me the fear of living in areas, especially quite a few areas, where drugs were being trafficked in the sense that it created a lot of criminal elements coming from outside, with guns and what have you.
I think what the bill, which I don't agree with, is trying to do is to make sure that this kind of situation is stopped. As I said, I don't agree in what it does because it can be rather disruptive to families and what have you. I don't want to get into that; I just wanted you to have responded to whether you think basically that there is a high rate of drug trafficking with guns and a lot of criminal element there, but you seem to say that you don't have much concern, that there's not much concern in your area.
Ms Harrington: Count on Alvin to fill in the time.
Mr Curling: I presume I'll get my opportunity too, like everybody else.
Mr Perruzza: I don't understand.
Mr Curling: No, you wouldn't.
Mr Perruzza: If anyone else in the room understands the point, please convey that.
Ms Stewart: All I can say is that in my neighbourhood I have become involved very much with the youth, very much with the community. I walk a dog every night. I don't see a lot of it. I'm not saying it isn't there, but it is not affecting my reasonable enjoyment as someone who lives in the community.
Mr Runciman: Just a quick couple of questions, Mr Chairman: Again, I'm not going to call this witness a name and I didn't directly call the previous witness a name, but I have difficulty understanding why witnesses who want to appear here and make their concerns known to the committee about any legislation have to use certain language, calling it dumb or whatever. I don't think that's productive in any way, shape or form. But the witness has done it; so be it. I don't know if she has any political motivation and I'm not going to get into that.
She did mention something about people being afraid of police in her area. You don't know how significant the drug problem is, but you seem to have a handle on this one. Why are people afraid of police in your area? What's the reason for that?
Ms Stewart: To be blunt, I live in 14 Division; 14 Division has the highest rate in Metro of shooting black youth. Our area happens to be extremely multicultural. There are a lot of black youth in our area. They are harassed a lot by not only the police but by a private security firm that has been hired by Cityhome. I have witnessed this.
I live in a townhouse on Bishop Tutu Boulevard. If you're asking why they're afraid of the police, one night one of the hired cops from Intelligarde -- I heard this terrible scream at 2 o'clock in the morning and a black youth was running down the street being chased by a security guard and the security guard -- I can't even repeat the language that he used because I'm sure you would find it offensive, but it was --
Mr Callahan: I think this witness should be advised, and I do it for your own benefit, that we have a privilege you don't. The privilege is that if you say something, you could get yourself into trouble. That's my only reason for interjecting. I don't want to cause you a problem, but I feel it's fair to bring that to the --
Ms Stewart: I've given the same deputation before the police services board. I don't have a problem with it. I know that Dudley Laws was charged with --
Mr Callahan: But you've gone into things beyond that: security. I'm just saying it for your benefit.
The Chair: Mr Callahan is simply making some remarks. You obviously are probably familiar with it.
Ms Stewart: If anyone wants to charge me with anything, they can.
Interjection.
The Chair: Getting back to the point that I think she was responding to -- Mr Duignan, with respect to this?
Mr Duignan: I agree with Mr Callahan that we should caution the witness to the fact that she doesn't have the same privileges as we do.
Ms Stewart: I'm aware I don't have the privileges, but they're a matter of public record and in fact all these events have appeared in the media, so I don't have a problem with it. I feel quite comfortable that in no way can anyone bring any sort of civil action against me.
The Chair: That's fine. Mr One final question?
Mr Runciman: Simply to say it's interesting to hear the witness equate herself with Dudley Laws and to inform the committee that the police in her area are more of a problem than the drug dealers.
Ms Stewart: I want to clarify. I did not say that the police in my area are more of a problem. I am saying that there is a great deal of distrust between the youth in the area I live in and their parents, as a point of clarification. What I want to see is community policing where people build trusting relationships. In my community, that's not happening.
Mr Runciman: There was a clear implication that I heard, that the police in her area are racist and that there's no drug problem, as far as she's aware. She's certainly never seen it in person or is aware of it.
Mr Perruzza: Come on, Bob. That's not what she said.
Ms Stewart: That's not what I said. In fact, I said I once approached a squad car with someone and asked them to do something about it and they would not.
Mr Runciman: Give us names.
Ms Harrington: I just wanted to commend you for coming here and taking the time you thought would not be worthwhile, for coming and saying it as you see it, as it is in your opinion. I really do appreciate that.
I want to go back to the issue of there's one standard for home owners and another for tenants. I just wanted to underline again what this legislation would do. It's not worth talking about in some respects, but if this law was to be enforced, would you see that there would be problems with it in that respect?
Ms Stewart: What --
Ms Harrington: The Charter of Rights, treating people who are home owners differently than tenants.
Ms Stewart: I'm not an expert on the charter issues. I am aware that there are two sections of the charter which may apply because tenants are a disadvantaged group. If this bill did pass, then obviously there would be charter challenges, yes.
The Chair: Ms Stewart, thank you for taking the time to come and give your presentation to this committee.
CENTRE FOR EQUALITY RIGHTS IN ACCOMMODATION
Mr Bruce Porter: I have with me Leilani Farha, who is a student at law with the Centre for Equality Rights in Accommodation and will be joining me in making the presentation.
We may be a little short of copies of our brief but I understand there are a number that are on their way and should be here imminently. I hope all the members have a copy of our brief.
We've at the beginning outlined who CERA, the Centre for Equality Rights in Accommodation, is. I know that most of you will be familiar with us. We were before this committee a couple of weeks ago on its investigations into the Ontario Human Rights Commission. As most of you will know from the information we provided at that time, we are generally extremely busy with cases before the Human Rights Commission. We represent about three quarters to perhaps as high as 90% of human rights claimants across the province who deal with discrimination in housing.
We are also active in the area of international law and human rights in housing. We've worked with the Habitat International coalition, which is the international organization of non-governmental organizations that works to advocate for housing rights around the world.
We were recently privileged to be part of the intervention before the United Nations Committee on Economic, Social and Cultural Rights into hearings into Canada's compliance with Article XI of the International Covenant on Economic, Social and Cultural Rights, which deals with the right to an adequate standard of living and the right to housing. I'm sure you'll be familiar with the concluding observations of the committee that were released last spring and were in some areas quite critical of Canada's record in the area of human rights related to poverty and housing.
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We wanted to take time out of our busy schedule, however, to address you on Bill 20. We perhaps agree with earlier deputants that we hoped, when we saw it, that it wasn't something that was going to be considered too seriously by the Legislature. However, we value the opportunity to talk about the human rights implications of this kind of legislation, because we don't see these issues as being confined to this bill alone.
We're increasingly concerned at CERA about a growing complacency about using eviction as a means of social control and as punishment. As you know, a landlord and the courts can already do that under the Landlord and Tenant Act. Under the illegal activities provision, a person and his or her family can be evicted merely because of some illegal activity performed in connection with the premises.
What we see in this bill, although we see it as a fundamental human rights violation, in a way clarifies some of the problems we already have under the Landlord and Tenant Act. When we come to our recommendations you'll see that our recommendation is not only to not pass Bill 20, but it's also to reconsider the illegal act provision within the Landlord and Tenant Act.
In CERA's view, in its structure and design, Bill 20 is a fundamental violation of internationally recognized human rights. It's inappropriate and unlawful to use eviction as a form of punishment for criminal activity. While the bill may be well intentioned, we would urge the committee to reject it on the basis that it does violate fundamental rights, because the objective of Bill 20, it would seem to us, has to be seen as being punitive despite its title and despite perhaps the intentions of the drafters.
There is nothing in the bill, apart from the title, that makes any reference to the rights or interests of other tenants in the building. Merely upon conviction, someone and their household can have, in addition to the criminal sanction, an additional penalty, that of being evicted from the premises, so in its construction and effects it's essentially punitive. Home owners, condominium owners and residents of co-ops would be immune, of course, from this additional penalty.
Clearly, you have concerns about the implications of criminal activity on neighbouring tenants. But isn't that a concern which is shared in all criminal activity? If somebody is guilty of assault or carrying a concealed weapon, that has implications for neighbours. It is a function of criminal law to ensure that people aren't allowed to continue to carry on that criminal activity. It's not the function of criminal law to impose an additional remedy for neighbours by kicking the person out of the community. That's clearly to overstep the bounds of general human rights protections.
It's in this sense that, in confusing the two legal issues of penalty for criminal activity and remedy for infringements of rights of tenants, the human rights violations occur in Bill 20. By merging these two arenas of criminal and landlord and tenant law we really end up having the sole criterion for eviction being one of having performed illegal activities.
It's accepted in the international community that eviction should never be used as a penalty for a crime. When we hear from time to time of states or communities destroying homes of criminally accused or of evicting from their community families of persons who have been convicted of crimes, these are considered in the international community to be fundamental violations of human rights, and for a number of reasons.
The first is that using eviction as a penalty is a violation of the right to equality, which is recognized in article 26 of the International Covenant on Civil and Political Rights and in the International Covenant on Economic, Social and Cultural Rights, and of course, also in our Charter of Rights and Freedoms.
Eviction as a punishment exploits the vulnerability of those who do not own property, either because they are tenants, as in Bill 20, or in other countries because they are living in squatters' settlements or in occupied territories. It is a fundamental principle of criminal law that any punishment must be one which potentially affects all persons, not just one vulnerable class of persons.
Second, eviction is a punishment that will more dramatically affect the family of a person convicted of criminal activity than the convicted person himself or herself. Under article 17 of the International Covenant on Civil and Political Rights, it is the function of the law to protect citizens from the unlawful interference with family and home, not to perpetrate this kind of interference. Penalizing family for the misdemeanour of individual members is a hallmark of the most repressive regimes.
Third, eviction as a punishment is considered in international law to be contrary to the fundamental right to housing, as enshrined in the Universal Declaration of Human Rights, in the International Covenant on Economic, Social and Cultural Rights and in many other documents. To use eviction as a punishment is equivalent in international law to depriving convicted persons and their families of other fundamental necessities, such as food, clothing or medical care.
The UN Commission on Human Rights resolution on forced evictions, which was passed last year, was seen as a dramatic recognition by the highest international human rights body of the importance of protecting citizens from forced evictions and from the involuntary removal of persons, families or groups from their homes, which the UN commission noted "intensifies social conflict and inequality and invariably affects the poorest, most socially, economically, environmentally and politically disadvantaged and vulnerable sectors of society." The commission noted, in addition, that discrimination based on race, ethnic origin, nationality, gender, social and economic and other status is often the actual motive behind forced evictions.
Leilani is now going to talk about the rights under the Canadian Charter of Rights and Freedoms.
Ms Leilani Farha: Currently, the Landlord and Tenant Act allows for eviction when the reasonable enjoyment of the premises by other tenants is infringed by the activities of a tenant or by any person in the tenant's unit. This, in our view, is the only appropriate standard to apply to eviction for inappropriate activity. The focus must be on the effect of such activity on the rights of other tenants. Eviction, in other words, must be solely remedial, rather than punitive.
The Landlord and Tenant Act, in our view, already steps over that important line between remedial and punitive measures, as it allows for eviction for illegal activity carried on on the premises in clause 107(1)(b) without any requirement that the activity be shown to infringe the rights of other tenants to their reasonable enjoyment of their own premises.
The following is an example of how clause 107(1)(b) can play itself out. Two years ago, a mother and her three children were being evicted from the Metropolitan Toronto Housing Authority after the woman's husband had been convicted of selling a small amount of marijuana to a friend in an adjoining parking lot. The husband had paid the price for his crime with three months in jail. Yet the mother, who had always maintained a strict no-drugs rule in her apartment, and her three children, faced eviction. The landlord had served notice under clause 107(1)(b) that their tenancy was terminated because of illegal activity carried on on the premises. They were concerned that if they were evicted from MTHA, they would be unable to secure any alternative affordable accommodation, that they would be barred from all public housing in Ontario and would be rejected by virtually all private landlords.
CERA and a number of other organizations advanced the argument in that case that the provisions in the Landlord and Tenant Act that allow a person to be evicted for engaging in illegal activities was unconstitutional as it imposed an additional penalty for criminal activity on tenants, a penalty not imposed on condominium owners, home owners or others. CERA and the other organizations also argued that this section of the Landlord and Tenant Act contravened the Human Rights Code because it arbitrarily penalizes family members for actions of one family member. That case was withdrawn after the tenant found another apartment. However, we believe that the constitutionality and legality of this section of the Landlord and Tenant Act is still very much in question.
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Bill 20 takes the present provision of the Landlord and Tenant Act, clause 107(1)(b), and carries it significantly further. It continues to extend the penalty to the family of the persons convicted.
On its construction, this can be proven: Subsections 1(2) and (4) of bill 20 indicate that either a prosecutor or a landlord, and I quote, can "terminate the tenancy," and subsection (6) grants the court the power to "order that the tenancy be terminated and that a writ of possession be issued."
In this way, the bill does not specify that only the convicted person shall be removed from the premises, but rather allows the prosecutor, the landlord or the court to rescind the entire tenancy. An example of this would be that if a family is renting an apartment and a son is caught selling some marijuana to a friend in the basement during a party, the entire family would be evicted from the apartment, if not by the landlord, then by the prosecutor.
In this way, Bill 20 can be seen to discriminate directly against families, and discrimination against families is contrary to the Human Rights Code and the Charter of Rights. The negative effects on children and families in having to move are well documented. Relocation can disrupt many aspects of a child's life, removing a child from his or her secure home environment, friends, family members, day care, school.
Bill 20 punishes innocent family members and co-tenants for the illegal actions of one individual. In so doing, Bill 20 results in disadvantaging the very people it is supposed to protect. The fate of such families contrasts with the situation of a drug trafficker running a drug ring from his luxurious condominium. As a property owner, this individual is protected by his prosperity and would be exempted from any eviction procedures established by Bill 20.
We believe that the unequal treatment of tenants is contrary to section 15 of the charter, the equality rights provision. As Ms Stewart already referred to, societies often react to any current plague by victimizing disadvantaged groups. When we begin to use social problems to justify creating special punishments for relatively disadvantaged groups, we are being discriminatory in the worst sense.
Targeting those who are disadvantaged by tenancy relationships for punitive measures while exempting those who are more privileged is clearly discriminatory logic and behaviour. Bill 20 reacts to the current problem of drug abuse by further entrenching existing inequality and discriminatory behaviour. This is clearly a violation of the equality rights protection in the Canadian Charter of Rights.
Section 15 of the charter guarantees that "every individual is equal before and under the law." The court has said that the purpose of section 15 is "remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society."
It was also determined in the Andrews case that in order to bring a charter challenge under section 15 only two criteria must be met. First, the applicant, and in this case it would be the tenant, must demonstrate that he or she is a member of a disadvantaged group. Second, it must be shown that the legislation is discriminatory in either its purpose or its effects.
Tenants as a disadvantaged group under the charter: Although tenants are not specifically enumerated in subsection 15(1) of the charter, they can be considered an "analogous group" as they have clearly experienced "social, political and legal disadvantage and are vulnerable to political and social prejudice."
Although tenants may not generally have been considered a group subject to discrimination, this is belied by their actual treatment throughout history and into the present. Tenants were denied the vote by property qualification well after women and people of colour were enfranchised. These property qualifications meant that many women and people of colour were disqualified as non-owners from voting even after gender and race were formally removed as barriers.
Up until the early 1960s, municipal referenda on important issues of public transportation were often restricted to home owners. Municipal politicians have often stated that they value the viewpoint of home owners, who they say have a stake in the community, over those of tenants. Indeed, the legacy of the denial of suffrage, as with other disadvantaged groups, is a relatively low voter turnout among tenants in municipal elections.
Recent case law supports this recognition of tenants as a disadvantaged group. In a recent decision by the Nova Scotia Supreme Court, tenants of public housing were recognized as a protected group under the charter. This is the Sparks case. It is a particularly significant case in that the court recognized that differential treatment of tenants in public housing is a form of direct discrimination. The judge in that case found that "low income, in most cases verging on or below poverty, is undeniably a characteristic shared by all residents of public housing." Hallett went on to determine that this characteristic, among others, establishes that such tenants are historically disadvantaged and that they are a group analogous to those persons specifically referred to in subsection 15(1) of the Charter.
Now if this determination can be made about tenants in public housing, it follows that the same determination can be made about tenants in general. Statistics indicate that people in receipt of social assistance comprise 36% of the private rental market.
The disparity in income between home owners and renters has dramatically increased over the last 10 years, as demonstrated in the appendix in a bar graph. These statistics indicate that a common characteristic among the majority of tenants is low income and poverty. This is a characteristic that is not shared by home owners as a group. As decided in the Sparks case, poverty as a shared characteristic, coupled with historical disadvantage, renders tenants a disadvantaged group under section 15 of the charter.
I'll pass now quickly to the second criteria required in order to make a section 15 argument; that is, that Bill 20 has a discriminatory effect. Discrimination has been defined as "a distinction, whether intentional or not, but based on grounds relating to personal characteristics of the individual or group which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed on others."
Bill 20 is prima facie discriminatory as it treats tenants and owners disparately. The extremely short notice of termination provided to a convicted tenant and his or her family places them in an untenable situation where they are forced to secure accommodation quickly in a market that is unreceptive to low-income individuals or families. The end result is legislation that punishes the poor and hence compounds their disadvantage.
I pass back to Mr Porter.
Mr Porter: Just quickly, we believe there are a couple of other constitutional problems with using eviction as a form of penalty for criminal activity. We believe that housing is so fundamentally linked with security of the person that to use eviction as a penalty is inherently contrary to the guarantees in section 7 of the charter on security of the person, which one can only be deprived of "in accordance with the principles of fundamental justice."
In our view, it's fundamentally unjust to be deprived of such an essential necessity, as it would be if we deprived criminals of other necessities. Certainly, it's contrary to the principles of fundamental justice for innocent members of families or households to suffer eviction because of a misdemeanour of one of the members of the household.
The extension of this kind of draconian measure is absurd but worth considering: that it's contrary to all internationally recognized principles of justice that somebody innocent should be penalized for the behaviour of a relative or a friend.
There's also the problem of the severity of this kind of penalty. I'm not sure that people have really grappled with just how severe a penalty it is for a family living in MTHA, for example, to be forced out. They are quite possibly not going to be able to find any other accommodation, and landlords are getting better now at checking references and requiring all sorts of things before they rent to a family. You're dealing with a family that's already suffering severe disadvantage, then finding itself in a market which may completely exclude it. You're looking at implications that have been well documented, such as homelessness, having to give up the children to the children's aid society and so forth. This is pretty severe stuff.
The other problem with Bill 20 is its vagueness. It raises procedural questions about how much notice is required, and it's really unclear in what circumstances the prosecutor would make the application and in what circumstances the landlord would make the application.
In general, we feel that even if we got over the first hurdle of justifying the use of eviction as some sort of penalty, it would certainly be required that there be very clear and strong procedural guarantees to ensure that this is done in accordance with the principles of fundamental justice.
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The Vice-Chair (Ms Margaret H. Harrington): If you'd like to have questions from the members of the committee, we don't have a lot of time left.
Mr Porter: Just to wind up, I think other deputants have mentioned the problem of the section 96 courts and the fact that this is probably unconstitutional on jurisdictional grounds as well.
Finally, our recommendations are that Bill 20 be withdrawn; that clause 107(1)(c) of the Landlord and Tenant Act providing for eviction for illegal activity be repealed; and that the Legislature adopt as public policy that eviction should never be used as a criminal penalty.
Mr Runciman: I want to say thank you to the presenters. It's nice to hear someone opposed who can say so without being nasty or imputing motives and I appreciate that very much.
I want to ask you a question. You have an example in here in respect to a case, and you've mentioned it in your presentation, where you were going to launch a charter challenge, I believe, and then the tenant found other accommodation so you withdrew. Has that been the only case in Metro where you've been faced with this sort of situation, following a conviction, of a landlord attempting to use that for grounds for eviction? You mention this as an example to present your case, but it seems passing strange to me that there haven't been other situations you could have pursued along those lines.
Mr Porter: CERA doesn't generally deal with landlord and tenant issues. Those are referred. It was only because of a number of circumstances that we were told about this case and we were actually involved. I guess actually it was that she called CERA first and we referred her to Metro Tenants Legal Services, but made the suggestion that there was a constitutional issue. We then got directly involved as intervenors rather than as representing her. I know other organizations have those kinds of cases more frequently, and we've suggested to them that there's a constitutional argument that should be made.
Mr Runciman: But no one's cared enough to pursue it beyond that point, I gather. I just wonder. I hear your argument and I understand what you're saying, but I think most Canadians have a problem with this whole question of the argument of rights in respect to violators. You're talking about targeting the disadvantaged, but I would disagree, because it seems to me that the families and children you're talking about are victimized the moment the drugs enter into that home.
I wonder if you have any appreciation of how serious the problem is out there and if you have any answers other than picking this one apart, because I know later we'll hear testimony from police officers, for example, about shooting galleries, about people renting three and four units in an apartment building and using them for cooking the drugs and cooking their deals and what have you.
As I said, there are all sorts of people who are being victimized by this process and who are certainly disadvantaged. I guess I would like to hear you address that question as well in terms of the rights of society at large.
The Vice-Chair: Unfortunately, your time is up.
Mr Mike Cooper (Kitchener-Wilmot): I'd like to thank you for your presentation, but I have a little concern about clause 107(1)(c) of the Landlord and Tenant Act. What about the rights of the people who are living in such close proximity? You're talking about not evicting anybody, but especially when you're talking about drugs, if you're living right next door -- and usually it is right next door; it's not like a private dwelling where there's separation -- what about the rights of the tenants who are living so close? That's why the provision is in there. How would you address that when you say no evictions at all?
Ms Farha: We're not saying no evictions at all. Our position is that what is adequate is to look at whether other tenants' reasonable enjoyment of their premises is being infringed.
Tenant A is engaged in lots of illegal drug activity. Tenant B hears noise and sees needles scattered on the floor outside of his or her apartment. Tenant B then could go forward with a complaint to the landlord indicating that tenant A's activities are disturbing his or her reasonable enjoyment of his or her premises. The actual drug activity isn't so important as whether or not the effect of the activity is to disrupt someone else's enjoyment of their property.
Mr Cooper: That part I could agree with. The part I agreed with you on originally was after conviction, because that usually means the person has been separated from the family, and there should be no proceedings taken against the family who are still there. I agree with that. The way you made it sound was that you were in favour of the criminal and nothing for the other tenants or the victims who were close by.
The Vice-Chair: I'm afraid your time is up.
Mr Callahan: Doesn't that in fact happen if you leave that section in place, that you've evicted the entire family for the drug needles you find outside? Doesn't that fly in the face of your major argument, which is one I raised before you people came in, that I was concerned about this legislation in that it did punish more than just the violator? Maybe you can think about that.
What interests me is you say Bill 20 punishes innocent family members and co-tenants. There are lots of pieces of legislation that do that. For instance, the minimum one-year suspension for driving with over 80 milligrams, that doesn't just punish the driver of the truck, that punishes the entire family, because the innocent who had nothing to do with it have to make their way in life without that person's salary. Nobody's ever challenged that. Why is that? Does that not contravene all of the sections you're referring to here, 7 and 15? Maybe not subsection 15(1), but certainly section 7. Have you ever thought about that?
Mr Porter: Certainly. Even putting somebody in jail may result in the family not being able to maintain the tenancy, but there it's an indirect consequence. To actually have a direct option available to the prosecutor, where the family is evicted by reason of the action of the court, is different from the family being placed in a certain circumstance because one of their providers is in jail.
Mr Callahan: We had eliminated that. I think Mr Runciman recognized that might be something we'd have to change in the act.
I've addressed the question of this being a matter that the feds use, the same provision they use to provide a civil judgement to a person who has received injuries or property damage. They can apply in the sentencing process to get that and to avoid having to go to the courts which are already backlogged unbelievably. What would you think of that? Do you think that would be unconstitutional?
Mr Porter: I'm not sure of the specifics of it, because I haven't heard it described in any detail, but in general we're a bit nervous about blurring the civil and criminal in this particular area. We think it tends to make more groups that are vulnerable to discrimination within their community to be more vulnerable.
The Vice-Chair: Thank you very much for your presentation. I'm afraid our time has finished.
Mr Runciman: On a point of order, Madam Chair: Just a question through you to the clerk. I know this is short notice, but are the witnesses, prior to their appearance here, being provided with copies of the amendments that I've tabled?
Clerk of the Committee (Ms Donna Bryce): The ones who are here this afternoon, no, but my office is endeavouring to get them to the people tomorrow. I have extras at the back, so some people may have picked them up.
Mr Runciman: Hopefully, they address some of the concerns that are being raised.
FEDERATION OF METRO TENANTS' ASSOCIATIONS
Ms Deborah Wandal: Good afternoon. I'm Deborah Wandal from the Federation of Metro Tenants' Associations. I have brought a small presentation which I hope you have in front of you.
Just a word of introduction about the federation: We are a grass-roots tenants' organization. We have several thousand members across the greater Toronto area and we have been in existence for over 20 years. We help tenants organize in their apartment buildings and in their communities. We do this because we believe that through cooperative and coordinated action, tenants can effectively work to solve their tenancy problems. They can do that within their buildings and they can use their concerted voice to make sure that their concerns are heard in public debate and are heard before all levels of government. We also provide eight hours a day an information hotline to tenants and we get over 7,000 calls a year on that hotline. So we have a very direct access to the problems and issues that tenants are most directly concerned with in these times.
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Unfortunately, I haven't been here for a good part of the afternoon so I haven't heard the other presentations. I believe that the unconstitutionality of this bill simply in terms of the provincial jurisdiction to deal with a matter of tenant evictions has been discussed and we won't touch upon that. The organization that presented that, the Tenant Advocacy Group, is an organization the federation itself is a member of.
Although we're somewhat relieved that this bill itself may just be declared ultra vires, we are very concerned. The very fact that we're here today indicates a disturbing level of support for a bill whose focus reveals what we consider to be regressive attitudes and assumptions about tenants and their status.
To us, it is glaringly obvious that this bill is discriminatory in its treatment of tenants. We can only ask why the state in the guise of concerned prosecutors should be so interested in protecting the property of landlords and tenants, but apparently not equally interested in protecting the property of private home owners. Perhaps tenants should be flattered by this. Apparently the state would like to ensure that tenants are living in a safe environment, free from disruptive elements. This is all well and good, but we would think that the state would also be concerned with safeguarding the investments of home owners who are vulnerable to plummeting property values when drug dealers buy a house down the block.
We question whether tenants should be gratified by the attention this bill places upon them. We think not, because we believe that the discrepancy in the treatment of tenants and home owners that's evidenced by this bill actually reflects reprehensible attitudes about the importance of tenants' rights. Some people clearly believe they can dismiss and ignore tenants' rights to a home and to a place in the community.
It's our impression that this bill is evocative of the mentality that was prevalent in the 1960s when tenants had no right to vote in municipal elections because without property they were not considered to have a stake in the community and therefore not entitled to a voice. They also had no rights with respect to their housing, and those who were unfortunate enough not to own property could not really call any place home.
A lot of work has gone into changing attitudes since then and tenants have fought for and won housing rights. They fought to be recognized as participants in their communities. We now understand that living with dignity is impossible for those who are denied a secure home.
We believe there is absolutely no justification for continuing to make discriminatory distinctions between home owners and tenants, for burdening a tenant trafficker with two punishments while allowing a home owner to return to the security of their home once their sentence is complete simply because they are fortunate enough to be able to own their home.
We are actually appalled at having to be here today to speak to this matter and to review the history of the fight for human rights for nearly 50% of Ontario's population, the right to be treated equally in a society where property values are paramount.
Try to imagine the scenario where citizens who lived in Forest Hill or Rosedale were being thrown out of their homes because of conviction for trafficking or fraud. The difficulty in even conjuring up this kind of scenario highlights the fact that in our society we have never equated this form of punishment with criminal offences. We may ostracize offenders, figuratively placing them beyond the social pale, but we don't literally ban them from their community.
I know that just before me CERA spoke on the official international sanctions against using eviction or expropriation or removal from one's home or homeland as a form of punishment. After a person has paid their debt to society and is entitled to re-enter their community, it is cruel and unusual punishment to take from them the only stability they might have, which is their home. It is no less someone's home just because they don't own it.
We don't believe there's a great deal of substantial, practical benefit to be derived from the procedure that's set out in this bill. The reality is that if a convicted trafficker is living alone and they are incarcerated, in all likelihood they will lose their unit, simply because they will not be able to continue to afford to pay the rent. Contrary to some myth-making, you can evict someone who is in jail.
On the other hand, if the convicted person is living with their family in this unit, why should the family and the children lose their home because of their relative's actions? Why are they to be punished? What is gained, and I think perhaps this is the most significant question in terms of the long-term implications, by destroying this family and putting them on the street? Life on the street doesn't improve conditions for anyone.
We understand from our phone calls and our organizing -- we go out to a lot of buildings where drug-dealing and trafficking is a major problem -- that it's a serious issue in this society. We believe that an integrated and comprehensive approach to its solution is critical. What this bill doesn't do, though, is deal with the needs of the family, with the need for rehabilitative schemes. It adopts a NIMBY line, a not-in-my-backyard line, of shunting the problem into a different location, creating ghettos where residents are least able to defend themselves.
We believe there's a need for radically new approaches to these problems. Part of this can be done through community development and organizing within buildings, creating networks through which communities can work to achieve their own goals and priorities. We know of a number of communities and a number of buildings that have decided to fight the infiltration of drugs into their neighbourhoods, and they have been successful. Ultimately, however, we don't believe it is the ordinary residents who should have to spearhead this struggle. These are criminal matters and the police should be responding appropriately to these problems.
What is an appropriate response? Perhaps a new type of community policing is necessary, shaped and modelled by the needs of today's communities. The housing forms themselves might dictate the nature of the policing.
Currently this is not happening. While tenants pay and contribute substantially to the police budget through the taxes they pay through their rent, they often don't get the full benefit of services, particularly tenants in high-rise, densely populated, vertical communities.
I understand that in the report Toward the Year 2000, there are substantial discussions around the benefits of foot patrols in certain areas, where the police would be able to get to know the residents in the common areas, in the pedestrian corridors. There might be a possibility there of overcoming the mutual distrust that has developed over the years in many communities.
The communities would also be able to see how the police might be useful to them and responsive to their concerns. They might be able to work together to develop an agenda based on the real needs in the community. The police on the other hand would understand the nuances and the nature of the community and develop sensitivity to it, because they will be working within it and not just be parachuted in.
Without going into any detail, we think this kind of long-term planning is what the municipalities and the Ontario government should be looking at in order to deal with this problem and examine its links with poverty, racism, sexism and lack of equal opportunity in Ontario.
I'd also like to make a few remarks about the current provisions in the Landlord and Tenant Act. It does, as I'm sure you've heard today, allow for eviction of tenants on the grounds that illegal acts have been committed or have been permitted to be committed by the tenant. Summary applications under the LTA can be initiated without waiting for a conviction. They are quickly processed and the findings are based on a lower civil standard of proof, which is the balance of probabilities, rather than the criminal standard of proof: beyond a reasonable doubt.
To all effects, therefore, this bill is essentially redundant. That said, however, we must also say that the federation has never supported this "illegal act" ground for eviction in the LTA because we believe, as CERA prior to us has stated, that other provisions in the LTA adequately address the acknowledged need to balance the public good, that is, the interests of other tenants, with the rights of the individual.
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Substantial interference with reasonable enjoyment of other tenants is a ground for eviction. In proceedings on this ground, the evidence of other tenants regarding how their daily lives are being affected is critical to the landlord's case. Other tenants have a voice, and their interests are weighed against the respondent's interest in remaining in their home. The court weighs all this evidence against a larger social standard: What behaviour or level of disturbance would a reasonable person find acceptable?
We believe that through that measure there is a recognition of some form of social control. The interests and wishes of the other tenants are taken into account and they are all balanced. It's true that there is no system that works perfectly, but no system can be designed to handle worst-case scenarios. If systems were designed with that in mind, we would be living in a police state to ensure that there was minimal risk at all time.
Our final comments have to do with another problem, that we acknowledge, which is that landlords often refuse to meet their obligations under the Landlord and Tenant Act. This is part of the ongoing tensions between landlords and tenants. They do refuse to provide tenants with the safe, healthy and reasonably peaceful environment that tenants are entitled to. But we don't believe the solution to this problem is intervention by the state, as this bill recommends.
As with the whole issue of substance abuse, we believe this issue of landlord-tenant problems and the dynamics between them cannot be addressed by a bill such as this. We need to look at developing a procedural scheme by which tenants could compel landlords to act on "reasonable enjoyment" matters, much as the current section 94 tenant applications force landlords to comply with housing standards.
Such problems require a real familiarity with the broad range of tenant concerns and perspectives. The piecemeal solution in this bill does not redress the long-standing power imbalances which have traditionally defined landlord-tenant relations. Instead, it leaves tenants vulnerable to further intervention by the state and loss of their homes. Thank you.
Mr Winninger: You, and actually the last presenter, raise an interesting issue. If we give a benign interpretation to the direction of this bill, that we want to protect other tenants from the deleterious effects on them of having illegal acts carried out on the premises, if that is the intention, your point is a very legitimate one. One should be able to relate the illegal act to some form of disruption in the lives of other tenants, and if it involves disruption in the lives of other tenants, why do you necessarily need a ground for eviction that just stipulates or provides for the illegal act?
If, on the other hand, you're making something more than a political statement here in this bill, saying, "We're going to get tough on drug trafficking, so tough that we'll take away the very roof over their heads," why is it only addressed to tenants? Why isn't it addressed to freeholders, people who have ownership in property? That's a good question that, hopefully, Mr Runciman will be able to answer at some point, but I'm interested in hearing your comments.
Ms Wandal: There are two aspects to that. First, drawing the distinction between tenants and home owners just doesn't make sense if it really is a determined effort to make sure that there is not a place for a single drug dealer to hide, because they can probably hide a lot more effectively in a comfortable home in the suburbs or on a quiet street than they are able to hide with people all around them. Without getting into where possibly the leaders or the major drug dealers may be, the ones with the most money are in many cases not tenants, so it doesn't even touch those who may be ringleaders or whatever.
The other question is, do we deal with substance abuse, this whole issue, by simply saying, "We are going to make sure these people don't have a place to live?" Is that the way to solve the problem or does that just make the streets more dangerous? Does that just expose more people to the presence of people on the streets who are dealing and creating an unsafe environment?
Mr Winninger: That's a legitimate point, because they have to be somewhere. Even if they don't live somewhere, they have to be somewhere.
Ms Wandal: There are roots to this problem. There are all kinds of implications for those people in the community who may be most directly affected by the substance abuse problem, and it needs to be looked at in terms of dealing with the roots of the problem rather than simply saying, "If we can find one drug dealer, we'll pick him off." They will be replaced. As soon as one gets kicked out, another will replace them, because you're not getting at the essential problems and you're not building strong communities where people feel safe and where they've worked themselves to ensure that their own community is the way they want it to be.
Mr Callahan: If I were either a freeholder or happened to live in a home as opposed to being a tenant, if I had a drug dealer in my family -- God forbid, but if I did -- surely to God I'd want him or her out of there rather than disrupt the family. Before you came in, I addressed the issue that everybody shouldn't suffer for the actions of the felon, but surely the best thing is to get them out of there, not just for the neighbours' benefit but also for the family's benefit. What does that person do for the children of that family? What does that person do for the wife in that family?
Going back to your question, I find it interesting, because you kept referring to people who live in these comfortable homes who are not tenants. Just down the hall, this government, through Bill 120, is about to take away the planning rights of elected representatives, is about to turn my neighbourhood and others where people have worked hard to buy a house into a multiple-dwelling area by just the stroke of the pen, and yet you object to the state intervening. Maybe you should object to the state intervening in Bill 120, because it is in fact intervening the other way. I understand your plight and I understand your concerns.
Mr Winninger: On a point of order, Mr Chair: I question whether it's fair and in order to put another bill before the deputant when she has come here specifically to address Bill 20.
Mr Callahan: The deputant smiled, so I'm sure she's familiar with Bill 120. I think everybody is familiar with Bill 120.
Interjections.
The Acting Chair (Mr Mike Cooper): Order, please. It is a related matter, and if the deputant chooses to respond, she may.
Mr Callahan: I saw a smile, so that was enough response for me. I think she knows what I'm talking about.
In any event, I heard arguments of constitutionality from the group that came before us before. The same thing's going to happen with Bill 120. It's unconstitutional. I haven't heard any arguments here about the unconstitutionality of it, nor have I heard how foolish we are as legislators to try to solve a problem.
I don't agree that anybody who is not guilty of the act should be punished. I'm much in favour that it should be the person who does the act, that they should be removed from the scene, not just for the family but removed because of the neighbours. We're burying our heads in the sand if we don't believe there are a lot of drug dealers out there in rented accommodations too. It's a lot easier to move very quickly. If you own the house, like a Pablo Escobar, they know where you are, they know where to serve you with whatever or arrest you, but if you live in rented accommodations you can move very quickly. I'd be willing to bet that if you checked the records in drug prosecutions, and I know of what I speak, in most cases they are rented accommodations.
What you're doing is that you're asking your neighbours, who have to rent -- and I've heard things about this being the disadvantaged. There are a lot of young couples who rent too, who can't afford to buy a house in this economy. Why leave them at risk? What is so terrible about the felon being punished by not being able to go back to that house and cause problems with the family, with the kids, with the neighbours, to allow guns? Guns are directly involved with drugs. Anybody who says they're not has got his or her head in the sand. In my own community, in the drug busts that take place, they find massive numbers of guns, enough to start a revolution. Is that safe? Am I, a person in rented accommodation, supposed to live next door to that person, with the potential of being shot as I come out my door in the morning? Do I have to wait till they find drug needles on the ground so they can come in and use the section under the Landlord and Tenant Act, or is it something that requires public policy to ensure that this person is adequately taken out of the scene and is not there to hurt the family he lives with or not there to hurt the neighbours?
Forget about 120. I'm not even expecting an answer to that question.
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Ms Wandal: I will leave Bill 120 out of it.
I think there are some slippery-slope arguments you've made there. We're painting things with a very broad brush, first of all. It's not altogether clear that every single person who traffics is necessarily putting fear and terror in the hearts of the people around them. In fact, it may be the case that other tenants are not even aware that this is going on. There are a number of cases in court where the court has found that the family itself was not aware that this is what an individual was doing. I don't think we can assume that every single trafficker is creating havoc. If they are creating havoc within a high-rise building, we agree it can be difficult for the people living there, no doubt about that.
What we think is more effective is if the tenants themselves decide they are going to ensure that they create a safe community for themselves. They do this through Vertical Watch; the police come in and assist them in trying to make their building safer, trying to be more alert and proactive. That to us is a more effective long-term solution than simply saying that the state will throw out whoever is convicted, even if other tenants are not disturbed, even if their family needs them, and even though -- and this is to me quite an interesting question. Supposedly, once you have served your time and paid your debt to society, you are entitled to re-enter society. Now, either we're going to be incredibly cynical about the effectiveness of putting anyone in jail to begin with, or we have to say that once they are released from jail they have a right to be a member of society again. They should not be ostracized and told, "You no longer have a right to have a place to live."
Mr Jackson: I'm interested in this whole notion on your final page, around disruption of other tenants and compliance by the landlord and talking about empowerment for tenants themselves to create an environment. Knowing the work the Federation of Metro Tenants' Associations does, what do you do with a tenant who comes forward to you in your legal aspect and says: "Help me. How do I get the Landlord and Tenant Act to protect me? How do I as a tenant get some rights here?" When I asked one of the organizations earlier, they said, "We've never had the request."
Ms Wandal: We have.
Mr Jackson: I assume you have. You represent a more inner-city group than the group that was before us, in fairness to them. Can you speak to us about how you handle a request like that, without getting into all the issues of home owner and non-home owner and all that? We can maybe debate that, but I'm interested in understanding how we help a tenant, because I'm told that the current Landlord and Tenant Act isn't working.
You've suggested as your final point the "reasonable enjoyment" matters. Are landlords not calling in the police and pressing to evict tenants? I know you're not fond of evictions, period, but what rights do tenants have to reasonable enjoyment if they're watching guns being brought in, illegal activities? They are victims. They deserve to have victims' rights when they go to court, to tell the judge, "Your Honour, I don't want to live next door to that person." Therefore they end up moving and we have reverse discrimination of eviction occurring. Can you help us understand how we can get at this? We're told the current system isn't working.
Ms Wandal: You also asked what we do now as far as tenants' complaints go. There are some measures that tenants can take under the act, because they can take the landlord to court for reductions in rent because of loss of enjoyment. The corollary is that the landlord has --
Mr Jackson: For economic reasons.
Ms Wandal: -- incentive to actually do something about the problem.
It's one of the interesting things we see. I would say there are two quite separate situations that arise. There is often a situation where tenants have a problem with another tenant not because of drugs but simply because of noise and parties late-night, that kind of thing.
Mr Jackson: I'm familiar with that part of the act.
Ms Wandal: That's kind of an interesting situation. What we often see is that it's a very good thing that the Landlord and Tenant Act requires that the standard that be used is that of a reasonable person, because you may have people whose expectations of what life can be like or what life should be like in a high-rise are just unreasonable.
Mr Jackson: I'm sorry, Deborah. You're telling me about the act, which I'm familiar with. I'm asking what advice you give. There's limited time, and my colleague does want to respond.
Ms Wandal: If there are drug problems, we go out and talk to tenants about creating a secure building. We have suggested that tenants work with the police. There are measures now that different legal clinics are taking to work with the police in different municipalities, to make them more familiar with tenant rights, to make them more sympathetic to tenants. I think it's a long-term process.
Mr Runciman: It would be interesting to poll the tenants who fall under this association to see how they feel about what this bill is attempting to accomplish. There seems to be a great deal of sympathy or concern, using terms like "cruel and unusual punishment" in terms of dealing with drug dealers, Mr Winninger saying they should have the right to ply their trade, those kinds of comments we're hearing this afternoon.
Mr Winninger: A point of order, Mr Chair: I never said they should have the right to ply their trade.
Mr Runciman: We'll have to check Hansard.
Mr Winninger: I used a term from the act itself, which refers to "trade." Perhaps Mr Runciman could correct the record.
Mr Runciman: If I'm wrong, I apologize.
Mr Winninger: I think you were.
Mr Runciman: We'll check it out, and if that's the case I certainly will apologize.
I don't think this diminishes the concern of so many people about the spread of AIDS. We've heard talk about dirty needles in hallways, all sorts of crime that finds its origins in the drug trade. We had a previous witness say, "We have a process where neighbours can lodge a complaint," but we've also had testimony, and certainly we'll hear more of it, that neighbours don't want to do that. There are no guarantees in that game for them. They go and complain against a neighbour and the next night they have a .38 stuck in their mouth.
Maybe they have legitimate and genuine concerns about the legislation, but at the same time there's a very serious problem out there, and one that has to be addressed.
The Acting Chair: Ms Wandal, thank you for taking the time to give us your presentation today.
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EAST YORK TENANTS' ASSOCIATION
Ms Mary Jo Donovan: My name is Mary Jo Donovan. I am the president of East York Tenants' Association, a tenant advocacy group for the borough of East York. I'd like to thank the committee for this opportunity to address the issues to which Bill 20 gives rise.
We cannot support the bill. We consider it both unnecessary and excessive. It augments a section of the act that should itself be deleted. We are referring to clause 107(1)(b). It is our contention that clause (b) is redundant and biased and should never have been included in the first place. We would be remiss if we failed to point this out.
You will have heard a number of scholarly and reasoned presentations by now which I am sure dealt with this point in some detail, along with comment on the international covenants which condemn the use of eviction as a punishment and on the fact that this legislation may well be beyond the scope of provincial jurisdiction.
Although I did not hear them myself, I am reasonably certain that EYTA would have no --
Mr Callahan: Sorry, I didn't mean to interrupt you. I got you a hand-held mike, but I can't find a place to plug it.
The Vice-Chair: Thank you, Mr Callahan. Please go ahead, Ms Donovan.
Ms Donovan: We're reasonably certain that EYTA would have no problem supporting the positions taken by the tenant advocates who preceded us and will try therefore to avoid being repetitious.
However much we may prefer to deal with what we consider to be more important changes to the Landlord and Tenant Act, the committee has met to discuss Bill 20 and it is incumbent upon us to do so. You have heard the reasoned arguments, so instead we will pose some questions which we hope may provoke some thought long after Bill 20 is gone and forgotten.
On the face of it, the intentions of the bill may seem laudable, but viewed in the context of other realities, they are seriously flawed. The bill is preoccupied with the welfare of those who live in apartment buildings, but while indulging in this inordinate concern for the citizens of the vertical village, there is no similar concern for those who live in the horizontal village. Are we dealing here with two classes of citizens? If it is bad for a citizen in the vertical village to live next door to a convicted narcotics offender, then it is equally bad for a citizen of the horizontal village to live next door to one. This concern for vertical villagers is gratifying, but those who live elsewhere must not be deprived of the same degree of concern.
Nor is there an equal concern about those convicted of other crimes such as murder and theft as there is about those convicted of drug offences. Are we to conclude that it is safer to live next door to those convicted of other offences than it is to live next door to a convicted drug offender?
Further, must we concede at last that the penal system offers no hope for rehabilitation, that all narcotics offenders, having served their time and paid their debt to society, will return to the community, assuming they still have a place to return to, and simply take up where they left off? Would this be true also for thieves and murderers? This being the case, why not simply abandon these poor wretches to a lifetime behind prison walls, do away with the sentencing options and take the Alice in Wonderland approach of, "One false step, and it's off with your head"?
What about the narcotics offender who deals on the downtown streets in doorways and cafés and then returns to his comfortable home in Don Mills? Shall we confiscate his house, which was paid for with illegal drug money? And what about his wife and children? Will they also be put out in the street? When he comes out of prison, will he be permitted to buy another house? If not, would he be able to rent an apartment, or would he be on a blacklist because he had been convicted of a narcotics offence?
Similarly in the vertical village, even though the dirty deed is done elsewhere, it is no less criminal. None the less, the hapless bungler who lacked the wit to move his transactions to the nearest street corner instead of using the parking lot will feel the full weight of this unforgiving law, while the dealer who plies his trade elsewhere escapes the harsh punishment of this other one.
Will we rid the vertical village of what may be a relatively harmless one-time offender and leave a real criminal in place? What about the wives and children of these convicted offenders? Are they to be dealt a double penalty, both the loss of a husband and father and the loss of a home? Even if they are permitted to stay, will they then have to make a choice, when he is released, between having him back or keeping a roof over their heads?
What if he is convicted but given a suspended sentence? Should the sentence handed down by the landlord be harsher than the one handed down by the court? What if the suspended sentence is contingent on having a place to live? What if etc etc.
Before we leave the comparison of the vertical village to its horizontal neighbours, why should the vertical village not have the same police protection as others? Where are the community foot patrols, and why are these vertical villages totally neglected in this regard? Let's have legislative action to support some preventive care, for a change.
It is readily apparent that this bill gives rise to more questions than answers and more problems than solutions. We are sure this was not the intention of the framers and that perhaps a genuine concern over the problems of drug dealers at certain locations prompted a hasty and ill-advised response, the deficiencies of which become obvious with more careful scrutiny.
We are all in favour of ridding our society of narcotics abuse. The solution that springs to mind most readily is to get rid of the dealers, but if you banish them from one village, be it vertical or horizontal, they will relocate elsewhere. Should we rid ourselves of a problem by dumping it on our neighbour's doorstep? There has to be a more acceptable solution. Drug dealers will be with us as long as there is a demand for the product. Steps must be taken to eliminate the demand.
The real problem is at the heart of this society that has failed utterly to instil in its citizens the values and attitudes that are necessary to prevent the growing trend to self-destructive behaviour, drug abuse being one of the more visible examples. Those of us who find ourselves in positions of power and influence must accept our responsibility to inspire good behaviour in others by setting a good example.
The leadership of a society sets the moral tone of that society. Too many politicians have failed in their obligations in this regard. Too many have used their position of trust as an opportunity to promote their own self-interest. Is it any wonder that the populace has become disillusioned and cynical when it is faced daily with revelations of activities which range from questionable to sinful to criminal?
Nature abhors a vacuum. The space that is not filled with good will surely be filled with its opposite. Where there's a failure of virtue, there is a corresponding growth of sin. Consider the prevailing attitude in North America and elsewhere of the casual disregard for the sanctity of human life. Is it any wonder that the killing of a body with drugs, one cell at a time, does not provoke a more urgent response when the murder of thousands of babies is sanctioned by governments in Canada and North America and around the world?
Is it any wonder that drug dealers find a ready market for their wares when those who have the most opportunity to exert influence for good in this society are more preoccupied with being politically correct than with being morally sound? Until this changes, we will continue to have problems of crime and corruption, including narcotics offenses.
We were given 10 commandments to live by. Since then, man has written 10 million laws in an effort to enforce them. We were told to love God and love one another, but our love for one another leaves a lot to be desired, and we're not even supposed to mention God, let alone pay him homage. Too many of us have opted in favour of being politically correct.
Where are the members of the House when the opening prayer is said? Most of them are absent. What message is sent to the young pages and those watching from the gallery or at home on the TV as they witness the behaviour of the members, the verbal assaults full of acrimony, scorn, derision and vituperation, the angry outbursts, the petulant accusations, the nasty innuendo, the endless stream of recriminations from all sides, reproving one another not in the spirit of paternal correction with respect and forbearance, but rather with a triumphant sneer of smug satisfaction and an outward show of righteous indignation and moral superiority, usually unjustified?
What has happened to the art of gentle persuasion and effective political debate? Until there is a genuine willingness and effort to treat one another with respect and dignity, and unless there is a show of real moral and ethical leadership, you can write all the laws you like and they will have little or no effect. You must stop using the Legislature as a venue for venom. Stop wasting our time and money in pursuit of political opportunities with all these fruitless endeavours.
Last month we had Bill 95 and this month we have Bill 20, both of them useless for different reasons. If you really want to get rid of the drug problem, you would be better advised to provide a moral climate where it cannot flourish than to write a biased and inappropriate law.
Some of our remarks may seem politically naïve, as though we don't know the game or the rules, but we insist that all the rules should be predicated on the golden rule, and the ones that are not should be changed. The youth of today have seen those who preceded them grow rich on the backs of the poor. They have seen liars and thieves given honour and respect simply because they were wealthy and powerful. They've seen overindulgence and dissipation and casual disregard for logical consequences. How can you expect them to have regard for their own physical wellbeing or for the laws of this society when the message coming at them loud and clear is that the only crime is getting caught?
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There was a time when we observed a number of unwritten laws, when it was understood that there were certain things that were simply not done. That was before pornography and violence and licentious behaviour were dished up as entertainment. That was before TV and computers and the information highway, which allow secret sins to become public knowledge around the world in a matter of minutes.
Those in the public eye today are totally exposed. They must be on their guard at all times. They must be, as Caesar's wife, above reproach. They must not only be good, but they must be seen to be good. If politicians want to have good reputations, they must strive always to be what they appear to be; otherwise, truth will out and disenchantment will set in, especially for the young. Even lowly advocates of the residents of the vertical village have an obligation not to disappoint those who look to them for guidance and leadership. These concerns have been expressed in the hope that things can change.
We all know that Bill 20 is going nowhere. It only reached this stage because the government failed to have sufficient members in the House for the vote on second reading. But it will certainly be defeated on third reading, as well it should, because it is a bad bill.
However, the concerns that gave rise to it are serious and worthy of attention. We have used this opportunity to focus a little thought on some of the underlying problems as well as point out the flaws in the bill. I thank you for your patient listening. I'll do my best to answer your questions.
Mr Callahan: Let me say, first of all, bravo. With a name like Donovan, you've not let down the Irish, let me tell you. I was going to leave a little earlier because I had to go to something, but I'm glad I stayed around. It's nice to hear someone come here and tell us as it is. You're quite right in a lot of the things you say.
But going back to the issue at hand, we're going to have to struggle with whether we defeat this bill or whether we pass it with amendments and so on. A lot of aspersions have been cast on Mr Runciman for bringing the bill forward. I really think you've acknowledged the fact that there is a problem in terms of drug dealing.
The act is deficient. You may not have been here when we were discussing this, but I questioned the fact of a person's family being tossed out because one member of the family was selling drugs. On the other side of the coin, if that were remedied, do you think it's wise for a person who is before the courts on big drug dealing stuff to be sent back to the house where his family is, to be a model for the children or for his wife? Or do you think it's a good idea that he's out of the house, at least for the duration, so that this problem doesn't continue?
Ms Donovan: The fact that he's not in the house doesn't decrease his bad example on his family. They all know what he is already, so that is beside the point. The thing is that children love their fathers in spite of their bad example, most of the time. Fathers have a far more important role in the family than they've ever realized. Children will more often imitate their fathers than they will their mothers. If a father reads a lot, his children will read a lot. If the mother reads a lot, the children might, but it's the father sitting there reading good books that makes the children read good books.
Mr Callahan: Equally, if he deals in drugs, he's not a very good example for the children.
Ms Donovan: But putting him out of his house isn't going to change that. The children already know he deals in drugs. What he should do is have the support and encouragement of his family to stop dealing in drugs, to be prevailed upon by the system and by whatever means society can provide to desist from this unwelcome behaviour. Punishment doesn't work. As I said in my brief, you have to provide a climate where people want to do the right thing. You have to provide a climate where children and young people don't see the drug dealers driving around in big cars while they're on unemployment insurance. You have to make things right and equitable and moral and decent in society, and then the people in that society will respond to that.
You can't expect people to see all this terrible stuff going on and say, "Oh, that's all right. I'm going to be good, even if they're not, but they're going to get rich and I'm going to be poor." This doesn't work. You can't have it both ways.
You have to face the fact that you've got to provide a good example or you won't have a good response. Parents have to do that also. You're talking about the children of the occasional drug dealer, but those children also have a mother to respond to and male teachers in school, and they'll have male politicians to look at and see that there are other ways to go. But if they look around and see the teachers maybe not doing what they're supposed to do, and if they see the politicians not being the kind of people they should be, they have nowhere to look, no good example to follow, and they figure, "Well, drug dealing might be okay."
Mr Runciman: I want to compliment the witness too; she's done a lot of work. I did agree with bits and pieces of your testimony as well. You made one reference to gentle persuasion and the decorum in the Legislature, and I certainly agree with that. It's regrettable that some of the previous witnesses weren't here for that contribution in terms of their own presentations.
There's been a consistent theme through all the presentations today of tenants' groups and people opposed to the legislation, that there's a distinction between tenants and home owners, that we're trying to penalize tenants while at the same time anyone involved in this business who is a home owner is going to go scot-free. I'm looking for clarification on this from our researcher tomorrow, Madam Chair, but I understood there was federal legislation that allowed the government, through the RCMP, to seize property and assets of anyone convicted of doing this sort of thing, which have been gained as a result of their illicit activities. I'll ask if the researcher can confirm that. I think it shoots a hole in that argument or theme that's been presented by most of the witnesses today.
Another theme, as I see it, is this concern for drug dealers and their families. I share part of that, in terms of the family, but I think the concern is somewhat misguided in the sense that I take the view that the family, the children especially, are victimized the moment the drugs come into the apartment. Simply to say that we can't deal with these drug dealers with the very few options that are available to us because we're going to do some sort of harm -- if we can get that individual out of that place, it's in the best interests of the family and the children and the neighbours and the other tenants. I'm not saying penalize the family. I don't want to see that occur any more than you do. But we have to start taking steps.
You mentioned support for increased policing. I share that. You said that the act should perhaps be broadened. Maybe you didn't say it that way, but you talked about other serious convictions. Our first witness suggested as well that perhaps the act should be broadened.
Those are just a few things I wanted on the record. Thank you for being here today.
Mr Gary Malkowski (York East): Thank you, Mary Jo, for all your hard work and your research on the bill. Some of your comments on Bill 20 make perfect sense, but if you wanted to substitute something for Bill 20 or broaden the scope of Bill 20, how could that be done to try to provide a safe environment for people who live both in apartments and in houses?
Ms Donovan: I don't think the scope of this bill can be broadened. I think the bill is inappropriate. It's in the wrong forum. The Criminal Code already provides remedies for people who break the law, and that includes drug offenders and everyone else. This bill isn't necessary, and neither is the section in the act that requires eviction for illegal activities. You already have laws to deal with drug dealers and stuff. What difference does it make if they're in a house or in an apartment or standing on the street corner?
Mr Winninger: I'd also like to thank you for your presentation. Some people say government members all sing from the same hymn book. The day second reading took place in the House, we did in fact have enough members there to defeat the bill on second reading, but there were a few members who, perhaps in their honest desire to take a tough stand on drug dealers, decided to send this bill to committee, and that's where we are today.
To me, it appeared to be a political statement Mr Runciman was making. He never expected it to go to committee. And you may be right: The bill may be going nowhere fast, but we'll know over the course of the next couple of days. You make a very legitimate point when you suggest that the laws are already in place to deal with drug dealers. The Criminal Code or the Landlord and Tenant Act both offer appropriate vehicles to deal with drug dealers.
Ms Donovan: Yes, and other criminals. This concentration on drug dealers -- I mean, what about a rapist who's living in an apartment building? What about a petty thief? What about a B and E artist? I'd have far more concern about that, if I was going to be concerned at all, than I would be about drug dealers. Plus, there's the fact that a great many drug dealers associated with apartment buildings don't even live there; they hang around in the back of the apartment buildings. They certainly do it in East York. That's why you don't see police on the street, because they're in the laneways checking for drug dealers back there.
I have also been told, and I have no proof of this, that landlords are getting a cut from the drug money if they let people stay there; that they're renting apartments by the week for an exorbitant amount, and if something happens the guy just moves to one of the other buildings.
There's a whole range of things going on that this bill doesn't even come near discussing. All of these things the police are aware of, and I'm sure they're doing what they can. But drug dealers don't stay in one place. They move around. They hang out in the back. They go into apartment buildings that don't have proper locks on them, and they hang around in the stairwells and sell their drugs. They don't even live there, most of them.
Mr Winninger: Perhaps Mr Runciman should be going after the complicit landlords.
Ms Donovan: It's very difficult to prove, unfortunately. Cash transactions leave no trail. I can't prove it and I don't suppose anybody else can, but we know it's going on, just the same.
The Vice-Chair: Thank you very much. This committee will adjourn until 10 o'clock tomorrow morning.
The committee adjourned at 1713.