The ongoing case of Lynwood Charlton Centre exposes serious problems with how the city currently regulates care facilities.
By Ryan McGreal
Published November 13, 2012
Can the City of Hamilton regulate the location of correctional facilities and corrections residences without discriminating against residential care facilities?
The ongoing case of Lynwood Charlton Hall has exposed some serious problems with how the City currently regulates a variety of care facilities without providing clear answers as to what tools, if any, the city can use without violating the Ontario Human Rights Code.
Charlton Hall was established in 1961 on Charlton Avenue West by Big Sisters to care for and treat teenage girls with serious mental illness. It has an annual budget of $1.3 million and a capacity to look after eight girls with professional social and mental health workers.
Many of the young women who have gone through Charlton Hall have been traumatized, neglected, and abused - physically, mentally and sexually. Many suffer from eating disorders, depression and poor self-esteem, but they are at risk of harming themselves, not the community in which they live.
For 50 years, Charlton Hall was a facility for teenage girls who suffered serious mental illness. It has provided a safe place to live, supportive staff to help girls learn how to manage their emotions and cope with the challenges they face. Over a thousand young women have lived in the home since it opened.
When Big Sisters merged with Big Brothers in 2003, Charlton Hall became an independent facility. In June 2011, Charlton Hall merged with Lynwood Hall, a day program for at-risk youth and planned to move into the Lynwood facility on Augusta Street, as the Charlton building had become seriously run-down and in need of expensive repairs.
However, this plan ran afoul of the City of Hamilton's Radial Separation Bylaw, which mandates a minimum 300 metre distance between two facilities that are identified under the Bylaw.
The Radial Separation Bylaw was born from a 1999 review of existing bylaws across the six municipalities to be amalgamated, related to the various types of managed care facilities that were licenced either by the City or another level of government.
It was designed to prevent ghettoization through a high concentration of social services in a small geographic area, and identifies four different types of facility that fall under its purview:
Correctional Facility - Secure facility for people who are serving a criminal sentence, in detention while waiting for trial, conviction or sentencing, or awaiting transfer to another correctional facility. Correctional facilities are owned and operated by the government.
Corrections Residence - Secure group living arrangement for people who have been placed on probation, released on parole or admitted for correctional or rehabilitation purposes. The facility is supervised 24 hours a day. It operates on contract with the government but is not regarded as a correctional facility, an emergency shelter, or a residential care facility.
Emergency Shelter - Short-term accommodation for people in crisis situations who need temporary shelter, protection, support and counselling.
Residential Care Facility - Group living arrangement with at least four supervised residents to help address the residents' social, emotional, mental or physical needs and support long-term well-being through self-help, guidance and professional care.
Defenders of the Bylaw note that it exists to prevent over-concentration of social service facilities and ensure that each neighbourhood gets a "fair share" of such facilities. The City maintains a list of facilities, but acknowledges that it is not comprehensive or current.
The Bylaw seeks to prevent over-concentration by mandating a minimum distance between facilities. However, it does not distinguish between the different types of facilities or consider how many people stay at a given facility.
In January of 2012, some Corktown residents objected to the plan to move Lynwood Charlton out of the city-owned house on Charlton into a house on Augusta that Lynwood Charlton owns and currently uses as a day facility.
The debate turned around accusations of dishonesty from Lynwood Charlton about its intentions for the property, coupled with fear of "undesirables" who are "feeding a perception that it's an unsafe place to live".
Councillors on the planning committee backpedaled from the proposal, noting that the Augusta location would be less than 300 metres from two other facilities that are regulated by the Bylaw.
Just to be clear, they could easily have voted to approve a variance, as Council does routinely for applicants who want permission for a use that is inconsistent with an existing zoning rule.
Alex Thomson, the executive director of Lynwood Charlton, said they were open to an alternate location if it met their needs, but staff came back in April with a report that there were no feasible alternative sites.
RTH spoke with Thomson by telephone about the facility and the planned move to Augusta.
The facility looks after eight young women with serious mental health issues. Its mandate is to assist the girls in recouping to family life or to safe independent living. The average length of occupancy is around seven to eight months, during which child and youth workers help the girls learn to manage their affairs and control their emotions.
The centre does not systematically track the progress of its residents after they leave the facility, but it does evaluate their progress using the Provincial assessment tools to ensure they are making improvement.
From January 2009 to December 2011, a total of 366 police calls were made in connection to Charlton Hall. Of those calls, 331 or 90.5 percent, were for missing persons.
The organization's policy is to report a girl missing if she has not returned by midnight. The next day, a police officer will discreetly visit the Centre to get more information and a photograph if available. The Centre usually calls the police at least two or three more times to follow up or report that the girl has returned. Each of those counts as a police call, so one missing person will generate several calls.
The remaining 9.5 percent of calls were for a variety of reasons, chiefly mental health issues. Five calls, or 0.01 percent, were for assault - a resident assaulted a staff member or another resident.
The City of Hamilton had commissioned an independent engineering report that concluded the property needed $1.2 million in repairs. The city would like to declare the building surplus and sell it. Charlton Hall rented the building from the City and knew about the City's long-term objective for the property.
The merger with Lynwood Hall was proposed as a way to move the facility out of the Charlton property and consolidate two similar operations in a single building. The Lynwood building on Augusta has 5,000 square feet of available space on the second floor that can more easily accommodate the program.
Thomson noted that the Charlton property splits the program across two buildings and three floors, whereas the new facility will be all on one floor, allowing for better supervision and more effective service delivery.
"We're a charitable, not for profit organization, we need to be as effective as possible. This allows us to deliver the same programs using one building instead of two. We've got overhead in both buildings - heat, hydro, a part-time janitor who goes back and forth between them."
The new facility will continue to look after eight girls, so the merger is a consolidation, not an expansion.
Thomson says they engaged early with Councillor Jason Farr to propose the merger and explain how it would support their programs as well as meeting the city's goal to sell the Charlton house. "We had an open house that not many people attended. We put out thousands of flyers, we met with Councillor Farr right away and he seemed supportive."
He recognizes that there is fear among some neighbours and intends to work with the community to build bridges of communication and trust. "We just put out a flyer to let people know that we're removing the walls in the second floor so that we'll have a space ready to start renovating the facility once we get approval."
He also believes that a lot of the fear is based on misinformation about what they are doing and what impacts it will have. "With our new facility on a single floor, we'll actually be able to do even better with supervising and caring for these young women."
He is confident that the merger will be allowed to go ahead.
Early this year, Ontario Human Rights Commissioner Barbara Hall advised Hamilton that the Bylaw violates the Ontario Human Rights Code, which prohibits discrimination on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed (religion), sex (including pregnancy and gender identity), sexual orientation, disability, age (18 and over, 16 and over in occupancy of accommodation), marital status (including same sex partners), family status, receipt of public assistance (in accommodation only), and record of offences (in employment only).
In a letter to City Council, Hall wrote:
It is illegal to make planning decisions based on people, instead of on land use and other legitimate planning principles. We are concerned that the recommendation to deny this application does not appear to have considered the potential impact on vulnerable people who can be connected with the code grounds of both disability and age.
She warned that zoning rules are supposed to regulate land use, not people. In an interview with the Spectator, Hall said, "We wouldn't think that we could, as a society, say that there's a 'fair share' of a people of a certain faith group or a particular racial group. That's pretty clear that that's not acceptable language."
A few councillors have argued that the City needs to rethink its approach. Councillor Terry Whitehead pointed out that the law allows one facility with 24 beds but rejects two nearby facilities with five beds each, while Brad Clark chided his fellow Councillors for ignoring Hall's warning: "The human rights commissioner, Barbara Hall, does not write to city councils just on a whim. Human rights always trumps planning."
Nevertheless, on April 25, Council voted 12-4 to reject the rezoning request on the basis that it would violate the Bylaw, and Lynwood Charlton announced its intention to appeal the decision to the Ontario Municipal Board (OMB).
In September, as the case moved toward an OMB hearing and it became more likely that the Radial Separation Bylaw will not survive a direct legal challenge, the City changed tack and began to argue that the Augusta building would be a "comprehensive institution" rather than a residential care facility, since it would provide both a day program and extended overnight care.
City staff argued that the move would "entrench an undesirable institutional use in an area of Hamilton intended for residential development."
Meanwhile the Ontario Human Rights Commissioner formally requested to appear at the OMB appeal and argue that it violates the human rights of the residents to use zoning rules to block residential care facilities.
At a pre-hearing, the City tried to block the Commission from participating, arguing that to do so would fall beyond its mandate.
The OMB disagreed, finding that "the Commission is a proper party to the hearing" and indicating that the Commission would bring "special expertise in housing and human rights to assist the Board by providing evidence at the hearing."
At a September Council meeting, Councillor Sam Merulla shocked observers by comparing the residents to "pedophiles".
Merulla asked Paul Mallard, the City's Director of Development Planning, to define a residential care facility. Here is a transcript of their exchange (I've edited out the "through you, Madame Chair" meeting boilerplate).
Mallard: Residential Care Facility encompasses a variety of living arrangements and support services, so it could be as what's proposed here for the eight women. It could be a home for people who have physical challenges, they could have mental challenges, it could be a halfway house, it could be people who have dependencies on alcohol or drugs or whatever, so it's all-encompassing. It covers a broad range of residents and services that are provided. By definition, they reside there because of social, emotional, mental or physical handicaps, for problems of personal distress, and it's developed for the well-being of the residents. So it's a broad spectrum of types of residents that are accommodated.
Merulla: So that would include, for instance, halfway houses you mentioned, someone from a criminal element. So let's say, for instance, hypothetically speaking, sex offenders, pedophiles. If we were talking about a house with eight sex offenders in there, and then the residential care facility, we in essence could very well be looking at that type of facility existing.
Mallard: There is a distinction between correction residences, whether or not something would fall under them, I'm not sure the program, but it is a broad catch-all for support services.
Merulla: So a halfway house would fall into that category, then.
Merulla: I'm wondering, on that note, if we would even be having this discussion if we were talking about pedophiles receiving treatment as opposed to eight mental health females receiving treatment tonight. And really, who is discriminating against whom at this point?
In other words, Merulla believes that if we make an exception for Lynwood Charlton Centre, we will in effect be discriminating against convicted pedophiles!
You can watch the exchange starting at around 1:30:00 on the video.
After being criticized for comparing eight vulnerable young women to pedophiles, Merulla argued that it is the definition of a residential care facility that lumps them together and he was just trying to point this out.
He forwarded a clarifying statement by Paul Mallard:
Under the City of Hamilton Zoning By-law (6593), the definition of Residential Care Facility is inclusive and intended to provide supervised care of residents because of social, emotional, mental or physical handicaps or problems. Accordingly, Residential Care Facilities include half-way houses, addiction residences, developmentally handicapped, brain injury, etc. We cannot distinguish between the various classes of residents as that would be discriminatory and contrary to the Planning Act.
RTH contacted Mr. Mallard to request more details, but a City spokesperson advised that no one from the City can comment while the matter is under review at the OMB.
Currently, the Bylaw defines residential care facilities, correctional facilities and corrections residences separately but treats them all the same with respect to minimum separation. Merulla maintains that they are "all lumped in the RCF category" and that the city would be discriminating against a halfway house by treating it differently from an RCF.
When the Bylaw was first passed, it also defined and included a category for seniors' residences and nursing homes, but Council voted in 2007 to remove that category of residence from regulation.
Asked why Council cannot do the same for residential care facilities that it did for nursing homes, given that they similarly occupy different categories in the Bylaw, Merulla argued:
If we were to choose to exclude mental health facilities, then it would open up the door to any mental health facility. Under the [Diagnostic Statistical Manual (Revised)], there are hundreds of mental health [issues] identified which would include sexual deviance and other mental health issues that are correlated to a danger to community.
He might have a point, however insensitively he made it at the September 26 meeting.
The Ontario Human Rights Code prohibits discrimination on the basis of a record of offences, but in employment only.
A record of offences refers to a conviction and subsequent pardon under federal law and/or a conviction under provincial law. According to the Ontario Human Rights Code, an employer cannot discriminate against a person with a record of conviction unless they can show that the record can reasonably be expected to impact the person's ability to do the job. Examples include a bus driver with dangerous driving convictions or a child-care worker with a child sexual abuse conviction.
The Commission does not comment on individual cases, but RTH received a response from Jacquelin Pegg, an inqury analyst for the Commission, on a general question about whether a municipality can regulate correctional facilities and corrections residences.
Pegg wrote, "it is unclear whether the ground of record of offences would apply to 'corrections facilities or corrections residences'" given the definition.
She did acknowledge that the Code does not prohibit discrimination on the basis of record of offences for services (section 1) or occupancy of accommodation (section 2).
However, she noted that section 11 of the Code stipulates that even if a policy does not directly discriminate based on a prohibited ground, it may nevertheless have the effect of excluding or restricting access to persons who are identified by a prohibited ground.
Based on the above, if your hypothetical bylaw, which imposes a radial separation distance requirement on corrections facilities or residences, were found to have an adverse impact on certain Code-protected groups who require the use of these facilities, then the city in question would need to provide a genuine, good faith justification for the limitation or rule.
This would involve demonstration that the needs of the affected group(s) had been accommodated to the point of undue hardship, based on the factors described (cost, outside sources of funding, health and safety).
She cited the case of Alcoholism Foundation of Manitoba v. Winnipeg (City), , in which the Manitoba Court of Appeal ruled against a Manitoba radial separation bylaw that "required minimum separation distances and restricted the location of group homes for older persons, people with disabilities, persons recovering from addictions and discharged penal inmates to a limited number of zones".
In other words, a halfway house has no special protection under the Code, but a halfway house for recovering addicts who have criminal convictions might be protected, since drug and alcohol dependency is considered a disability and people with disabilities are protected.
Mental illness still carries a stigma in our society. In 2001, the Hamilton-based Offord Health Centre for Child Studies published the Ontario Child Health Study finding that one in five children has a serious mental health issue.
A recent study [PDF] on the burden of mental illness concluded that the overall burden in terms of mortality and morbidity from mental illness "is conservatively estimated at more than 1.5 times that of all cancers combined and seven times that of all infectious diseases".
It called for "a comprehensive review of evidence on effectiveness of interventions in the areas of mental health promotion and mental illness and addiction (MI&A) prevention" and suggests that this review "may have implications for priority setting and resource allocation."
With today's fragmentary, under-funded approach to mental illness, many people with serious medical needs are left untreated or under-treated, with insufficient access to the resources they need to live safely. Too often, the criminal justice system becomes the service provider of last resort for people with mental illness.
In 2012, the Ontario Human Rights Commission published a report called In The Zone: Housing, Human Rights and Municipal Planning [PDF], which asserted that equal treatment with respect to housing is guaranteed under the Ontario Human Rights Code and stated clearly that municipalities are obliged to honour that right in their zoning rules.
Affordable housing (which includes social housing and market rental housing, lodging houses, and many other housing forms) and housing that is accessible and barrier-free help build attractive, liveable and economically competitive communities. Housing is the foundation for stable living conditions, and a key starting point for financial stability and being included in the community
Recognizing the role of NIMBY in the debate over housing, the report states:
A key part of achieving inclusive neighbourhoods where all residents feel welcome to live, work and play is taking steps to overcome community opposition to affordable housing.
That effort entails a sustained, consistent effort to connect housing with human rights. It also entails a range of strategies to ensure that every community includes affordable, accessible housing to meet everyone's needs, including changes to zoning rules that accommodate more flexible building uses.
It also entails making the argument, as the Ontario Government makes, that communities with an equitable mix of housing types "may enjoy a competitive advantage" since "the availability of a full range of housing, including affordable housing, plays an important role in a municipality's efforts to attract and retain employees and businesses, or to accommodate population growth and new investment."
It is already clear that the cost of not taking care of people with special needs is much higher than the cost of providing that care.
A 2008 study from British Columbia found that it cost $55,000 a year per homeless person, split among emergency health care, policing and social services. The study concluded that B.C. could actually save nearly $33 million a year by investing more to keep vulnerable people living in homes instead of leaving them to become homeless.
In March 2012, the Social Planning and Research Council of Hamilton released a report titled The Right to Choose Where to Live [PDF], which took the Commission's position on human rights and accommodation as a starting point.
The report noted that many of the prejudices and negative assumptions about supportive accommodations are inaccurate and unfounded.
One stereotypical concern about supportive housing is that it can negatively influence property values. But evidence in Hamilton's Durand neighbourhood, where there is a large number of supporting housing units, does not bear this out. For example, one condo building in the heart of Durand was recently able to sell individual units for over $350,000 even though four of its six closest neighbours are residential care facilities.
The report also quotes Cameron Nolan, president of the Realtors Association of Hamilton-Burlington, who is not aware of any research indicating that care facilities impact housing prices and has not observed any such impact in his experience.
The report argues that the City should use regulatory incentives to encourage supportive housing to be made available in more neighbourhoods. Today, several regulatory barriers in neighbourhoods outside the core effectively prohibit such uses:
These are, incidentally, the same barriers that enforce a land use and building form comprised of single use sprawl.
More bluntly, some suburban communities, like Ancaster, still maintain actual bans on care facilities.
Several other cities have also face legal challenges over similar radial separation bylaws, including Toronto, Kitchener, Sarnia and Smiths Falls. Sarnia voted to eliminate its bylaw instead of defending it.
In an interview with The Hamiltonian, Sarnia Mayor Mike Bradley explained that his city decided to drop its radial separation bylaw after a human rights complaint was brought forward.
He offered the following advice to Hamilton: "The only advice I would offer Hamilton is to ask the following question: 'Do you want to have two classes of citizens in your community?'"
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