After a brief retreat, politicians are again clamouring for the notwithstanding clause
When the majority decides it can brush aside someone's rights, everyone is at risk
When a public backlash compelled Ontario Premier Doug Ford to abandon his use of the notwithstanding clause to end a labour dispute in 2022, it was possible to believe the tide had turned back against the Charter of Rights' escape hatch — that political leaders would again have to think twice before trying to sidestep a court's conclusion that the rights of an individual or group had been violated.
But the latest calls to invoke the clause — to clear homeless encampments in some Ontario cities — suggest the political temptation to override inconvenient rights is still strong. As a result, the practice of invoking the notwithstanding clause, contrary to its original intent, is again at risk of becoming normalized.
These new calls also show how it's the most disadvantaged, vulnerable and outnumbered members of society who have the most to fear when human rights exist at the whim of the majority.
When 13 mayors wrote a public letter to Ontario Premier Doug Ford late last month to ask him to consider using the notwithstanding clause, they did so after the premier himself issued an open invitation.
"I have an idea," Ford told a news conference in late October. "Why don't the big city mayors actually put in writing that they want the province to change the homeless program, make sure that we move the homeless along, and why don't they put in, 'Use the notwithstanding clause,' or something like that."
Ford said that doing so would show "backbone."
The potential use of the notwithstanding clause against homeless encampments would be in response to a ruling made by the Ontario Superior Court of Justice in January 2023. Justice M.J. Valente ruled that a bylaw passed by the Region of Waterloo could not be used to evict approximately 50 people from a vacant piece of publicly owned land in Kitchener because, under the circumstances, it would constitute a violation of the residents' Charter right to life, liberty and security of the person.
Specifically, Justice Valente ruled that the bylaw was inoperative "insofar, and only insofar, as it applies to prevent the residents of the encampment from living on and erecting temporary shelters without a permit on the property when the number of homeless persons exceeds the number of available accessible shelter beds in the region."
In other words, the municipality could not evict people from an encampment on public property unless those people had somewhere appropriate to go.
Is the clause an answer to homelessness?
There's no debating the fact that homelessness and encampments represent a real problem for Ontario cities and towns — and that's no doubt putting significant pressure on mayors. But does the Waterloo ruling create an urgent or significant need to invoke the notwithstanding clause? Would invoking the clause be the best or only way to deal with the problem?
If the notwithstanding clause was envisioned as a "last resort," it follows that those seeking to use it have to show they have no other options.
"The simplest way of dealing with encampments would be to look at the outs that the Waterloo decision gave cities, and that's providing alternatives for [the homeless], and that's doable with the proper funding," Sam Trosow, a city councillor in London, Ont. and a law professor emeritus at the University of Western Ontario, told me in a recent interview.
(The mayor of London, Josh Morgan, has not called on Ford to use the notwithstanding clause.)
Municipalities, with their limited ability to raise revenue, might not be able to fund those additional spaces or services themselves, Trosow said. But the province could help — and so could the federal government.
"Nobody wants the encampments to be permanent. But in order for us to be able to alleviate the need for people to be in these encampments in the first place, we can't just take a police approach and scatter them, which is exactly what Ford and these mayors are [seeking to do]," Trosow said.
"The question is, what is the policy that's going to get us out of this predicament in the long run? And not just not just turn it into a game of whack-a-mole where it just turns up someplace else."
The political onus is on proponents of the notwithstanding clause to make the case for its use.
"It's a very blunt, drastic tool that does absolutely nothing to resolve the crisis of homelessness and the lack of affordable housing in our communities. It will literally do nothing to get those governments closer to dealing with the underlying issues," Estair Van Wagner, a law professor at the University of Victoria, told me.
The normalization of an extraordinary step
Beyond the details of Ontario's situation, it is hard to separate these latest calls for deployment of the notwithstanding clause from the trend toward its use in recent years. Would anyone be calling for the clause to be used now if it hadn't already been invoked or threatened in other recent cases?
"The understanding at the time [the Charter of Rights and Freedoms was created] was that this was a very extraordinary remedy that would be put in the Constitution to be used only under extreme and unusual circumstances. And outside of Quebec, that held for many years. But what started happening in Ontario under the Ford government was it started getting brought out and used in what I would call routine policy," Trosow said, pointing to both the labour dispute in 2022 and the Ford government's previous use of the clause to reduce the size of Toronto's city council.
While Ford was forced to back down two years ago, that retreat apparently has failed to cast a chill over the notwithstanding clause.
Quebec continues to apply the clause to protect Bill 21, which bars public servants from wearing religious symbols or attire. Saskatchewan Premier Scott Moe reached for the clause in 2023 to override challenges to his government's policy on how and when children can change their names or pronouns at school. And federal Conservative Leader Pierre Poilievre said this year that a federal government led by him would use the notwithstanding clause to deal with "matters of criminal justice," apparently for the sake of implementing harsher sentences.
When Ford wielded the notwithstanding clause against a large public sector union, he met with heavy resistance. Nearly two dozen labour organizations came together to oppose the move and there was talk of a province-wide general strike. Prime Minister Justin Trudeau publicly criticized the premier.
Ford's move could have threatened a large number of workers; the organized response threatened the political fortunes of his government. As a result, Ford was compelled to back down.
It seems that not everyone can count on that kind of widespread public support. But that's why human rights are codified in law — to protect the rights and freedoms of individuals and minority groups, regardless of political clout or public support. Whenever the majority decides that someone's rights can be brushed aside, it threatens everyone.
The scourge of homelessness is no doubt a major concern at the moment — not least to the people who do not have access to safe and secure housing and who are struggling on the streets. Solving the problem will be neither easy nor simple.
But there will be that much more at stake if overruling the Charter rights of Canadian citizens becomes part of the official answer to homelessness.
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