Tents are set up at a homeless encampment in Toronto's Alexandra Park in March, 2021.Chris Young/The Canadian Press
Ontario Premier Doug Ford says he’s planning to bring in enhanced legislative powers to allow police and municipalities to clear homeless encampments and warns that he’s prepared to use the notwithstanding clause in the Charter of Rights and Freedoms if courts interfere.
But he said he would not pre-emptively invoke the clause, which allows governments to temporarily override certain Charter rights. The constitutional provision has traditionally been seen as something that should be rarely used.
In a letter released on Thursday, Mr. Ford says he is acting on a request from a dozen of the province’s mayors for a range of remedies that included new police powers to arrest repeat trespassers and to explicitly ban the public use of illegal drugs. The details of what the Premier has in mind are expected to be unveiled in legislation to be introduced next week.
It’s the latest sign that political leaders are increasingly prepared to take drastic action to address mounting complaints about homeless encampments that have taken root in many communities amid an acute housing shortage and a continuing crisis of opioid addiction.
Court rulings in Waterloo Region and Kingston have restricted cities from evicting the homeless living encampments, concluding that if there are no shelter spaces available, such evictions violate the Charter right to “life, liberty, and security of the person.”
Political leaders in Canada have been more open to invoking the notwithstanding clause. Saskatchewan Premier Scott Moe’s government, for example, used it to require parental consent when younger students want to use different names or pronouns. And federal Conservative Leader Pierre Poilievre has suggested that he would be open to using the clause in criminal-justice legislation.
Mr. Ford is the only Ontario Premier to have invoked the notwithstanding clause since the Constitution was repatriated in 1982. Formally known as Section 33 of the Charter of Rights and Freedoms, the clause allows governments to insulate legislation from potential court challenges by suspending many of the rights guaranteed in the Charter, such as free expression or the prohibition against arbitrary detention.
Municipalities in Ontario say there were 1,400 homeless encampments in their communities last year
Mr. Ford used the clause to limit political advertising after a court struck down provincial legislation before the 2022 election. Later that year, he introduced and then withdrew legislation that used the clause to pre-emptively strip an education union of the right to strike. In 2018, after a lower-court judge initially blocked his move to slash the number of Toronto city councillors, Mr. Ford introduced legislation invoking the clause but later withdrew it.
In his letter to the mayors, Mr. Ford says he is “confident” that his impending legislative changes on encampments are “common sense” and “entirely aligned” with the Charter,” so that he does not expect to invoke Section 33 in advance of a court challenge.
“However, should the courts interfere with our shared goal of effectively addressing and clearing out encampments using these enhanced tools, with your support, our government is fully prepared to use the notwithstanding clause.”
The Premier writes that his coming measures will include more funding but also more “accountability” for the agencies that deliver homeless programs and run shelters, in order to ensure that the cash goes toward “dismantling encampments.”
The proposed legislative changes would also “explicitly and unequivocally” ban public drug use and provide “new tools and authorities to help police enforce this prohibition,” he writes. Mr. Ford also says he will put forward “enhanced penalties for people who deliberately and continually break the law,” as well as “new approaches to treatment and rehabilitation that prioritize pathways to recovery over incarceration” for minor crimes.
Barrie Mayor Alex Nuttall, among those who signed the letter endorsing the use of the notwithstanding clause, was on hand at Queen’s Park on Thursday to tell reporters he was encouraged by the Premier’s announcement.
“I think I’ll be happy when we can provide all the services on the ground to help individuals that are looking for it,” Mr. Nuttall said. “I’ll be happy when families can start to use parks again in a way when they don’t feel like there are concerns in relation to their kids going down a slide and falling on a needle.”
The dozen mayors behind the original request, including Mr. Nuttall and his counterparts in Brampton and Windsor, had written to Mr. Ford on Oct. 31. This was just days after the Premier made public comments demanding that local leaders show “backbone” and formally request that he invoke the notwithstanding clause to “make sure that we move the homeless along.”
They asked Mr. Ford to invoke the notwithstanding clause, if necessary, to strengthen the ability of authorities to force people into addictions treatment and beef up laws to allow the arresting and jailing of repeat trespassers. They called for a ban on open drug use, and a new court diversion system to redirect offenders toward rehabilitation. (Another three mayors later signed the letter.)
The mayors’ request – which was not signed by those in Ontario’s three biggest cities of Toronto, Ottawa and Mississauga – flew in the face of a decision by a group of 29 mayors of the province’s largest cities. The group had just voted against endorsing the notwithstanding clause but still called for many of the same measures.
The Canadian Civil Liberties Association condemned Mr. Ford’s announcement, arguing that court rulings that enforce Charter rights should be respected, not disregarded by using the notwithstanding clause.
“The notwithstanding clause should not be used to override basic human rights,” Anaïs Bussières McNicoll of the CCLA said in a news release.