Members of Ontario's legal community have written to Premier Doug Ford to express their concern over a call to use the notwithstanding clause to help municipalities clear homeless encampments.
The letter, signed by 450 members of the legal community, calls the proposal an unprecedented misuse of the Canadian Charter of Rights and Freedoms, depriving one of the most vulnerable groups in Ontario of their fundamental rights, including rights to life, security of the person, and protection from discrimination.
The letter underscores that use of the notwithstanding clause is not a solution to the homelessness, mental health, or substance use crises. It argues that Ontario's response to these pressing issues should promote, not erode, Charter protections.
It calls on the Ford government to honour Ontario's legacy of upholding Charter rights and to prioritize solutions that respect and protect all Ontarians.
University of Windsor Law Professor Emeritus Bill Bogart is among those who signed the letter against the use of the clause and he told AM800's The Shift with Patty Handysides that there's no suggestion that homelessness, substance use, and mental health aren't complicated issues.
"Hundreds of lawyers and other folks have said, 'Look, invoking the notwithstanding clause would shield any legislation about these issues from Charter scrutiny by the courts is now the way to go.' It's taking away people's fundamental rights," he says.
Bogart says use of the clause is suggesting there's a straightforward solution to a complex problem.
"That's simply not the case. There's a real danger that invoking the notwithstanding clause and forbidding the courts from examining the legislation and the proposed solutions will take a bad situation and make it even worse," he says.
Bogart says that the notwithstanding clause allows the government to prevent the courts from examining legislation as part of the Charter of Rights and Freedoms.
"What we're saying is not that there should be a public debate about these issues, not that they're not complex, not that the proposed solutions may be controversial, but you shouldn't just shield whatever government action is from judicial scrutiny that is meant to ensure fundamental rights are protected," he says.
In early November, Windsor Mayor Drew Dilkens joined with 12 other Ontario mayors in asking Premier Ford to use the notwithstanding clause to override a court decision preventing municipalities from clearing homeless encampments if their shelters are full.
The letter takes aim at a January 2023 ruling by an Ontario Superior Court judge who ruled that Waterloo Region could not use a municipal bylaw to evict people living in an encampment because it violated their rights.
Municipalities have been told that unless they have available space in the shelter system, an encampment must remain in place.
In the letter from the group of mayors to Premier Ford, they ask for the notwithstanding clause to be invoked, if needed, to also allow a number of other measures:
- Provincial government to become an intervenor in any court case restricting municipalities’ ability to prohibit encampments.
- Implement a drug and diversion court system across the province and ensure there are necessary resources to allow a focus on rehabilitation as opposed to incarceration.
- Amend the Trespass to Property Act to include a separate provision for repetitive acts of trespass, the penalty for which should include incarceration, and to permit a police officer to arrest a person who commits repetitive acts of trespass after being told by police not to engage in such activity. These amendments should also include an option for referral to a diversion court.
- Enact legislation providing guidance on the open and public use of drugs being prohibited in the same manner that open consumption of alcohol is banned.
