Group of Ontario mayors ask Premier Ford to use notwithstanding clause on encampments

A tent and tarps are pictured in Barrie, Ont. (CTV News/Alessandra Carneiro)

Mayors from a dozen big cities across Ontario say they want the province to use the notwithstanding clause to pass legislation that would help them handle encampments and addiction in their communities to ensure their requested measures are “implemented in a timely and effective way."

Premier Doug Ford may have goaded this response earlier this week, when he questioned if the province's big city mayors "have the backbone" to use the notwithstanding clause to dismantle encampments in their municipalities. This clause, Section 33 of the Charter of Rights and Freedoms, can grant provincial legislatures the ability – through the passage of a law – to override certain parts of the charter for five years.

"I have an idea – why don't the big city mayors actually put in writing that they want the province to change the homeless program, make sure we move the homeless along, and why don't they put in 'use the notwithstanding clause,' or something like that," Ford said at an unrelated news conference on Monday. "Let's see if they have the backbone to do it, if they really want the homeless situation to improve."

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In response, the mayors of Barrie, Brampton, Brantford, Cambridge, Chatham-Kent, Clarington, Oakville, Oshawa, Pickering, St. Catharines, Sudbury and Windsor, penned a joint letter to the premier on Thursday, asking Ford to enact that exact clause.

"We request that your government consider the following measures, and where necessary use the Notwithstanding Clause to ensure these measures are implemented in a timely and effective way," the letter reads.

Some of the measures they requested include having the province step in on any court case restricting a municipality's ability to "regulate and prohibit encampments," boosting the existing community-based and residential mental health care system (and expand the mandatory service to those struggling with addictions), as well as laying down legislation that provides "clear guidance" on the open use of drugs and alcohol.

"We ask for your immediate attention to this matter and look forward to working with the Government of Ontario to realize positive changes to very complex issues," the email concludes.

Diana Chan McNally, community worker and advocate for unhoused individuals, told CP24 that the mayors asking to have the notwithstanding clause invoked is "essentially asking for the use of the Charter to undermine and violate the very rights that the Charter protects."

"What these mayors are asking for is essentially the right to evict encampments even if there are no other alternatives. So, that is to say that cities are not obligated to provide shelter housing, or even outreach services, which is absolutely egregious," McNally said.

Using the notwithstanding clause is required due to Ontario Superior Court Justice's M.J. Valente ruling in January 2023, when he determined Waterloo Region could not use a municipal bylaw to evict anyone living in encampments as it would deprive these residents of their Charter protected right to life.

"If the Region's purpose is to prevent physical damage to the physical premises, prevent disruption to regional operations, and prevent the disruption of the use and enjoyment of the Designated Premises by others, the Region could have accomplished this goal without punishing everyone who erects a shelter when there is no accessible shelter alternative," Valente wrote in his decision.

"The homeless population of the Region needs to be able to create some shelter. If there were sufficient, truly accessible shelter beds in the Region, and the homeless chose not to use them, the situation would be quite different, but that is not the case here."

McNally also pointed out that the joint letter cites the Grants Pass Supreme Court decision in the United States, which allows local governments to criminalize unhoused individuals in place of building housing and shelter. But, McNally noted that has no legal purview in Ontario.

With files from The Canadian Press