The winter months are the most dangerous for the unhoused population. A lack of shelters and proper winter clothing makes surviving the elements a life-or-death struggle.
Now, unhoused people are faced with a new threat: the notwithstanding clause, which is being used to clear encampments locally and provincially. Section 33 of the Canadian Charter of Rights and Freedoms, known as the notwithstanding clause, allows federal and provincial parliaments to override certain Charter rights for five-years when making new laws.
The notwithstanding clause is being utilized to threaten the rights of unhoused individuals as the clause can only override some sections of the Charter. This includes Section 2 and Sections 7 to 15, which cover fundamental freedoms, legal rights and equality rights. Section 7, which guarantees the life, liberty and personal security of all Canadians, was specifically used by Ontario Superior Court Justice M.J. Valente to rule that the Waterloo region could not use a municipal bylaw to evict individuals living in an encampment in Kitchener back in 2023, as the bylaw was found to violate Section 7 of the Canadian Charter of Rights and Freedoms.
There is large push by 13 Ontario mayors who address the Premier of Ontario to use the notwithstanding clause to override a court decision that prevents municipalities from clearing homeless encampments when their shelters are full.
Among the list of Ontario mayors who have been urging for the notwithstanding clause to be used is Cambridge mayor Jan Liggett.
The letter also includes a cry for more funding towards supportive housing, mandatory community-based mental health care for those with addictions, the implementation of a provincial drug and diversion court system, and an amendment to the Trespass to Property Act to introduce a distinct provision for “repetitive acts of trespass,” with penalties that may include incarceration.
Basically, while focusing on the social issues of homelessness and drug addiction, these mayors are also trying to make it easier to remove unsanctioned encampments.
Another letter was sent by 41 city councillors around the province, including some from the Waterloo Region, countering the first letter and arguing that the notwithstanding clause is not used when helping municipalities deal with encampments. Both of these letters ring true, and both offer strong arguments and distinct recommendations for dealing with homelessness and addictions at a municipal level.
“We are crippled right now. We have municipalities who are not able to go to court because everybody’s afraid of spending the money,” Ligget said on CBC Radio’s The Morning Edition.
Although she has made harsh generalizations regarding the agency of homeless people suffering from addictions and living in encampments, her argument rests on the fact that they would like to have provincial-level expertise, legal support and financial support when it comes to clearing out encampments.
“I have addicts in my family. I have taken the homeless into my home,
so before anybody says walk a mile in their shoes, I’ve done that. I have that lived experience,” Liggett states.
Harm reduction workers and regional councilors disagree.
“Using the notwithstanding clause against persons experiencing homelessness and living in encampments implies that, because they have no home, they should have fewer rights than others,” Scott Hamilton, a councilor of the City of Cambridge, said.
As of this writing, Premier Doug Ford has made a pledge to support cities in removing encampments and supporting these cities if courts wish to intervene in the eviction processes.
“Our government shares your concerns about the need to keep our children, families and communities safe,” Ford said, in response to the mayors’ letters.
This is no clear-cut answer to the several other requests by councillors and mayors to further support municipalities to better deal with homelessness, mental health and addiction in their municipalities.
Additionally, when considering that unofficial numbers by the provincial government indicate that there are over 200,000 homeless people and over 1,400 encampments in Ontario alone, these conversations and the actions of clearing encampments will have a severe impact on thousands of lives.
A solution to homelessness and addiction is not clear, and clearing encampments in bad faith will not end homelessness but exacerbate the existing barriers faced by the homeless. A good faith encampment clearing can only be completed if shelters, affordable housing and alternatives are provided by municipalities in an earnest effort to properly house the unhoused.
Additionally, shelters are closing, shelter space is limited, and not everyone is safe in shelters.
Frankly, the shortsighted use of the notwithstanding clause as a political play would ultimately do nothing but violate the rights of the unhoused by blocking legal appeals to stop them from being evicted.
Dealing with homelessness cannot be done by political stakeholders, there is a need for expertise, lived experience, and alignment among municipalities to seek the betterment of their communities rather than the displacement of their most vulnerable populations.
The government of Ontario has already taken a step backwards by closing safe consumption sites, and they are now considering violating the rights of individuals.
This is not a step to help the poor; this is another step in criminalizing the poor. The lack of actions such as mandating affordable housing units in new developments, protecting renters from bad-faith evictions, and providing ample homeless shelter spaces are treated as an afterthought.
Reactive policy making has been a trend, and the use of the notwithstanding clause is an example of how reactive measures have a sudden and severe impact on the lives of people.
As a community, we need to hold politicians accountable for their actions and inactions.
Overall, with the winter in effect, this season will unfortunately be another where the homeless continue to be at the whims of politicians who are detached from life in the streets and life at Queens Park.
More than ever, many are at risk of being victims of political oversight and violations of their rights. Right now is the time for people to act and ensure that violating the rights of people with ease does not become the precedent.
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