A dozen mayors, including St. Catharines' Mat Siscoe, accept Ford's 'invitation' to ask for notwithstanding clause

EDITOR’S NOTE: This article originally appeared on The Trillium, a Village Media website devoted to covering provincial politics at Queen’s Park.

A dozen Ontario mayors have taken Premier Doug Ford up on his invitation to ask him to pass legislation to move homeless people out of encampments and to protect it from Charter challenges by using the notwithstanding clause.

On Thursday, the mayors of Barrie, Brampton, Brantford, Cambridge, Oakville, Oshawa, Pickering, St. Catharines, Sudbury, Guelph, Chatham-Kent, Clarington, and Windsor sent a letter to Premier Ford formally asking the province to take action aimed at disbanding homeless encampments and forcing some of the people living there into involuntary mental health treatment.

"We have heard your invitation for a clear request for provincial action to help municipalities with issues related to mental health, addiction, and homeless encampments," the mayors wrote to Ford in a letter on Thursday.  

"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 mayors are requesting that the legislation contain several measures aimed at cracking down on encampments, all of which were proposed earlier this month in a motion considered by the Ontario Big City Mayors (OBCM) caucus.

That original motion did not pass. Instead, the 29 OBCM mayors decided to water it down considerably and stripped out all mention of the notwithstanding clause.

Cambridge Mayor Janice Liggett told The Trillium that taking out the notwithstanding clause from the OCBM motion was the only way to reach a consensus after six hours of debate, but it left her and many other mayors feeling that it had "not gone far enough."

Municipalities, the mayor said, "have been left to deal with this crisis without adequate resources, legal authority or support," and are "caught in a trap" where they don't have the means to deal with encampments in a manner that would satisfy the courts. 

Liggett pointed to the 2023 Ontario Superior Court decision that forbade the Region of Waterloo from evicting a homeless encampment after determining the municipal bylaw violated the inhabitants' Charter rights to life and security of the person. 

The premier also warned earlier this week that the precedent set by this case makes it hard for municipalities to disband encampments, but Liggett notes its more complicated that. 

"The judge in that case didn't actually close the door (to encampment evictions) completely, " Liggett said, adding that the judge found that if municipalities can provide enough housing, then encampments would be unnecessary. 

"The problem is that, as lower-tier municipalities, we do not provide housing," Liggett added. "So we are being held ransom by the encampments without being able to provide housing."

"I don't think it sets a bad precedent. This is why the notwithstanding clause is in the constitution," she said 

In their letter, the mayors are once again calling for more involuntary mental health treatment for Ontarians with severe mental illness and addiction issues, although the language has been softened somewhat since the original OBCM motion.  

The mayors have dropped the call for the development of a new "compulsory treatment program that expands the scope of and strengthens the system of mandatory ... mental health and addictions treatment." This time they want to simply "strengthen the existing system" of mandatory treatment and "to expand service to treat those who have severe and debilitating addictions."

The mayors are also calling on the Progressive Conservatives to amend the Trespass to Property Act to allow people to be sent to jail for "repetitive acts of trespass" and to allow police officers "to arrest a person who commits repetitive acts of trespass" who they previously warned to leave.

The mayors are calling on the premier to use the notwithstanding clause "where necessary" to protect the legislation from constitutional challenges that have hampered past efforts to evict encampment dwellers.

The Canadian Civil Liberties Association (CCLA) has criticized the call for "the creation of new 'repetitive trespass' provisions" saying that they are meant to "criminalize unhoused people and people living in poverty, who are already among the most vulnerable members of our society."

“The notwithstanding clause was never intended to be used — and should never be used — to weaken or harm legal protections for marginalized and vulnerable communities," said CCLA director Harini Sivalingam.

The letter adds that the changes to the Trespass to Property Act should allow arresting officers to send the cases to the new "Drug and Diversion Court system," which the mayors are asking the PC government to create and implement "throughout the entire province" as a way "to allow a meaningful focus on rehabilitation as opposed to incarceration."

The province is also once again asked to become an intervener in any court case that "restricts the ability of municipalities to regulate and prohibit encampments" and argue to the court that it should "not be dictating homelessness policy."

Lastly, the mayors are asking for the province to enact legislation that would prohibit public drug use "in the same manner as the open consumption of alcohol."

Asked if the government will pass legislation with these requested measures while invoking the notwithstanding clause, Premier Ford's office said it "will explore every legal tool available to the province to clear encampments and restore safety to public spaces."

"We are examining which additional tools the province can provide to help municipalities effectively manage these ongoing challenges," said a Ford spokesperson without elaborating on what these additional tools are.

Ford caused an uproar in 2022 when his government used the notwithstanding clause in a bill to prevent education workers from going on strike. Rather than using the Charter's override provision to reintroduce legislation that a court had found violated Charter rights, the government used it pre-emptively, before any court could weigh in. The province, facing threats from labour of a general strike, repealed the legislation. 

At Queen's Park on Thursday, opposition politicians all agreed that Ford's efforts would be better spent building more homes, which they argued is the only real "solution to encampments."

"The housing doesn't exist, so you will just end up moving the encampments without solving the problem," Official Opposition Leader Marit Stiles told reporters at Queen's Park.

Liberal Housing critic Adil Shamji argued that if the government solves "the housing and homelessness crisis, the encampments will get taken care of." He called on the province to heed other requests from municipal leaders that the PCs have so far ignored, including the ability to "defray the cost of infrastructure and home building away from the cities and back onto the province."

Green Party Leader Mike Schreiner said "taking the constitutional rights away from people experiencing homelessness" won't help them find anywhere to live other than encampments.

Correction: The 2023 court case was heard by the Ontario Superior Court, not the Supreme Court. This story has also been updated to correct a quote that used the wrong gender for the judge in the case.