Ford promises anti-encampment bill without notwithstanding clause

The Progressive Conservative government has announced that it is bringing forward legislation to crack down on homeless encampments by giving municipalities new powers and funding to allow cities to disband them.   

But after weeks of floating — and defending — the possible use of the notwithstanding clause to allow cities to disband encampments, Ford is now saying it may not be necessary.

At issue is a 2023 Ontario Superior Court decision involving the Region of Waterloo that forbids homeless encampment evictions when there is no other housing available.

In a letter to the mayors who, at his behest, asked the premier to pass anti-encampment legislation using the notwithstanding clause, Ford wrote he is "confident" the measures contained in his proposed bill will be "common sense, practical and entirely aligned with the Charter of Rights and Freedoms."

But should the courts disagree on that last point, Ford said he would still use the controversial clause of the constitution to allow the legislation to override Charter rights for five years.

"I do not expect the legislation will need to proactively invoke (the notwithstanding clause). 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," said Ford.

In October, Ford expressed frustration when the 29-member Big City Mayors (OBSM) caucus watered down a motion put forward by Barrie Mayor Alex Nuttall and Bradford Mayor James Leduc calling on the province to use the notwithstanding clause to allow individuals living in encampments with severe mental illnesses or addiction to be forced into treatment.  

He then called on the big city mayors to write him a letter asking them to "make sure that we move the homeless along."

"And why don't they put in, 'use the notwithstanding clause,' or something like that," suggested Ford at the time.

Fifteen mayors accepted what they called the premier's "invitation" and asked him to use the clause.

There was backlash against the idea, with city councillors, civil rights organizations, shelter operators and legal community members all calling on Ford not to override the charter and evict encampment denizens with nowhere else for them to go.

Ford hasn't articulated where he expects them to go if evicted either, but insisted the province is "going to make sure we find proper shelter for these people."

The premier has been weighing his options, saying he was working with Waterloo Region Chair Karen Redman about appealing the 2023 court decision. Last week, he said that even if the province did use the notwithstanding clause, he would not force municipalities to pass bylaws to evict homelessness encampments.

“If they want encampments in their community, so be it,” said Ford.

Opponents of the use of the notwithstanding clause said they were "relieved" that Ford has agreed not to pre-emptively use it to insulate it from charter challenges, but found his threat to use the clause if the courts interfere with its implementation to be troubling as well.

"We are deeply concerned with the declared intention of using the notwithstanding clause if the government disagrees with the outcome of court decisions," the Canadian Civil Liberties Association said in a statement.  

Constitutional lawyer and University of Ottawa professor, Martha Jackman, who was one of 450 members of the legal community who signed an open letter this week calling on Ford not to use the clause, agreed.

"The premier seems to be holding Sec. 33 as a bit of a sword of Damocles hanging over any reaction to the legislation in the courts," she said while arguing that Ford's attacks on the courts are "extremely problematic."

"The courts have been extremely deferential to government in these complex areas of socio-economic policy. From the point of view of many of us, the courts have been far too conservative. There's never been a situation where you could characterize in a Canadian court as too activist around, you know, encampments in particular."

Jackman argues that the 2023 court decision doesn't require municipalities to provide adequate or safe housing to encampment dwellers — they just needs to have available shelter beds that are accessible to those being evicted.

For instance, a shelter that requires clients to be sober would not be accessible to someone using drugs.

While speaking to reporters at the legislature on Thursday, Mayor Nuttall argued that accessibility requirements can be the hurdle.

"If an individual has a dog, we need to find a place right now that takes both, and sometimes that's not possible. Sometimes it's accessibility, with relation to some of the drug problems that those individuals are suffering from and not willing to go get help for," explained Nuttall.  

Jackman says it would be "fabulous" if Ford is correct and whatever legislation the government is about to propose is compliant with the Charter, but it is unclear how likely that is.

Ford's letter states that the province is still finalizing the details of the new initiatives, and the descriptions of these new initiatives are a bit ambiguous.

It promises "greater service manage accountability and alignment with provincial and local priorities" without providing any detail on the accountability mechanisms or priorities.

The letter also proposes "New approaches to treatment and rehabilitation that prioritize pathways to recovery over incarceration," but it is unclear if that could include any involuntary mental health treatment for encampment dwellers that some mayors have been calling for.

It also promises additional funding to create "more capacity in the shelter system," but adds that this will come with new "accountability measures to ensure these funds support dismantling encampments."

"This is tricky of Doug Ford," said community worker and activist Diana Chan McNally on social media.

"His government doesn't need to put the Notwithstanding Clause on the table; his government is making new funding for shelters contingent on evicting encampments. This is his workaround for the 2023 Waterloo ruling."

The Trillium asked Ford's office to clarify all of these points but was told that more specific details would be available next week.

The proposed bill will also "explicitly" prohibit public drug use and provide police with "new tools" to enforce this. There will also be "enhanced penalties for people who deliberately and continually break the law."

Nuttall and other mayors are praising the premier's proposal, however.

Windsor Mayor Drew Dilkens said that "new legislation is necessary to help protect public safety and dismantle encampments" and that he understands Ford's decision to not use the notwithstanding clause.

"We all agree that there is no perfect solution, and many nuances to consider. That’s what I’ve been advocating for all along," said Dilkens.

Municipal Affairs and Housing Minister Paul Calandra was asked if the legislation will lead to a repeat of the controversial clearing of encampments a few years ago where police clashed with protesters when evicting encampments by force.

"We want encampments gone," said Calandra. "We want people to be able to enjoy their parks again. We fully understand that many people who are in encampments are suffering from mental health and addictions."

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