Ontario mayors ask Ford to use notwithstanding clause to clear homeless encampments

Thirteen Ontario mayors are asking Premier Doug Ford to use the notwithstanding clause to override a court ruling that bans municipalities from clearing homeless encampments if their shelters are full.

In Thursday’s letter, the mayors call for several measures to help municipalities deal with mental health, addiction and homelessness issues in their communities. The mayors say using the notwithstanding clause would ensure the measures are implemented effectively.

“We ask for your immediate attention to this issue and look forward to working with the Ontario government to achieve positive change on very complex issues,” the mayors wrote in the letter.

The letter was signed by Mayor of Barrie Alex Nuttall, Mayor of Brampton Patrick Brown, Mayor of Brantford Ken Davis, Mayor of Cambridge Jan Liggett, Mayor of Chatham-Kent Darrin Canniff, Mayor of Clarington Adrian Foster, Mayor of Guelph Cam Guthrie, Mayor of Oakville Rob Burton and Oshawa Mayor Dan Carter, Pickering Mayor Kevin Ashe, St. Catharines Mayor Mat Siscoe, Sudbury Mayor Paul Lefebvre and Windsor Mayor Drew Dilkens.

The letter comes after Ford called on mayors Tuesday to demand that he use the notwithstanding clause to pass legislation that would give them more tools to address homelessness.

“I have an idea: Why don’t the mayors of the big cities 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 say, ‘Use the notwithstanding clause,'” or something like that,” Ford had said.

“That’s what they should do… Let’s see if they have the backbone to do it, if they really want the homeless situation to improve,” he said.

“Mayors of big cities, if you want to make it happen, I need that letter.”

The notwithstanding clause is necessary because of a ruling by the Ontario Superior Court of Justice in January 2023. Judge MJ Valente ruled that the Region of Waterloo could not use a municipal bylaw to evict people from an encampment in Kitchener because that bylaw was deemed in violation with section 7 of the Canadian Charter of Rights and Freedoms. The judge said a lack of shelters means the statute infringes on Charter rights.

“I declare that the ordinance is not in force to the extent and only to the extent that it applies to prevent the residents of the encampment from continuing to live and building temporary shelters without a permit on the premises, when the number of homeless people exceeds available accessible shelter beds in the region,” Valente wrote.

In the letter, the mayors ask the provincial government to do the following:

• Intervene in any lawsuit that limits municipalities’ ability to regulate and ban encampments, following the U.S. Supreme Court-endorsed principle that courts should not dictate public policy on homelessness.

• Strengthen the system of mandatory community and residential mental health care and expand services to treat people with serious addictions.

• Implement a drug and diversion system across the province and ensure there are the necessary resources to focus on rehabilitation rather than incarceration.

• Amend the Property Offenses Act to include a separate provision for ‘repetitive acts of trespass’, the penalty for which should include imprisonment, and to allow a police officer to arrest a person who commits repeated offenses after the police told him not to participate in such an activity. These changes should also include the possibility of referral to an alternative court.

• Pass legislation providing guidance on banning the “open and public” use of drugs, in the same way that the open consumption of alcohol is banned.

Grace Lee, spokesperson for the Prime Minister, said in a statement on Thursday: “We have made it clear that we will explore all legal tools available to the province to clear camps and restore safety in public spaces.

“As cities continue to be at the forefront of issues surrounding municipally owned land, we are exploring what additional tools the province can provide to help municipalities effectively address these ongoing challenges,” Lee added.

Leaders of Ontario’s opposition parties say the notwithstanding clause is not the answer.

“The solution to encampments and homelessness is housing. The housing doesn’t exist,” Ontario NDP Leader Marit Stiles told reporters in Queens Park on Thursday.

Stiles said the government should work with municipalities to build affordable housing and bring back rent control.

Mike Schreiner, leader of the Ontario Green Party, said Thursday that using the notwithstanding clause is an “extreme” action.

“To me, this is a complete failure by the Ford government to build highly affordable, non-profit, cooperative and supportive housing. If they’re going to take the extreme measure of taking away the constitutional rights of people who are homeless, where are those people going to go? There are no houses for them to go to.”

Schreiner said that if he were prime minister, he would not consider the mayors’ request.