By Niagara At Large reporter/publisher Doug Draper
Posted December 5th, 2024 on Niagara At Large
Ontario Premier Doug Ford is planning to take draconian legal steps, if necessary, to break up homeless encampments.
Ontario Premier Doug Ford has sent a brief note to mayors of 12 cities across the province, including Niagara’s St. Catharines Mayor Mat Siscoe, Niagara Falls Mayor Jim Diodati and Welland Mayor Frank Campion, that he is prepared to act on their call to use the notwithstanding clause in the Canadian Constitution, if necessary, to override the freedoms and rights of homeless people to break up their encampments.
“Our government shares your concerns about the need to keep our children, families and communities safe,” Ford told the mayors in a note he circulated to them this December 5th. 2024.”That’s why we are acting to put an end to the public disorder, drug use and trafficking and loss of public space that have resulted from the widespread growth in encampments.”
This note comes just a few days lawyers across Ontario, including lawyers, many of them representing community groups and agencies that assist people lacking housing, food and other basic needs, sent Ford and his Conservative government an Open Letter, dated December 2nd, 2024 and urging him not to resort to such drastic measures to deal with vulnerable people and what has become a homeless crisis in the province.
Here is that Open Letter, followed by a link to the letter and a full list to those who signed it –
Dear Premier Ford:
You have recently proposed using section 33 of the Canadian Charter of Rights and Freedoms – the Charter’s ‘notwithstanding clause’ – to proactively strip people who are homeless or experiencing mental health or substance use challenges of their most basic constitutional rights, including rights to life, security of the person and freedom from discrimination.
As members of the Ontario legal community, bound to uphold the constitution and the rule of law, we urge your government not to take such action.
The notwithstanding clause in the Canadian Charter is unique. No other constitutional democracy allows legislatures to override constitutionally protected human rights.
This means that, in Canada, we rely on an ongoing commitment by our elected representatives to respect and uphold the fundamental principles underlying a constitutional democracy – that governments may not immunize themselves from constitutional accountability or undermine the independent role of the judiciary in safeguarding Charter rights.
For forty years, that commitment has largely held. Even when strongly disagreeing with judicial decisions in Charter cases, federal, provincial, and territorial governments have not invoked the notwithstanding clause.
The Supreme Court of Canada’s decision requiring the inclusion of sexual orientation as a prohibited ground of discrimination under Alberta’s Individual Rights Protection Act, despite the Alberta government’s strong objections at the time, is one of many examples. The federal government has never used the notwithstanding clause and no Ontario government, prior to yours, has ever taken this extreme measure.
The notwithstanding clause was never intended to be used to deprive vulnerable groups of constitutional protection.
It was to be rarely, if ever invoked, and for the opposite purpose. The notwithstanding clause was to operate as a safety valve in the exceptional event of a judicial decision that was clearly contrary to the public interest. For example, then Justice Minister Jean Chretien suggested that section 33 might be used if a court struck down limits on child pornography in the name of freedom of expression.
Rather than undermining the very foundations of Canada’s commitment to constitutional democracy and depriving one of the most vulnerable groups in our province of constitutional protection, we call on you to stand by Ontario’s historic commitment to Charter rights.
Our province must respond to the current homelessness crisis in a way that respects the Charter and secures our constitution’s promise of equal protection and benefit of the law to everyone in Ontario, without exception.
Yours sincerely,
For a link to the entire Open Letter and the list of names attached to it, click on – Letter to Ontario Premier Ford – December 2.pdf – Google Drive
Niagara At Large will continue to post news and commentary on this issue in the days and weeks ahead- Doug Draper, NAL
To read a related story posted on Niagara At Large on this issue, click on – https://niagaraatlarge.com/2024/11/20/a-message-to-mayors-city-town-councils-in-niagara-across-ontario-homelessness-is-a-crisis-not-a-crime/
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