After a brief retreat, politicians are again clamouring for the notwithstanding clause

When a public backlash compelled Ontario Premier Doug Ford to abandon his use of the notwithstanding clause to end a labour dispute in 2022, it was possible to believe the tide had turned back against the Charter of Rights' escape hatch — that political leaders would again have to think twice before trying to sidestep a court's conclusion that the rights of an individual or group had been violated.

But the latest calls to invoke the clause — to clear homeless encampments in some Ontario cities — suggest the political temptation to override inconvenient rights is still strong. As a result, the practice of invoking the notwithstanding clause, contrary to its original intent, is again at risk of becoming normalized.

These new calls also show how it's the most disadvantaged, vulnerable and outnumbered members of society who have the most to fear when human rights exist at the whim of the majority. 

When 13 mayors wrote a public letter to Ontario Premier Doug Ford late last month to ask him to consider using the notwithstanding clause, they did so after the premier himself issued an open invitation.

"I have an idea," Ford told a news conference in late October. "Why don't the big city mayors actually put in writing that they want the province to change the homeless program, make sure that we move the homeless along, and why don't they put in, 'Use the notwithstanding clause,' or something like that."

Ford said that doing so would show "backbone."

The potential use of the notwithstanding clause against homeless encampments would be in response to a ruling made by the Ontario Superior Court of Justice in January 2023. Justice M.J. Valente ruled that a bylaw passed by the Region of Waterloo could not be used to evict approximately 50 people from a vacant piece of publicly owned land in Kitchener because, under the circumstances, it would constitute a violation of the residents' Charter right to life, liberty and security of the person. 

Specifically, Justice Valente ruled that the bylaw was inoperative "insofar, and only insofar, as it applies to prevent the residents of the encampment from living on and erecting temporary shelters without a permit on the property when the number of homeless persons exceeds the number of available accessible shelter beds in the region."

In other words, the municipality could not evict people from an encampment on public property unless those people had somewhere appropriate to go.

There's no debating the fact that homelessness and encampments represent a real problem for Ontario cities and towns — and that's no doubt putting significant pressure on mayors. But does the Waterloo ruling create an urgent or significant need to invoke the notwithstanding clause? Would invoking the clause be the best or only way to deal with the problem?

If the notwithstanding clause was envisioned as a "last resort," it follows that those seeking to use it have to show they have no other options.

"The simplest way of dealing with encampments would be to look at the outs that the Waterloo decision gave cities, and that's providing alternatives for [the homeless], and that's doable with the proper funding," Sam Trosow, a city councillor in London, Ont. and a law professor emeritus at the University of Western Ontario, told me in a recent interview.

(The mayor of London, Josh Morgan, has not called on Ford to use the notwithstanding clause.)

Municipalities, with their limited ability to raise revenue, might not be able to fund those additional spaces or services themselves, Trosow said. But the province could help — and so could the federal government.