When a public backlash forced Ontario Premier Doug Ford to abandon his use of notwithstanding the clause To end a labor dispute in 2022, it was possible to believe that the tide had turned against the escape door of the Bill of Rights – that political leaders would still have to think twice before trying to avoid a court’s finding that the rights of an individual or group had been violated.

But the latest calls to invoke the clause – to eliminate homeless encampments in some Ontario cities – suggest the political temptation to ignore rights that get in the way is still strong. As a result, the practice of invoking the escape clause, contrary to its initial intention, risks once again becoming normalized.

These new calls also show that it is the most disadvantaged, vulnerable and numerous members of society who have the most to fear when human rights depend on the whims 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 said at a news conference in late October. “Why don’t big city mayors write that they want the province to change the homeless program, make sure we help the homeless, and why don’t they write “Use the escape clause” or something like that.”

Ford said it would show his “spine.”

Potential use of escape clause against homeless encampments would meet demand decision made by the Ontario Superior Court of Justice in January 2023. Judge MJ Valente governed that a bylaw passed by the Region of Waterloo could not be used to evict approximately 50 people from vacant public land in Kitchener because, in the circumstances, it would constitute a violation of the rights to life, liberty and the lives of residents guaranteed by the Personal Safety Charter.

Specifically, Judge Valente ruled that the regulation was inoperative “to the extent, and only to the extent, that it applies to preventing encampment residents from inhabiting and erecting temporary shelters without permits on the property when the number of homeless people exceeds the number of people.” accessible shelter beds available in the area.

In other words, the municipality could only evict people from a camp located on public property if they had a suitable place to go.

Is the clause a response to homelessness?

There is no doubt that homelessness and encampments are a problem real problem for Ontario’s cities and towns – and this undoubtedly puts significant pressure on mayors. But does the Waterloo ruling create an urgent or significant need to invoke the notwithstanding clause? Would invoking this clause be the best or only way to resolve the problem?

If the derogation clause was envisaged as a “last resort,“It follows that those seeking to use it must show that they have no other options.

“The simplest way to deal with encampments would be to look at the opportunities that the Waterloo decision gave to cities, and that would provide alternatives (to the homeless), and that is achievable with proper funding,” said Sam Trosow, London City Councilor. Have. and professor of law emeritus at the University of Western Ontario, told me in a recent interview.

(London Mayor Josh Morgan did not ask Ford to use the escape clause.)

WATCH: Ontario mayors call on province to invoke notwithstanding clause to clear encampments

Is the derogation clause a tool to combat homelessness? Some Ontario mayors think so

Thirteen Ontario mayors are calling on Premier Doug Ford to use the notwithstanding clause so they can eliminate homeless encampments in their cities. Guelph Mayor Cam Guthrie is one of the mayors making this call to the Prime Minister. He explains why he believes this is necessary.

Municipalities, with their limited ability to generate revenue, may not be able to fund these additional spaces or services themselves, Trosow said. But the province could help, as could the federal government.

“No one wants the encampments to be permanent. But in order for us to, in the first place, alleviate the need for people to be in these encampments, we can’t just take a policing approach and disperse them, which is exactly what what Ford is doing and these mayors (are seeking to do it),” Trosow said.

“The question is, what policy is going to get us out of this difficult situation in the long term? And not just make it a game of whack-a-mole where it ends up somewhere else.”

It is the responsibility of proponents of the escape clause to justify its use.

“It’s a very blunt and drastic tool that does absolutely nothing to address the crisis of homelessness and lack of affordable housing in our communities. It will literally do nothing to move these governments closer to the underlying problems.” Estair Van Wagnerprofessor of law at the University of Victoria, told me.

The normalization of an extraordinary step

Beyond the details of Ontario’s situation, it is difficult to separate these latest calls for the deployment of the notwithstanding clause from the trend of its use in recent years. Would anyone request that this clause be used now if it had not already been invoked or threatened in other recent cases?

“At the time (the Canadian Charter of Rights and Freedoms was created), it was understood that this was a very extraordinary remedy that would be enshrined in the Constitution and would only be used in extreme circumstances and unusual. And outside of Quebec, this has been the case for many people. But what started to happen in Ontario under the Ford government was that it started to be highlighted and used in what I would call routine policy,” Trosow said, noting both the labor dispute of 2022 and that of the Ford government. previous use of the clause reduce the size of Toronto City Council.

Although Ford was forced to back down two years ago, the withdrawal apparently failed to put a damper on the escape clause.

Quebec continues to apply the clause to protect Bill 21which prohibits civil servants from wearing religious symbols or attire. Scott Moe, Premier of Saskatchewan reached for the clause in 2023 has overcome challenges to his government’s policy on how and when children can change their name or pronouns at school. And federal Conservative Leader Pierre Poilievre said this year that a federal government led by him would use the notwithstanding clause to address “criminal justice issues“, apparently with the aim of imposing harsher sentences.

When Ford invoked the escape clause against a large public sector union, he faced strong resistance. Nearly two dozen labor organizations came together to oppose the movement and there was talk of a province-wide general strike. Prime Minister Justin Trudeau publicly critical the prime minister.

Ford’s decision could have threatened large numbers of workers; the organized response threatened the political fortunes of his government. As a result, Ford was forced to back down.

It seems that not everyone can count on such public support. But this is why human rights are codified into law: to protect the rights and freedoms of individuals and minority groups, regardless of political influence or public support. Every time the majority decides that someone’s rights can be violated, it threatens everyone.

The scourge of homelessness is undoubtedly a major concern at the moment, particularly for people who do not have access to safe and secure housing and who find themselves on the streets. Solving the problem will not be easy or simple.

But much more is at stake if overriding the Charter rights of Canadian citizens becomes part of the official response to homelessness.