Amid provincial buzz about potentially using the notwithstanding clause to clear homeless encampments in Ontario, city council passed a motion opposing the idea at its Monday meeting.
Brought forward by councillors Jay Fallis and Janet-Lynne Durnford, the motion also called for council to affirm Charter rights for all individuals, regardless of their living conditions, to recognize homelessness requires “compassionate, evidence-based solutions,” and for the province to work with municipalities on the issue.
There were originally two ‘dueling motions’ slated for Monday’s meeting on the subject, as Coun. Whitney Smith initially brought forward a motion calling on the city to support use of the notwithstanding clause — which can temporarily override certain Charter rights — to deal with the homelessness.
However, before the meeting, Smith issued a new motion asking council to instead support various measures suggested by Premier Doug Ford in a recent letter, such as creating additional shelter capacity and supportive housing, prohibiting the use of illicit drugs in public and equipping law enforcement with “new tools” to that end, and more.
After making a few amendments to the motion, council passed Smith’s resolution, as well.
While council ultimately found a path forward on the subject, numerous members of the public — from local business owners, to local students, to non-profit representatives — spoke alternately for and against using the notwithstanding clause during open public forum, prior to council’s discussion on the matter.
“The notwithstanding clause is not a solution. Criminalization is not a solution. It is a blunt instrument that undermines fundamental rights and freedoms,” said Brandon Amyot.
“In a city where 14 per cent of the population is living at or below the poverty line, we cannot afford to sacrifice human dignity for quick fixes that solve nothing to address the root cause of these crises.”
Scott Wilson, owner of the local Giant Tiger, highlighted extensive issues his business faces in lending his support for using the notwithstanding clause.
“I don't have time today to list all the incidents that have happened in and around my store that brought me to this decision. I wouldn't have time just to talk about the ones that's happened in the last three weeks,” he said.
Wilson spoke of fires that have taken place near the building, discarded drug paraphernalia on the property, and customers feeling unsafe, among numerous other ongoing issues he attributes to the homelessness crisis.
“I'm now at a point where I lose $500 a day,” he said. “This is a complex issue that needs to be combated from every side … it's a societal issue that requires immediate action from everybody.”
The debate on whether or not to employ the notwithstanding clause to “move the homeless along,” as Premier Ford recently said, stems from a letter penned by a dozen big city mayors in Ontario — written at Ford’s request — asking the province to use the notwithstanding clause, among other measures, to deal with homelessness.
During discussion on Monday, Durnford highlighted a 2023 court case in the Waterloo Region, where the region’s request to evict a homeless encampment was denied.
“The notwithstanding clause should not be used to create a group of people to whom fundamental human rights under the Charter … do not apply. In Ontario, it is the law that unhoused people cannot be moved along from encampments on public lands unless there was somewhere else for them to go,” she said.
“To do so is a violation of people's fundamental rights of life, liberty and security of person. This was affirmed in 2023 by the Waterloo decision.”
Coun. Tim Lauer also raised questions about where — should they be evicted from an encampment through the clause — homeless people were meant to go.
“The fact is this … the notwithstanding clause does not present a solution. It's a much bigger problem than that,” he said. “If we're going to say somebody has to leave this area, that area, where are they going to go? And if there isn't a comprehensive solution to that question, then I don't want to be associated with that particular direction.”
While the big city mayors explicitly requested the use of the notwithstanding clause if necessary, Ford’s recent letter, which promised new legislation on the crisis, stated he does “not expect the legislation will need to proactively invoke” the clause.
However, the Premier also stated “our government is fully prepared to use the notwithstanding clause” if the courts “interfere with our shared goal of effectively addressing and clearing out encampments.”
Smith said she updated her own motion in accordance with the measures proposed in Ford’s letter.
“These proposed measures aim to strike a delicate balance between safeguarding vulnerable individuals and ensuring the security of our community,” she said. “This is the compassionate approach the homeless in our community need, (and) at the same time it will allow our hard working OPP the tools they need … to keep our community safe.”
“Supporting this motion will allow Orillia to tackle immediate safety concerns while contributing to long term, evidence-based solutions that protect our most vulnerable and create a safe, thriving environment for residents, businesses and visitors,” she said.
