Using the notwithstanding clause to evict the homeless shows the limits of municipal politics
In what has become a mainstay in recent Canadian politics, the notwithstanding clause of the Canadian Charter of Rights and Freedoms is back in the news.
In the last few weeks, several mayors have asked the Ontario government to use the notwithstanding clause to clear homeless encampments.
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The history of the notwithstanding clause
But invoking the clause would override the homeless population’s rights to “life, liberty, and security” of the person, and potentially other rights.
Proponents of the idea argue the eviction plans would allow residents to regain access to parks currently occupied by the encampments.
The mayors suggest municipal governments, rather than courts, are best equipped to manage homeless encampments. Indeed, they endorse the United State Supreme Court’s recent decision allowing cities to arrest and fine people for sleeping outside when there are no safe alternatives.
Read more:
Supreme Court rules cities can ban homeless people from sleeping outdoors – Sotomayor dissent summarizes opinion as ’stay awake or be arrested’
Violating Charter rights
The proposed use of the notwithstanding clause to clear the encampments would add unhoused people to a growing list of individuals whose human rights have been recently curbed by the clause, alongside religious minorities, trans youth and public sector employees.
For many Ontario mayors, the notwithstanding clause is necessary to clear the homeless encampments.
But that’s not exactly the case.
As many courts have confirmed, municipalities already have the constitutional right to clear homeless encampments. A 2023 Ontario court decision ruled it was unconstitutional to remove homeless people via anti-camping bylaws if there were not enough available shelter beds to accommodate them after their eviction.
Police remove encampment supporters as they clear Lamport Stadium Park homeless encampment in Toronto in July 2021.
THE CANADIAN PRESS/Chris Young
Given these court rulings, invoking the clause amounts to municipalities admitting they want to evict homeless people without offering enough shelter spots.
Admittedly, there may be good general reasons to invoke the notwithstanding clause. It can serve as a check on controversial court decisions and allows elected officials to make the final call on Charter rights.
Yet, besides this broader debate, the recent push to use the notwithstanding clause to evict homeless people hints at some of the structural problems of municipal politics.
Read more:
In defence of the notwithstanding clause: Why Canada should hold onto it
The homeless are already excluded
Like in other cases, the use of the notwithstanding clause in terms of clearing homeless encampments apparently seeks to protect the will of the democratic majority. The problem is that homeless people lack a voice in municipal politics.
In Canadian municipal politics, elected officials are especially beholden to homeowners and other property taxpayers. Renters, families seeking homes and especially the homeless, on the other hand, have much less political power.
This power imbalance can create situations in which municipal officials denigrate or stereotype the homeless without facing much electoral consequence.
Take Barrie Mayor Alex Nuttall, one of the leading proponents for invoking the clause. In his words, using the clause can help clear parks of “traumatized adults.”
A tent city just outside of the downtown core of Barrie, Ont.
THE CANADIAN PRESS/Christopher Drost
Similarly, Hamilton Coun. Matt Francis thinks the clause can prioritize the interests of the “everyday taxpayer” over “drug addicts.” Ontario Premier Doug Ford has said the clause can help “move the homeless along.”
The stereotype that people experiencing homelessness are necessarily mentally ill or nuisances needing to be managed is not new. But it is tied to the dangerous idea that homeless people are not a part of “the public” for which politicians hold responsibility.
Read more:
Who is ’the public?’ The answer shapes how we address homelessness
Municipalities lack resources
Statistics Canada reports that as many as one in 10 Canadians have experienced some form of homelessness. But homelessness is a problem that individual municipalities cannot solve.
Municipal governments have considerably less financial resources than provincial and federal governments. As Jan Liggett, the mayor of Cambridge, Ont., put it, smaller municipalities are “being held ransom by the encampments without being able to provide housing.”
To a major extent, homelessness is a problem created and exacerbated by other political decisions. A key factor is the federal government’s current lack of systematic housing policy that benefited earlier generations.
Read more:
New study reveals intensified housing inequality in Canada from 1981 to 2016
Homelessness only emerged after severe cuts to federal affordable housing programs in the 1980s and 1990s. Before then, the federal government funded as much as 40 per cent of all new housing construction.
Provincial and municipal governments have also contributed to the mess by maintaining strict zoning rules banning new condos and apartments.
Living in tents is often the only option available for homeless people given the limited number of shelter spaces offered by cities and aid agencies. Regardless of any Charter violations, enforcing anti-camping bylaws will prevent homeless people from having any right to provisional housing on public property whatsoever.
Denying this layer of protection is cold-hearted when funding to help them access adequate housing is not coming fast enough.
A tent in a homeless encampment in St. John’s, NL, in December 2023.
THE CANADIAN PRESS/Sarah Smellie
Bandaid solution
The decision to override Charter rights to evict the homeless is a superficial, short-term solution that fails to address the deeper issues.
Evicting the homeless does not build any more homes, nor address the root causes of homelessness. Instead, it displaces homeless people to other public spaces or cities.
The one thing eviction does is suppress a clear symbol of a government’s failure to provide adequate housing for its citizenry. Läs mer…