One of the more curious subplots in provincial politics moved from the background to the foreground this week, and it put the spotlight squarely on Doug Ford’s peculiar sense of when he can and cannot ride roughshod over municipal councils in Ontario. Earlier this week, Ford told reporters that, if mayors want the province to help them address the homelessness crisis, they need to put their specific request in writing first. And by “specific,” I mean that Ford seems to already know what specific solution he wants the mayors to ask for.
“I have an idea. Why don’t the big-city mayors put in writing that they want the province to change the homeless program,” Ford said earlier this week. “Why don’t they put in ‘use the notwithstanding clause’ or something like that instead of going right to the edge. Let’s see if they have the backbone to do it.”
Ford’s remarks didn’t come out of nowhere. The Ontario’s Big City Mayors caucus, which represents every city with a population of more than 100,000 people, has for months now been running a campaign urging provincial action under the slogan "solve the crisis." The OBCM has, in fact, put its requests in writing and presented them to the government. I watched the current OBCM chair, Burlington mayor Marianne Meed Ward, directly ask the government for action at the most recent Association of Municipalities of Ontario conference in Ottawa this past August. You can argue about whether some of what the OBCM is asking for would be effective — personally, I’m skeptical that appointing a single minister as a kind of homelessness czar would accomplish much — but its requests aren’t a mystery.
Not everyone within the OBCM tent seems happy with the current campaign, however. Conservative-aligned mayors such as Brampton’s Patrick Brown and Barrie’s Alex Nuttall (both of whom were Conservative MPs for Barrie at different times), among others, have been pushing for a more aggressive posture. A few weeks ago, this collection of mayors started shopping around a draft motion they wanted the OBCM to support; it urges the province and the federal government to use all available measures to clear homeless encampments, up to and including using the notwithstanding clause of the Charter of Rights and Freedoms, which allows provincial laws to operate even if they’re found to violate certain sections of the Charter.
The Canadian Civil Liberties Association raised the alarm about this proposal in the middle of October, saying that many of the proposed measures would “criminalize unhoused people and people living in poverty, who are already among the most vulnerable members of our society.”
The notwithstanding clause is up for discussion here because a pair of Ontario court decisions found that municipal bylaws in Waterloo and Kingston that forbade homeless people from erecting shelters in public parks violated their rights to security of the person under Section 7 of the Charter. It’s noteworthy here that, around the same time, Toronto was able to clear an encampment near Kensington Market after a court found the city’s hotel shelter spaces were a Charter-compliant alternative for people living in tents.
The Big City Mayors, however, didn’t endorse the hard line taken by some. At its meeting on October 18, the group passed a motion that reiterated OBCM’s prior stance from the Solve the Crisis campaign and added some other specific requests. But nowhere in the consensus motion was there language about the notwithstanding clause. Ford evidently believes the motion isn’t specific enough or that the mayors aren’t willing to attach their names publicly to what they’re asking for privately.
Agenda segment: October 22, 2024
If the premier wants to invoke the notwithstanding clause to clear encampments, he doesn’t need big-city mayors to write him a permission slip; he and the PC majority in the legislature can vote for it on their own. If he doesn’t want to use the Charter’s nuclear option, he should say that instead. He’s got his chance now: outside the OBCM forum, a number of Ontario mayors have signed a letter urging Ford to use the notwithstanding clause. Whether they get their wish, now that Ford has gotten his, remains to be seen.
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