County of Brant Council passed a resolution officially opposing the use of the notwithstanding clause by the Government of Ontario during its regular Council meeting on Tuesday, December 3, 2024.
Ford’s potential use of the notwithstanding clause has caused tension in recent months, here’s a timeline with everything you need to know leading up to the County’s decision.
Ontario Big City Mayors (OBCM), a group of 29 mayors of Ontario cities with populations over 100,000, passed a resolution during its meeting on Friday, October 18, 2024, requesting that the provincial government provide more assistance in regards to the chronic homelessness, mental health, safety and addictions crisis.
According the OBCM website, the resolution, moved by Kevin Davis, Mayor for the City of Brantford, requested the following from the provincial government:
- “Urgently review, consult on, and update the Mental Health Act and the Health Care Consent Act, neither of which address the current state of this crisis across the province.
- Implement Diversion Courts throughout the Province, and expand the scope and reach of these courts, with a focus on rehabilitation rather than punitive measures
- Along with the federal government, introduce legislation prohibiting open and public use of illicit drugs and public intoxication; and
- Review, consult on, and update the Trespass to Property Act with such a review to include but not be limited to options to assist communities in addressing aggressive or repetitive trespass (“repetitive trespass”)”
During a press conference on Tuesday, October 29, 2024, Ontario Premier Doug Ford responded by encouraging big city mayors across the province to ask him to consider using the notwithstanding clause, also known as section 33 of the Canadian Charter of Rights and Freedoms, to pass legislation that would temporarily override certain rights within the Charter.
“I have an idea,” said Ford. “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. That’s what they should be doing rather than kind of just going up to the edge. Let’s see if they have the backbone to do it.”
The proposal to invoke the notwithstanding clause stems from a January 2023 ruling by the Ontario Superior Court of Justice. Justice M.J. Valente determined that Waterloo Region could not use a municipal bylaw to evict individuals from an encampment in Kitchener, as the bylaw violated Section 7 of the Canadian Charter of Rights and Freedoms. The judge argued that the shortage of shelter spaces meant the bylaw infringed on the Charter rights of the people living there.
“I declare that the By-Law is 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,” wrote Valente.
Following Ford’s suggestion, 13 mayors (now 15), including Brantford Mayor Kevin Davis, wrote a letter to the Premier on Thursday, October 31, 2024, officially asking him to consider using the notwithstanding clause.
A newly formed coalition, made up of 41 councillors from 23 communities, penned their own letter urging the mayors to rescind their letter on Monday, November 18, 2024. In it, they encouraged municipal Councils to support “evidence-based solutions to homelessness and the Charter to ensure that the democratic will of our constituents and human rights are respected.”
“As individual Councillors in our respective municipalities, we know that Ontario municipalities are facing a humanitarian crisis that is affecting all of us. We see it every day in our communities. But no municipality should be above the law, and we are sworn to uphold democracy and human rights as Councillors,” read the letter. “…We are also concerned that Councillors in the 13 municipalities named — now expanded to 15 — were not consulted prior to this letter being made public. We are elected by our constituents to represent their interests, but we cannot do this without the opportunity for input and democratic debate at the municipal level.”
Most recently, 450 members of Ontario’s legal community wrote to Ford on Monday, December 2, 2024, to express their concerns in regards to his proposal to use the clause to strip constitutional rights from vulnerable groups including those experiencing mental health challenges, homelessness and substance abuse issues.
“The notwithstanding clause in the Canadian Charter is unique. No other constitutional
democracy allows legislatures to override constitutionally protected human rights,” read the letter. “This means that, in Canada, we rely on an ongoing commitment by our elected representatives to respect and uphold the fundamental principles underlying a constitutional democracy – that governments may not immunize themselves from constitutional accountability or undermine the independent role of the judiciary in safeguarding Charter rights.”
During a County of Brant Council meeting on Tuesday, December 3, 2024, Councillor Lukas Oakley brought forward a motion that would have Council sending its own letter opposing the use of the notwithstanding clause by the Government of Ontario.
To read what happened in the meeting, please visit: https://www.brantbeacon.ca/county-of-brant-council-opposes-notwithstanding-clause/
Kimberly De Jong’s reporting is funded by the Canadian government through its Local Journalism Initiative. The funding allows her to report rural and agricultural stories from Blandford-Blenheim and Brant County. Reach her at [email protected].