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

But the latest calls to invoke the clause — to remove homeless encampments from some Ontario cities — suggest the political temptation to override inconvenient rights is still strong. Consequently, the practice of invoking the derogation clause, contrary to its original intention, risks becoming normalized again.

These new calls also show that it is the most disadvantaged, vulnerable and outnumbered members of society who fear the most when human rights exist at the whim 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 waiver clause, they did so after the premier himself issued an open invitation.

“I have an idea,” Ford said at a press conference in late October. “Why don’t the mayors of the big cities actually say in writing that they want the province to change the homeless program, make sure we move the homeless, and why don’t they say ‘Use the waiver clause’ or something.”

Ford said this would show “backbone”.

The potential use of the waiver clause against homeless encampments would be in response to a acting made by Ontario Superior Court of Justice in January 2023. Justice MJ Valente pent-up that a bylaw passed by the Region of Waterloo could not be used to evict approximately 50 people from vacant publicly owned land in Kitchener because, under the circumstances, it would constitute a violation of the residents’ right to life, liberty and freedom from the Charter of Residents. the security of the person.

Specifically, Judge Valente ruled that the ordinance is inoperative “to the extent, and only to the extent, that it applies to prevent camp residents from living in and building temporary shelters without a permit on the property when the number of homeless people exceeds the number of accessible affordable beds in the region.”

In other words, the municipality could not evict people from a camp on public property unless those people had somewhere else to go.

Is the clause a response to homelessness?

It is not debatable that homelessness and encampments represent a real issue for Ontario cities and towns — and that undoubtedly means significant pressure on mayors. But does the Waterloo decision create an urgent or significant need to invoke the waiver clause? Would invoking the clause be the best or only way to resolve the issue?

If the exemption clause was designed as a “last resort“It follows that those who wish to use it must demonstrate that they have no other options.

“The simplest way to deal with encampments would be to look at the outlets that the Waterloo decision gave cities that provide alternatives for (the homeless), and that’s possible with adequate funding,” Sam Trosow, city ​​councilor in London, Ont. and a law professor emeritus at the University of Western Ontario, told me in a recent interview.

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

Watch: Ontario mayors ask province to invoke notwithstanding clause to clean up encampments

Is the waiver clause a tool to address homelessness? Some Ontario mayors think so

Thirteen Ontario mayors are asking Premier Doug Ford to use the waiver clause to free up homeless encampments in their cities. Guelph Mayor Cam Guthrie is one of the mayors making this request to the premier. He explains why he thinks this is necessary.

Municipalities, with their limited ability to raise revenue, may not be able to fund those additional spaces or services themselves, Trosow said. But the province could help – and so could the federal government.

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

“The question is, what is the policy that will get us out of this predicament in the long term? And not just turn it into a mole-striking game where it shows up somewhere else.”

The political burden is on the proponents of the waiver clause to justify its use.

“It’s a very clear, drastic tool that does absolutely nothing to address the crisis of homelessness and the lack of affordable housing in our communities. It will do literally nothing to get those governments any closer to dealing with the underlying issues.” Estair Van Wagnera law professor at Victoria University told me.

The normalization of an extraordinary step

Beyond the specifics of the Ontario situation, it is difficult to separate these latest requests to implement the waiver clause from the trend in its use in recent years. Would anyone demand that the clause be used now if it had not already been invoked or threatened in other recent cases?

“The understanding at the time (the Bill of Rights and Freedoms was created) was that this was a very extraordinary remedy, to be put into the Constitution to be used only in extreme and unusual circumstances. And outside of Quebec, this was true for many. But what started to happen in Ontario under the Ford government was that it started to be brought out and used in what I would call routine politics,” said Trosow, pointing to both the 2022 labor dispute and . The Ford government previous use of the clause to reduce the size of the Toronto City Council.

While Ford was forced to back down two years ago, that push back apparently failed to scare away the opt-out clause.

Quebec continues to apply the safeguard clause Bill 21which prohibits civil servants from wearing religious symbols or clothing. Saskatchewan Premier Scott Moe reached the clause in 2023 TO overcome challenges to his government’s policy on how and when children can change their names or pronouns at school. And federal Conservative leader Pierre Poilievre said this year that a federal government led by him would use the opt-out clause to deal with “criminal justice matters”, apparently for the sake of enforcing harsher penalties.

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

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

It seems that not everyone can count on this kind of broad public support. But that is why human rights are codified in law – to protect the rights and freedoms of individuals and minority groups, regardless of political influence or public support. Whenever the majority decides that one’s rights can be set aside, it threatens everyone.

The scourge of homelessness is undoubtedly a major concern at the moment – ​​not least for people who do not have access to safe housing and are struggling on the streets. Solving the problem will be neither easy nor simple.

But there will be much more at stake if the repeal of Canadian Charter rights becomes part of the official response to homelessness.