Barrie mayor Alex Nuttall says now is the time to use the notwithstanding clause, if necessary, to allow cities to evict people from homeless encampments.
“The Notwithstanding Clause is part of the constitution through the Charter [of Rights and Freedoms]. Its use does not counter those things — it is literally part of them. It was designed for circumstances where the weight of different rights and freedoms are not aligned, where there is a friction between them — and that’s what we’re facing in society.”
The controversial notwithstanding clause, or section 33 Canadian Charter of Rights and Freedoms, allows federal and provincial parliaments to override constitutional protections and judicial decisions on a five-year basis. Discussions about the use of the clause picked up steam in Ontario in early 2024, when Ontario Superior Court found municipalities could not remove encampments without providing shelter to those living within them.
In November, Nuttall and the mayors of Brampton, Brantford, Cambridge, Chatham-Kent, Clarington, Guelph, Oakville, Oshawa, Pickering, St. Catharines, Sudbury and Windsor called on Ontario premier Doug Ford to invoke the notwithstanding clause to allow cities to dismantle homeless encampments despite the ruling.
Nuttall, who believes encampments are becoming a problem across North America, says the issue makes for a perfect use case for the notwithstanding clause. “When encampments are at their strongest, it’s during the summertime when there’s no school. Folks who can’t afford to send their kids to day camps, use our parks. Individuals [who leave] needles or drug paraphernalia in that environment create situations where the rights and freedoms of that child are weighed against the [those of people] camping there.”
The mayor adds that Barrie’s position is particularly difficult because the city does not have the ability to provide shelter spaces to anyone — whether or not there is room at the proverbial inn. As a separated city within Simcoe, Barrie provides for most of its own social services, but shelter space is managed by county officials. When Barrie police do try and remove homeless people, they must co-ordinate with officials based elsewhere in the county.
“If the city of Barrie was asked by the province and tasked to deliver that service, we would do that and we would find a way [to make sure no one was left without shelter during the winter]. . . . [Simcoe county] certainly has the funding. The province gave [officials] an additional $11 million-a-year last year to help with homelessness prevention. Barrie’s contributed an additional $1.65 million in order to help with these types of initiatives as well, but at the end of the day, it is [the county’s] responsibility. . . and we support them in that.”
Several of Barrie’s city councillors have already indicated their support for the use of the notwithstanding clause. In Simcoe’s other separated city, Orillia, the majority of councillors have indicated their opposition to its use.
On December 9, the body voted on two contradictory motions — one, from councillor Whitney Smith, was favour of its use while the other the other, put forward by Janet Lynne Durnford and Jay Fallis, condemning its use. A majority of councillors backed the second motion.
