Brandishing the Notwithstanding clause for political immunity – It’s not a game
December 20, 2024
I was passing through a community in the north recently. I stopped by a constituent’s home to help her sort out some issues she was experiencing. When I arrived, I noticed that her kids were playing an old card game of French origin called Mille Bornes. You win a hand by being the first team to go 1000 miles – hence the name. The winning team is the one that reaches 5000 miles first.
Kids love it because they enjoy the fun of inflicting misfortune on their opponents through hazards like speed limits, stop lights, running out of fuel, having flat tires, and accidents. The afflicted team has to find and play, in turn, a remedy card and then a green light to go again. What kid doesn’t love to mess with their siblings or friends like this?
But the deck includes 4 special safety cards, which can be played whenever a team is ‘attacked,’ with a hazard card, effectively turning the tables back on the opposing team. The safety cards give the team immunity from specific perils, foiling the culprit’s nefarious desires and earning bonus points too, for being cagey. Even getting one of these cards makes the team feel they are wearing Teflon-coated armour. Makes them feel ‘untouchable’.
Oh, such wonderful memories of sticking it to my brothers.
After I finished my meeting, I drove down the highway. I could not help but think that I bet Premier Ford loved to play that game, too. I bet he loved conspiring with friends to stack the deck on occasion, making the win even sweeter. Now, Mille Bornes is just a game. However, it seems to me that there may be a political version that Premier Ford enjoys. But in the political version, instead of playing the ‘safety card,’ he seems to relish the thought of the rush he gets from playing the NOTWITHSTANDING CLAUSE card, making his legislation untouchable, even by the courts.
Unfortunately, Premier Ford seems almost eager to turn to the notwithstanding clause to get his way. Edward Keenan wrote an opinion article entitled Ford Too Keen to Override Rights in the December 6, 2024, issue of the Toronto Star, “There was a time — for 36 years after the Charter came into effect — in which this provision was rarely used outside of Quebec and never used in Ontario. Then came Ford, who in six years has invoked it three times, passed two of those into law (before repealing one and seeing another struck down by a court on different grounds). And now Ford is talking about doing it a fourth time.”
As readers know, Premier Ford is making it more than clear that he plans to use the clause to clean up the homeless encampment mess that his government has created. The Region of Waterloo tried to oust about 50 people from an encampment in Kitchener. However, the action was challenged in the courts, and the judge ruled that evicting the residents under the regional bylaw violated constitutional rights. The court ruled that if people cannot find any indoor space to shelter, they have the right to find some sort of shelter with a semblance of safety. After all, everyone must be somewhere. Where can you go if you have no home, land, or money?
Since the encampment residents had no access to shelter, even those provided by social agencies, the municipality’s bylaw was struck down.
The court’s decision clearly infuriated Doug Ford. He reacted, stating, “We’re going to challenge that; we’re going to challenge that court case. Because you can’t have people setting up encampments in beautiful neighbourhoods.”
Waterloo Region was not alone in experiencing the encampment issue. It is happening to varying degrees across the entire province, including Algoma-Manitoulin and Northern Ontario. Every Ontarian knows that our shortage of affordable housing has been an ongoing issue for years. Now, well into its second majority mandate, saying that the Ford government is failing miserably to meet its build targets is being generous because the failure is, in fact, colossal.
Doug Ford is embarrassed and desperate. So, what is his solution? Bulldoze the encampment, forcing the homeless to move…somewhere else. The problem is, where can they go? The government has no effective plan in place on what to do to help save these people’s lives. There are not enough shelters to accommodate them all. Talk about putting the cart before the horse. Which is the greater priority, an individual’s health and survival or accessing beautiful parkland to walk your dog?
Just days ago, even the Auditor General castigated the Ford government for its handling of the encampment and opioid issues. Trillium News reported on December 3, 2024, that “The Auditor General found that the government has made no attempt to determine if anyone will die or not as a result of the site closures. Nor did the Progressive Conservatives talk to anyone who might be affected by the closures, such as the SCS [Supervised Consumption Site] operators, the people who use them, or the Northern Ontario communities who will be left without any access to an SCS despite having the worst opioid statistics in the province.” The AG’s report concluded saying the government’s actions “have been insufficient.”
So, what is the Premier Ford’s solution? He goaded the municipalities into writing to him to pass legislation that would shield them from the court ruling that municipal bylaws so they could evict the homeless, who, as you just read, are currently protected under the notwithstanding clause. At a media event, he said, “I have an idea, 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 (to) use the notwithstanding clause, or something like that.” Now, that’s what you call goading! It disrespects the municipalities and homeless and dishonours the Premier’s position.
The Ford government’s solution was to table Bill 223, which would allow police to issue tickets or arrest people for using illegal drugs in public with penalties of up to $10,000 or 6 months in jail. What the heck!? These people haven’t got even just $1,000, let alone 10. So, it may as well be $10 Million! They are also considering forcing people into involuntary rehabilitation programs for their own good. But statistics overwhelmingly show forced rehab doesn’t work.
Ontario’s justice system is operating far beyond capacity. Criminalizing more people will not only not alleviate the homelessness and opioid issues. It will only put more stress on the courts and bail system, leading to more cases being thrown out due to exceeded wait times. One can’t even imagine the lost time, money and professional resources.
In the words of Doug Ford himself, “Enough is enough.” What Ontarians need is for Doug Ford to stop playing games and get the job done. This is not a game of Milles Bornes in which the Premier seeks the thrill of immunity by passing unconstitutional legislation with the preset protection of the notwithstanding clause. We need a government to bring about real solutions to the problem of affordable housing and its offshoot issues rather than focusing on lining the pockets of wealthy developers who have the Premier’s ear.
- Immediately create effective launch programs in the short term to create essential shelters and supervised injection sites which are adaptable and appropriate for communities of all population sizes and geographic locations.
- Ramp up new housing construction to meet a broad range of housing needs, not just high-end, single-family dwellings for the wealthy.
- Build a healthy labour pool. Train more workers and prioritize the immigration of people with trade skills that are in high demand.
- Encourage the use of innovative construction materials, techniques, and building design to maximize productivity.
- Encourage more efficient redevelopment of existing urban lands rather than prime agricultural land.
- Follow the Auditor General’s recommendation to implement transparency and integrity in approving Minster’s Zoning Orders (MZOs)
- Incentivize municipalities and developer programs to reward efforts to meet broad-ranging housing construction without the loss of productive agricultural and essential environmental lands, such as the Greenbelt.
The truth of the matter is that Ontarians have always believed that the use of the notwithstanding clause is something done in desperation and earns any government a collar of shame to be worn. But for whatever reason, Mr. Ford seems to think that to brandish the clause is to wear a badge of honour.
Since the Charter was signed way back in 1982, Ontarians have believed that for any government to even contemplate invoking the notwithstanding clause is tantamount to violating the very heart and soul of democratic principles. Any government that has to rely upon such tactics is violating the tenets of democracy itself.
As always, I invite you to contact my office about these issues or any other provincial matters. You can reach my constituency office by email at mmantha-co@ola.org or call Toll-free 1-800-831-1899.
Michael Mantha, MPP
Algoma-Manitoulin
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