Council won't ask the province to use notwithstanding clause to clear encampments

Hamilton council has defeated a motion that would have seen it join others in Ontario asking the province to use the notwithstanding clause to ban encampments in parks and public spaces. 

Councillors voted 6 to 9, defeating the motion after a lengthy debate at Wednesday's council meeting. The vote did not include the motion's original proponent, Ward 5 Coun. Matt Francis, who was ejected from the meeting after refusing to apologize for saying fellow councillors would rather stand up for "drug addicts" than the "everyday taxpayer."

"Rather than being so intent on standing up for drug addicts using our parks as a provincial campground, we need to start standing up for the rights of the everyday taxpayer to use the amenities they paid for," said Francis, as he introduced his motion.

Mayor Andrea Horwath, who was the chair of the meeting, handed the position to Coun. Brad Clark so she could call a point of order – essentially making a complaint – about what Francis said. 

"It is inappropriate to suggest there are motivations around this table that are not the ones we have actually stated," said Horwath, who has supported moves to increase shelter spaces and other services for marginalized people in an attempt to reduce homelessness and encampments. 

Clark, now the chair, agreed that the comment made by Francis was out of order and asked him to apologize. Francis refused, repeating several times that he was standing up for the rights of mothers to use parks with their children.

"That's not the issue, councillor. It's the impugning of motives to other councillors, that's where you are out of line," said Clark. "You know me. I follow the rules fastidiously. I am suggesting to you to think very clearly about the next few words that you use. You did in fact impugn the motives of councillors. I am simply asking you to apologize and move on."

Francis would not.

"I am not of the same opinion as you. I will not apologize," he said, before being asked to leave the council chamber, and doing so.

'Everyone that I talk to can't stand these encampments,' says premier

The notwithstanding clause is a section of Canada's Charter of Rights and Freedoms that allows provincial legislatures or Parliament the ability, through the passage of a law, to override certain portions of the charter for a five-year term. It allows governments to pass laws that contravene sections of the charter related to fundamental freedoms, legal rights and equality rights. 

The motion, which was taken on by Ward 14 Coun. Mike Spadafora and seconded by Ward 7 Coun. Esther Pauls, wanted council to "formally request that the province consider any tools available… that would not permit encampments in parks and public spaces, including but not limited to the use of the 'notwithstanding clause.'" 

It described the notwithstanding clause as a way "to help resolve homelessness in public spaces across Ontario," noting it would "override a court decision preventing municipalities from clearing homeless encampments if the shelters are full."

It comes after recent comments from Premier Doug Ford suggesting Ontario's big city mayors should let him know if using the notwithstanding clause was what they wanted him to do.

"Why don't the big-city mayors put in writing that they want the province to change the homeless program. Why don't they put in 'use the notwithstanding clause' or something like that," he said in an Oct. 29 press conference. "And by the way, everyone that I talk to can't stand these encampments."

Fifteen mayors in Ontario have since done so, according to Francis.

Ontario's Big City Mayors, a group of which Horwath is a member, have shared several ideas on how to reduce homelessness with Ford, through their Solve the Crisis campaign that launched earlier this year. They include:

• Developing an Ontario Action Plan for housing and homelessness.
• Funding the services used by the unhoused population.
• Investing in 24/7 community hubs or crisis centres to relieve pressure on emergency departments and first responders.

'The obstacle that's being discussed is the right to life'

In the debate around Francis and Spadafora's motion, Ward 13 Coun. Alex Wilson was one of several to speak out against the notwithstanding clause, noting its use to push aside the Charter of Rights and Freedoms is not something that should be taken lightly.

"In this case, specifically the right to life, liberty and security," would no longer need to be considered, Wilson explained, noting the city has data that shows mortality rises along with the number of times an unhoused person is moved. "The obstacle that's being discussed is the right to life. That is the legal barrier we're hearing about."

Brad Evoy, executive director of the Hamilton-based Disability Justice Network of Ontario, wrote a letter to council in opposition to the motion, and said after the vote that he was pleased with the decision.

In a later interview with CBC Hamilton, Evoy said the use of the notwithstanding clause to negate charter freedoms affects the marginalized communities the charter is intended to protect the most.

"Every use to undermine charter rights and freedoms is an immediate threat to all our communities on a broader level," he said, while adding "many, many" folks who are currently unhoused are disabled, and many unhoused people become disabled as a result of having nowhere to live. 

Evoy fears using the notwithstanding clause to evict encampments is a slippery slope that may lead to forcing addiction treatment on people, an idea that appears to be gaining popularity in some political circles and has been discussed by Hamilton councillors. 

"They're looking to attack unhoused folks, drug users, and disabled folks," Evoy said. "This really points to a wider political trend that we're seeing that really puts into question the rights and protections that people have across our society."

How they voted:

Yes: Tom Jackson (Ward 6), Esther Pauls (Ward 7), John-Paul Danko (Ward 8), Brad Clark (Ward 9), Jeff Beattie (Ward 10), Mike Spadafora (Ward 14)
No: Andrea Horwath (mayor), Maureen Wilson (Ward 1), Cameron Kroetsch (Ward 2), Nrinder Nann (Ward 3), Tammy Hwang (Ward 4), Mark Tadeson (Ward 11), Craig Cassar (Ward 12), Alex Wilson (Ward 13), Ted McMeekin (Ward 15)

Absent: Matt Francis (Ward 5)