Windsor mayor, councillor take different sides on Charter rights of homeless encampments

Windsor's mayor and a city councillor have opposing positions on the use of a clause in the Canadian Charter of Rights and Freedoms to evict homeless encampments.

Section 33 of the Charter contains what's known as the 'notwithstanding clause.' Once invoked, the clause allows federal or provincial governments to deviate from the Charter and legislate actions that may be contrary to court decisions.

In this case, the court decision in question is the ruling of an Ontario Superior Court of Justice in January 2023 that Waterloo could not use its bylaws to evict a homeless colony of more than 70 tents in downtown Kitchener.

The court ruled that doing so would infringe upon the Charter rights of the tent dwellers.

But on Oct. 31, Windsor Mayor Drew Dilkens added his name to a list of at least 15 Ontario mayors — including Chatham-Kent Mayor Darrin Canniff — encouraging Premier Doug Ford to invoke the clause and allow them to clear out homeless encampments.

"I think that when it comes to encampments, municipalities need all the tools available to be able to deal with these types of things," Dilkens told reporters last week.

"We can't let courts decide how to deal with homelessness... I mean, there has to be sensibility to this, some balance put into the system where the legislators are actually deciding on the policy here and not the courts."

Dilkens said that while Windsor's homeless encampment situation is "light years ahead" of other cities, he feels invoking the notwithstanding clause would provide all municipalities with the authority to address the problem.

"I'm trying to prevent happening here what I see happening in communities across Ontario," Dilkens said.

"There are cities where they have 12 entire city parks taken over by encampments, that they don't feel they have the capacity to deal with or remove. And they feel bound by the court that has made a decision that now has basically set the law in Ontario."

But Ward 9 Coun. Kieran McKenzie believes there should be a high bar for any violation of the Charter or contradiction of a court ruling — and he does not consider the desire to evict homeless encampments to meet that bar.

McKenzie has signed a letter — along with more than 70 municipal and regional councillors across Ontario — who are opposed to Ford invoking the notwithstanding clause on the homeless issue.

Not only does McKenzie disagree with the idea from a judicial perspective, he disagrees with eviction as a solution to homeless encampments.

"If you disband an encampment without appropriate services or a place for people to go, what will happen with that encampment is it will re-emerge in another place," McKenzie told CBC Windsor.

"In my view, the proposal is essentially legalizing a 'leaf-blowing' operation that will not help to solve your problem."

"We need to be having the hard conversations about how we address these issues. What it comes down to is increased housing supply, increased supports for housing supply, and increased programming and services for people suffering with mental health and addiction issues."

McKenzie said he intends to bring up his position in discussions of the Associations of Municipalities of Ontario.

Community activists and organizations who work with the homeless agree with McKenzie.

Invoking the notwithstanding clause and going against the Charter is an "extreme" measure, said Diana Chan McNally, a Toronto-based advocate for the homeless.

"It's incredibly dangerous, and it shouldn't be up to a handful of mayors who have largely bypassed their local councils to make this request," she argued.

"I've seen it many times. When we evict an encampment, it's not as though the people disappear. They just find a new location to set up. Often times, you see them a day or two later. They'll even come back to the same location."

But Geoffrey Callaghan, who teaches political science at the University of Windsor and has lectured on Charter issues, said he understands the position of mayors like Dilkens who are asking to use the notwithstanding clause — although he leans toward those who feel the issue does not meet the threshold required to ignore a court decision.

"The argument that it's up to the people's elected representatives to make policy, not the courts — While that is true, it is undoubtedly and without dispute the court's authority to declare whether or not a particular policy infringes on a constitutional right belonging to every Canadian citizen, as outlined in the Charter," Callaghan said.

"It is a tricky situation. I do sympathize with communities that feel danger with the growing homeless encampments, the proliferation of encampments across cities. But I think I sympathize more with vulnerable homeless populations."

"If you read the Superior Court's judgement, the issue wasn't whether or not governments have the right to evict these encampments. It's whether or not they are doing so under the basis of real risk. In the case of Waterloo, they found there wasn't."