Joint statement
Ontario must respect the human rights of encampment residents, not deny them through the notwithstanding clause
The Canadian Centre for Housing Rights, National Indigenous Women’s Housing Network, National Right to Housing Network and Women’s National Housing and Homelessness Network are human rights, housing advocacy, and gender justice groups working across Canada to advance the right to housing. We are joining a growing group of over 70 Ontario Councillors, hundreds of members of the legal community and thousands of members of the public to raise the alarm about the recent threats targeted towards some of Ontario’s most marginalized people who are living in encampments, by the Government of Ontario’s potential use of the “notwithstanding clause” to bypass their protected human rights established under the Canadian Charter of Rights and Freedoms. We are deeply concerned about the dangerous precedent this could set not only for residents of Ontario, but for people across the country.
On October 31, 2024, over a dozen mayors (now fifteen mayors) from across Ontario sent a letter to Ontario Premier Doug Ford, requesting the premier use the clause to allow municipalities to evict people living in encampments in their cities – following an invitation from the premier for mayors to make such a request.
The Charter establishes that people living in Canada have certain rights – including the right to life, liberty and security of person. The Charter says that anyone who feels that the government has not respected these rights can go to the courts to seek a remedy.
In this way, the Charter is a law designed to hold Canadian governments at all levels – federal, provincial and municipal – to account.
If someone brings a Charter complaint, the government has an opportunity to explain itself. The Charter establishes that governments may limit Charter rights if those limitations are “reasonable” and “can be demonstrably justified in a free and democratic society.”
In 2023, the Ontario Superior Court of Justice considered a case where a municipal government sought to evict people from an encampment. The court found that the people living in the encampment did not have appropriate alternate accommodation options, such as affordable housing or shelter, and so eviction would make their “already dire predicament worse.” The court found that eviction would violate the encampment residents’ right to life, liberty and security of person, and so violated the Charter. The Court found that the government action could not be justified as “reasonable” or “demonstrably justified in a free and democratic society.”
We are deeply concerned about the attempts by the Premier and these mayors to overturn the precedent that this case set. There is a clause in the Charter – the “notwithstanding clause” – that allows the government to essentially ignore certain parts of the Charter for a period of time. By invoking the notwithstanding clause to evict people from encampments where they do not have appropriate alternative accommodation options, government would be saying that even though its action would make an “already direct predicament worse”… even though its action violates people’s Charter right to life, liberty and security of person… even though courts have already found that this type of eviction could not be justified as “reasonable” or “demonstrably justified in a free and democratic society”… it should be allowed.
If this sounds like a human rights crisis, that’s because it is. The notwithstanding clause should never be used in a situation like this.
If governments were to use the notwithstanding clause to evict people from encampments, it would cause significant harm in two key ways:
1. It would undermine the right to housing, enshrined in Canada’s National Housing Strategy Act (NHSA).
The right to housing means that governments should prioritize the housing needs of the most marginalized, disadvantaged groups in society. Overriding the Charter by using the notwithstanding clause to evict people from encampments when they have no appropriate alternate accommodation options means governments are doing the exact opposite of what they are supposed to do under the NHSA–Canada’s human right to housing legislation. It makes marginalized groups’ “already dire predicament worse” – when really what governments are obligated to do is to maximize the resources they apply to meet the needs of these groups, for example, by building deeply affordable and supportive housing.
Particularly, the use of the notwithstanding clause to evict people from encampments entrenches women and gender-diverse people in unsafe and invisible forms of homelessness. The lack of appropriate alternative accommodation options is more pertinent for women and gender-diverse people who avoid mainstream shelters due to a lack of gender-specific supports and risk to their safety.
For Indigenous people finding shelter in encampments, the use of the notwithstanding clause to evict people from encampments represents an exercise of colonial policies that violate their rights to exercise their agency and self-determination to find sustenance and safety on their homelands.
2. It would undermine the rule of law.
The Charter lays out consequences for governments, when they do not respect the rights of people living in Canada. To ignore these consequences is to undermine the rule of law.
We urge our elected officials to demonstrate their commitment to respect and uphold the right to housing and the Charter rights of all Ontarians through the following actions:
- The Ontario mayors must rescind their letter to the premier asking the government to use the notwithstanding clause.
- The Ontario premier must retract his invitation to mayors to ask the government to use the notwithstanding clause, and instead provide funding to municipalities to increase services and housing supports.
- All governments must focus their efforts on finding solutions that meet the needs of people experiencing homelessness while respecting their rights and dignity.
Canadian Centre for Housing Rights is a registered charitable organization, working to advance the right to adequate housing in Canada. We work at the intersection of human rights and housing, providing free services to renters facing evictions and human rights violations to remain housed, providing education and training about housing rights across Canada, and advancing rights-based housing policy through research, policy development, advocacy, and law reform.
National Indigenous Women’s Housing Network is a movement of First Nations, Inuit, and Métis Peoples who are dedicated to improving the living situations of Indigenous women and girls, Two-Spirit, and gender-diverse persons across Turtle Island and ending incidents of becoming unsheltered. All members have the lived experience of needing adequate shelter and a place to call home.
National Right to Housing Network (NRHN) is a broad-based, grassroots civil society network established to fully realize the human right to housing for all in Canada. Launched in February 2020, NRHN is a key resource in guiding Canada’s human rights-based oversight mechanisms—introduced under the National Housing Strategy Act (NHSA) —to address systemic housing inequities which exacerbates the housing and homelessness crisis across the country. Our network of over 2,000 organizational and individual partners work to hold the government accountable and ensure that their human rights commitments made under the NHSA are meaningfully realized.
Women’s National Housing and Homelessness Network works to advance the diverse voices of women, girls, gender-diverse lived experts, and their allies to lead transformative, gender-specific solutions that reduce and end housing precarity and homelessness through adopting human rights and intersectional feminism approaches.