Ford Threatens Notwithstanding Clause Over Kitchener Encampment Ruling, May 27

Ontario Superior Court Justice Michael R. Gibson ruled last week that the Region of Waterloo cannot remove residents from a downtown Kitchener encampment unless it provides an alternative site or develops a tenting protocol. Premier Doug Ford responded by threatening to use the notwithstanding clause, section 33 of the Charter of Rights and Freedoms, to override the decision. The ruling affects 30 to 35 tents and has drawn legal criticism of Ford’s public comments about the judge.

What the Judge Decided

Justice Gibson’s 88-page ruling found that the encampment at 100 Victoria Street North is the only place in the region where people experiencing homelessness can legally set up a tent or structure. Gibson said the regional bylaw allowing eviction violates section 7 and section 15 of the Charter. The Region of Waterloo wanted the land for a Metrolinx transit hub construction project.

Ford’s Response and Legal Threat

At a news conference on May 26, Ford called the decision “another crazy decision by the courts” and said his government would “intervene.” He mentioned the notwithstanding clause as an option but did not commit to using it immediately. Ford said he would give the courts “another shot” and hoped the region would appeal. He has used section 33 twice before: in 2021 on election financing and in 2022 to ban a CUPE education workers’ strike.

Lawyers Call for Attorney General Review

A group of Ontario lawyers asked Attorney General Doug Downey to publicly repudiate Ford’s comments about the judge. Ford had previously said he would send “15 encampments” to the judge’s backyard. The lawyers raised concerns about the rule of law and judicial independence. The Region of Waterloo said it is reviewing the ruling and will determine next steps in the coming days.

What the Notwithstanding Clause Does

Section 33 of the Charter of Rights and Freedoms allows federal and provincial governments to override certain portions of the charter that deal with fundamental freedoms, legal rights, and equality rights for five-year terms. Ford’s use of the clause in 2022 to ban the CUPE strike was later repealed. The clause is rarely used and remains controversial among legal experts.

Final Thoughts

Ford’s threat to use the notwithstanding clause signals a direct conflict between the provincial government and the courts over homelessness policy. The Region of Waterloo must decide whether to appeal or comply with the judge’s order to provide alternatives before clearing the encampment.

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