Niagara Region councillors fail to compromise on use of Notwithstanding Clause to remove encampments

Late last month, Niagara Regional councillors debated an unsuccessful motion opposing the use of the Notwithstanding Clause to dismantle homeless encampments. 

A small minority of councillors—two to be exact—argued it was a straightforward opportunity to demonstrate respect for core Canadian values and to stand firmly in defence of human rights. 

Elected officials had the option to reject any proposal that would suspend a fellow Canadian’s Charter rights—particularly when such actions stem from failures in local governance.

Opposing measures that undermine the Charter of Rights and Freedoms is thought by many to be a no-brainer, and PC Leader Doug Ford’s use of a legislative tactic that is not meant to be applied to an issue like homeless encampments has been framed as a further erosion of the rights of citizens under a Parliamentary democracy. 

Charter rights guarantee protection from violence, incarceration, fines, and forced eviction without due process—rights that the courts have consistently upheld.

Critics across Ontario have taken a stand against Ford’s proposal to use the Notwithstanding Clause—which can override Charter protections of equal treatment, the right to life and the right to security—arguing the move would infringe upon these protections. Those who would be affected are among the most vulnerable in our society.

Opponents of Ford have questioned his proposed erosion of Canadian values around compassion, solidarity and care for our fellow residents. The majority of Niagara’s regional councillors see things differently.

The motion in question was introduced by Councillor Haley Bateman of St. Catharines and, after being seconded by Councillor Michelle Seaborn of Grimsby, the debate began. At its core, the motion sought to affirm support for a recent judicial ruling in Waterloo that upholds the right of homeless individuals to reside on public lands. It also explicitly opposed any future use of the Notwithstanding Clause in Niagara to circumvent such court decisions.

The motion was a response to actions taken by three Niagara mayors—Mat Siscoe of St. Catharines, Niagara Falls leader Jim Diodati, and Welland’s Frank Campion—who have publicly urged Ford to invoke the Notwithstanding Clause. Their request aimed to secure extra-judicial authority to implement measures clearing homeless encampments from public lands.

St. Catharines Mayor Mat Siscoe, seen here with Doug Ford, has been one of the loudest supporters of the PC plan to forcibly remove encampments.

(Government of Ontario)

As reported by The Pointer, the Waterloo court ruling sparked a chain of events culminating in Ford pushing mayors to officially request him to use the Notwithstanding Clause in order to clear encampments. Siscoe, Diodati and Campion wasted little time in taking Ford up on his request.

Bateman’s motion did not mention the three Niagara mayors, but it did acknowledge that several Ontario municipalities had petitioned Ford for the powers under the Notwithstanding Clause and she sought the Region’s support to oppose such actions. This proved to be a step too far for most members of the council.

Immediately preceding the debate the public had its opportunity to speak on the issue. Ten Niagara residents outlined their opposition to the use of the Notwithstanding Clause.  

They were from various backgrounds and spoke of the need for council members to “demand better, rather than criminalize homelessness”, to understand they were elected to “extend a helping hand, not the iron fist”. Describing the potential of using the Notwithstanding Clause against some of the most vulnerable people in society the presenters used words like “abhorrent” and called it “imposing violence on people who are already experiencing violence”. It was the better part of an hour with public speakers rising to the defence of those living in encampments. Most council members ignored the pleas of their residents. 

The resistance to Bateman’s motion centred on her first resolution, which stated: “Now, therefore be it resolved that: the Regional Municipality of Niagara OPPOSES the use of the Notwithstanding Clause by the Government of Ontario in connection with any legislation that would facilitate the eviction or displacement of encampment residents.”

It was followed by four other resolutions, which were largely uncontroversial and sparked little debate. The first one though, opposing the use of the Notwithstanding Clause, was a commitment the mayors and most other members would not make.

Not surprisingly, the resistance was led by Siscoe. He has been the loudest advocate for the Notwithstanding Clause in Niagara and was the only one of the three mayors to sign the original letter the PC government had issued when trying to get mayors from across the province to sign onto Ford’s strategy. Diodati and Campion took slightly longer to jump on the bandwagon, but they are now firmly with Siscoe…and Ford.  

Defending his decision to request these extrajudicial powers, Siscoe explained that the Notwithstanding Clause exists because “when judges make overbroad rulings, they may need to be reined in.” He claimed the clause ensures the legislature has “primacy over the judiciary, and that’s appropriate.”

Legal experts have attacked such claims, often made by conservative politicians who argue they should dictate decision making, not un-elected judges.

Legislatures, scholars argue, by their very nature are political bodies. They are driven by the shifting agendas and motivations of elected officials—priorities that can change as frequently as their owners change their socks. Unlike the judiciary, legislatures are not endowed with the same level of trust or the expectation of impartiality and fairness that Canadians rightly place in the courts. Legislators can be motivated by a range of political interests, from the desire to hang onto power to the common motive of benefiting those who support them. Critics of the clause have pointed out that politicians who seek to use it are, above all else, political.

The judiciary, in contrast, is intentionally structured to remain independent of these unpredictable and sometimes self-interested forces. “Governments across Canada are using the notwithstanding clause to undermine important fundamental rights and freedoms protected under the Charter,” the Canadian Civil Liberties Association (CCLA) warns.

It has advocated that a strong and independent judiciary is vital for every citizen, ensuring fairness and impartiality even amid shifting political climates. This has not stopped politicians, including Siscoe, from suggesting they are qualified to replace judicial authority.

Siscoe’s suggestion that the judiciary in Canada can “overreach” and therefore requires political control is the type of contradictory claim that organizations have seized on. 

“Shockingly, if some of our most important Charter rights were playing cards, the notwithstanding clause would be the Joker that beats them all,” the CCLA writes. 

“Section 33 of the Charter, commonly known as the ‘notwithstanding clause’, gives lawmakers the ability to shrug off important fundamental rights and freedoms protected under the Charter.

“When invoked, this clause prevents courts from striking down serious Charter violations contained in laws. It is thus nothing short of a Charter override.”

The idea that political power should take precedence over judicial independence was challenged in Niagara. Yet, aside from Bateman and Seaborn, no one spoke out against Siscoe.

The health of democracy, recognition of the importance of constitutional guarantees and the impartiality of the judiciary in our own system of checks and balances were raised by members of the public, but aside from the two council members, there was no other concern raised by elected officials.

Siscoe’s actions may not come as a surprise to those who have been critical of him in recent months. The mayor of St. Catharines has faced mounting scrutiny from community members, including accusations of discrimination following his and Councillor Laura Ip’s efforts to silence the voices of Palestinians in Niagara at Regional Council. As reported by The Pointer, the two officials were seen as the primary voices that blocked Palestinians from speaking at the council during the war in Gaza. It was an unsettling stance in stark contrast to Siscoe’s enthusiastic and public support for similar gestures acknowledging the suffering caused by the war in Ukraine or the Israeli victims of the October 7 attacks.

Residents have questioned if Niagara Regional council members are upholding the values of a welcoming Canadian community. 

(The Pointer files)

Appearing as a guest on the 905er podcast on November 12, Siscoe attempted to justify his controversial request to invoke the Notwithstanding Clause to remove encampments. During the conversation, host Joel MacLeod pointed out that the clause is "not a surgical scalpel; it’s a sledgehammer, a bludgeon. It takes people’s rights away." MacLeod pressed further, asking why Siscoe didn’t consider using the clause to compel developers or landlords to address homelessness. In essence, MacLeod questioned why the rights of those with power and privilege weren’t targeted, before stripping away the rights of vulnerable homeless individuals.

Siscoe appeared caught off guard by the question. He was silent. When he eventually responded, he offered this rationale:

“That seems far more intrusive because now you’re forcing people to do things with their private businesses in a way that could cost them reams of money that they don’t have.”

Siscoe argued it is less intrusive to wield the Notwithstanding Clause against society’s most vulnerable than to place obligations on those with substantial economic resources and power.

Siscoe wasn’t the only member trying to influence others at the council meeting. Councillor Diana Huson came prepared to make an amendment to Bateman’s motion. Huson wanted no part in opposing the Notwithstanding Clause and proposed an amendment to shift the motion’s direction. She expressed discomfort with "positioning ourselves in opposition to something," stating, "We need to work together with our colleagues, we need to work together with the province." Rather than oppose the clause, she suggested that "council should affirm their support for the Charter." 

She continued. "I think that instead of framing this in a negative light, we can present this in a more positive way."

Bateman was having none of it. She dismissed a claim Siscoe had made that "this motion is not a good use of this council’s time", as outright ridiculous and rejected the proposed changes. Addressing Siscoe’s remarks directly, she reminded council that, "We are public health and social services, we are planning, we are economic development—we are all those things."

As for Huson’s attempt to frame the discussion in a more "positive" light, Bateman was unequivocal. "I don’t want to mince words. I don’t want to make it a positive thing. It’s not positive—none of this is positive. There’s not one thing about this that’s positive."

When asked by The Pointer for her thoughts on the night’s events, Bateman emphasized the responsibility of women in elected office: "As women who are elected, we cannot waste the privilege of having a seat at the table for the sake of being nice. This is especially true when we are dealing with those living in poverty—a majority of whom are women."

She went on to express her disappointment in council’s decision: "Council could have chosen to stand with the many municipalities pushing back against the use of the Notwithstanding Clause to forcibly remove people from encampments. I feel Councillor Huson lacks the knowledge and moral strength to do what our communities need."

When asked by The Pointer why she found it difficult to oppose the use of the Notwithstanding Clause to remove homeless individuals, Huson responded: "I stated that I oppose the use of the Notwithstanding Clause in the meeting. The message I was trying to convey is that all levels of government need to come together on this issue."

Bateman explained to The Pointer why she felt it was important to bring this motion forward. “The choice by Mat Siscoe to urge the Premier to use the Notwithstanding Clause to move, displace, and possibly arrest and fine people who are not housed should have been a decision brought to the region for discussion. When this legislation takes effect, the impact on residents and on our budget will be significant.”

She described how she had “actively engaged with residents about the use of the Notwithstanding Clause,” detailing that, “I knocked on doors, visited encampments, and reached out to many organizations that support those living in poverty—all were of the same mindset: this will cause harm and will do nothing to get people housed and well.”

In the end, Bateman lost her fight to preserve her motion in its original form. Huson’s amendments were easily passed, with only Bateman and Seaborn voting against the changes. What had started as a motion meant to define a clear moral stand against the targeting of vulnerable populations was ultimately diluted.

Asked why she voted in favour of the amended motion after its meaning was so drastically changed Bateman said: “I chose to support the motion as amended, because I do support section 7 of the Charter. I did not support Councillor Huson's amendment and she is aware that she willfully gave the Province the green light to forcibly remove people who are unhoused. My support of the rewritten motion does not negate my support for opposing use of the notwithstanding clause to violate human rights. Councillor Huson's willingness to change such an important motion has proven her to be a dull leader and a colleague I have learned to distrust.”

The Canadian Civil Liberties Association, an organization dedicated to protecting the rights, freedoms, and dignity of all people in Canada, has highlighted its mission to fight against discrimination, inequality and the abuse of power around the issue of encampments. In response to the potential use of the Notwithstanding Clause against homeless people, the CCLA told Ford: “Both the limits on basic human rights contemplated under these measures, and your suggestion to invoke the Notwithstanding Clause to override our Charter, are profoundly dangerous… These provisions would disproportionately harm groups that are already marginalized, as they are over-represented among unhoused people. This includes Indigenous, Black and racialized people, women, members of the 2SLGBTQIA+ community, and people with disabilities. Preventing unhoused people from sheltering themselves when they have nowhere else to go will prolong and exacerbate the crisis instead of addressing its source: the lack of affordable, accessible housing.”

Siscoe, Campion and Diodati seem convinced they deserve these powers. Huson and all but two of her colleagues backed the mayors, and Ford.

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