Ben Woodfinden: A judge just hallucinated that homelessness is the same as race or sex

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This argument has been tried before and lost. In the 2014 case, Tanudjaja v. Canada, the attempt to establish homelessness as an analogous ground failed at the Ontario Court of Appeal. Then, three years ago, in an earlier litigation over the Waterloo camp, before the region amended its bylaws, a different judge rejected the Section 15 claim explicitly. Although that earlier judge ruled the homeless camp could not be dismantled because of Section 7 of the Charter, which protects security of the person, he found that the bylaw did not discriminate against homeless people on any enumerated or analogous basis. Justice Gibson has now overridden all of that. If the ruling stands, every municipal bylaw in Canada that differentially affects homeless people (encampment clearances, park rules, public-space regulations, loitering provisions) becomes a potential equality-rights violation.

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And this is not an isolated mistake. Last summer, a different Ontario Superior Court judge struck down provincial legislation removing bike lanes from three Toronto streets, on the grounds that removing the lanes violated cyclists Section 7 rights to life and security of the person. A de facto constitutional right to bike lanes, found by a single judge, against the explicit will of an elected legislature. The pattern across both rulings is strikingly similar. Identify a sympathetic group. Connect their circumstances to a Charter provision. Then tell elected officials what they may or may not do, or what they must affirmatively provide, regardless of what voters and their representatives have decided. Notice that the Charter’s text is endlessly elastic in the direction of the activist class’s preferred outcomes, and remarkably inflexible in any other direction.

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What has happened, slowly and then quickly, is that a particular reading of the Charter has captured much of the legal academy and the bench. On this reading, the Charter does not merely constrain government action that violates clear individual rights. It empowers courts to assess the substantive outcomes of any law, identify groups disadvantaged by those outcomes, and order remedies that turn out to look identical to progressive social policy. More bike lanes. More tenting protocols. More positive obligations imposed on public bodies. More constraints on resource development. The Charter’s framers in 1982 did not intend this. The text does not require it. No Canadian government has ever been elected on a platform of delegating social policy to the courts. But this is what we have, because the people who decide what the Charter means have decided it should be so.

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There is a remedy. Section 33 of the Charter (the notwithstanding clause) was designed for exactly this kind of judicial overreach. Both Section 7 and Section 15 fall within its scope. The Region of Waterloo cannot invoke it on its own; but the Ontario legislature can. Thirteen Ontario mayors have been asking Ford to do precisely that since October 2024, when the mayors of Sudbury, Cambridge, Guelph, and ten other municipalities signed a joint letter requesting that the province invoke Section 33 to allow encampment clearances, following earlier court rulings. Ford declined and tried a softer route: the Safer Municipalities Act and $75.5 million for homelessness prevention. The judiciary responded by going further still, inventing a new analogous ground and demanding tenting protocols as the price of regional governance. The case for Section 33 was strong then. It is overwhelming now.

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That the notwithstanding clause is widely treated by the legal commentariat as illegitimate to invoke is itself part of the problem. The clause exists for moments like this. Decades of constitutional commentary, much of it produced by the same legal class now driving the expansion of Charter rights from the bench, have insisted that using Section 33 is undemocratic, anti-rights, even authoritarian. The result is a Charter in which one half (the rights provisions, indefinitely expandable by judges) is treated as sacred, whilst the other half (the democratic override) is treated as a constitutional taboo. Nobody voted for the judge who wrote paragraph 204. Nobody can vote him out. But Ontarians did vote for the legislature that can override him.

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Decisions like this are likely to continue until somebody with political authority decides that the democratic legitimacy of elected legislatures is worth defending against a judiciary that has, quietly and with the full approval of most of the legal class, made itself this country’s most consequential legislature.

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National Post

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