Conservatives don’t rule out using notwithstanding clause beyond criminal justice matters

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The federal Conservatives say their proposed use of the notwithstanding clause to override Charter-protected rights and freedoms is focused on criminal justice matters but the Official Opposition did not rule out applying it to other policy areas as well, should they form government.

Earlier this week, Conservative Leader Pierre Poilievre dodged repeated questions seeking clarity on how often he planned to use the notwithstanding clause. Following further questions, his spokesperson, Sebastian Skamski, on Thursday said “the focus of our attention is to ensure the worst criminals like mass murderers and child predators are in jail and the safety of Canadians is protected.”

The use of the notwithstanding clause has been on the rise in provinces, with premiers invoking it to try to curtail labour rights and freedom of expression and religion. But it has never been triggered federally and Mr. Poilievre’s pledge this week brought to the fore a debate in the legal community over its purpose and whether it is a legitimate check on the courts or if its use needs to be curtailed. The Conservative Leader’s comments were also heavily criticized by the governing Liberals as well as the NDP as an attack on fundamental rights.

Specifically, Mr. Poilievre said he would override a Supreme Court ruling that struck down a law permitting life sentences with no chance of parole. The case he raised was that of Alexandre Bissonnette, who killed six Muslim worshippers at a Quebec City mosque in 2017. He initially received an automatic life sentence, with no parole eligibility for 40 years.

During the top court’s hearings on the case, Chief Justice Richard Wagner called Mr. Bissonnette’s punishment a “death sentence by incarceration.”

The Supreme Court ultimately ruled that sentencing mass killers, including terrorists, to whole-life sentences is cruel and unusual punishment.

Mr. Poilievre criticized the 2022 ruling when it was released and this week repeated his concerns.

“Six innocent Muslims murdered, and he gets only 25 years? I think that’s a disgrace,” Mr. Poilievre said Tuesday. “When I’m Prime Minister, he will stay behind bars and he will only come out in a box.”

Legal experts said the Conservative Leader’s comments misrepresent Mr. Bissonnette’s sentence because he will not necessarily be released after 25 years; rather, that marks the first time he could apply for parole. More broadly though, they said such cases point to the precise reason why the Charter was created: to protect unpopular minorities.

“The public has no sympathy for people that do those kinds of things,” University of New Brunswick associate professor of law Kerri Froc said. “That’s the reason we have the Charter: To set a baseline of protected rights that people have because they are human, not because they are popular.”

What Mr. Poilievre’s comments actually translate to is a promise “to invoke the notwithstanding clause to allow the government to engage in cruel and unusual punishment, contrary to Section 12 of the Charter,” Queen’s University associate professor of law Lisa Kerr said.

She said many offenders remain in prison until the end of their lives under the current rules and so the Conservative Leader is only promising to deny what would be a “symbolic parole hearing in a small number of extreme cases.”

“This change would do nothing to protect anyone from crime,” Prof. Kerr added.

Sometimes referred to as the override clause, the notwithstanding clause gives governments the power to suspend certain rights guaranteed by the Charter of Rights and Freedoms for up to five years. It essentially gives legislatures the chance to have the last word on rights, rather than the courts, said Joanna Baron with the Canadian Constitution Foundation.

She said her organization believes the clause is a legitimate part of the Constitution and noted that without it the Charter would not have become law.

Ms. Baron said the Conservative Leader’s comments represent a significant development in a brewing legal debate over whether the notwithstanding clause illegitimately overrides rights or serves as a legitimate check on courts.

“Many legal scholars would argue his proposal to use Section 33 is a perfectly legitimate way of asserting Parliament’s view of rights,” Ms. Baron said, referring to the section about the notwithstanding clause.

However, the Canadian Civil Liberties Association criminal justice program director Shakir Rahim said invoking the clause to legalize sentences overturned by the Supreme Court ”should not occur and would set a dangerous precedent.”

He said he’s also concerned by another comment by Mr. Poilievre advocating for “jail not bail.” That comment undermines the Charter right to a presumption of innocence, Mr. Rahim said.

Pierre Thibault, assistant dean at the University of Ottawa’s law faculty, who said he thinks the clause should be abolished, described it as “an exceptional power that must be exercised judiciously.”

He said he believed Mr. Poilievre’s comments represent the opening salvo in a looming fight.

“I think the comment of Pierre Poilievre concerning the notwithstanding clause is just the beginning of a battle against the courts.”