Pierre Poilievre plans to use the notwithstanding clause

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OTTAWA — Conservative Leader Pierre Poilievre laid down a historic marker Tuesday with a promise to invoke the notwithstanding clause to shield criminal justice reforms from being overturned in the courts.

Poilievre pledged to invoke the Charter’s Section 33 — something that has never been done at the federal level — to reverse a Supreme Court decision that criminals can’t be locked up more than 25 years before being eligible for parole.

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After raising the idea while speaking to the Canadian Police Association on Monday, Poilievre told reporters on Tuesday that the promise would keep murderers like Alexandre Bissonnette, the gunman who killed six people in a Quebec City mosque in 2017, behind bars for life.

“Justin Trudeau thinks it’s all right for there to be concurrent sentences for a mass murder who killed six innocent Muslims. Six innocent Muslims murdered and he gets only 25 years. I think that’s a disgrace,” said Poilievre. “When I’m prime minister he will stay behind bars and he will only come out in a box. It will be consecutive sentences, so it will be six life sentences.”

The Supreme Court decision came after Crown prosecutors had asked for a 50-year wait for parole eligibility to be imposed on Bissonnette, but the court ruled that such a punishment “was cruel and unusual by nature.”

People on Poilievre’s team said they see the historic move to use the notwithstanding clause, aka Section 33 of the Charter, as a political winner, despite the controversy that historically has followed any invocation of the notwithstanding clause, which allows governments to temporarily override portions of the Charter. It would let the Conservatives position themselves against a racist mass murderer and give Poilievre an easy cudgel in his mission to “stop the crime.”

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“All of my proposals are constitutional and we will make them constitutional, using whatever tools the constitution allows me to use to make them constitutional. I think you know exactly what I mean,” said Poilievre, at his speech on Monday, alluding to the notwithstanding clause. “I will be the democratically elected prime minister, democratically accountable to the people and they can then make the judgements themselves on whether they think my laws are constitutional.”

A Conservative source suggested a Poilievre government might be inclined to also invoke the notwithstanding clause to reinstate some mandatory minimum sentencing provisions that were tossed out by the Supreme Court, including a recent decision to overturn a mandatory minimum sentence for child luring. Other possible areas the clause could be used for are for bail reform legislation and even on legislation around prisoner transfers, like the recent move of serial killer Paul Bernardo to a medium-security facility.

The move would also be a warning shot at a legal system that many Conservatives feel is hostile to their worldview and becoming increasingly activist against it.

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“The political logic of using (the notwithstanding clause) now and the reason the federal Conservative party leader is willing to consider using it, and even promised to use it in the leadership race, is partly to show the growing frustration with the direction the judiciary is taking on some of these issues,” said Geoffrey Sigalet, an assistant professor of political science at University of British Columbia, Okanagan.

“The increasing willingness of provincial legislatures to use the clause, particularly by ideological allies, helps enable federal uses,” he said.

Some legal academics who disagree with the Supreme Court’s Bissonnette decision think there are better ways to reinstate a Harper-era law that allowed judges discretion on parole eligibility — and would likely save a Conservative government a big constitutional fight.

But there are people around Poilievre who argue that the fight itself would be a political winner.

Conservatives also expect to be in a better position to fight this battle than they have ever been. If polls hold up, Poilievre could be heading towards a towering majority, giving him the kind of political capital the party hasn’t had since Brian Mulroney came to power in 1984.

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Although academics and pundits may blanch at harsher sentences for criminals, Poilievre, or his future justice minister, can simply point to the Quebec City mosque murderer and ask why so-called experts are taking his side.

Some conservatives also believe that a political scrap over the notwithstanding clause at the federal level is inevitable. There is a strong belief in the Poilievre camp, and among conservatives more generally, that normalizing the notwithstanding clause, and with it the supremacy of the legislature, is an important political project that already has some momentum thanks to conservative premiers like Ontario’s Doug Ford and Saskatchewan’s Scott Moe. (Meanwhile, Quebec governments have made heavy use of the Section 33 clause ever since the Charter passed).

While the Canadian legal community has historically frowned on any usage of the notwithstanding clause, in recent years, fuelled in part by relatively new right-of-centre legal groups like the Runnymede Society, the debate is now slightly more balanced.

“I think there’s a group of scholars like me who agree with Section 33’s legitimacy and have publicly argued very forcefully,” said Sigalet. “But I still think the majority of law schools are influenced by an ideology that’s basically hostile to Section 33 completely, so I fully expect an elite freak-out.”

National Post
stthomson@postmedia.com

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