Just how far is Pierre Poilievre willing to take the notwithstanding clause?
In January, the Federal Court found that the Trudeau government's use of the Emergencies Act to respond to the protests of the self-styled freedom convoy in 2022 was not properly justified - a deci‐ sion the federal govern‐ ment is now appealing.
At the time, Conservative Leader Pierre Poilievre cele‐ brated that ruling.
"Today, in a landmark vic‐ tory for the freedoms of Canadians, the Federal Court ruled that Trudeau broke the highest law in the land," he said in a prepared statement, apparently referring to the Charter of Rights and Free‐ doms.
"Common-sense Conserv‐ atives will protect the Charter rights of Canadians, and as prime minister I will unite our country and our people for hope and freedom."
A few months later, Poilievre's support for the Charter rights of Canadians seems less than absolute.
Last week, the Conserva‐ tive leader appeared before a meeting of the Canadian Police Association and out‐ lined - or at least hinted at his plans to use the notwith‐ standing clause to safeguard his government's laws from being overturned by the courts.
"All of my proposals are constitutional. And we will make sure - we will make them constitutional, using whatever tools the Constitu‐ tion allows me to use to make them constitutional," he said. "I think you know ex‐ actly what I mean."
Poilievre went on to ex‐ plain his own theory of how the use of the notwithstand‐ ing clause could be justified.
"I will be the democratical‐ ly elected prime minister democratically accountable to the people, and they can then make the judgments themselves on whether they think my laws are constitu‐ tional, because they will be," he said.
Unloved and controversi‐ al, the notwithstanding clause is an unavoidable fea‐ ture of the Charter of Rights and Freedoms - part of the negotiated agreement that created the Charter in the first place. There are also rea‐ sonable, if theoretical, argu‐ ments to be made for its ne‐ cessity - judges are not infalli‐ ble and a mechanism to overrule egregious decisions could be better than the al‐ ternatives.
The question, then, is what circumstances justify its use.
How would Poilievre use the notwithstanding clause?
Poilievre's office insists a Conservative government would use the notwithstand‐ ing clause only to deal with "matters of criminal justice." But that could cover a num‐ ber of things.
Would a Poilievre govern‐ ment use the clause to save mandatory-minimum sen‐ tences that the Supreme Court has found constitute cruel and unusual punish‐ ment? What if the court ulti‐ mately rules against the bail restrictions that Poilievre has said he would implement?
In 2011, the Supreme Court ruled that the previous Conservative government's attempts to block a super‐ vised drug consumption site in Vancovuer - Insite - vio‐ lated the Charter right to life, liberty and security of the person. Would the Poilievre government use the notwith‐ standing clause to implement elements of its response to the opioid epidemic?
In his remarks to the Canadian Police Association, Poilievre said he would prior‐ itize the right of Canadians to live free of crime.
"Those are the constitu‐ tional rights that we have to start to focus on in this coun‐ try - the rights of the victims and the law-abiding people," he said.
But that necessitates an‐ other question - would any of his proposed changes actual‐ ly reduce crime? Would using the notwithstanding clause actually make Canadians safer, or would it merely sat‐ isfy a desire to get "tough" on crime?
At the moment, the Con‐ servatives like to point to the case of Alexandre Bisson‐ nette, who killed six men in‐ side a Quebec City mosque in 2017. The Supreme Court later ruled that forcing Bis‐ sonnette to serve his sen‐ tences consecutively - effec‐ tively eliminating his chance of ever being eligible for pa‐ role - "shakes the very foun‐ dations of Canadian law."
During his campaign for the Conservative leadership in 2022, Poilievre said he would use the notwithstand‐ ing clause to revive consecu‐ tive sentences (a law original‐ ly passed by Stephen Harper's Conservative gov‐ ernment).
Lisa Kerr, a law professor at Queen's University, noted in an op-ed this week that being eligible for parole does not mean you necessarily re‐ ceive it.
Using the notwithstanding clause to "stack life sen‐ tences to infinity would add nothing to public safety," she wrote.
The politics of Poilievre's position are obvious - proba‐ bly no politician is eager to be seen defending the rights of an individual such as Bis‐ sonnette. But if or when Par‐ liament crosses the Rubicon (the federal Parliament has never before used the notwithstanding clause), it will be impossible to guaran‐ tee the ramifications will be felt only by society's least sympathetic members.
What message would it send?
"Whatever the use he wants to make of it," Bloc Quebe‐ cois Leader Yves-Francois Blanchet said last week, "the fact a federal leader would want to use the notwith‐ standing clause makes it clear that it's absolutely legit for Quebec or any province to do the same."
That is not an abstract ar‐ gument.
The original theory of the notwithstanding clause was that "political accountability" would restrain governments from using it. That restraint hasn't been much in evi‐ dence in recent years.
The Ontario government has invoked the clause to protect a law that limits polit‐ ical advertising by third-party groups. The Saskatchewan government is applying the notwithstanding clause to protect legislation that could affect the rights of transgen‐ der children. Quebec's Bill 21 raises major questions about religious freedom.
As Blanchet's response suggests, federal use of the notwithstanding clause would only give these provinces an example to jus‐ tify their own actions. Poilievre's position on the clause also likely would dis‐ qualify him from weighing in as prime minister against any current or future provincial action.
Poilievre's reply to all this seems to be that it's ulti‐ mately up to voters - if Cana‐ dians don't like how the notwithstanding clause is being used, they can put an‐ other government in power.
But elections are rarely fought as single-issue refer‐ endums. (Advocates of elec‐ toral reform would also note that, under first-past-thepost voting, governments regularly hold power without having won 50 per cent of the popular vote.) And defer‐ ring to the will of voters con‐ tradicts one of the primary reasons for codifying rights in the first place - to protect individuals and minorities from the whims of the ma‐ jority.
Poilievre's calculus might also offend more than just
critics of the notwithstanding clause. Peter Lougheed, the former Alberta premier who played a significant part in getting the notwithstanding clause into the Charter, even‐ tually came to believe that a supermajority vote of 60 per cent of members of a legis‐ lature should be required to invoke the clause. (In a 343member House of Commons, that would mean the support of 206 MPs.)
Between Saskatchewan Premier Scott Moe deciding to defy (or unilaterally rein‐ terpret?) federal carbon-pric‐ ing legislation and Poilievre's position on the notwith‐ standing clause, Conserva‐ tives seem to be moving to‐ ward the view that premiers and prime ministers have wide latitude to decide which laws they must follow.
Would Conservatives like to see that same latitude ex‐ tended to Liberal prime min‐ isters?
Based on Poilievre's reac‐ tion to the Emergencies Act, the answer is almost certain‐ ly no.
But the Conservative lead‐ er's view of Charter rights seems to be situational.