POILIEVRE’S NECESSARY PITCH
Conservative Leader Pierre Poilievre announced that, if elected, he would use the notwithstanding clause, also known as the Parliamentary supremacy clause or Section 33, to override a Supreme Court decision that struck down “stacked” periods of parole ineligibility for mass murderers. The Harper-era Criminal Code provision was found unconstitutional by the court in 2022 over the case of Quebec City mosque shooter Alexandre Bissonnette, whose life sentence without parole for 40 years was found to have contravened the Charter of Rights and Freedoms.
No doubt, this announcement will trigger howls of protest from Canadian legal commentators, and to some extent already has. The Toronto Star’s Susan Delacourt repeated what has by now become the standard attack on any suggested use of the Parliamentary supremacy clause, by characterizing Poilievre’s statements as “a classic example of what the books called ‘tyranny of the majority,’ which leads to the rights of minorities getting trampled.”
This line of attack misses the point. If Poilievre believes that invoking Section 33 in the criminal law context is not only necessary, but also an electoral winner, it is not because he believes that a plurality of Canadians have suddenly decided that they want to “trample” on “the rights of minorities,” or that there are electoral gains to be realized by appealing to this impulse. Rather, it is because courts have strayed so far from public sentiment that there is now a political case to be made for the use of the Parliamentary supremacy clause that did not previously exist. Certainly, it did not exist to the same extent while the Conservative party last held government. Nor did it exist in the 1990s or early 2000s, during which time it was commonly said that there existed a political taboo on the use of Section 33.
Indeed, notwithstanding the Supreme Court’s constant appeal to the need to keep pace with evolving “Canadian values” to justify its own departures from precedent — including in the Bissonnette case itself — it is increasingly clear that Canadian courts are finding themselves far afield from public sentiment on a wide range of issues. Examples abound, and are in no way limited just to the criminal law context.
Outside the criminal context, a particularly egregious illustration of the disconnect with public sentiment can be found in the way that British Columbia’s courts have recently dealt with attempts by B.C.’S Ndp-led government to restrict the use of drugs in public parks. Although the matter is still before the courts, a B.C. judge issued an injunction preventing authorities from enforcing the law until the challenge is resolved, which has since been confirmed by the Court of Appeal. The government has understandably expressed frustration at this blatant subordination of the broader public’s right to use public spaces to the claims of particular individuals to the unrestricted use of substances wherever they please.
For its part, the Supreme Court decision in R. v. Bissonnette, which Poilievre addressed in his announcement, is far from the only time that courts have acted significantly outside the bounds of public sentiment in the federal, criminal law context. Underlying the Bissonnette decision, as well as numerous other decisions invalidating minimum sentencing provisions, is a relatively novel jurisprudential device termed the “reasonable hypothetical offender.” First deployed by the Supreme Court in 2000, it has only become a fixture of the Court’s criminal law jurisprudence over the past decade.
According to the “reasonable hypothetical offender” device, it is not enough that sentencing provisions are reasonable when applied to an offender presently before the court. Rather, the mere possibility that a reasonable hypothetical offender might be subject to a sentence that is harsher than what the court considers appropriate is thought sufficient for the court to decide to invalidate a Criminal Code provision on Charter grounds.
It was through the “reasonable hypothetical offender” device that the “stacked” parole ineligibility provisions were found to be “cruel and unusual punishment” infringing Section 12 of the Charter in the Bissonnette case. In plain language, these provisions meant that someone like Bissonnette, who killed six people at a Quebec City Mosque in 2017, would be ineligible for parole until a period of up to 25 years per murder had elapsed (in his case, a total of 150 years). Now, after the 2022 ruling, someone who commits six murders is eligible for parole after 25 years — the same length of time as an offender who receives a life sentence for killing just one person. Although the Court in Bissonnette left open the possibility that other measures might satisfy its reading of Section 12, and allow for sentencing to distinguish between single and multiple murders, it is hard to see how any measures serving to increase parole ineligibility do not risk similarly running afoul of its reliance on the “reasonable hypothetical offender.” In this context, Section 33 serves as a useful corrective.
But the decision in R v. Bissonnette is perhaps not the most egregious appeal to a “reasonable hypothetical offender,” nor the decision that best illustrates the true extent of the divide between the courts and public sentiment in criminal matters. Focusing only on Supreme Court jurisprudence, that honour instead probably goes to the 2023 decision in R. v. Bertrand Marchand, in which the court overturned the six-month minimum sentence for child luring by drawing on the “reasonable hypothetical” of a 20-yearold bipolar female high school teacher who texts a male student, meets up with him and then engages in sexual touching. For the Supreme Court, “(a) fit sentence for the luring offence committed by the representative offender in (this) scenario is a 30-day intermittent sentence.”
This assessment of liability is no doubt significantly at odds with public sentiment. But it is far from an isolated case. Courts in British Columbia, for instance, have held that even a 90-day minimum sentence imposed for sexual interference constitutes “cruel and unusual punishment” contravening Section 12 of the Charter. As in Bissonnette and Bertrand Marchand, these decisions all rely on the “reasonable hypothetical offender” device.
With all respect due to the Supreme Court, and with Canadian trial and lower appellate courts, it is not difficult to understand why the general public might take issue with a “30-day intermittent sentence” proposed for the reasonable hypothetical raised in Bertrand Marchand. Nor is it difficult to conceive that members of the public would object to the conclusion a mere sixmonth minimum sentence constitutes “cruel and unusual punishment” for child luring, or that a mere 90-day minimum sentence for sexual interference infringes upon Section 12 of the Charter.
Far from looking to “trample” on the “rights of minorities,” the proposal to use the Parliamentary supremacy clause in this setting can easily be understood as a corrective on the courts’ adoption of an approach that implies the potential rejection of virtually any form of mandatory minimum sentencing. If there is an electoral opportunity in pledging to use the notwithstanding clause, then the courts have only themselves to blame.
THIS ASSESSMENT OF LIABILITY IS NO DOUBT SIGNIFICANTLY AT ODDS WITH PUBLIC SENTIMENT.