This week, Conservative Leader Pierre Poilievre reignited the debate surrounding Section 33 of the Canadian Charter of Rights and Freedoms, as he pledges to utilize the notwithstanding clause to implement significant justice reforms. Among these reforms is the controversial revival of consecutive life sentences, previously deemed unconstitutional by the Supreme Court of Canada.
As Canadians prepare to mark the 43rd anniversary of the Charter on April 24, 2025, Poilievre's announcement comes just days before the federal election on April 28, where crime and safety remain pivotal issues for voters. His commitment to invoke Section 33, a legislative instrument that has never been used at the federal level, is aimed at ensuring that mass murderers remain imprisoned for life.
According to Poilievre, "The worst mass murderers should never be allowed back on our streets. For them, a life sentence should mean what it says: a life sentence. They should only come out in a box." This statement reflects a growing concern among Canadians about violent crime and the perceived leniency of the justice system.
However, the notwithstanding clause, often referred to as the override power, is controversial. It allows provincial legislatures or the federal government to declare that an Act will operate notwithstanding certain provisions in the Charter of Rights and Freedoms. This means that laws can be enacted that infringe upon rights guaranteed by the Charter, albeit temporarily.
Dave Snow, a political science professor at the University of Guelph, explains, "To be frank, most of the important rights — your fundamental freedoms in Section 2, your legal rights in Sections 7 through 14, and your equality rights in Section 15 — are untouchable. The clause can only be applied for five years at a time, after which the government must vote to re-enact the law." This mechanism allows for public scrutiny and debate regarding the government's use of power.
Historically, the notwithstanding clause has been invoked 27 times at the provincial level, primarily by Quebec, but it has never been utilized federally. The most notable provincial usage occurred when Alberta applied it in 2000 to limit marriage definitions, and more recently, Saskatchewan used it in a law concerning parental consent in schools.
Poilievre's proposal to restore the sentencing provision for mass murderers stems from a Supreme Court ruling in 2022 that nullified the Harper-era provision allowing for longer sentences without parole eligibility for multiple murderers. The court found such sentences to be cruel and unusual, stating that they bring the administration of justice into disrepute.
Toronto criminal defense lawyer Danielle Robitaille, who represented the B.C. Civil Liberties Association in the Supreme Court case, argued that the court's decision emphasized the importance of rehabilitation within Canada's justice system. She stated, "What the court found is that what’s important for the system in a life sentence is that you don’t extinguish the possibility of parole, even though everyone concedes that in these cases of multiple murder, it’s extremely remote that parole would ever be granted."
Despite the potential for public support for Poilievre's stance, Snow notes that polling data shows Canadians generally oppose the notwithstanding clause when viewed in the abstract. However, he points out that recent polls indicate a shift in sentiment, with many Canadians favoring its use in specific contexts, particularly regarding serious crimes.
As the election approaches, the debate over the notwithstanding clause is intensifying. NDP Leader Jagmeet Singh expressed apprehension about the increasing use of the clause by provinces, while Liberal Leader Mark Carney labeled Poilievre's proposal a "very dangerous step" that could lead to further politicization of criminal justice.
Robitaille, while acknowledging the emotional weight of the issue, criticized the potential use of the notwithstanding clause to inflame public sentiment. She warned, "Because it’s precisely in this context that the constitutional balance is set up in a way that the Court is responsible for safeguarding and protecting the most outcast, the most vulnerable, protecting the minority against the rage of the majority."
Snow countered that it is essential for elected representatives to engage in discussions about contentious issues of rights. He argued that a healthy democracy requires debate on the merits of government involvement in such matters, especially when reasonable people, including judges, can disagree.
As the campaign unfolds, it remains to be seen how voters will respond to Poilievre's commitment to invoke the notwithstanding clause. With crime and safety at the forefront of public concern, the implications of this controversial legal instrument could have lasting effects on Canada's justice system.
In the coming days, Canadians will weigh the complexities of the notwithstanding clause against their concerns about public safety and justice reform. The outcome of the election could very well shape the future of how rights are interpreted and upheld in Canada.
