Conservative Party of Canada leader Pierre Poilievre speaks to reporters in Montreal, Que., on April 14.Peter McCabe/Reuters
Conservative Leader Pierre Poilievre promised he would override a Supreme Court decision against stacking periods of parole ineligibility for multiple murderers, saying his use of the notwithstanding clause would be in defence, not defiance, of the Charter of Rights and Freedoms.
No prime minister has relied on the notwithstanding clause to pass legislation. Mr. Poilievre’s commitment to do so should he form government was roundly criticized by legal observers who say such a challenge to the country’s judicial branch would erode Canada’s constitutional norms.
Mr. Poilievre said Monday he would use Section 33 of the Charter to reverse the top court’s 2022 decision barring the practice of sentencing people convicted of multiple murders to consecutive prison terms without the possibility of parole after 25 years. He told reporters in Montreal that he respects the Supreme Court but that the rights of all Canadians are being trampled on by the current government’s criminal law regime.
“I will use the Charter to protect the Charter,” he said during a campaign event where he also promised “the biggest crime crackdown in Canadian history.”
Under the current system, someone sentenced to life is eligible to apply for parole after 25 years, but the parole board can reject the application, keeping the criminal in prison longer.
Mr. Poilievre said, if his party is elected on April 28, he would reintroduce a 2011 law passed under the previous Conservative government, led by Stephen Harper, that allowed judges to add together parole waiting periods for people convicted of multiple murders. The Supreme Court ruled the law violated the Charter right to not be subjected to cruel and unusual treatment or punishment.
“A sentence of imprisonment for life without a realistic possibility of parole is intrinsically incompatible with human dignity,” the court wrote in a unanimous decision involving Alexandre Bissonnette, who killed six Muslim worshippers at a Quebec City mosque in 2017.
Mr. Bissonnette pleaded guilty in 2018. The Crown originally asked for 150 years of parole ineligibility – a 25-year block for each of his victims. A judge sentenced him to life with no parole for 40 years, but that was appealed to the top court. The Supreme Court’s decision means Mr. Bissonnette will be eligible for parole after serving 25 years. The court made the ruling retroactive to 2011.
Victims and their families expressed dismay at the ruling, saying they were afraid the killer would be free within a relatively short period of time.
The notwithstanding clause permits Parliament or provincial legislatures to temporarily declare that a law will stand “notwithstanding” that it violates certain Charter rights and freedoms, but it must be renewed every five years. It has never been used by the federal government, but has been invoked in recent years by various provincial governments.
Michael Spratt, an Ottawa criminal-defence lawyer, said much of Mr. Poilievre’s tough-on-crime platform could violate the Constitution and using the notwithstanding clause to force those policies into law is “extremely dangerous.”
Last week, Mr. Poilievre said he would increase jail time for repeat violent offenders if his party is elected, promising a “three strikes you’re out” law to imprison people for a mandatory minimum of 10 years. The Conservatives have also promised that a government led by Mr. Poilievre would enable sentences of life in prison for fentanyl traffickers, for people convicted of multiple counts of human trafficking, and for people who import or export more than 10 illegal guns.
Mr. Harper in 2006 tabled three-strikes legislation but it failed to become law. The former prime minister, under whom Mr. Poilievre served, also passed laws requiring mandatory-minimum punishments for some crimes. The Supreme Court of Canada in the mid-2010s struck down a number of those sentencing minimums as unconstitutional.
Mr. Poilievre has been pressed in the past about the constitutionality of his proposals and has always said they would conform with the Constitution. On Monday, when asked by reporters what else he might use the notwithstanding clause for, he said, “We will only use Section 33 to fight crime.”
But Mr. Spratt said that all of Mr. Poilievre’s policies “rip up” the Constitution.
“That is just unbecoming of a leader, unbecoming of a serious politician …,” he said. “It does no service to public education, no service to our democratic institutions – like the corrections system, like the court system, like the parole board – to propose legislation like this because it grossly misrepresents and, I suspect intentionally, the state of things in Canada.”
Emilie Coyle, co-executive director of the Canadian Association of Elizabeth Fry Societies, a group that advocates on behalf of Canadian women in prison, said the notwithstanding clause was supposed to be used only “in the most extreme circumstances.”
“When we regularly use it, over time we would get used to the suspension of people’s rights, and it’s really important that the government doesn’t use that to prevent people’s rights from being upheld.”
She said stacking parole ineligibility in this way would affect very few people, given the tiny number of people convicted of multiple murders. When the original law was overturned in 2022, The Globe and Mail found at least 12 people had been sentenced to life without parole since its inception for mass murder, including men who killed Mounties, small children and senior citizens.
Liberal Leader Mark Carney called Mr. Poilievre’s promise a “very dangerous step” that politicizes fundamental rights. He added that being tough on crime means being smart on crime and noted that Mr. Poilievre has voted against gun control measures numerous times over the years.