notwithstanding clause

Poilievre's Promise: Using the Notwithstanding Clause to Overturn Court Rulings - What it Means for Canadians

The notwithstanding clause, a controversial but constitutionally enshrined provision, has recently surged back into the Canadian political spotlight. Conservative leader Pierre Poilievre has pledged to invoke this clause, stirring debate about its appropriate use and potential impact on the Canadian legal landscape. This article explores the implications of Poilievre's promise, examining what the notwithstanding clause is, how it works, and what it could mean for Canadians. With a traffic volume of 2000, this topic is clearly generating significant buzz and warrants a closer look.

What is the Notwithstanding Clause?

Section 33 of the Canadian Charter of Rights and Freedoms, often referred to as the "notwithstanding clause," allows Parliament or provincial legislatures to override certain Charter rights. This override is not absolute; it applies only to sections concerning fundamental freedoms (section 2), legal rights (sections 7 to 14), and equality rights (section 15). Crucially, the override must be explicitly stated in the law itself and is only valid for a period of five years, after which it must be re-enacted if the government wishes to continue its application.

The inclusion of this clause in the Charter was a compromise during the constitutional negotiations of 1982. Provinces like Saskatchewan, Manitoba, and Alberta initially opposed the Charter without such a safeguard, fearing judicial overreach and the potential for courts to strike down democratically enacted laws. The notwithstanding clause was the result of compromise.

Poilievre's Pledge: A Closer Look

Pierre Poilievre has stated his intention to use the notwithstanding clause to ensure that individuals convicted of multiple murders serve their sentences in prison without the possibility of parole. As reported by CBC News, Poilievre "says he'll use notwithstanding clause to ensure multiple-murderers die in prison." He argues that this is necessary to protect public safety and ensure that justice is served for victims and their families.

CTV News further elaborated on this, noting that Poilievre "vows to use notwithstanding clause to overturn SCC ruling." This suggests that Poilievre's strategy is a direct response to rulings by the Supreme Court of Canada (SCC) that he believes are too lenient on violent offenders. The Globe and Mail confirmed Poilievre's pledge to "use notwithstanding clause to allow longer sentences for mass murderers."

Why is this Significant?

Poilievre's stance is significant for several reasons:

• It challenges the authority of the Supreme Court: Using the notwithstanding clause to overturn a Supreme Court ruling is a direct challenge to the judiciary's role in interpreting the Charter.
• It raises questions about Charter rights: The debate forces Canadians to consider the balance between individual rights and collective security. Are there circumstances where overriding Charter rights is justified?
• It has political implications: Poilievre's promise is a clear signal to voters who prioritize law and order. It could resonate with those who feel the justice system is too lenient.

Understanding the Context: The Supreme Court and Sentencing

To fully understand Poilievre's position, it's crucial to consider the context of Supreme Court rulings on sentencing. The SCC has consistently emphasized the importance of rehabilitation and proportionality in sentencing. This means that sentences should be tailored to the individual offender and the specific circumstances of the crime, and should not be excessively harsh.

The Supreme Court has also ruled against mandatory minimum sentences in certain cases, arguing that they can be unconstitutional if they lead to disproportionate or cruel and unusual punishment. Poilievre's proposal to use the notwithstanding clause suggests a disagreement with these principles, prioritizing punishment and incapacitation over rehabilitation.

Potential Effects and Implications

Invoking the notwithstanding clause could have several immediate and long-term effects:

• Legal Challenges: Any law passed using the notwithstanding clause would likely face legal challenges, particularly if it infringes on fundamental rights.
• Impact on Judicial Review: Frequent use of the notwithstanding clause could undermine the power of judicial review and weaken the Charter's role in protecting individual liberties.
• Political Polarization: The issue is highly polarizing and could further divide Canadians along ideological lines.
• Precedent Setting: If Poilievre succeeds in using the clause, it could set a precedent for future governments to override Charter rights in other areas.

The Debate: Rights vs. Security

The debate surrounding the notwithstanding clause boils down to a fundamental tension between individual rights and collective security. Supporters of its use argue that it is a necessary tool to protect public safety and ensure that the will of the democratically elected government prevails. They may argue that in exceptional cases, such as those involving heinous crimes, the need to protect society outweighs the need to uphold individual Charter rights.

Critics, on the other hand, argue that the notwithstanding clause undermines the very purpose of the Charter, which is to protect fundamental rights and freedoms from government overreach. They fear that its use could lead to a slippery slope, where governments increasingly resort to overriding Charter rights whenever they find it politically expedient. They also argue that the courts are best positioned to interpret the Charter and ensure that laws are consistent with its principles.

Historical Use of the Notwithstanding Clause

The notwithstanding clause has been used sparingly in Canadian history. One of the most notable examples is Quebec's use of the clause in response to a Supreme Court ruling on language laws. In 1988, the Supreme Court ruled that Quebec's Bill 101, which restricted the use of English on commercial signs, violated freedom of expression. The Quebec government, under Premier Robert Bourassa, invoked the notwithstanding clause to override the ruling.

More recently, in 2018, the Ontario government under Premier Doug Ford used the notwithstanding clause to override a court decision that struck down amendments to the Election Finances Act. The amendments were intended to limit third-party spending in provincial elections.

These examples illustrate that the notwithstanding clause has been used in a variety of contexts, ranging from language rights to election laws. However, its use remains controversial and often sparks intense public debate.

The Future Outlook: What's Next?

The future of the notwithstanding clause in Canada is uncertain. If Poilievre becomes Prime Minister, it is likely that he will attempt to use the clause to enact stricter sentencing laws for multiple murderers. This would undoubtedly trigger a legal and political battle, with opponents challenging the constitutionality of the law and raising concerns about the erosion of Charter rights.

Even if Poilievre does not win the next election, the debate he has sparked about the notwithstanding clause is likely to continue. The issue raises fundamental questions about the balance of power between the government, the courts, and the individual, and these questions will continue to be debated for years to come.

What This Means for Canadians

The potential use of the notwithstanding clause has significant implications for all Canadians:

• Your Rights: It highlights the importance of understanding your Charter rights and how they can be affected by government action.
• The Justice System: It raises questions about the fairness and effectiveness of the justice system and the role of punishment and rehabilitation.
• Democracy: It forces us to consider the balance between democratic decision-making and the protection of minority rights.
• The Rule of Law: It challenges our understanding of the rule of law and the role of the courts in interpreting the Constitution.

Ultimately, the debate surrounding the notwithstanding clause is a debate about the kind of society we want to live in. Do we prioritize collective security above all else, even if it means sacrificing individual rights? Or do we believe that protecting fundamental rights and freedoms is essential, even if it means accepting some degree of risk? These are difficult questions with no easy answers, and they require careful consideration and open dialogue.

The trend of Poilievre's proposition to use the notwithstanding clause shows the importance of understanding Canadian history, the Charter of Rights and Freedoms, and the roles of the different branches of government. It's a complex issue that demands informed discussion and critical thinking from all Canadians.