Constitutional experts raise concerns with Conservative proposal to bypass Supreme Court ruling on consecutive sentences

Poilievre eyes using notwithstanding clause for crime crackdown, Carney promises to increase defence spending and Singh wants better work conditions for nurses.

The Conservative party’s promise to bypass a landmark Supreme Court of Canada ruling to impose consecutive life sentences on mass murderers would undermine Canada’s rule of law, two constitutional lawyers say.

During a campaign announcement in Montreal on Monday, Conservative leader Pierre Poilievre announced another part of his tough-on-crime agenda that included a proposal to use the notwithstanding clause to reintroduce a 2011 law from the previous Stephen Harper government that allowed judges to impose consecutive periods of parole ineligibility in cases of mass murderers, rather than imposing them concurrently, because “someone who takes multiple lives should be held accountable for each one.”

However, Canada’s highest court has already ruled that the previous law was unconstitutional and struck it down. In a unanimous decision in 2022, the Supreme Court ruled that stacking life sentences on top of each other “are intrinsically incompatible with human dignity because of their degrading nature, as they deny offenders any moral autonomy by depriving them, in advance and definitively, of any possibility of reintegration into society.”

Julius Grey, a constitutional lawyer based in Montreal, called the Conservative Party’s proposal “an assault on our most important achievements in the Charter,” which balances the rights of society and those of the offender.

“The fact that by taking away the Charter, by making everything notwithstanding the Charter, you’re basically going back to a Canada which does not respect these fundamental rights,” he told CTV News.

He also expressed concern about yet another lawmaker turning to the notwithstanding clause, also known as Section 33 of the Canadian Charter of Rights and Freedoms, to pass a law, which the premiers of Quebec and Ontario have done in recent years. Section 33 allows for the overriding of Charter rights.

“What started as a little trickle … has now become a torrent,” Grey said.

In his announcement in Montreal, Poilievre vowed to end the “discounts” handed to mass murderers like Alexandre Bissonnette, who murdered six people at the Quebec City mosque in 2017 and Justin Bourque, who gunned down three RCMP officers in New Brunswick in 2014.

“For them, a life sentence should mean what it says: a life sentence. They should only come out in a box,” Poilievre said. “We will do this using Parliament’s legitimate constitutional authority under the Charter of Rights and Freedoms that allows Parliament to act to protect the Charter rights of Canadians.”

No federal government has ever used the notwithstanding clause to pass a law.

On May 27, 2022, the Supreme Court ruled that Bissonnette would be eligible for parole after 25 years. Relying on the 2011 law that was in effect at the time, a judge sentenced the convicted killer to life in prison with no chance of parole for 40 years, though the maximum period of parole ineligibility was technically 150 years. On appeal, the Supreme Court ruled that although Bissonnette’s crimes were “heinous” and left deep scars on the Muslim community, 40 years was “cruel and unusual” punishment.

Trying to reverse such a ruling from Canada’s highest court using the notwithstanding clause sets a dangerous precedent, according to Grey.

“I still think that its use in this way — in its use as a general measure as something that can be done if you’re not happy with the court — is the destruction of fundamental rights,” Grey said.

Frédéric Bérard, a law professor at the Université de Montréal, is also concerned with the way the clause is being used and says there is no stopping future federal governments from using it to change laws on anything from LGBT equality rights and abortion.

“I’m a bit concerned, frankly, and I hope that citizens will be concerned as well, because there’s no democracy that is not built on the real and strong rule of law. If it’s so easy for politicians to reverse a decision from the Supreme Court, then we’re going to have big problems,” Bérard told CTV News.

He said he expects the Supreme Court will render a decision next year on the pre-emptive use of the notwithstanding clause.

Both Grey and Bérard are part of separate legal challenges against two Quebec bills — Bill 96 and Bill 21 — which were passed by the François Legault government with the preemptive use of section 33 of the Charter.

Poilievre didn’t rule out using the notwithstanding clause to shield other laws, but only to “fight crime.”

Emmett Macfarlane, a professor of political science at the University of Waterloo and author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role, also weighed in on Conservative leader’s announcement.

“The fact is Bissonnette and other ‘multiple murderers’ are deeply unlikely to ever see life out of prison. Poilievre is promising to use a nuclear option to overrule a Supreme Court decision not because of a real policy problem, but for crass symbolism,” he wrote in a post on Bluesky.

Constitutional experts have warned that several of the Conservatives’ proposed criminal justice reforms would violate the Charter, including the pledge to impose mandatory life sentences on people convicted of fentanyl trafficking or gun smuggling.

Meanwhile, Liberal leader Mark Carney says Poilievre’s plan to use the notwithstanding clause as part of his tough-on-crime plan is a “dangerous step.”

“Politicizing certain issues with respect to fundamental rights is a slippery slope that leads to further politicization,” Carney said, adding that it is the prime minister’s job to defend the Charter of Rights and Freedoms.

Carney has said his Liberal government would intervene in a legal challenge on Quebec’s Bill 96 if it reaches the Supreme Court because he does not agree with the preemptive use of the notwithstanding clause.

When asked to comment on Poilievre’s announcement, NDP Leader Jagmeet Singh said the notwithstanding clause “should not be used” to override Charter rights and expressed confidence in the justice system’s ability to punish offenders.

With files from The Canadian Press