Just how far is Pierre Poilievre willing to take the notwithstanding clause?

In January, the Federal Court found that the Trudeau government’s use of the Emergencies Act to respond to the protests of the self-styled freedom convoy in 2022 was not properly justified — a decision the federal government is now appealing.

At the time, Conservative Leader Pierre Poilievre celebrated that ruling.

“Today, in a landmark victory for the freedoms of Canadians, the Federal Court ruled that Trudeau broke the highest law in the land,” he said in a prepared statement, apparently referring to the Charter of Rights and Freedoms.

“Common-sense Conservatives will protect the Charter rights of Canadians, and as prime minister I will unite our country and our people for hope and freedom.”

A few months later, Poilievre’s support for the Charter rights of Canadians seems less than absolute.

Last week, the Conservative leader appeared before a meeting of the Canadian Police Association and outlined — or at least hinted at — his plans to use the notwithstanding clause to safeguard his government’s laws from being overturned by the courts.

“All of my proposals are constitutional. And we will make sure — we will make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional,” he said. “I think you know exactly what I mean.”

Poilievre went on to explain his own theory of how the use of the notwithstanding clause could be justified.

“I will be the democratically elected prime minister — democratically accountable to the people, and they can then make the judgments themselves on whether they think my laws are constitutional, because they will be,” he said.

Unloved and controversial, the notwithstanding clause is an unavoidable feature of the Charter of Rights and Freedoms — part of the negotiated agreement that created the Charter in the first place. There are also reasonable, if theoretical, arguments to be made for its necessity — judges are not infallible and a mechanism to overrule egregious decisions could be better than the alternatives.

The question, then, is what circumstances justify its use.

How would Poilievre use the notwithstanding clause?

Poilievre’s office insists a Conservative government would use the notwithstanding clause only to deal with “matters of criminal justice.” But that could cover a number of things.

Would a Poilievre government use the clause to save mandatory-minimum sentences that the Supreme Court has found constitute cruel and unusual punishment? What if the court ultimately rules against the bail restrictions that Poilievre has said he would implement?

In 2011, the Supreme Court ruled that the previous Conservative government’s attempts to block a supervised drug consumption site in Vancovuer — Insite — violated the Charter right to life, liberty and security of the person. Would the Poilievre government use the notwithstanding clause to implement elements of its response to the opioid epidemic?

In his remarks to the Canadian Police Association, Poilievre said he would prioritize the right of Canadians to live free of crime.

“Those are the constitutional rights that we have to start to focus on in this country — the rights of the victims and the law-abiding people,” he said.

But that necessitates another question — would any of his proposed changes actually reduce crime? Would using the notwithstanding clause actually make Canadians safer, or would it merely satisfy a desire to get “tough” on crime?

Alexandre Bissonnette arrives at the court house in Quebec City on Tuesday, February 21, 2017. (Mathieu Belanger/The Canadian Press)

At the moment, the Conservatives like to point to the case of Alexandre Bissonnette, who killed six men inside a Quebec City mosque in 2017. The Supreme Court later ruled that forcing Bissonnette to serve his sentences consecutively — effectively eliminating his chance of ever being eligible for parole — “shakes the very foundations of Canadian law.”

During his campaign for the Conservative leadership in 2022, Poilievre said he would use the notwithstanding clause to revive consecutive sentences (a law originally passed by Stephen Harper’s Conservative government).

Lisa Kerr, a law professor at Queen’s University, noted in an op-ed this week that being eligible for parole does not mean you necessarily receive it.

Using the notwithstanding clause to “stack life sentences to infinity would add nothing to public safety,” she wrote.

The politics of Poilievre’s position are obvious — probably no politician is eager to be seen defending the rights of an individual such as Bissonnette. But if or when Parliament crosses the Rubicon (the federal Parliament has never before used the notwithstanding clause), it will be impossible to guarantee the ramifications will be felt only by society’s least sympathetic members.

What message would it send?

“Whatever the use he wants to make of it,” Bloc Quebecois Leader Yves-Francois Blanchet said last week, “the fact a federal leader would want to use the notwithstanding clause makes it clear that it’s absolutely legit for Quebec or any province to do the same.”

That is not an abstract argument.

The original theory of the notwithstanding clause was that “political accountability” would restrain governments from using it. That restraint hasn’t been much in evidence in recent years.

Ontario Premier Doug Ford is one of several premiers to use the notwithstanding clause to protect laws from being overturned for violating a Charter right. (Adrian Wyld/The Canadian Press)

The Ontario government has invoked the clause to protect a law that limits political advertising by third-party groups. The Saskatchewan government is applying the notwithstanding clause to protect legislation that could affect the rights of transgender children. Quebec’s Bill 21 raises major questions about religious freedom.

As Blanchet’s response suggests, federal use of the notwithstanding clause would only give these provinces an example to justify their own actions. Poilievre’s position on the clause also likely would disqualify him from weighing in as prime minister against any current or future provincial action.

Poilievre’s reply to all this seems to be that it’s ultimately up to voters — if Canadians don’t like how the notwithstanding clause is being used, they can put another government in power.

But elections are rarely fought as single-issue referendums. (Advocates of electoral reform would also note that, under first-past-the-post voting, governments regularly hold power without having won 50 per cent of the popular vote.) And deferring to the will of voters contradicts one of the primary reasons for codifying rights in the first place — to protect individuals and minorities from the whims of the majority.

Former Alberta premier Peter Lougheed came to believe in the need for guardrails around the notwithstanding clause. (The Canadian Press)

Poilievre’s calculus might also offend more than just critics of the notwithstanding clause. Peter Lougheed, the former Alberta premier who played a significant part in getting the notwithstanding clause into the Charter, eventually came to believe that a supermajority vote of 60 per cent of members of a legislature should be required to invoke the clause. (In a 343-member House of Commons, that would mean the support of 206 MPs.)

Between Saskatchewan Premier Scott Moe deciding to defy (or unilaterally reinterpret?) federal carbon-pricing legislation and Poilievre’s position on the notwithstanding clause, Conservatives seem to be moving toward the view that premiers and prime ministers have wide latitude to decide which laws they must follow.

Would Conservatives like to see that same latitude extended to Liberal prime ministers?

Based on Poilievre’s reaction to the Emergencies Act, the answer is almost certainly no.

But the Conservative leader’s view of Charter rights seems to be situational.