Love the idea or hate it, experts say federal use of notwithstanding clause would be a bombshell

Conservative Leader Pierre Poilievre rises during question period in the House of Commons on Parliament Hill in Ottawa on Wednesday, May 1, 2024.

Conservative Leader Pierre Poilievre’s suggestion this week that he would use the notwithstanding clause to push through criminal justice reforms would be a landmark moment in the history of the controversial mechanism, experts say.

In an interview on CBC Radio’s The House airing Saturday, defence lawyer Lindsay Board said federal use of Section 33 of the Charter of Rights and Freedoms, known as the notwithstanding clause, would be historic.

“It’s only been done a handful of times at the provincial level. It is incredibly politically significant and would perhaps set a precedent if that were invoked,” she told The House.

Speaking this week to a conference of the Canadian Police Association, Poilievre hinted at using the notwithstanding clause to implement criminal justice reforms on parole eligibility, concurrent sentencing and bail.

“We will make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional. I think you know exactly what I mean,” Poilievre told the crowd.

The notwithstanding clause gives parliaments in Canada the power to override certain portions of the Charter for five-year terms when passing legislation. Once invoked, Section 33 prevents any judicial review of the legislation in question.

Courts in recent years have struck down a number of criminal law measures legislated under former prime minister Stephen Harper, including measures on parole eligibility. Poilievre mentioned using the notwithstanding clause in relation to parole during the 2022 Conservative leadership race.

Board said that a federal government’s decision to deploy the notwithstanding clause would upset the back-and-forth between legislatures and courts over criminal law.

“What Mr. Poilievre is proposing is just entirely circumventing that process to begin with and just not allowing laws to be tested in the democratic way that they should be,” she said.

Sujit Choudhry, a constitutional lawyer with the firm Haki Chambers, told The House host Catherine Cullen that while the notwithstanding clause was a compromise meant to ensure the creation of the Charter itself, it was never intended to be used so frequently and in advance of any legal challenges — as Quebec has done with Bill 21 and Bill 96.

“I think the reason why Canadians should be concerned is that the override should be a last resort. And it’s now being used increasingly by governments preemptively, before the courts have a chance to weigh in on issues,” he said.

Dialogue between courts, politicians and people

In his speech, Poilievre justified his possible use of the clause by saying that as prime minister, he would be accountable to voters.

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

Once enacted, the use of the notwithstanding clause must be renewed every five years, giving voters a chance to weigh in.

Geoffrey Sigalet, director of the UBC Centre for Constitutional Law and Legal Studies, said the use of the clause does allow for democratic discussion of issues on which legislatures and courts disagree, which can be a positive thing.

He said the Conservatives are looking to take advantage of what they see as a gulf between the opinions of the courts and the public on some legal issues.

“[Poilievre’s] bet is, ‘Look, those seem like unrealistic or at the very least, highly contentious interpretations of those rights,'” he said. “And when there are highly contentious interpretations of those rights that are offside [with] the moral views of the public about those rights, it’s up to Parliament to step in and and contest some of that judicial decision-making that’s contentious.”

But Choudhry suggested it might be time for Parliament to consider changes to, in part, tie its own hands when it comes to the notwithstanding clause.

“I think the problem is that it’s too easy to use,” he said. He noted former Alberta premier Peter Lougheed, who advocated for the clause in the 1980s, later suggested a super-majority should be required in Parliament in order to enact it.

“The point is to have a broader political consensus to do something that’s quite serious,” Choudhry said.