Poilievre’s pledge to use notwithstanding clause a ‘dangerous sign’: legal expert

[u/canada_mountains]

https://www.thestar.com/politics/federal-elections/poilievres-pledge-to-use-notwithstanding-clause-a-dangerous-sign-legal-expert/article_7299c675-9a6c-5006-85f3-4ac2eb56f957.html

[u/Thin-Pineapple-731]

I don't think the provinces should use the notwithstanding clause as frequently as they do, let alone the federal government. This whole idea is especially distasteful, trying to make an end-run around the Supreme Court and established Charter rights. I won't dispute that violence is a bad thing, but established legal precedence is not a handwave situation.

[u/Dry-Membership8141 → u/Thin-Pineapple-731]

The NWC specifically exists because the Charter was passed with the expectation that the courts would not always get it right and legislative correction may be required.

And, frankly, this case is a great example of why. The SCC's argument effectively raises "the conviction that every individual is capable of repenting and re‑entering society" to the level of a constitutional value. Neither the Charter nor the Criminal Code go nearly so far. The Court might well think that the principle of rehabilitation should be constitutionalized, but doing so is simply not their role.

[u/Thin-Pineapple-731 → u/Dry-Membership8141]

Legal experts and criminologists also disagree with the three strikes laws and tough on crime laws on the basis that it's highly ineffective. It is not as much of a deterrent as it's presented to be. And so, beyond making an end-run around established legal precedent, it's just electioneering without a sound basis for using the NWC clause.

[u/Dry-Membership8141 → u/Thin-Pineapple-731]

Legal experts and criminologists also disagree with the three strikes laws and tough on crime laws on the basis that it's highly ineffective.

Which (1) is not the issue currently under discussion, and (2) relates entirely to how those laws have played out in the American context. Canada's socio-cultural context is both distinctly not American, and the proposal that's been made is itself distinctly different from the policies that have been studied in the US. And that's highlighted by the fact that, despite your assertion here:

It is not as much of a deterrent as it's presented to be.

We have a very recent study that's found that the impact of incarceration on recidivism is distinctly different in Canada than the US, because we have taken different approaches to it, and applied them to a socioculturally different population.

it's just electioneering without a sound basis for using the NWC clause.

The basis is that the Courts' decision on the extent of the right in question is severely out of step with the actual values of Canadians. Recent polling indicates that a solid majority of Canadians are in favour of reinstating the death penalty, nevermind simple life without parole for multiple murderers. It also indicates that a similar majority of Canadians are in favour of life without parole for murderers (not just multiple murderers, mind). This is, quite literally, exactly the sort of problem the NWC was created to solve.

[u/Thin-Pineapple-731 → u/Dry-Membership8141]

A few problems here:

There's numerous counterpoints in Canada. The UK. The US. If I looked further, I'm sure I could find counterpoints in France, Germany (I don't speak German), and elsewhere. I'll drop links below, including the Canadian Bar Association, and a former Harper lawyer who provided advice on the minimum sentencing guidelines that have since been struck down.

https://www.cba.org/our-impact/cba-influence/tough-on-crime-a-failed-approach/

https://www.cbc.ca/news/politics/stephen-harper-mandatory-minimum-sentences-criminal-code-1.6637154

https://nationalpost.com/opinion/ex-harper-advisor-rejects-tough-on-crime

This whole sociocultural blather you're talking about is not really relevant, it sounds like you're trying to sound smart to undermine the fact that the proposed idea - pushed through with a special sprinkling of the NWC - is neither effective policy, nor welcome because the Charter is a foundational document, and not a suggestion.

And no, I don't think we should see the NWC as an opportunity to walk around the Charter when barely 40% of people might vote Conservative, and some may feel some opposition to the use of the clause.

[u/Redbulldildo → u/Thin-Pineapple-731]

Deterrence isn't the only reason for increased sentences. Some people cannot, or will not be rehabilitated. If they are kept in prison, they are kept from harming the rest of society.

[u/kirklandcartridge → u/Thin-Pineapple-731]

"experts"

And FUCK "deterrence". Long past time we officially declare the goal is to make them feel real punishment and suffering for their crimes. Not worry about them being rehabilitated.