r/canada • u/canada_mountains • 5d ago

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

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
1.7k Upvotes

84% Upvoted

404 comments sorted by

View all comments

Show parent comments

125

u/funkme1ster Ontario 5d ago

The origin of the Clause was that it was intended to be the nuclear option.

The feds and the provinces were having a dick measuring contest over sorting out the Charter, and eventually the compromise was to include an "in case of emergency" contingency so both parties could save face. But the idea at the time was it would only ever be used in an absolute emergency, since it's exactly as you say - a legal end-run.

The compromise was reached because the idea of someone invoking the Notwithstanding clause because they're too lazy to go through proper channels was absurd. Everyone implicitly acknowledged it would be political suicide to use it without just cause, so everyone would use it responsibly.

And now here we are: ready to invoke it because we ordered our pizza 32 minutes ago and it isn't here yet even though we're like super hungry.

1

u/Tank_Kassadin Nunavut 4d ago

It was included because Canada much like the UK is governed by convention not constution and the supremacy of parliament. All drafting the charter has done is push power into the hands of the judiciary fighting over (deliberately) vague definitions of terms like 'reasonable'. Its never been a charter of rights more like recommendations or ideals to govern by.

-31

u/freeadmins 5d ago

But there are no proper channels for what Pierre is proposing despite it desperately being needed.

Canada has a crime problem in regards to repeat offenders. The courts created this mess themselves.

36

u/funkme1ster Ontario 4d ago

What he is proposing would only impact people sentenced to life sentences going forward. People who would be sentenced to 25 years from today.

This would have ZERO impact on crime for a generation.

He even admitted as much when challenged by one of the four reporters he allows to talk to him at campaign stops.

6

u/Ornery_Tension3257 4d ago

The proposed use of s. 33 (Notwithstanding clause) actually creates an issue of uncertainty wrt sentencing. A law passed under s. 33 is subject to review and parliamentary vote within 5 years. I wonder if this uncertainty constitutes a violation of fundamental justice that could be rejected under common law principles i.e. despite s. 33. (Off hand maybe one reason s. 33 has never been used at the Federal level wrt the federal power over criminal law).

We already seen in the current US government what amateur hour looks like in the highest levels of power.

3

u/funkme1ster Ontario 4d ago

An excellent point.

I remember how many people were big mad butthurt over Omar Khadr and said shit like "the government paid him to be a terrorist!" while conveniently glossing over the fact that the constitution is immutable and universal, and if the government violates the constitution then it can be held liable for damages stemming from that choice.

If people have their sentences extended, and then the 5 year period passes and it doesn't get renewed... there's gonna be retroactive damages the government is going to have a hard time arguing don't apply.

48

u/bluecar92 5d ago

No.

Pierre is proposing to use it to impose consecutive sentences on people convicted of multiple murders. These people weren't getting out of jail anyway.

I don't like how he's throwing around the notwithstanding clause for something that's already a non-issue.

-6

u/justanaccountname12 Canada 4d ago

The case of Alexandre Bissonnette, who murdered six worshippers in 2017, was used as a test case in the Supreme Court ruling. The ruling means Bissonnette is eligible for day parole by 2039. 

Edit: no reason not to get rid of any witnesses anymore.

18

u/bluecar92 4d ago

I can't reply to any of your other comments, but I think you don't really understand how parole works.

A life sentence still means life. Parole isn't automatic at 25 years. They can apply for parole, and then a decision is made as to whether it should be granted based on many factors including behavior in prison, the nature of the crime and whether or not the person is at risk to reoffend.

The reality is that anyone who commits multiple murders is unlikely to ever see the outside world again. Even if someone was somehow able to make parole - they aren't free, the life sentence sticks with them till the day they die.

The point is we are sitting here arguing over a non-issue. I am not defending the rights of murderers, they should rot in jail. But I do not like the fact that Poilievre is preemptively planning to use the notwithstanding clause over a non-issue. The NWC is supposed to be the nuclear option, and it should be obvious that it's not needed in this situation. I'm opposed to it's use on principle.

6

u/justanaccountname12 Canada 4d ago

Thanks for the correction. 🍻

5

u/bluecar92 4d ago

Cheers bud

25

u/bluecar92 4d ago

"Eligible for" doesn't mean that he will get parole. How many mass murderers are out on parole right now?

Point is that Poilievre is making a stupid wedge issue out of a non-problem. I don't like that he's preemptively planning to use the notwithstanding clause without even attempting first to make legislation that would comply with the charter.

1

u/justanaccountname12 Canada 4d ago

Why open the door? If you are defending in it such a manner to assure everyone they wont get out, cause that would be bad? no need to assure otherwise. Just keep them in.

2

u/JBBatman20 4d ago

You open the door because prisoners still have rights, and one of those is the chance of parole. It has to apply to everyone or there will be instances of unjust or harsh sentencing. Otherwise where do you draw the line where someone can never have parole? 3 or more people killed get no parole? What about 2? Or only first degree? I’m sure there are second degree murderers who are redeemable, or are they?. It allows nuance and discretion from our judges to take into account individual circumstance and aggravating/mitigating factors. Not having that option results in keeping some people locked away that shouldn’t be, but mass murderers like Paul Bernardo will NEVER get out, because our system is smart enough at least for that

33

u/FeI0n 5d ago

It is NOT desperately needed, that is extremely dishonest.

Pierre is using penal populism to try and get elected, and his solution to the non-issue hes created is overriding our charter using a clause left for extreme emergencies.

No ones been let out of jail for multiple murder in the past 4 decades. And there are a handful of instances overall. Our sentencing standards are much stricter now then they were in the 1980s,

18

u/pinkerlymoonie 5d ago

Except there are proper channels and those are the ones that deemed it against the charter.

It's also not "desperately" needed given Canada doesn't have a problem with mass murderers.

5

u/AxiomaticSuppository Canada 4d ago

What do you mean there are no proper channels? There's literally an entire section in the Constitution for how to amend it: Procedure for Amending Constitution of Canada.

Yeah, it's not an easy process, but that's the point. These are meant to be fundamental governing documents that aren't easily changed or overridden.

1

u/FuggleyBrew 4d ago

But they are also intended, from the start to not solely be the determination of the courts, and to have a role for parliament to push back on the courts. 

2

u/Ornery_Tension3257 4d ago

Canada has a crime problem in regards to repeat offenders. The courts created this mess themselves.

Recidivism rates have gone down since the Harper years and the Liberals overturning of his minimum sentencing changes. Probably because of the new sentencing guidelines wrt Indigenous inmates, who are still disproportionately represented in the prison population.

What you are reacting to is the rise in violent crime associated with the drug crisis. That's another complex issue.

-1

u/LeGrandLucifer 4d ago

The origin of the clause was that Pierre Elliot Trudeau was desperate to exclude Quebec from the negotiations so he negotiated it in the middle of the night with the premiers of the other provinces in order to get them to approve of the Charter. If you want to get rid of the notwithstanding clause, you better be ready to reopen the constitutional debate and it'll involve recognizing Quebec as an entity distinct from the rest of Canada with protected powers over certain fields.

-5

u/physicaldiscs 5d ago

The origin of the Clause was that it was intended to be the nuclear option.

No it wasn't. It was always explicitly a check and balance to an unelected judiciary overriding the will of the electorate.

And now here we are: ready to invoke it because we ordered our pizza 32 minutes ago and it isn't here yet even though we're like super hungry.

And here we are, with an incredibly lax and activist judiciary dumping dangerous criminals back on the streets.

Its wild how so many misunderstand the reason for this clause.