Poilievre says he’d pass a law that overrides a Charter right. That would be a first for a PM

In January 2006 during the federal leaders’ debate, Liberal Leader Paul Martin surprised many political observers when he seemingly out of the blue raised the issue of the notwithstanding clause.

Martin challenged Conservative Leader Stephen Harper to agree to a constitutional amendment ensuring that Ottawa would never use the controversial clause. Harper refused, and the issue, which some saw as an effort by Martin to boost his campaign, fizzled from the election campaign landscape.

But the issue has returned to this election campaign and this time it’s the Conservative leader who has raised it, with a politically groundbreaking promise to become the first prime minister to invoke the clause in office.

“It’s a major step obviously,” said Thomas Axworthy, former prime minister Pierre Trudeau’s principal secretary, who advised Trudeau during the Constitution consultations that led to the creation of the Charter of Rights and Freedoms.

“One of the last remaining restraining or constraining conventions about the notwithstanding [clause] is that no federal government has used it. Now we have someone enthusiastically proposing that. That’s major,” said Axworthy, who is now chair of public policy at the University of Toronto’s Massey College.

Stéphane Sérafin, an assistant professor of law at the University of Ottawa, echoed that Pierre Poilievre’s pledge to use the notwithstanding clause is significant in the sense that the provinces are the only ones that have actually used it so far.

“Just generally that’s a game-changer,” he said.

Consecutive life sentences

On Monday, Poilievre promised to use the notwithstanding clause to impose consecutive life sentences on multiple murderers. The Supreme Court of Canada ruled in 2022 that imposing consecutive life sentences violates an offender’s Charter rights.

Section 33 — known as the notwithstanding clause — allows for premiers or prime ministers to override rulings on legislation that judges have determined would violate sections of the Charter for a five-year period. 

“For those who invested so much of their life in supporting a Charter, it’s always been a tremendous concern that it could be used the way we’re seeing now,” Axworthy said.

“Not in crisis situations, not judiciously, not after massive public debates and so on, but a majority government for its own political reasons playing to its base.”

The clause can only override certain sections of the Charter — including Section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights — but can’t be used to override democratic rights. 

The clause has been used at the provincial level, including by Saskatchewan, Quebec and Ontario, but no federal government has ever used the clause to pass a law. It’s mostly been used in Quebec, which included it in every piece of legislation from 1982 to 1985 as a form of political protest.

Nelson Wiseman, professor emeritus of political science at the University of Toronto, said federal use of the clause would certainly be a  significant move.

“However, it’s not as significant in one way or not as surprising as it would have been 20 or 30 or 40 years ago because it’s been used now a lot in various provinces,” Wiseman said.

While some Conservative members of Parliament, including Conservative leadership contenders, have publicly supported invoking it for a range of issues, party leaders have until now backed away from that stance during election campaigns.

‘You know exactly what I mean’

Back in May 2024, Poilievre himself hinted at using the clause to implement some criminal justice reforms when speaking to a conference of the Canadian Police Association.

“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.

On Monday, he said he would use Parliament’s “legitimate constitutional authority” to protect the Charter rights of law-abiding Canadians to life, liberty and security.

The use of the clause has been a concern to those who see it as an instrument to trample established rights. Earlier this month, led by the Canadian Civil Liberties Association, more than 50 organizations, human rights advocates and legal experts released an open letter urging all federal party leaders to commit to a public consultation on the notwithstanding clause within six months of forming a new government.

“The growing use of the notwithstanding clause to trample civil liberties and human rights is a threat to our most basic rights and freedoms,” Anaïs Bussières McNicoll, director of the CCLA’s Fundamental Freedoms program, said in a statement related to the open letter.

“Now is the time for federal political party leaders to listen to people of Canada’s concerns and to stand up for their rights.”

On Monday, both Liberal Leader Mark Carney and NDP Leader Jagmeet Singh rejected using the notwithstanding clause.

Axworthy said it’s a “big deal” when any government invokes the clause, but it’s especially significant when the federal government plans to use it.

“Slowly after a generation those constraints begin to weaken and weaken, and now we have a federal leader saying he’s happy to,” he said.

Necessary for criminal law reform: professor

But Sérafin, who supports the use of the clause, said insofar as someone is trying to reform criminal law, it becomes necessary because of the way that courts have struck down criminal prohibitions like mandatory minimum sentences.

He rejected the idea that there should be concern about invoking the notwithstanding clause, asking whether Canada was a tyrannical state before it patriated the Constitution in 1982.

“The answer is no, of course not. What Section 33, the notwithstanding clause, effectively does is it kind of allows Parliament or legislature to return to the pre-1982 status quo, but only for a period of five years.”

It’s not a coincidence that it’s set at five years, which is also the maximum duration for Parliament under the Charter, Sérafin said.

“If the Conservatives get in, they put this [law] through Section 33 and then there’s an election,” he said.

“So you’re ensuring some kind of democratic check on this.”