Poilievre pledge a dangerous first step on perilous path to lost rights, freedoms

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This article was published 02/05/2024 (549 days ago), so information in it may no longer be current.

It seems clear that if Pierre Poilievre becomes Canada’s next prime minister, he plans to be the first federal leader to use the country’s so-called notwithstanding clause to override the constitutional rights of Canadians.

The Conservative Party of Canada leader suggested this week he would use the controversial clause — which has never been used by the federal government — to deny bail to any repeat violent offender charged with a new violent crime.

The question now is, how far would Poilievre go in denying Canadians their fundamental rights under the Charter of Rights and Freedoms? He plans to start with bail. But what other rights might he target to further his hard-right political agenda? Protection against unreasonable search or seizure? Arbitrary detention? Cruel and unusual punishment?

The list of charter rights subject to the notwithstanding clause is long. It includes Sec. 2, which contains basic rights such as “freedom of conscience and religion” and “freedom of thought, belief, opinion and expression including freedom of the press and other media of communication.”

It also covers Sec. 7-15, which includes one of the most fundamental judicial rights: “To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

Those rights could be quashed with one stroke of the pen, if Canada had a prime minister extreme enough to do it.

Poilievre told a Canadian Police Association meeting Monday that, if he won government, he would bring in a law that would automatically deny bail to any repeat violent offender facing a new violent crime charge. That would violate Sec. 11 (e) of the charter, the right “not to be denied reasonable bail without just cause.”

The Supreme Court of Canada has ruled that under that section, bail should be the norm not the exception. There is good reason for that. People charged with crimes are presumed innocent until proven guilty in court (unless Poilievre plans to take that right away, too). They should be detained pending the outcome of their court case only if there is just cause, such as a danger to the community or a flight risk. Those decisions can only be made on an individual basis by an impartial judge or magistrate.

The only way for government to eliminate that right would be to enact legislation “notwithstanding” that provision of the charter through Sec. 33 (1). That’s what Poilievre says he would do if he became prime minister.

Doing so would not only cause major congestion in provincial jails, which are already bursting at the seams, it would mean even people with a couple of assault convictions would automatically be denied bail if they were charged with another violent offence.

More importantly, it would impose automatic detention on people yet to be found guilty of a crime. That would be a fundamental breach of human rights and a major setback for Canada.

It would also be a slippery slope. If Poilievre would be willing to eliminate one right under the charter, there’s no reason to think he wouldn’t consider using the notwithstanding clause to eliminate others. Once governments get a taste of that power, such as in Quebec (which has used the clause multiple times to push through unconstitutional legislation), they may want to pursue it further.

If Poilievre sees nothing wrong with overriding a charter right in one area, no moral persuasion would convince him that doing so for other rights is fundamentally wrong.

Poilievre claims — wrongly — that using the notwithstanding clause to enact unconstitutional legislation would make that legislation constitutional. It wouldn’t. That’s not how the notwithstanding clause works. It simply allows a provincial or federal government to pass a law “notwithstanding” the charter right that it’s breaching. It would still be a breach of the charter.

That would be a terrifying road for Canada to embark on. Passing laws that take away people’s most fundamental rights would drastically change the kind of country we live in. It would be a shift away from a rights-based society towards a totalitarian state.

The loss of human rights in society doesn’t usually occur in one fell swoop. It usually happens incrementally, until one day people wake up and realize they’re living under an oppressive government.

Democracy and human rights are not a given. They must be protected and constantly fought for. Poilievre’s pledge to use the notwithstanding clause to override the charter represents a serious threat to those principles.

tom.brodbeck@freepress.mb.ca