Opting to drive outside the guardrails

Hey there, time traveller!
This article was published 19/04/2025 (344 days ago), so information in it may no longer be current.

It sounds a bit like using a sledgehammer to kill a mosquito.

But the overreach may be deliberate.

One of the planks in Conservative Leader Pierre Poilievre’s campaign to become prime minister involves using a power that no Canadian federal government has ever used before.

Poilievre wants to bring back legislation requiring that convicted mass murderers be given sentences that include consecutive sentences for each person killed, before a convicted murderer is eligible for release. In essence, a mass murderer could serve up to 25 years before being eligible to apply for parole for each individual person murdered.

“The worst mass murderers should never be allowed back on our streets,” Poilievre has said. “They should only come out in a box.”

The problem is that the Supreme Court of Canada struck down an earlier Conservative version of that law, saying it “effectively deprive(s) all offenders who receive such sentences of a realistic possibility of being granted parole before they die. Such sentences are degrading in nature and thus incompatible with human dignity, because they deny offenders any possibility of reintegration into society, which presupposes, definitively and irreversibly, that they lack the capacity to reform and re-enter society.”

It was, the court said, a clear violation of the Canadian Charter of Rights and Freedoms.

Poilievre not only wants to effectively bring the law back, but has said his government would use the constitution’s notwithstanding clause to override the Canadian Charter of Rights and stop the courts from declaring the law to be unconstitutional.

Poilievre can’t actually cite examples of any multiple murderers being released on parole because of the Supreme Court decision, because there haven’t been any. The court’s decision only came into effect in 2022, and it will be a while before the 25-year sentences would actually be served and a mass murderer could potentially be released on parole.

That, of course, makes the whole debate somewhat equivalent to an argument over how many angels can dance on the head of a pin — and keep in mind, being eligible for parole doesn’t mean you will be paroled.

While you can understand why Poilievre’s position would be popular — who, exactly, would campaign for parole for mass murderers? — the method he’s promising to use raises more concerns.

A federal government using the notwithstanding clause sets a dangerous precedent — basically, unlike a provincial government exempting its own legislation from legal review on issues like language or education, it enables the federal government to arbitrarily change the rights and freedoms of the entire nation under federal legislation like the Criminal Code.

It’s a door you don’t want to open — because once it’s been used, it becomes a bit like any other tool in the political toolbox. And a federal government deciding to set aside anyone’s rights under the Charter of Rights — even for a period of five years, which is what the notwithstanding clause allows before its use must be reviewed — is the slipperiest of slippery slopes, because there is no recourse, judicial appeal or otherwise, to challenge the government’s decision.

There is a mechanism for revising Canada’s constitution, should Poilievre want to go in that direction: it’s a complicated and lengthy process — but it’s meant to be that way, so that our rights aren’t reduced to crowd-sourced public opinion.

And if you want to see the risks of allowing a government to dabble with untrammeled power over courts and a constitution, you can look south and watch what is playing out there. There’s an object lesson in what happens in government when one part of the structure of government — in America’s case, the president — overrides legislated guardrails like the courts and sets his own rules.

It isn’t pretty.