Poilievre’s populist ‘three-strikes-you’re-out’ policy swings, misses with Constitution

Opinion

It makes for a great political soundbite: throw repeat violent offenders behind bars and keep them there for a decade — no exceptions, no questions asked — and automatically deny them bail.

That’s the U.S.-inspired promise Conservative Leader Pierre Poilievre made last week — to deny bail to anyone convicted of three serious violent offences and slap them with a mandatory minimum 10-year sentence.

But here’s the problem with a “three-strikes-you’re-out” policy, which is popular in the United States: it’s not just bad law, it’s unconstitutional and it does nothing to reduce crime (just check U.S. crime rates).

Besides, Canada already has a system in place for dealing with repeat violent criminals. It’s called the dangerous-offender designation, and it gives judges the power to impose indeterminate sentences on people who pose a real and ongoing threat to public safety. It’s grounded in evidence, it allows for judicial discretion and — most importantly — it has been upheld by the courts.

“We will lock up the worst violent offenders longer and make sure they are not released as long as they pose a danger to our society,” said Poilievre. “Hug-a-thug, catch-and-release policies have destroyed our once-safe towns and cities. Only Conservatives will take violent crime seriously and do what it takes to get it under control.”

That’s great political rhetoric. But what Poilievre is proposing would undermine the existing dangerous-offender framework, replace it with a blunt, populist hammer and almost certainly be struck down by the courts.

Let’s start with the Charter of Rights and Freedoms. Section 11(e) guarantees that “any person charged with an offence has the right not to be denied reasonable bail without just cause.” That right isn’t absolute — nor should it be. Instead, it allows the courts to make fair, reasonable decisions based on the evidence in individual cases.

What Poilievre is proposing is a blanket denial of bail for people based solely on past convictions and the imposition of a mandatory minimum sentence regardless of the individual circumstances of a case. That would eliminate judicial discretion and gut the balance between holding criminals accountable for their crimes and protecting the rights of individual Canadians.

The Supreme Court has been very clear on this. The court ruled in 2017 that bail must be the default and that the least-restrictive conditions should be applied. Automatic denial, without regard for the circumstances of the case or the individual, would fly directly in the face of that ruling.

Then there’s the mandatory-minimum part of Poilievre’s pitch. A 10-year sentence for anyone who’s convicted of three “serious” offences — no matter the context, no matter the details. That, too, is a constitutional non-starter.

Poilievre’s proposal has no nuance. It ignores all of the established case law, is clearly unconstitutional and would do little, if anything, to reduce violent crime.

Which brings us to the politics of it all.

There’s no denying that crime — especially violent crime — is a concern in many Canadian cities right now. Headlines about random assaults and repeat offenders out on bail strike a chord. They should. The public has a right to feel safe, and governments have a responsibility to protect them.

But that doesn’t mean we throw the Constitution out the window and pretend we’re in some Hollywood revenge fantasy. Real public safety comes from smart, targeted, evidence-based policy, not tough-on-crime talking points.

It bears repeating: we already have the legal tools to deal with repeat violent offenders. The dangerous-offender designation — first created in 1977 and upheld by the Supreme Court of Canada in 2018 — allows Crown prosecutors to argue that if someone poses a continued threat to society, they should be locked up indefinitely. It’s used sparingly and appropriately, because it’s subject to serious judicial scrutiny.

Anyone who commits a “serious personal injury offence,” as defined in section 752 of the Criminal Code, may be declared a dangerous offender. If they are, they are given an indeterminate sentence, meaning they remain behind bars until they can demonstrate they are no longer a threat to public safety.

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“A provision imposing an indeterminate detention is therefore not overbroad if it is carefully confined in its application to those habitual criminals who are dangerous to others,” the Supreme Court ruled.

In other words, it’s not based on an arbitrary rule, like Poilievre’s U.S.-style “three-strikes-you’re-out” proposal. It’s based on the individual facts of a case, as it should be.

Canadians deserve a serious conversation about bail reform and public safety — one that respects the Constitution, listens to legal experts and actually improves outcomes for victims and communities.

Poilievre’s plan does none of that. It’s pure political theatre.

tom.brodbeck@freepress.mb.ca

Tom Brodbeck
Columnist

Tom Brodbeck is an award-winning author and columnist with over 30 years experience in print media. He joined the Free Press in 2019. Born and raised in Montreal, Tom graduated from the University of Manitoba in 1993 with a Bachelor of Arts degree in economics and commerce. Read more about Tom.

Tom provides commentary and analysis on political and related issues at the municipal, provincial and federal level. His columns are built on research and coverage of local events. The Free Press’s editing team reviews Tom’s columns before they are posted online or published in print – part of the Free Press’s tradition, since 1872, of producing reliable independent journalism. Read more about Free Press’s history and mandate, and learn how our newsroom operates.