Conservative Leader Pierre Poilievre raised a lot of eyebrows, not to mention the hopes of his base, when he said last week that he would invoke the Constitution’s notwithstanding clause if that’s what it took to ensure that the only way a convicted mass murderer ever left prison was “in a box.”
Mr. Poilievre’s common-sense tough-guy persona is old hat in conservative politics. What’s new and worrisome is his threat to gut the Charter of Rights and Freedoms in the name of right-wing virtue-signalling.
You don’t need to use the nuclear option to fix the criminal justice system. There are far more pressing reforms that don’t involve the suspension of basic rights that the Conservative Leader could be proposing if he wanted to be seen as serious about the issue.
The most obvious one is ending the endemic shortage of federally appointed judges in courts across the land. In February, a Federal Court justice blasted the Trudeau government for violating its constitutional duty to appoint judges, and said it needed to fill 75 vacancies in a timely fashion.
Last year, the chief justice of the Supreme Court of Canada, Richard Wagner, raised the same issue, saying the vacancies have “a significant impact on the administration of justice, the functioning of our courts, and access to justice for the public.”
The vacancies crisis, which dates back to the Harper government, has been made more critical by a 2016 SCOC ruling that says cases involving even the most serious and violent criminal must got to trial within 30 months or be thrown out.
A muscular and, not to be coy, common-sense proposal from Mr. Poilievre would be a vow to undo the negligence of the Trudeau government and fill those vacancies in the first year of a Conservative government, or even in the first 100 days. That would do more to ensure the rights of victims and the accused than any tough but empty talk about convicted killers leaving prison feet-first.
Mr. Poilievre linked his intention to use the notwithstanding clause to the case of the man who murdered six worshippers in a Quebec City mosque in 2017. Alexandre Bissonnette was sentenced to serve six life sentences concurrently rather than consecutively, which means he is eligible for parole after serving 25 years instead of 150 years.
The Supreme Court has ruled that a life sentence with no chance of parole, even for the worst killers, is cruel and unusual punishment. A Conservative government would presumably use the notwithstanding clause to pass a sentencing law in defiance of that ruling.
But there is a vanishingly small possibility that Mr. Bissonnette, or any other mass murderer, would ever be granted parole. Punishment is still part of Canada’s justice system. There is no logic to gutting the protections in the Charter in order to produce an outcome that is virtually guaranteed in any event – unless you are merely posturing for your base.
The other major federal issue involving the criminal justice system is bail reform. Mr. Poilievre last year vowed a Conservative government would bring in a law to deny bail to repeat violent offenders – a move that also risks being at odds with the Supreme Court.
There is no question that the need to keep the public safe is a central aspect of the justice system, and that it is shocking when a person out on bail commits a violent crime. But that is an infinitesimally small occurrence compared to the daily parade of thousands of legally innocent people held behind bars by an overcautious bail regime. It’s a system that disproportionately harms the poor and marginalized, and contributes to Canada’s clogged courts.
The role of the federal government is to find the right balance. Resorting to the notwithstanding clause might look tough, but it would do nothing to address the system’s biggest imperfection – that so many Canadians who have never been convicted of a crime are being held in dangerous remand centres waiting for court dates that are increasingly hard to come by.
Mr. Poilievre would avoid the hard work of finding that fine balance by bludgeoning the justice system with the notwithstanding clause.
He’s doing nothing more than virtue-signalling, when protecting the presumption of innocence and other basic rights and freedoms in the face of the vast power of government ought to be a common-sense concern for a Conservative Party leader.