Our human rights are the top priority - From the Cluttered Desk with Keith Roulston

Amid all the election talk, it’s a promise almost overlooked, but as part of his tough-on-crime platform Conservative Party Leader Pierre Poilievre has promised to use the “notwithstanding clause” in the constitution to impose consecutive life sentences on multiple murderers.

 

The Supreme Court of Canada ruled in 2022 that a single life sentence would apply even when someone is convicted of killing more than one person. Poilievre wants someone convicted of four murders to face four life sentences, that could add up to more than 100 years before they were eligible for parole.

 

It’s not as if the law goes easy on murderers.  A life sentence means 25 years in prison before the convicted person is eligible for parole. That doesn’t mean a person actually gets parole. Paul Bernardo, convicted of several murders of young women, has been refused parole repeatedly.

 

The notwithstanding clause, which has never been used by the federal government before, is a clause that was included in the Canadian Constitution to satisfy provinces when the constitution was passed in 1982. If you’re old enough, you remember how tense those times were. The debate went on for 18 months as provinces, particularly Quebec, fought Prime Minister Pierre Trudeau’s attempt to pass a Canadian constitution which would complete the independence of Canada from Britain.

 

In arguing against Quebec’s possible independence during the referendum held by Quebec, the Prime Minister promised to seek a new, made-in-Canada constitution. This promise was not popular with the provinces. Trudeau’s first proposal was supported by Ontario and New Brunswick and opposed by the other eight provinces. To solve the matter, Trudeau decided he’d go it alone but he was challenged in the Supreme Court.

 

After months of tension, the Prime Minister called another conference and added the “notwithstanding clause”, which allowed provinces to pass legislation that wouldn’t ordinarily be approved under the constitution. All provinces but Quebec, which had a separatist premier, approved. The new constitution was approved and signed by the Queen on April 17, 1982.

 

Not surprisingly, Quebec has since used the notwithstanding clause most frequently, the most recent being a bill to refuse permission for people to wear religious clothing when they work for the government. Teachers, for instance, were forbidden to wear religious attire like the hijab when they teach in a provincial school (this, in a province where, for centuries, priests and nuns taught many students in Roman Catholic schools).

 

Other governments haven’t followed Quebec’s trend to use the notwithstanding clause until recently, and the Progressive Conservative government of Ontario Premier Doug Ford has led the way. Ford threatened to use the clause in 2018, then backed off. In June 2021, Ontario invoked the clause for the first time in the province’s history to limit third-party election financing. 
In 2022, Ford attempted to use the clause to prevent teachers from protesting a contract imposed on them by the provincial government. Months later, the union representing tens of thousands of education workers in Ontario called off planned strike actions in exchange for the Ford government promising to rescind legislation that imposed a contract and made going on strike illegal.

 

But that didn’t change the temptation to use the clause to get around constitutional protections for even the poorest of citizens. Last fall, several Ontario mayors asked the province to invoke the clause to allow them to clear homeless encampments in some Ontario cities.

 

It shows that the use of the clause in order to pass the constitution more than 40 years ago has become a handy tool for politicians to overcome protections that are in the constitution to protect all people. We should all worry, because if governments can use the clause to target people who wear hijabs or are poor enough to have to live in a tent, then they could also find reasons to use the clause against you and me.

 

Pierre Trudeau used the clause to get a made-in-Canada constitution passed, but I wonder if he could come back 40 years later if he would perhaps wish he hadn’t.

 

We do not need a Canadian Prime Minister who would use the clause in the unlikely case that a convicted murderer could be set free after serving 25 years in prison. The idea of sentencing someone to more than a lifetime’s worth of time in prison for multiple murders may seem inviting, but isn’t worth the risk of diminishing human rights.

 

The notwithstanding clause weakens our constitution and should never be used.