Just how far is Pierre Poilievre willing to take the notwithstanding clause?
CBC
In January, the Federal Court found that the Trudeau government's use of the Emergencies Act to respond to the protests of the self-styled freedom convoy in 2022 was not properly justified — a decision the federal government is now appealing.
At the time, Conservative Leader Pierre Poilievre celebrated that ruling.
"Today, in a landmark victory for the freedoms of Canadians, the Federal Court ruled that Trudeau broke the highest law in the land," he said in a prepared statement, apparently referring to the Charter of Rights and Freedoms.
"Common-sense Conservatives will protect the Charter rights of Canadians, and as prime minister I will unite our country and our people for hope and freedom."
A few months later, Poilievre's support for the Charter rights of Canadians seems less than absolute.
Last week, the Conservative leader appeared before a meeting of the Canadian Police Association and outlined — or at least hinted at — his plans to use the notwithstanding clause to safeguard his government's laws from being overturned by the courts.
"All of my proposals are constitutional. And we will make sure — we will make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional," he said. "I think you know exactly what I mean."
Poilievre went on to explain his own theory of how the use of the notwithstanding clause could be justified.
"I will be the democratically elected prime minister — democratically accountable to the people, and they can then make the judgments themselves on whether they think my laws are constitutional, because they will be," he said.
Unloved and controversial, the notwithstanding clause is an unavoidable feature of the Charter of Rights and Freedoms — part of the negotiated agreement that created the Charter in the first place. There are also reasonable, if theoretical, arguments to be made for its necessity — judges are not infallible and a mechanism to overrule egregious decisions could be better than the alternatives.
The question, then, is what circumstances justify its use.
Poilievre's office insists a Conservative government would use the notwithstanding clause only to deal with "matters of criminal justice." But that could cover a number of things.
Would a Poilievre government use the clause to save mandatory-minimum sentences that the Supreme Court has found constitute cruel and unusual punishment? What if the court ultimately rules against the bail restrictions that Poilievre has said he would implement?
In 2011, the Supreme Court ruled that the previous Conservative government's attempts to block a supervised drug consumption site in Vancovuer — Insite — violated the Charter right to life, liberty and security of the person. Would the Poilievre government use the notwithstanding clause to implement elements of its response to the opioid epidemic?
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