It was disappointing to see Conservative Party leader Pierre Poilievre intimate this week that as prime minister he would be willing to use the constitution’s notwithstanding clause to implement laws that the courts might otherwise block.
“All of my proposals are constitutional and we will make them constitutional, using whatever tools the constitution allows me to use to make them constitutional. I think you know exactly what I mean,” Poilievre said in a speech to the Canadian Police Association on Monday in which he outlined the Conservatives’ law-and-order agenda. “They [the laws] will happen and they will stay in place.
“And I will be the democratically elected prime minister, democratically accountable to the people and they can then make the judgements themselves on whether they think my laws are constitutional.”
Poilievre’s statements are deeply concerning. While we agree with the Conservatives on the need for some criminal and drug policy reforms, his comments raise questions about Poilievre’s fitness to serve as the next prime minister.
What Canada needs is a leader who understands the institutions that make this country great and has a vision for strengthening them, not tearing them down.
The Charter of Rights and Freedoms and the courts are two such institutions. Both are integral elements of our liberal democracy, a form of government committed to the rule of law, separation of governmental powers and protection of all citizens’ rights and freedoms.
Poilievre’s suggestion that the people can be the judge of whether laws are constitutional shows a flagrant disregard for the role of the judiciary in our system of government. And it is a nod to majority rule. When he says the people will decide what laws are constitutional, he cannot mean all people, but the majority.
While we are critical of Poilievre’s stance, we understand the temptation for Poilievre — and provincial governments — to invoke the notwithstanding clause.
In our view, a number of court rulings on the Charter have gone too far. They have imbued certain Charter rights with almost boundless meaning that allows (or requires) judges to make decisions that are better left to elected officials.
Nowhere is this more apparent than with the Charter’s Section 7. Among other things, this section has been interpreted as recognizing a right to a medically-assisted death (under a provision that guarantees a right to life). It has been used to compel the federal government to extend an exemption to drug laws to keep a safe injection site open. Most recently, it was used to curtail the B.C. government’s ability to limit drug use in public spaces.
As we wrote in a recent editorial, when the courts handicap governments’ abilities to balance minority interests (such as drug addicts’) with other public interests (such as community safety), they create an incentive for governments to use the notwithstanding clause.
And as Poilievre and others like to point out, the notwithstanding clause is itself a legitimate provision of the Charter, so it is not outside the letter of the law to invoke it.
But there is a distinction between what a leader can do and what they should do. On the matter of invoking the notwithstanding clause, a long view is required. While there may be short-term benefits to governments getting the exact laws they want when they want them, this expediency comes at far too great a long-term cost.
That cost, it is already becoming clear, is the rapid and potentially irreversible attenuation of the Charter as a whole. As every new province jumps on the notwithstanding-clause bandwagon, it becomes easier for others to do the same.
If, instead of defending the Charter, Ottawa joins the provinces in undermining it, the constitution as we know it may have met its effective end. Canadians will no longer be able to count on the constitution to ensure the protection of its most vulnerable. Canada will have regressed into a less enlightened age.
In our view, it is possible to be critical of the Charter and the courts’ decisions without undermining either institution. When the courts strike laws down as unconstitutional, they frequently provide legislators with the opportunity to develop new, more tailored laws in response. Governments should use this opportunity to tailor the law to implement their preferred policies. Where this is not possible, we’d rather they accept a court’s decision than erode citizens’ rights.
It is a fundamentally unconservative idea to disregard the role of the courts and the constitution in our liberal democracy. As a potential prime minister, this is something Poilievre must recognize.
And Poilievre was wrong to say that he would be “the democratically elected Prome Minister of Canada.” He would be the democratically elected member from the riding he runs in, who happens to lead the winning party. It is an important distinction. I am also seriously disconcerted by his use of the phrase “my laws.”