In January 2006 during the federal leaders’ debate, Liberal Leader Paul Martin surprised many political observers when he seemingly out of the blue raised the issue of the notwithstanding clause.
Martin challenged Conservative Leader Stephen Harper to agree to a constitutional amendment ensuring that Ottawa would never use the controversial clause. Harper refused, and the issue, which some saw as an effort by Martin to boost his campaign, fizzled from the election campaign landscape.
But the issue has returned to this election campaign and this time it’s the Conservative leader who has raised it, with a politically groundbreaking promise to become the first prime minister to invoke the clause in office.
“It’s a major step obviously,” said Thomas Axworthy, former prime minister Pierre Trudeau’s principal secretary, who advised Trudeau during the Constitution consultations that led to the creation of the Charter of Rights and Freedoms.
Conservative Leader Pierre Poilievre unveiled another announcement in his justice agenda on Monday, promising to use the notwithstanding clause to override the Charter of Rights and Freedoms to ensure people convicted of multiple murders never get out of prison.
“One of the last remaining restraining or constraining conventions about the notwithstanding [clause] is that no federal government has used it. Now we have someone enthusiastically proposing that. That’s major,” said Axworthy, who is now chair of public policy at the University of Toronto’s Massey College.
Stéphane Sérafin, an assistant professor of law at the University of Ottawa, echoed that Pierre Poilievre’s pledge to use the notwithstanding clause is significant in the sense that the provinces are the only ones that have actually used it so far.
“Just generally that’s a game-changer,” he said.
Consecutive life sentences
On Monday, Poilievre promised to use the notwithstanding clause to impose consecutive life sentences on multiple murderers. The Supreme Court of Canada ruled in 2022 that imposing consecutive life sentences violates an offender’s Charter rights.
Section 33 — known as the notwithstanding clause — allows for premiers or prime ministers to override rulings on legislation that judges have determined would violate sections of the Charter for a five-year period.
Liberal Leader Mark Carney said Conservative Leader Pierre Poilievre’s plan to use the notwithstanding clause risks sending Canada down ‘a slippery slope.’ Poilievre said he would invoke the clause to override the Charter of Rights and Freedoms so people convicted of multiple murders never get out of jail.
“For those who invested so much of their life in supporting a Charter, it’s always been a tremendous concern that it could be used the way we’re seeing now,” Axworthy said.
“Not in crisis situations, not judiciously, not after massive public debates and so on, but a majority government for its own political reasons playing to its base.”
The clause can only override certain sections of the Charter — including Section 2 and sections 7 to 15, which deal with fundamental freedoms, legal rights and equality rights — but can’t be used to override democratic rights.
The clause has been used at the provincial level, including by Saskatchewan, Quebec and Ontario, but no federal government has ever used the clause to pass a law. It’s mostly been used in Quebec, which included it in every piece of legislation from 1982 to 1985 as a form of political protest.
Nelson Wiseman, professor emeritus of political science at the University of Toronto, said federal use of the clause would certainly be a
