The dangerous potential of Poilievre’s promise to use Notwithstanding Clause 

OPINION: Sure it’s about crime now, but the rollback of rights rarely stops at just one group

After weeks of riding high in the polls, Conservative Party of Canada leader Pierre Poilievre has become much more emboldened in his pronouncements and public statements, and the warning signs about authoritarian tendencies are all starting to show themselves. One example was his screed in the National Post where he demanded that corporations fire their lobbyists because he would take no meetings with them (in spite of him not only taking their meetings, but also their fundraising dollars), because he doesn’t want to hear what they have to tell him. He’d rather listen to himself and take the opportunity to make up what he’s supposedly hearing on the doorsteps. 

Another was his speech to the Canadian Police Association last week, where he spoke about things like implementing more stringent conditions for bail, and making it harder for convicted murderers to be in anything other than maximum security prisons.

“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,” Poilievre said. “I think you know exactly what I mean.” 

While I got a flashback from The Phantom Menace of Darth Sidious saying he would make the invasion of Naboo legal, what Poilievre likely is suggesting is that he has no hesitation about using the Notwithstanding Clause in the Charter of Rights and Freedoms, which would be the first time ever that a federal government has invoked it.

“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,” Poilievre continued, outright invoking the willingness to use the tyranny of the majority to take away the rights of those he doesn’t like. In this case, it may be the accused (who are not even yet convicted), or even convicted killers, but we can’t pretend that their human rights don’t exist, no matter what someone has or hasn’t done.

And let’s think about this for a moment—the right to bail is fundamentally tied to the presumption of innocence in our court system. If you’re going to lock people up indefinitely without trial, that is not only going to be hugely expensive and unfeasible, given the already crowded and unhealthy conditions in remand facilities across Canada, but you’re depriving a whole lot of innocent people of their liberty for years, possibly based on false charges, police negligence or even outright police malfeasance (as the recent acquittal of Umar Zameer in Toronto showed). It may be popular to say “jail not bail” without actually understanding the human cost associated with that stance.

 

Poilievre’s other example is the Quebec City mosque shooter, for whom the Supreme Court of Canada decided would serve his life sentences concurrently rather than consecutively because really, life means life, making those stacked sentences somewhat cartoonish. They also felt that there was value in the faint hope of at least being eligible for parole at some point in the future (not that he is likely to get it). Poilievre, however, whose justice policies run more revanchist than restorative, would rather see consecutive sentences for the optics of it—because it looks performatively tough.

The thing with wannabe authoritarians, and we’ve seen this in Poland with the rise of the Law and Justice party in the early 2000s, or with Viktor Orbán in Hungary, particularly post-2010, is that it never stops with removing one group’s fundamental rights—they need to keep progressing to other groups. In Canada, the ground on this has already been softened by several provincial premiers in their own pre-emptive use of the notwithstanding clause for their own political ends, whether in Ontario around bans on third-party political advertising (who successfully pushed back against the Progressive Conservatives in Ontario for decades), Quebec’s so-called “secularism” laws that have a disproportionate impact on Muslim women (by sheer coincidence, surely) or in Saskatchewan, where the clause was invoked to prevent court challenges of the province’s policies targeting trans youth. Poilievre may insist that he would only invoke the clause for criminal law cases where he feels the courts have gone too far, but that’s often where these things start, and it’s hard to know when it will end.

But as concerning as Poilievre’s announced intentions are, I also worry about the Liberals in particular overplaying their hands by railing about this right now, most especially when it comes to abortion rights and whether Poilievre would use the notwithstanding clause there as well. Several Liberals have pointed out the fact that abortion, too, was once criminalized, so it could very well fall under that framework of only applying the clause to criminal matters. One could also say the same thing about gay sex, where we only just got several of those laws that in particular targeted the gay community out of the statute books. And while the Liberals are right to raise this as a concern, my fear is that by beating this drum between now and a possible election in 18 months, they run the risk of desensitizing the public to these issues rather than turning them against Poilievre. It wouldn’t be the first time that we’ve seen the constant use of apocalyptic language about very serious issues simply wind up turning the general public off—the 2011 election was one such example, where Stephen Harper’s contempt of Parliament was ignored and rewarded with a majority Parliament.

What Poilievre is saying is absolutely alarming, but we also have to be aware that he is simply better at the media and social media game than any of the other parties (and frankly, legacy media itself), and this is going to mean an uphill climb when it comes to pointing out just how dangerous his promises are for everyone. This is an age where people will believe his made-up “facts” because they sound researched and because they like his angry vibes, and countering that is going to be the challenge that we all must grapple with for the next 18 months at the very least.

Dale Smith is a freelance journalist in the Parliamentary Press Gallery and author of The Unbroken Machine: Canada's Democracy in Action.

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Politics, Opinion, Justice, Canada

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