By Ryan Alford, October 4, 2024
It’s virtually a given that the next federal government will be forced to use the Charter’s notwithstanding clause. Otherwise, it will be impossible to implement the reforms necessary to stop the crime wave that has become endemic in Canada, since even those who are caught, prosecuted, and sentenced are returned to the streets in record time.
This revolving door of justice is accelerated each time another minimum sentence in the Criminal Code is struck down on appeal for purportedly constituting cruel and unusual punishment contrary to section 12 of the Canadian Charter of Rights and Freedoms. Recently, this has included cases involving the sexual assault of a minor under sixteen years old, child luring, and the possession and importation of child pornography. Unfortunately, the judiciary – which has created the problem – will not be the only roadblock to Parliament’s solution. It appears increasingly likely that the Senate will also try to delay legislation that employs the notwithstanding clause to derogate from section 12 of the Charter.
The Supreme Court of Canada made the use of the notwithstanding clause inevitable when it revived the “reasonable hypothetical offender” doctrine. This allows for successful challenges to minimum sentences even when the trial judge had properly determined that a longer sentence was appropriate in the particular case being appealed. Judicial use of fictional scenarios as a means of striking down minimum sentences established by statute, which had once been described by a Justice of the Supreme Court as “forceful expressions of governmental policy in the area of criminal law,” should be considered unacceptable by any government. This is especially true when the aim of the sentencing provisions is to deter sexual violence against children, to incapacitate pedophiles in prison, and to denounce these heinous sex crimes.
The Supreme Court of Canada’s Bissonnette decision in 2022 made it crystal clear that federal use of the notwithstanding clause is the precondition for re-establishing a functional sentencing regime in which deterrence, incapacitation, and denunciation are given adequate consideration. The reasons for the judgment, written by Richard Wagner, the Chief Justice of Canada, said that life sentences without parole for mass killers are “intrinsically incompatible with human dignity;” while that punishment “could well be popular, it is contrary to the fundamental values of Canadian society.”
Bissonnette is merely the crest of a wave of judgments that swept away precedents that had stood for centuries for the proposition that the length of a sentence could never constitute cruel and unusual punishment; they were supplanted by a novel, vague, and sentimental commitment to rehabilitation and human dignity, now labelled by progressives and elites as our fundamental “Canadian values.” In essence, the judiciary seems to have abandoned its traditional approach to preserving its legitimacy. Rather than demonstrating that it is a faithful and skilled expositor of the constitutional text, it increasingly relies on appeals to moral authority that it claims for itself. The court seems to be more concerned about displaying empathy towards convicted criminals, whom it sees as vulnerable and marginalized, than showing compassion or providing justice for the victims of crime.
This judicial activism is supported by Canadian progressives who espouse a sort of “suicidally indiscriminate empathy” that frames all criminals as victims that deserve our compassion. While their elevation protects them from the consequences of a revolving door justice system, these educated elites push their push their opinions – what social psychologist Rob Henderson has labelled their “luxury beliefs” – on the rest of society. Meanwhile, those who cannot protect themselves from predatory criminality are left to suffer from rampant crime.
Conservative Leader Pierre Poilievre’s proposed tough-on-crime legislative agenda certainly appeals to the communities that bear the brunt of lenient sentencing and catch-and-release bail provisions. Indeed the loudest voices against his agenda are those in progressive legal and professional circles – namely, those who are least likely to be impacted by the failures of the criminal justice system. This predictable outcry completely ignores the wishes of the most victimized and marginalized members of our society, who are often the first to advocate for a greater police presence, and desperately want authorities to crack down on organized crime and gang activities that perpetuate cycles of crime.
A possible way to avoid using the notwithstanding clause would be to create statutory amendments to the Criminal Code that re-insert mandatory minimum sentences with narrow exceptions. Other countries have already taken this route. However, it’s entirely possible that the Supreme Court would still look for ways to undermine or override these new exceptions to statutory minimum. One way the Supreme Court can, and has, done this is by applying ersatz Charter values to tear up strict sentencing provisions, both in letter and spirit.
Unfortunately, the courts have succeeding in transforming the Charter right not to be subjected to cruel and usual punishments into a group-based right not to be sentenced to terms that reflect the views of the majority about the seriousness of these offences. Protections for minorities have now been extended by means of this perversion of our jurisprudence to include those found guilty of a criminal offence. The view that convicted criminals are a vulnerable group that needs Charter protection from the tyranny of the law-abiding majority, while illogical and dangerous, has quickly become this season’s newly fashionable luxury belief. Unfortunately, those who disagree are labelled as dangerous authoritarians. Legal academia’s arguments in defence of the judiciary’s new vision of the constitution, as well as proposals to immunize it from the notwithstanding clause, are now being disseminated more widely, with some politicians now espousing the same views. Accordingly, those who would support common sense reforms to criminal sentencing policies should be prepared for the counterattacks that will take place in both the judicial and legislative branches.
Given the strident opposition of influential legal activist groups to the use of the notwithstanding clause in Quebec, Ontario, and Saskatchewan, it’s clear that federal use of section 33 to implement essential criminal justice reforms will be challenged in court. At present, strategies for bypassing the notwithstanding clause, which was expressly designed to prevent judicial review, are now being honed in legal academia and stress-tested in appeals such as Hak v. Quebec and Saskatchewan v. UR Pride. This litigation will shape the terrain for a more decisive battle between the defenders of parliamentary and popular sovereignty and these adherents of judicial supremacy, who see the notwithstanding clause as a threat to the rule of law.
At the same time, another front is also likely to open in the fight to undermine section 33 – at the Senate of Canada. Proponents of the use of the notwithstanding clause to fix Canada’s criminal justice system are already formulating a well-articulated response. However, they also need to prepare rebuttals to the argument that the Senate has the power to block a bill from the House of Commons that invokes section 33. After all, legislation that falls at this first and unexpected hurdle would never enter into force.
Indeed, preparations to attempt to block legislation in the upper house extend at least back to 2018, when Peter Harder (then Representative of the Government in the Senate) wrote a discussion paper that asserted that the Senate would be within its power to vote down any bill that was “inherently bad or fundamentally ill-considered.” Recently, Harder has made clear his intention to seek a commitment from his fellow Senators to reject any bill that invokes the notwithstanding clause. Since Harder now appeals to a chamber where eighty-eight of its one-hundred and five seats have been filled on the recommendation of Prime Minister Justin Trudeau, this represents a very real threat to the implementation of the legislative agenda of future federal governments.
All Canadians should be troubled by Harder’s efforts to effectively transform Canada’s unelected and unaccountable Senate into a body co-equal to the House of Commons. As political scientist Robert Alexander MacKay noted in 1926, a Senate that obstructs a majority government’s legislation is “the antithesis of representative government… the voice of the Senate is but the voice of the Minister who has appointed its members, ventriloquizing through his nominees.”
Proponents of the use of the notwithstanding clause to repair Canada’s criminal justice system will need to show that section 33 is an integral part of the Constitution of Canada. They will need to explain the history of the negotiations that went into drafting the provision, which shows that it was the sine qua non for the adoption of the Charter – not merely an anomaly or a safety valve reserved for emergencies. On the issue of the primacy of the House of Commons over the Senate, they will also need to clearly articulate the history of Canada’s constitutional design. The Fathers of Confederation never intended for an unelected Senate to run roughshod over the will of the majority of the House of Commons.
The primacy of the House of Commons is protected by the Salisbury Convention, a doctrine that the Senate has held sacrosanct since 1867. This is a binding rule developed at Westminster, which predates Confederation by over three decades: it establishes that an unaccountable upper chamber cannot reject a bill that fulfills a promise that was part of the new government’s platform during an electoral campaign. Canada’s founders included the Senate within the constitutional architecture on the express condition that it always respect this principle, even when it believes (in this case, incorrectly) that it is acting in defence of the existing constitutional order.
A federal government that wishes to use the notwithstanding clause in the face of an obstructionist Senate will need to do two things: it must place the issue squarely before the people of Canada during a general election, to make the clearest case possible that the upper chamber is bound (by the Salisbury Convention) not to reject it; and second, it should be prepared to make the strongest possible arguments upon introducing the bill into the Senate that a breach of that convention should be considered a repudiation of the bargain struck at Confederation, and consequently a betrayal of the most foundational principles of our constitutional order.
In 1990, the Mulroney government broke a deadlock between the two legislative chambers by employing the constitutional procedure for the appointment of supplementary Senators for the first time in Canadian history. At that time, sharp-eyed constitutional theorists called the government’s attention to a provision in the British North America Act, 1867 that was intended to resolve precisely that sort of constitutional crisis. Similar efforts may be required to locate and deploy measures such as those found in ss. 26–28 of the Constitution Act, 1867, which have never been pertinent owing to the self-restraint of the Senate. If the Senators become drunk on their own sense of self-importance, it may become necessary to demonstrate that Canada’s Constitution provides a means of delivering a dash of cold water whenever necessary.
Ryan Alford is a senior fellow at the Macdonald-Laurier Institute and professor at the Bora Laskin Faculty of Law, Lakehead University. He is also a bencher of the Law Society of Ontario. Previously, he was granted standing by the Public Order Emergency Commission (the Rouleau Inquiry), and he was granted public interest standing to challenge section 12 of the National Security and Intelligence Committee of Parliamentarians Act.
