By Ryan Alford, May 10, 2024
While speaking to the annual conference of the Canadian Police Association on April 29, 2024, Leader of the Official Opposition Pierre Poilievre noted that he would use “whatever tools the Constitution allows” to implement the Conservative Party’s plan for criminal justice reform. His agenda includes legislation that would impose more stringent requirements for convicted murderers seeking transfers from maximum security, for prior offenders to be granted bail, and the reinstatement of a law that allowed judges to sentence multiple murderers to a period of parole ineligibility of longer than twenty-five years. To do so, he plans to pass laws “using whatever tools the Constitution allows me to make them constitutional.”
It is unfortunate that this concern for law and order is controversial in 2024, but even this indirect allusion to making use of the notwithstanding clause to fix Canada’s broken criminal justice system was enough to send Canada’s legal establishment to their fainting couches. Minister of Justice Arif Virani said he was troubled by this statement, which showed “disdain” for Canadian’s fundamental rights. He did not specify which right was at issue, but others would. Making use of the usual phraseology, the Globe and Mail informed its readers that: “Experts told The Globe this week that what Mr. Poilievre has promised runs counter to the Charter’s mandate to protect minorities (even unpopular ones) and translates to a promise by the government to engage in cruel and unusual punishment.”
While it may surprise you to learn that convicted criminals are considered a minority in need of constitutional protection, this is just the beginning of many surprises for those who investigate this issue. One might also wonder why making it more difficult for multiple murderers (including terrorists) to obtain parole or transfers to prisons with hockey rinks constitutes cruel and unusual punishment. The answer is that the Supreme Court of Canada says so. Unfortunately, those who pose as its most ardent supporters also promote the view that legislatures aren’t allowed to question that, even if they have good reasons to do so, and assert that the constitutionally defined means for legislating based on a different understanding – the notwithstanding clause – cannot or should not be invoked by Parliament.
To begin with the problem that the ‘court party’ fails to acknowledge: despite attempts to deflect attention from the issue, it is the expansive interpretation of the right not to be subjected to cruel and unusual punishment that is raising eyebrows. This is especially true for legal scholars with long memories: Section 12 of the Charter, which sets out this right, was not interpreted in this manner in 1982. Until recently, this provision was interpreted in a restrictive manner, just as the courts had construed its earlier iteration: Section 2(b) of the Canadian Bill of Rights. As the Supreme Court noted: “though the protection against cruel and unusual treatment or punishment found in s. 2(b) of the Canadian Bill of Rights was raised in many cases, the Canadian courts were often reluctant to examine the merits of the argument. Indeed, in the majority of cases, the courts summarily rejected the 2(b) argument.”
What changed? It is more important to ask when the change occurred – not when the Charter was adopted but when the Supreme Court of Canada started to interpret it in novel ways. This began in 1987 and accelerated in 2015. In R. v. Smith, the Supreme Court of Canada decided that a sentence could be cruel and unusual for an entirely new reason: because it was – from the Justices’ own rather subjective perspective – disproportionate. Smith was a time bomb in Canadian jurisprudence, which lay dormant until Chief Justice Beverley McLachlin unearthed it in 2015. In R. v. Nur, McLachlin rejected the submissions of the Attorney-General of Canada and several provinces’ Attorneys-General, who argued that reviving Smith was “incompatible with judicial restraint.”
Nur set two things in motion. First, it lit a slow-burning fuse for the demolition of the Harper government’s tough-on-crime sentencing provisions. Once the Supreme Court told judges that they should not tolerate attempts to constrain their discretion to impose soft sentences, it was only a matter of time: “Nur sent a strong signal to lower courts that unjustified constraints on their ability to impose proportionate sentences would no longer be tolerated.” Second, its endorsement of the “reasonable hypothetical” doctrine allowed trial courts to strike down the minimum sentences established in the Safe Streets and Communities Act, the Protection of Communities and Exploited Persons Act, and the Tougher Penalties for Child Predators Act – even when they found that the offenders deserved more than the statutorily defined minimum.
The implosion of judicial restraint that followed Nur unleashed an ever-swelling flood of bad precedents. As of 2024, mandatory minimums as low as one year have been struck down for crimes as heinous as possession of child pornography, child luring, and sexual assault of a minor under 16. What is worse, the reasons in these cases indicate a total disconnection between judicial and common sense views about the purposes of sentencing and the appropriate punishment for those who violate the most sacred community values, such as those related to the protection of children.
As there are too many examples to discuss here, two must suffice. First, in 2023 in the case of R. v. Mathiesen, owing to Nur and its progeny the Crown had no choice but to concede that the one-year mandatory minimum for possession of child pornography could not be justified as a reasonable limitation on the accused’s right not to be subjected to cruel and unusual punishment. The accused was found to have possessed more than 20,000 child pornography images, including many in the most serious categories (involving penetrative sexual activity between prepubescent children and adults, sadism, and bestiality). Despite this, upon conviction the defendant was required to serve only two hundred and ninety days of imprisonment after sentencing, to be followed by three years of probation.
Second, earlier this year in R. v. Basso, the Court of Appeal for Ontario used the reasonable hypothetical doctrine to strike down the mandatory minimum of one year for the sexual assault of a minor under sixteen. That case involved a fourteen-year-old runaway, who alleged that she had been forcibly raped. While the accused could not demonstrate that a one-year sentence would constitute cruel and unusual punishment in his own case, the judges concluded it might in some other future matter. Since the judges who decided Basso could imagine a hypothetical scenario involving a twenty-one-year-old first offender whose inhibitions were lowered by drugs and alcohol, they concluded that a one-year minimum was unconstitutional in all cases. This pastiche of analytical reasoning is all that the Supreme Court’s jurisprudence interpreting Section 12 of the Charter now requires of the lower courts.
After almost a decade of the post-Nur revolution, the Supreme Court of Canada is now quite bold about the fact that it is imposing its own view of the purposes of criminal sentences under the guise of the protection of Charter rights. Without legislative intervention, it is likely that even those mandatory minimums that have been in the Criminal Code since the nineteenth century will be struck down. This includes the twenty-five years of incarceration without parole that is imposed for intentionally killing another human being; in the words of one scholar, that is now possible because “the sociological climate has finally reached a place [sic.] where striking down the mandatory minimum for first-degree murder may actually possible,” as evidenced by the reasons penned by Chief Justice Richard Wagner in 2022 in R. v. Bissonette, in which he held that the life sentence with forty-five years without parole given to the Quebec City mosque shooter, Alexandre Bissonnette, was cruel and unusual punishment.
Wagner found this sentence infringed s. 12 because a sentence that approximates or approaches life without parole is “intrinsically incompatible with human dignity.” That decision upheld the goal of rehabilitation above all the other purposes of criminal sentencing. This is not nearly as self-evident as Wagner believes. In R. v. Tarrant (in the Christchurch, New Zealand, mosque shooting case) the New Zealand High Court concluded that rehabilitation was impossible, and thus the compelling concerns at sentencing were deterrence and denunciation of crime. Brenton Tarrant was sentenced to life without parole. Despite the reasons in Tarrant being cogent and compelling, Wagner ignored them, concluding instead that while a life sentence without parole “could well be popular, it is contrary to the fundamental values of Canadian society.”
It is this assertion that best demonstrates why the Court’s Section 12 jurisprudence does not deserve deference any longer: it is simply not constitutional reasoning at all, but the free-floating moral reasoning that stems from a worldview that prioritizes the signalling of empathy over every other consideration, and which labels those who disagree – and the Court implicitly concedes that this is the view of the majority – as fundamentally un-Canadian, or out of step with the times. As Wagner asserts: “Since a society’s standards of decency are not frozen in time, what constitutes punishment that is cruel and unusual by nature will necessarily evolve so as to meet the new social, political and historical realities of the modern world.” In other words, it will mean whatever the Courts thinks it must mean.
While the ‘evolving standards’ approach turns the constitutional text into a Rorschach test, the phrase “cruel and unusual punishment” has a clear meaning within our constitutional tradition. This is not hard to demonstrate: that standard was first articulated in s. 10 of the English Bill of Rights, 1689, at which time it was clear that it referred principally to “punishments that were unauthorized by statute.” In short, it was intended to restrain judges, such King James II’s Lord Chief Justice (George Jeffreys), who had attempted to evade the absence of a statutory authorization for capital punishment for certain crimes such as perjury by sentencing those convicted to whippings so severe that it was likely to cause death.
The notion that this standard would apply to penalties specified in an Act of Parliament is absurd. Smith was a derelict upon the waters of the law until it was salvaged in Nur, and even in the context of the dire Charter jurisprudence of the McLachlin court, this did not pass without searing criticism. Writing in dissent for three justices, Moldaver J. noted that the reasonable hypothetical doctrine relied on “loose conjecture,” and that “it is not for this court to frustrate the policy goals of our elected representatives based on questionable assumptions… As Lebel J. observed in R. v. Nasogaluak, mandatory minimums are ‘a forceful expression of governmental policy in the area of criminal law.’”
Unfortunately, the warnings that judicial activism will take the courts beyond constitutional limits and into the core of policy-making have not been heeded. Within a decade, it was up to Justice Suzanne Côté alone to restate the obvious danger to the separation of powers that stems from the judiciary invading the legislative sphere. In 2023, when writing (alone) in dissent in R. v. Hills, she wrote that the majority ignored that “it is within Parliament’s mandate to regulate firearms-related offences as it sees fit. This includes balancing objectives of deterrence and denunciation with those of rehabilitation, proportionality, and judicial discretion in sentencing.” Unfortunately, the other eight justices disagreed. There has been no limit to the permanent revolution that Nur unleashed.
This body of jurisprudence is the most serious problem for an incoming government determined to implement sentencing policy that reflects the public’s manifest concern that the deterrence, denunciation, and incapacitation of criminals be taken at least as seriously as rehabilitation. To solve it, it is essential to understand how the only solution to this issue is being misrepresented as an unconstitutional attempt to seize power from the judiciary, which is far from the truth. To begin, we should note that this too is a relatively novel argument, one that correlates closely with support for an expansion of judicial power to redefine constitutional rights as they see fit. That solution is the notwithstanding clause. This would not be a new development: judicial respect for Parliament’s ability to establish sentences, including minimum sentences, predates the Charter, as does the method of enforcing that respect.
It is worth noting that the Canadian Bill of Rights contained a notwithstanding clause, which was included without significant controversy in s. 12 of the Public Order (Temporary Measures) Act, 1970, despite the very controversial circumstances of the earlier invocation of the War Measures Act. For twenty-two years a provision that is virtually identical to that now found in s. 12 of the Charter was protected by s. 2(b) of the Canadian Bill of Rights. Not once in that time was a minimum sentence established by Parliament struck down on that basis. The only time that any court found a violation of s. 2(b)’s proscription of cruel and unusual punishment involved a challenge to administrative regulations governing solitary confinement, not a statutorily defined sentence.
Notably, during that time, no argument was made that invoking the notwithstanding clause of the Canadian Bill of Rights was problematic. This appears to have had the effect of constraining judicial inflation of its definition of cruel and unusual punishment; notably, in 1977 the Justices of the Supreme Court of Canada reached the unanimous conclusion that capital punishment for murder did not constitute cruel and unusual punishment. Writing for the majority, Justice Roland Ritchie wrote that using the Eighth Amendment jurisprudence of the United States (which now focuses on whether a sentence was disproportional to the offence) would be quite inappropriate, given our different constitutional tradition and framework.
Given the fact that it is widely acknowledged that the notwithstanding clause found at s. 2 of the Canadian Bill of Rights was the model for the notwithstanding clause included in s. 33, and the indisputable fact that there simply would not have been a Charter without that inclusion, one might wonder why the Canadian judiciary has been willing to engage in such a brazen campaign to inflate and transform the meaning of s. 12. The answer seems to be that the notwithstanding clause has subjected to a prolonged campaign of delegitimization; as a result, from the point of view of the judiciary, it appeared to be a paper tiger. Paradoxically, the attempt to create a stigma has had practically no effect where the clause has been invoked the most (viz. Quebec, where it was used in every single provincial statute from 1982 to 1985), but it has been remarkably successful where the clause has never been invoked, while the taboo is the most powerful where it has never been invoked, namely the Parliament of Canada.
The explanation for this paradox may be that because federal use of the notwithstanding clause has never been a live issue until now – and that lazy and unserious commentary about its illicit nature has passed without serious scrutiny. Virtually every media article describes it as “the nuclear option,” while sourcing opinions from Canadian legal academia, which contains practically no diversity of views on this issue. The response to the latest comments from the Leader of the Official Opposition are no exception.
There is no need to take on these ill-considered arguments about the illegitimacy or dangers of the notwithstanding clause on their own terms. Unlike the requirement that criminal sentences be proportional or prioritize rehabilitation, the notwithstanding clause is in the text of the constitution. As University of Saskatchewan Law Professor Dwight Newman has noted, “The very authority any such declaration enacted by a parliament or a legislative assembly stems from the constitution itself, so it is not an override of the constitution but a constitutionally supported decision to enact a statute regardless of views that judges might hold as to the conformity of that statute with certain sections of the Charter. This use of the notwithstanding clause is exactly what its framers intended.”
The essential purpose of the notwithstanding clause is to address a situation like the one that has arisen since Nur (and, more recently, Bissonnette): As one of the Charter’s principal framers (Premier Peter Lougheed of Alberta) noted, Section 33 exists to “curb an errant court.” More fundamentally, we should pay heed to the reasoning of the commentor (and former Principal Secretary) Howard Anglin: even if we accept the logic that use of the notwithstanding clause was meant to be exceptional, that it is surely the Supreme Court that created the exceptional circumstances that necessitate its use: “Since judges began exercising the power to resolve contested questions of public policy… [including] the appropriate sentences for mass murderers – they violated ‘the 1982 bargain.’” With ten years of dissents warning that they risked destabilizing the separation of powers, they cannot say they were not on notice that Parliament would use every constitutional tool at its disposal to restore the balance.
It is quite remarkable that in the wake of Poilievre’s comments, a significant number of law professors and prominent lawyers have raised concerns about the purportedly vulnerable status of those being sentenced for indictable offences – as if being a convict is an identity, the conviction having transformed a person into a member of a discrete and insular minority, one deserving of special protections because of their unpopularity within society. This is remarkable, as it seems to indicate that these experts believe that the prohibition of cruel and unusual punishment is akin to the protections against discrimination. If that is the case, it would seem to explain much of why the populace has lost its patience with the ideological imperatives that drove the judiciary to extend ever more mercy toward the guilty, which entailed cruelty to the innocent. Criminals are not a protected class, and accordingly the majority’s view of what sentences they must receive to protect the truly vulnerable – especially children – is final, notwithstanding judicial activism.
Ryan Alford is a Professor at the Bora Laskin Faculty of Law, Lakehead University. He is also a Bencher of the Law Society of Ontario and an Adjudicator 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 s. 12 of the National Security and Intelligence Committee of Parliamentarians Act. He is also the faculty advisor to Lakehead University’s Chapter of the Runnymede Society.
