Speaking to the Canadian Police Association, Conservative Leader, and likely future Prime Minister, Pierre Poilievre recently called for consecutive sentences of violent offenders and restrictions on bail. Asked if doing so would violate the Charter, Poilievre said he would use “whatever tools the Constitution allows.” 

Poilievre was loudly hinting that he’ll use the notwithstanding clause, the section of the Charter that allows governments to opt out of constitutionally protected rights. Once taboo outside of Quebec, the notwithstanding clause is increasingly used by provincial governments. Never before has a party leader suggested using it at the federal level — until now.

As the price of living soars, criminals have become a convenient scapegoat. But the notwithstanding clause would not only be ineffective at stopping crime. It would also grant more power to the police and prisons, to lock people up indefinitely who have not been convicted of a crime.

While the Charter has its limits — it protects abstract rights, but not the right to food, water or housing — the expanded use of the notwithstanding clause would remove the few rights we have. Opposing this will require not only emphasizing the rights of the criminals that Poilievre alleges he is targeting, but the rights of everyone. 

As Canadians fret over their economic future, we must also expose Poilievre’s true purpose: to pretend he is doing something to help Canadians while providing police powers to preserve the status quo.

The weirdness of the notwithstanding clause

The notwithstanding clause is truly Canadian. While some constitutions have limits on rights, no other country lets governments opt out of these rights whenever they want.

Rather than being the product of great legal minds, the notwithstanding clause was part of Pierre Trudeau’s nation-building project. Until 1982, any changes to Canada’s constitution, the British North America Act, required approval from Westminster. A new constitution would finally make Canada fully independent from Britain and create a sense of pride in Canadians.

Provincial governments, however, saw it as an affront to their powers. While provincial consent was not legally required, it became necessary for ensuring unity. The notwithstanding clause was the compromise, allowing provincial governments to opt out of the Charter except for democratic rights, freedom of movement, and the official languages of Canada. Under the notwithstanding clause, a government can whenever it wants suspend the right of Canadians to protest, practice their religion, and express their opinion concerning their own life. They can also engage in search and seizure without a warrant, arbitrary detention, and cruel and unusual punishment. 

Most Canadians would be shocked to have these rights suspended. It is because of this that Pierre Trudeau believed it would be rarely used. To an extent, he was right. Until recently, the notwithstanding clause was rarely used outside of Quebec. 

But the political calculus has changed in Canada. Never before has the frontrunning leader of a political party been as “extremely online” as Poilievre, a populist who has been pushing the political Overton window closer and closer to authoritarianism. Conservative leaders seem no longer concerned about whether Canadians will be shocked at the use of the notwithstanding clause.

Post-liberal Canada

When the Charter was drafted in 1982, neoliberalism was just emerging in Canada. Until then, a Keynesian welfare state ensured relative economic stability for many Canadians. As the economy grew, so did wages. Inequality was actually decreasing. Housing was more affordable and homelessness was rare. A third of Canadians were in a union.

Of course, the benefits were not shared equally, with Black, Brown, Indigenous and queer people experiencing disproportionate poverty and unemployment. But for those who benefited, there was trust in liberal democracy. We see this in the higher voter turnout in elections up until the 1980s and net approval of all major party leaders. 

As inequality and economic precarity has grown, so has distrust of liberal democracy. Voter turnout is lower, party leaders are unpopular, and institutions such as government and media are not trusted. A lot of this distrust is healthy, creating space for socialist, Black and Indigenous resistance. But it has also provided space for right-wing populism, which wants to curtail rights to uphold conservative values. 

The consensus around rights in Canada has collapsed, allowing conservative governments to use the notwithstanding clause without alienating their base.

Before 2018, the notwithstanding clause was only used thrice outside Quebec. Since then, it has been used six times. Each time, the notwithstanding clause advanced regressive policies, such as an attempt to quash union rights and outing transgender students to their parents.

Poilievre’s precedent

The notwithstanding clause, once meant to appease provincial governments to consent to the Charter, is now being floated at the federal level for the first time. 

Poilievre claims he wants to stop violent offenders and those who commit high property value crimes through consecutive sentences and prohibiting bail and house arrest. He cited the case of Alexandre Bissonnette, the man who in 2017 murdered six people at a Quebec City Mosque. The Supreme Court determined that Bissonnette’s sentencing would violate the Charter, which prohibits cruel and unusual punishment. He could not be sentenced to consecutive sentences totalling 150 years and must be given a chance at parole. As for bail, section 11(e) of the Charter states everyone has the “Right not to be denied reasonable bail without just cause.”

If only higher sentencing and revoking bail worked at stopping crime, perhaps Poilievre might have a point. Yet research shows it does not. It clearly did not stop Bissonnette, who committed his terrible act while consecutive sentencing laws were in place. Perhaps Poilievre merely wants revenge. But our criminal justice system is not based on revenge, which would otherwise permit victims to do whatever they want to perpetrators.

Conservative politicians have a long track record of using horrible crimes to justify laws that apply to those convicted of lesser offenses. Poilievre uses Bissonnette to justify the notwithstanding clause, but then states it would also be to deny bail against those who commit high property value crime. 

But the truth is, Poilievre does not care about stopping crime. Rather, despite portraying himself as a political outsider, the Conservative leader wants to maintain the economic status quo. Doing so requires new tools to stop those who resist neoliberalism. If that means gutting the Charter, so be it.

It is no mistake that Poilievre specifically mentions “high property value crime” as one of the areas the notwithstanding clause would apply if he were Prime Minister. Challenging private property is one of the main forms of resistance against neoliberalism. Unhoused people squat in luxury homes to stay safe. Indigenous people defend their land against resource extraction. Pro-Palestine protesters occupy universities and weapon manufacturers. Anti-capitalist protests sometimes get violent, with people smashing windows and burning cars. All these forms of resistance could become subject to harsher penalties. Even those who are not involved in property damage could spend months in jail without bail.

But even those not politically involved would be affected. Someone with no criminal history who is falsely accused of robbery would be in jail awaiting trial. Someone who engages in self-defense to protect themselves — such as Umar Zameer who ran over a plainclothes police officer he thought was trying to harm his family and subsequently found not guilty — could spend years in jail.

Fighting back

Poilievre’s law and order rhetoric comes amid increasing inequality. Rather than doing something about inflation and the housing crisis, he uses criminals as scapegoats, who are portrayed as stealing from hard-working Canadians. 

But the notwithstanding clause would do nothing to stop crime. What it would do is try to stop resistance to neoliberalism and erode the rights of anyone accused of a crime. Poilievre claims he will fix Trudeau’s economic mess. In reality, he would keep it the same.

Of course, the rights of criminals — even those who commit horrible acts like Alexandre Bissonnette — are important. Because of these rights we prohibit cruel and unusual punishment and provide the chance for parole. But it is also necessary to broaden our vision on how the erosion of rights helps maintain neoliberalism. It is not just criminals, but anyone who wants to change the economy for the better who will be affected.