Conservative Leader Pierre Poilievre is vowing to use the notwithstanding clause to allow judges to impose consecutive life sentences for mass murderers — a practice the Supreme Court of Canada has ruled is unconstitutional.
The proposal has raised concerns about respect for court precedent and the rule of law in Canada, with some legal scholars saying using the notwithstanding clause in this case would represent a “sea change.”
“Taking this step, based on this kind of rhetoric, I would argue is very concerning for both legal and democratic reasons,” said Debra Parkes, a professor at the Peter A. Allard School of Law at the University of British Columbia.
If Poilievre is elected prime minister and follows through on his plan, announced at an election campaign stop Monday, it would be the first federal use of the controversial notwithstanding clause in Canada.
Poilievre said he respects Supreme Court decisions and the Charter, adding that the notwithstanding clause would be used to “fight crime.”
“Parliament has the legitimate constitutional authority and the moral duty to correct this injustice and restore common-sense sentencing with no more discounts for multiple murderers,” he said.
The Conservatives also said that if any future governments don’t keep invoking the notwithstanding clause, which sunsets after five years, they should have to defend that to voters.
“A future non-Conservative government would need to explain to Canadians why they would be willing to let multiple murderers apply and potentially be granted parole, by letting the use of the notwithstanding clause sunset,” a spokesperson for the party told Global News in a statement.
Why did the Supreme Court rule this unconstitutional?
Canadian criminal law sets an automatic sentence for first-degree murder of life imprisonment with no possibility for parole for 25 years. Second-degree murder also carries an automatic life sentence but sets parole eligibility between 10 and 25 years.
In 2011, former prime minister Stephen Harper’s government passed legislation that allowed judges to impose consecutive sentences for convicted mass murderers, as part of the Conservatives’ “tough on crime” agenda.
That meant those parole eligibility periods could be stacked on top of each other. For example, a person convicted of killing two people would not be eligible for parole for 50 years.
In the years following that legislation, several offenders were handed consecutive life sentences. Justin Bourque, the man who used a semi-automatic rifle to murder three Mounties in Moncton, N.B., in 2014, received the harshest sentence in Canadian history, with no parole eligibility for 75 years.
Another man who received consecutive sentences, Alexandre Bissonnette, who fatally shot six people at a Quebec City mosque in 2017, appealed his 40-year parole ineligibility, winning in the Quebec Court of Appeal.
In 2022, the Supreme Court of Canada unanimously upheld that appeal, ruling that not giving offenders a realistic possibility of parole violated the Canadian Charter of Rights and Freedoms’ prohibition of “cruel and unusual punishment.”
“By depriving offenders in advance of any possibility of reintegration into society, [the 2011 law] shakes the very foundations of Canadian criminal law,” Chief Justice Richard Wagner wrote in the decision.
What happened to consecutive sentences after?
Bissonnette, Bourque and other offenders facing consecutive sentences saw their parole ineligibility periods reduced to the previous standard of 25 years after the ruling.
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That ruling meant the 2011 law was effectively nullified.
There is disagreement among legal experts about whether the Supreme Court’s decision was the right one, or if consecutive sentences are necessary.
Steven Penney, a law professor at the University of Alberta, said the 2011 law did not make consecutive sentences a new minimum standard for mass murderers, but rather gave judges another option to consider based on the specifics of a case, and whether the Crown could prove such a sentence was “fit and proportionate.”
Because of that, he said the law did not violate the “cruel and unusual punishment” prohibition in the Charter based on past precedent, which was focused on whether a minimum sentence was disproportionate.
Penney pointed to research that found that out of 39 multiple murder cases between 2011 and 2020, consecutive sentences were only imposed 46 per cent of the time. The rest received concurrent sentences, meaning sentences for multiple victims are served simultaneously.
“The sentencing judge retained the discretion to stick with the 25-year period” through concurrent sentences, he said in an interview.
“The court said that even the existence of the possibility of a sentence of life without parole [though consecutive sentences] … would violate the Charter, even if the judge retained the discretion not to impose it. I find that to be a very strange chain of logic.”
Parkes argues Canada already has some of the harshest standards for the sentencing of convicted murderers in the western world. Her own research found that a majority of offenders serving life sentences for second-degree murder have long stayed in prison beyond their set parole eligibility dates, with very few securing release before the end of their lives.
Allowing judges to remove the possibility of parole, which criminal law calls the “faint hope clause,” impacts prisoners’ potential for rehabilitation, Parkes said.
“It’s a complex issue, and reducing it to these soundbites and rhetorical claims, I think we do a disservice to Canadians,” she said.
Research has shown Canadians largely support the possibility of parole for life sentences when presented with the “broader context” about specific prisoners that have sought rehabilitation, but oppose it as a general question of whether such offenders deserve it.
However, families of victims of mass murderers like Paul Bernardo and Robert Pickton have spoken openly about the trauma they’ve experienced having to regularly advocate for the denial of parole once eligibility comes up.
How does the notwithstanding clause work?
Poilievre is proposing to bring back the 2011 Conservative crime bill, including the option for consecutive life sentences, by using the Charter of Rights and Freedoms’ notwithstanding clause.
The clause “prevents a court from declaring that legislation covered by a section 33 declaration is of no force or effect, despite any inconsistency in the legislation with the rights or freedoms under the listed Charter sections,” according to the Charter.
Several provinces have used the clause to shield from judicial challenge legislation that may infringe on Canadians’ constitutional rights — most notably Quebec’s Bill 21 or “secularism law,” which outlaws public servants from wearing religious symbols like hijabs.
The fact the notwithstanding clause has never been used at the federal level to supersede a Supreme Court decision, in Penney’s view, is just that: a historical and legal fact, rather than a sign it’s a bridge that shouldn’t be crossed.
“We would not have the Charter of Rights and Freedoms if not for the inclusion of the notwithstanding clause,” he said, calling it part of the “constitutional compromise” that birthed the document.
“The notwithstanding clause is a lawful instrument, and if it is lawfully invoked then it is up to the courts to respect that, and vice versa.”
But Parkes said if Poilievre follows through with his promise in this particular case, it could be “fundamentally corrosive” to Canada’s constitutional norms, including the separation of government and the courts.
She pointed to what’s happening in the United States — where U.S. President Donald Trump’s administration is defying court orders to halt deportations of immigrants deemed violent gang members to an El Salvador prison without due process — as an example of what happens when the criminal justice system is politicized.
“That’s a very dangerous road down which to go,” she said.
“People who are convicted of multiple murders are probably the least sympathetic individuals that one could contemplate in Canadian society … but when we make decisions on that basis, it can have quite significant implications.”
Would any changes actually last?
Even if successful, legislation that invokes the notwithstanding clause would sunset after five years, unless future governments invoke the clause again.
That means any consecutive sentences imposed under Poilievre’s legislation would be at risk of being reduced years later — just as they were after the Supreme Court decision — ensuring the issue remains a political “hot potato,” Parkes said.
It’s not explicitly clear if a notwithstanding clause invocation can be legally challenged and overturned by the courts, although Penney said many legal scholars agree it serves as a final say.
The Supreme Court itself could change that in its decision on Quebec’s Bill C-21, which it has agreed to hear a challenge against this year.
For now, “the only real substantive check on the use of the notwithstanding clause is the political consequences that come from it,” Penney said.
— with files from Global’s Saba Aziz
How consecutive life sentences and the notwithstanding clause work
