Pierre Poilievre is coming for your charter rights

Most politicians would treat a 20-point lead in the polls as an opportunity to step back and let their opponent continue digging their own grave. But Pierre Poilievre is no ordinary politician, as we’ve seen on any number of fronts. That’s why rather than coasting into next year’s election, he’s already promising to make dramatic changes to the administration of justice in Canada — ones he’ll defend from judicial scrutiny by pre-emptively invoking the notwithstanding clause.

During a speech to the Canadian Police Association last week, Poilievre pledged to tighten bail requirements and make it harder for convicted killers like Paul Bernardo to transfer out of maximum security prisons. "All of my proposals are constitutional," he said, clearly anticipating the questions this proposal might evoke. "We will make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional. I think you know exactly what I mean."

He means Section 33 of the charter, of course. This is some deep irony coming from someone who claims to care about freedom and has made plenty of noise about the Trudeau government’s apparent indifference towards charter rights during the 2022 occupation of Ottawa. But neither irony nor hypocrisy are enough to deter him from promising to treat the charter as an obstacle rather than a guide.

Neither, it seems, are shame or basic decency. Poilievre has already used the tragic death of an Ontario family in a head-on collision to advance this narrative. Never mind that the suspect would have been out on bail regardless of any changes made since 2015 or that the potentially lethal decision to pursue him down a major highway was made in defiance of a superior officer’s orders. For Poilievre, it’s all about advancing his pre-existing narrative and the notion that, as former U.S. president Donald Trump famously said, “I alone can fix it.”

Poilievre suggests he’d only pre-emptively suspend charter rights on matters of criminal justice, but that’s ice-cold comfort. After all, as the case of Umar Zameer shows, the criminal justice system doesn’t always get it right. Zameer pleaded not guilty to first-degree murder in the death of Det.-Const. Jeffrey Northrup, who was killed on July 2, 2021, after he was hit by a vehicle driven by Zameer in an underground parking garage at Toronto city hall. Under Poilievre’s vision of justice, Zameer — a 34-year-old accountant and father of three — would have been deprived of bail and locked up for more than three years until his case was heard.

But that case was incredibly flimsy and he was acquitted of all charges by a jury of his peers last month. Before concluding the case, Ontario Superior Court Justice Anne Molloy offered Zameer “my deepest apologies for what you’ve been through.” Imagine how much worse that would be under a Poilievre government if Zameer’s charter rights had been pre-emptively suspended — and how many other innocent Canadians might be forced to rot in prison before getting some watered-down version of justice.

The biggest casualty of all here, though, might be the Charter of Rights and Freedoms itself. While provincial governments in Quebec, Ontario and Saskatchewan have invoked Section 33 in the past, it’s never been done by a federal government before. As University of Ottawa law professor Errol Mendes told CBC News, a pre-emptive use of it by Ottawa would open the floodgates to even further abuses of it by the provinces. "Essentially, it would be the straw that'll break the camel's back and lead to eventually the denigration of the charter as a whole," he said. "It really shows there has not been a thought given to the long-term impact on Canada if we allow this thing to be used."

With all due respect to Prof. Mendes, I think this is a bit naive. There’s been plenty of thought given in conservative circles to the charter and how its influence could be contained or counteracted. That’s especially true of the Reform Conservatives who are now in control of their national party and have always hated the way the charter has reshaped Canada’s legal landscape.

Removing or replacing it would be a very difficult task, even with a clear majority of provinces being governed by Conservatives right now. But undermining its authority by pre-emptively invoking the notwithstanding clause? That’s far more doable. Once a federal government has broken the taboo with a pre-emptive use of the clause, what’s to stop them from breaking it a second, third or fourth time?

The stakes here, then, are much higher than they might seem at first glance. It’s not the rights of criminals that are at stake, as Poilievre and his proxies would like to pretend. It’s the integrity of the Charter of Rights and Freedoms, a document that all Canadians — including a growing number of Conservatives — have come to view as a core part of their identity. If we’re going to let someone chip away at its foundations, we ought to have a conversation about that first.