Lisa Kerr is an associate professor at Queen’s University’s Faculty of Law.
The rights of people accused of crimes are the beating heart of the Charter of Rights and Freedoms. Important cases about religious rights and free expression grab headlines, but criminal matters raise, by far, the most common Charter issues in our courts.
The right to reasonable bail, the presumption of innocence, the rules for police searches and surveillance, the ban on cruel and unusual punishment – these rules are meant to guarantee a fair process and outcomes we can trust. Every modern constitutional democracy protects a similar set of rights, because the power of the state to investigate, prosecute and punish is an extraordinary intrusion into individual lives.
Now, Conservative Leader Pierre Poilievre is promising a different system if his party is elected – a return to criminal law unconstrained by Charter rights. His proposal is to start with sentencing. If his policies defy the Charter’s prohibition on cruel and unusual punishment, Mr. Poilievre has a plan. “We will make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional,” he said last week to the Canadian Police Association. “I think you know exactly what I mean.” A Conservative spokesperson confirmed that he was referring to using section 33, the notwithstanding clause, which has never been invoked by any federal government.
While many would wish the notwithstanding clause away – how can a Charter that “guarantees” rights and freedoms also grant the power to override many of those same rights? – the truth is that it isn’t going anywhere. In limited circumstances, section 33 may function as a legitimate political check on judicial authority, enabling Canada to avoid some of the downsides of the American constitutional system of unquestionable judicial power. We should continue to debate the rules and norms for its invocation.
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And it is difficult to imagine a more inappropriate use of the notwithstanding clause than in the criminal-justice realm. The bedrock Charter rights of criminal law are the rights of an unpopular and often vulnerable minority, facing extraordinary consequences, with no political power or influence. No one should be in favour of discarding constitutional limits in this area. The results may well be permanent, too, as future politicians will find it hard to come back from this dangerous experiment.
Consider the case of Umar Zameer, who was acquitted of all charges, including first-degree murder, in the death of a Toronto police officer, as just one recent, powerful illustration of why these rights matter. Mistakes can be made, especially in the face of a tragedy that begs for answers. Prosecutors can react and overcharge. Police do not always keep accurate notes, and they do not always provide accurate recollections in their sworn testimony. Politicians can criticize decisions before they even know the facts.
There was no criminal act nor even negligence in how Mr. Zameer responded when people in civilian clothing stopped his vehicle, which was carrying his young child and his pregnant spouse. Yet he faced the most serious penalty in Canadian law. Prosecutors would have kept him in custody for years pending trial. All that stood between Mr. Zameer and his family losing years of their life together was an independent judiciary, defence counsel and the Charter.
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Mr. Poilievre may be willing to suspend Charter rights here too, if needed, for his vision of bail reform.
Mr. Poilievre prefers to focus on the case of Alexandre Bissonnette, who is already serving a sentence of life imprisonment for killing six worshippers at a Quebec City mosque. Mr. Poilievre is offended because the Supreme Court of Canada unanimously directed that Mr. Bissonnette should have a review by the Parole Board 25 years down the road. Of course, many prisoners are held in custody in Canada well past their parole eligibility dates and until the end of their natural lives. The Parole Board is focused entirely on public safety, and pays close attention to the harm inflicted by an offence and the impact on victims. The use of the notwithstanding clause to stack life sentences to infinity would add nothing to public safety.
For a decade, Stephen Harper’s government amended the criminal law in ways courts found unconstitutional. The public cost of litigating those reforms was extraordinary, and almost none of the policies remain. Mr. Poilievre knows that history. His idea now is that he will be the one to decide what rights Canadians have. We must tell him that the criminal justice system is off-limits – and that government cannot insist that Canadians obey the criminal law, while suspending the legal rules of criminal justice for itself.