The Conservative Leader has just formally stated what he had previously broadly implied: that if his Conservatives are elected he will use the notwithstanding clause – for the first time at the federal level – to revive crime legislation, passed by the previous Conservative government but ruled unconstitutional by the Supreme Court.
The example at hand is a bill that would subject multiple murderers to consecutive, rather than coincident life sentences, meaning they could be sentenced, absurdly, to terms of 150 years or more. But it’s clear that this bill would only be the start. Mr. Poilievre shares the aim of his provincial confreres: to legitimize the notwithstanding clause by repeated use, and so to neutralize the Charter as a constraint on government.
Imagine Millhouse having unfettered power to enact laws and strip Canada of its fundamental rights and freedoms.
If that happens we might as well become the 51st state.
Or have the first pm who gets assassinated.
The comparison to the US seems to misunderstand what’s going on in both the US case and the hypothetical Canadian one. They join of a court is to apply the law as it is written to the case at hand. I know Australian courts are better at this than American ones, and I suspect Canada is closer to Australia in this respect as well.
Sometimes, different laws have conflicting messaging about how they should apply. The court’s job then is to decide which takes priority. If something conflicts with a codified constitution, almost always the constitution wins out. But when two pieces of ordinary legislation conflict, it can be more complicated.
A recent example comes out of the UK. A bill was passed allowing for deportations of asylum seekers to Rwanda. An earlier price of legislation forbade sending asylum seekers to unsafe places on human rights grounds. The court’s declared that Rwanda was unsafe, thus forbidding the deportations. They decided the human rights law superceded the asylum deportation law.
That’s where notwithstanding clauses come in. That’s a clause in a piece of ordinary legislation that tells the court very specifically which legislation takes primacy when they conflict, especially if a court might be inclined to otherwise decide the other way. The exception being that if ordinary legislation would not be allowed to amend an Act (such as a codified constitution), a notwithstanding clauses in a different Act would usually not be lawful.
In the UK example, they passed what is essentially a notwithstanding clauses that said “Rwanda is a safe country for legal purposes”.
And all of that is basically what’s being talked about in Canada. It might be immoral, but none of it is unlawful.
The US is a completely different story. Their Congress hasn’t passed shit. There is no notwithstanding clause for the courts to apply. The executive is just unilaterally deciding to ignore courts. There’s no legal basis for this. Congress passes legislation, the executive extremes execute that legislation, and the courts interpret whether actions are in keeping first with the Constitution and second with legislation. It’s a crisis when the executive just decides to ignore the judiciary. That would be true in Canada as well.
The difference is that, in Westminster system countries like Canada and the UK, the executive (usually) comes from the legislature. And it certainly at least has the confidence of the legislature. So if the executive wants to go against a court order, it has the ability to get the law changed. That’s not defying a court order, it’s changing legislation so that the previous court order no longer applies. Icky, but not unconstitutional, because that’s literally how laws work.
(Though incidentally, I think it would be a good idea to codify in the constitution that special notwithstanding clauses are unlawful, and that legislation must be applied equally across cases. I’m not sure if that would be feasible without undesirable consequences though.)
Good thing we still have the Governor General, then, who can block the use of the notwithstanding clause by withholding royal assent.
Can, yes. But would she?
I honestly think that’s the most productive place to focus influence. I geew up in Saskatchewan, where the lieutenant governor reserved assent 70 times, sometimes explicitly stating the legislation was not in the best interests of the people. It’s at least a viable line of defence against populism and corporate interests.
I don’t know Canadian politics nearly as well as I do Australian, so I’m happy to be proven wrong if you have a source. But my search tells me that the last time a Canadian vice-regal reserved assent was in 1961, when it happened to one bill (and another source seemingly telling the same story, but placing it in 1963). And that reserving assent isn’t actually the same as withholding it, but instead leaving it up to the federal Governor. And in that case, the bill ended up being passed anyway.
The role of the monarch (and by extension, governors, lieutenant governors, and governors general) in the Westminster system is highly ceremonial. It is exceptionally unusual for them to exercise prerogative powers and often leads to constitutional crises when they do. I would not be looking to this avenue to stop any undesirable bills.
