Conservative Leader Pierre Poilievre said that if he’s the next prime minister he will be invoking the notwithstanding clause to pass legislation to send repeat offenders to jail for 10 years, and one Toronto expert confirmed that, if elected, he could accomplish it.
Last Wednesday, Poilievre announced his government’s plan to crack down on crime by implementing a “three-strikes-you’re-out law” that vows to put repeat offenders in jail for a minimum of 10 years with no chance of parole, bail or house arrest.
Under this proposed law, offenders would only be released if they proved they are “no longer a danger to society” and made “real progress in improving their lives” by passing drug tests and pursuing education.
@nowtoronto Poilievre announces “three strikes, you’re out law” promising to crack down on crime. #Cdnpoli #Election2025 ♬ original sound – Now Toronto
Since then, experts have been speaking out with concerns, saying this measure can’t be passed as it would go against the Supreme Court of Canada’s 2022 decision that ruled life sentences as a breach of offenders’ Charter rights.
In response to this, the Conservative leader said on Monday that he will be using the Charter’s notwithstanding clause to pass this legislation, which has never been done by the federal government before.
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Many Canadians have since been reacting online and criticizing Poilievre for planning to use the clause, with some worried about this opening the door for others uses, and even comparing him to U.S. President Donald Trump and some of his controversial measures.
“Pierre Poillievre’s proposal to use notwithstanding clause against individuals to get around personal rights is even more disturbing than against groups who, by definition, have more facility to defend themselves. It completely negates having individual rights. NO,” one X user said.
“Pierre doesn’t care about your rights. He’ll use the notwithstanding clause to take your rights away,” another user wrote.
“Every time Poilievre says he’ll use the Notwithstanding Clause to overturn our Charter and other laws he doesn’t like, he sounds more and more like Trump. Poilievre would turn Canada into crazy town too if given the opportunity,” a different user added.
Meanwhile, other users say they see no problem with using the notwithstanding clause as it is a part of the Charter itself.
“He’s not defying the courts. He’s invoking a legal part of the constitution (which was brought in by the liberals),” one user commented.
“Using the Notwithstanding Clause is constitutional, it is in the constitution and premiers have already used it,” another user chimed in.
WHAT IS THE NOTWITHSTANDING CLAUSE?
Now Toronto spoke with University of Toronto Canadian politics and public law Professor, Andrew McDougall who explained that the notwithstanding clause is part of Section 33 of the Charter of Rights and Freedoms, and gives leaders a type of suspensory veto power that allows them to pass legislation that might go against sections 2 and 7–15 of the Charter.
“It’s not very common. It’s sort of been seen as the nuclear option,” he said.
This clause has been used through different contexts in Canadian government, including by Ontario Premier Doug Ford, who invoked it in 2021 for the first time to limit third parties from financing elections and again in 2022 to reach a deal with education workers.
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But Poilievre’s use of the notwithstanding clause would be the first time the federal government has done so, which McDougall says could be seen as a threat to individual rights.
“It’s always going to be a concern to civil libertarians, because [it] basically allows the government to pass laws that would otherwise be found unconstitutional,” he said. “But then again, there’s other people that support the notwithstanding clause because they say it’s part of the Constitution that’s what it’s there for.”
CAN POILIEVRE INVOKE THE NOTWITHSTANDING CLAUSE?
According to the professor, if Poilievre is elected on April 28, there’s a real possibility that he could in fact use the clause to pass the law on repeat offenders, even if the Conservatives get a minority government, but would certainly face political backlash for it.
“I think he probably would be able to do it from the Conservative base. They would be more supportive of this sort of touch-on-crime legislation, but he would certainly be criticized for it in legal circles,” he added.
McDougall also explained that since this would be the first time a federal leader invoked the notwithstanding clause, the decision would be a “significant shift” that would open the doors for future governments to do the same, which in turn could lead to weakened Charter protections.
“This would be a very major break if he decided to do that. And I think people would be paying very close attention, it would sort of break the taboo that’s existed on the federal government using it in the past,” he said.
