‘A solution looking for a problem’

Canada is just days away from electing a new government, and with that could come an unprecedented use of the notwithstanding clause at the federal level.

In a special election-themed episode of Modern Law: Verdicts and Voices, host Alison Crawford sits down with criminal lawyers Daniel Lerner and Matthew Gourlay to discuss Conservative leader Pierre Poilievre’s promise that if elected, he’ll use the notwithstanding clause to keep multiple murderers behind bars.

“I think it is a dangerous precedent to set, to start using it, but I think we should be clear: there’s nothing illegitimate about it, per se,” says Gourlay, partner and co-chair of the criminal litigation practice group at Henein Hutchison Robitaille LLP.

While several provinces have invoked Section 33 of the Charter of Rights and Freedoms, no federal government has ever used the notwithstanding clause.

People convicted of first-degree murder in Canada become eligible for parole after 25 years, but Poilievre wants to go beyond that. He has said he would use the clause to ensure a person convicted of murdering six people, for example, would get six consecutive life sentences, making them ineligible for parole for 150 years.

It would essentially be a return to a controversial sentencing provision introduced in 2011 by the Harper government, which gave judges discretion to stack consecutive 25-year periods of parole ineligibility on offenders convicted of multiple first-degree murders.

That provision was deemed unconstitutional by the Supreme Court of Canada in 2022.

“I would hope the Conservatives could consider, if they were in office, enacting a more incremental and less confrontational reform that actually would have a chance of surviving constitutional scrutiny,” Gourlay says.

Lerner, a former Crown prosecutor who is now senior counsel at Lerner Law Professional Corporation, says promising to use the notwithstanding clause is “more of a political tool than a legal tool” in this sense, because multiple murderers are already unlikely to be granted parole when they apply.

"Trying to find examples of people who were convicted of murdering more than one person, and then getting parole, you're going to have to do a serious research project to find examples where that actually happened,” he says.

“It's a solution looking for a problem to some extent.”

The Conservative and Liberal platforms also include promises to make it harder to get bail. Gourlay says bail is a right granted under the Charter, specifically a right to reasonable bail in every case.

“Even where the government decides to do something like an active reverse onus on a person seeking bail, the bail court still has to grant release on reasonable terms if it's appropriate to do so,” he says.

Both parties are proposing several new reverse onuses, which Gourlay thinks will make bail somewhat more difficult to obtain in some instances. That comes at a time when there’s “already a concerning pattern of large populations of people in jail who have yet to face trial.”

However, Lerner notes that in 99 per cent of cases, “onus plays virtually no role” in the determinations justices of the peace make in bail court.

“It looks good, maybe on paper to people who aren't in bail court, and you want to look tough, but it doesn't change much,” he says.

The cases that often attract public attention to issues of bail reform tend to be extreme, where somebody accused of a serious crime is granted bail and reoffends while they’re out.

“Those are rare, and it's important to be clear about that,” Gourlay says, noting the “overwhelming majority” of people who pose a real risk to the public are detained already.

“We’ve got to be careful about allowing policy to be dictated by the outlier cases.”

Tune in to hear more from Lerner and Gourlay about what they think of the federal parties’ criminal justice platforms, including Poilievre’s proposed “three-strikes-you’re-out” rule and the Liberals' plan to punish perpetrators of intimate partner violence.

You’ll also hear from former attorneys general Anne McLellan and Peter MacKay on the significant legal issues they feel have been missing from the campaign, as well as CBA President Lynne Vicars about the association’s priorities for this election.