Canada's Charter of Rights and Freedoms, part of our country's constitution, contains a provision in section 33 that is known at the notwithstanding clause. The federal parliament, or provincial legislatures, can effectively suspend sections of the Charter that cover fundamental freedoms, legal rights, and equality rights. However, it cannot be used to suspend democratic rights such as the right to vote, mobility rights, or language rights. Up until now, the federal government has not invoked the notwithstanding clause, but several provincial governments have invoked it or attempted to invoke it. Use of the notwithstanding clause is deeply troubling because it merely requires a simple majority in parliament and thus can be used for purely partisan purposes. The notwithstanding clause was conceived as an emergency tool, to be used only in extraordinary circumstances, and not as a tool to unhinge charter rights in the ordinary course of policy making. Below is the full text of section 33.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
 
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
 
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
 
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
 
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

In the forthcoming federal election on April 28, the Conservative Party of Canada has proposed to invoke the notwithstanding clause to impose consecutive life sentences on multiple murderers. The Supreme Court of Canada ruled in 2022 that imposing consecutive life sentences violates an offender's Charter rights (R. v. Bissonnette, 2022 SCC 23). There is absolutely no merit in the Conservatives' "tough on crime" proposal. Convicted murderers can be declared dangerous offenders under section 753 of the Criminal Code of Canada (CCC). Existing law is fully able to prevent the release of dangerous prisoners who are at risk of re-offending and pose a risk to society. Eligibility for parole after 25 years for a convicted murderer (CCC, s. 745(a)) does not mean automatic release. Parole must be granted by the Parole Board of Canada (PBC). A fundamental principle of Canada's criminal justice system is that it is not merely punitive but also corrective, which includes a path to rehabilitation. If parole is granted incorrectly or too leniently to offenders, a government has every right and legal means to fix related problems. However, unhinging the constitution should not become one of these means. While Canadians can readily agree that some offenders are too vile and heinous to be ever released from prison, every case is different, and not all offenders are beyond redemption.

Consecutive sentences (also known as cumulative sentences) exist in the United States (18 U.S. Code §3584). It is a uniquely American concept of retribution, short of a death sentence. Essentially, Canada's Conservatives want to make Canada more American with their proposal.

Invocation of the notwithstanding clause by a simple parliamentary majority is ripe for abuse of all sorts. In Canada, a parliamentary majority does not even guarantee a majority of voters because of our electoral system. In 2015, Liberals formed a majority government with 39.5% of the popular vote; in 2011, Conservatives formed a majority government with 39.6% of the vote. This means that a minority of voters may be able to set aside significant parts of Canada's charter rights for a narrow partisan agenda.

The notwithstanding clause, in its current form, is a door that an illiberal anti-democratic government could walk through to squash dissent and fundamental rights and freedoms, and use as a tool to entrench itself in a similar way as has happened in Hungary in recent years.

Changing the Charter to defang section 33 appears near-impossible, given Canada's inability to pass constitutional amendments since the failure of the Meech Lake and Charlottetown Accords. No attempt has been made since 1992 to evolve Canada's constitution. General constitutional amendments require two-thirds majorities in the House of Commons and the Senate, and the assent of at least seven legislative assemblies representing at least fifty percent of the population (known as the "7/50 formula"). It is a high bar for any change.

Is there any scope left to reform Section 33? Perhaps. Originally, section 33 was proposed as a compromise solution at the 1981 First Ministers' Conference by the federal Minister of Justice at the time, Jean Chrétien, and the Attorneys General of Ontario and Saskatchewan, Roy McMurtry and Roy Romanow. Jean Chrétien maintained that section 33 was intended as a "safety valve which is unlikely ever to be used except in non-controversial circumstances" [source]. In an ideal world, the threshold for invoking the notwithstanding clause should be raised to prevent partisan use and reduce the scope to the "non-controversial circumstances" that Jean Chrétien alluded to. A two-thirds majority in House and Senate (or provincial legislatures) would be appropriate.

Perhaps one partial remedy could be a new Act of parliament (passed with an overwhelming majority) that clarifies the use of Section 33, raising the bar and requiring two-thirds super-majorities in House and Senate. Of course such an Act could be overturned again by a simple majority, but it may at least raise the political cost of doing so if the original Act was passed by a super-majority. Another possibility would be for a future parliament to pass such an Act with a simple majority and wait for the Official Opposition to challenge this Act on constitutional grounds, which may give the Supreme Court of Canada an opportunity to weigh in and provide better guidance. Either way, there may be opportunities for putting new "guard rails" on the use of Section 33.

In the absence of an outright reform of Section 33, any invocation of the notwithstanding clause should be challenged in Court promptly; it is not beyond judicial review. Whether the Supreme Court of Canada would put constraints around the use (or misuse) of the notwithstanding clause remains to be seen. An "originalist" interpretation of the notwithstanding clause would likely deliver a different result than a narrow "textual" interpretation, but the legal arguments here are beyond my scope of expertise. There are schools of thought that argue against preemptive use of Section 33, and suggest that Section 33 should be used only in reaction to a court ruling.

As it stands, Canada's notwithstanding clause is ripe for misuse. The bar for its invocation is far too low. The politics of proposing its use may also be more nefarious than it appears at first sight. As Andrew Coyne argued in The Globe and Mail on April 15: "What Mr. Poilievre really wants is an unassailably popular test case for the first federal use of the notwithstanding clause, with which to accelerate the project begun at the provincial level — of normalizing the clause, and eviscerating the Charter." In other words, the first federal use of the notwithstanding clause may open a Pandora's box. Whoever opens it first may come to regret it. In my opinion, proposing the use of the notwithstanding clause in order to score a few cheap points during an election campaign is unserious and frivolous.