It behooves amateur legal observers (like myself) to acknowledge that 5-4 decisions of the Supreme Court of Canada have a high likelihood of confounding easy simplicity. If the answers really are obvious, the nine well-educated justices of the country’s highest court really ought to be able to come to a unanimous result; when they can’t, it strongly suggests there’s at least some reasonable room for disagreement, even if the underlying subject matter is obviously grotesque.
So it was last week in the court’s decision in Quebec v. Senneville. To recap: Quebec’s attorney general was appealing the lower courts’ ruling that Canada’s mandatory minimum sentencing laws regarding the “accessing” of child pornography were overly broad and breached Section 12 of the Charter — that is, that Canadians won’t be subject to cruel or unusual punishment. The majority of the court didn’t dispute the underlying facts of the cases at hand; rather, drawing on precedent, they found that because the mandatory minimums could, in “reasonably foreseeable scenarios,” capture defendants guilty of less odious sins while still subjecting them to harsh mandatory minimums, the law had to be overturned.
(The four justices in the minority were harshly critical of the majority’s reliance on a hypothetical scenario in this decision, saying that the imaginary case of the majority bore no relationship to the facts of the case. The majority, for their part, say they’re simply following the court’s own precedents, and note that mandatory minimums don’t just fall on people who make it to trial: they’re an additional tool for Crown prosecutors to extract plea deals from people who might otherwise never be able to mount a proper defense before a judge. Unconstitutional laws, per the majority, are an inherent threat and not just for the least sympathetic criminals imaginable.)
Conservative leaders, including both federal leader Pierre Poilievre and Ontario Premier Doug Ford, wasted no time demanding that Prime Minister Mark Carney invoke the notwithstanding clause to re-authorize the mandatory minimums regarding possession of child pornography, or in Poilievre’s case, his willingness to do it himself if he forms Canada’s next government. Ford was joined by his fellow premiers Danielle Smith of Alberta and Scott Moe of Saskatchewan, while other conservative premiers have been more circumspect so far. It’s not all right-leaning premiers, though. Manitoba’s NDP premier Wab Kinew also blasted the court majority, saying that those who victimize children should be buried “under the prison,” though he stopped short of calling on the feds to use Section 33. (Kinew previously criticized premiers for scaremongering about the federal intervention on the notwithstanding clause.)
Carney might invoke the notwithstanding clause, or he might not. Opposition parties in the House of Commons can introduce their own private members’ bills, invoking it if they want. But provincial premiers aren’t without a lever of their own to pull, here — it just requires them to give up cheap grandstanding and risk real political costs of their own. They can propose an amendment to the Charter clarifying the federal Parliament’s powers to impose mandatory minimum sentences for specific crimes.
I’ve previously argued that one clear threshold for the use of the notwithstanding clause is in cases where the courts make a decision that’s so obviously wrong that reversing it is the first step towards an outright constitutional amendment to put a stake through the heart of the impugned decision. For the country’s conservative premiers, Senneville is about as clear-cut as they’re likely to get short of a Supreme Court majority declaring that murder is legal now.
Amending the Charter takes seven provinces with more than half of the country’s population to agree (the “7/50 rule”), along with the House of Commons and Senate. This has historically been seen as a nearly impossible bar to clear, but thanks to the recent election in Newfoundland and Labrador, seven of the country’s provincial legislatures now host conservative majorities. At the very least, Ford, Moe, and Smith could workshop a draft text and get the ball rolling on a real debate, and we could genuinely test whether there’s a political will to reverse a decision of the country’s highest court outright, as opposed to the five-year suspension that comes from the notwithstanding clause.
This would amount to an unprecedented rebuke of the judiciary by elected legislators — something the minority seemed to warn about in Senneville. Chief Justice Wagner and Justice Cote note that the court is necessarily making normative judgments when declaring a sentence is unconstitutional, pitting its judgment against that of Parliament. “Because these heinous offences call for strong condemnation, the court owes ‘[g]reater deference to Parliament’s decision to enact the mandatory minimum’,” they warn their colleagues in the majority.
An amendment might not go anywhere: we haven’t amended the Constitution using the 7/50 rule since elaborating language for Indigenous rights in 1983. Notwithstanding the conservative tilt of various provincial governments, there might simply not be the political appetite for this kind of big, national fight. Seven premiers might agree only for the amendment to be defeated in the Commons or Senate.
All of which is a longer way of saying: Canada’s a big country with a lot of people in it, and we have big, serious disagreements about lots of things. We could all do with less yelling and more actual debate. Rather than thunder at Ottawa about their chosen outrage of the week, premiers could use the actual powers of their office to try and convince Canadians of what they think is needed. If they can’t make a winning case that clears the bar for constitutional amendment, they might discover a little bit of sympathy for a deeply divided court.
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