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Will Harper invoke Notwithstanding Clause to pass his Youth Crime Bill?

I was reading a very interesting post by Scott Ross where Scott claims that the Conservatives proposed youth crime bill has a couple of violations of the Constitution and Charter of Rights as per a recent Supreme Court ruling.

The first one is to do with the Conservatives proposing that youths as young as 14 years old be subject to adult sentencing, including life in prison:

..the Supreme Court of Canada as recent as May 2008 ruled in the case of R. v. D.B., 2008 SCC 25 that: A young person who commits a presumptive offence should not automatically be presumed to attract an adult sentence. The Court went on to state if there was such a presumption it would be in conflict with Section 7 of the Constitution and therefore be unconstitutional. This ruling therefore invalidates that significant portion of the Conservative campaign promise.

The second one has to do with the Conservatives promising to remove publication bans from 14 year olds and publishing their names:

On the same Conservative website it states that in regard to violent young offenders “upon conviction they will be named and a publication ban will not apply.” The problem with this is that the Supreme Court in the same ruling as cited above stated: The onus on young persons to demonstrate why they remain entitled to the ongoing protection of a publication ban is also a violation of s. 7 of the Charter.

Scott goes on to state that the Supreme Court rulings invalidate the Conservatives Youth Crime Bill. That’s true, but Harper has a legal way around this: invoking the Notwithstanding Clause – the infamous Section 33 subsection 1, which allows Parliament or provincial legislatures to override Sections 2, and 7-15 of the Charter, for a period of 5 years, when it either expires or may be re-enacted by the legislative body that has declared it.

So yes, Harper and the Conservatives can get around those Supreme Court Rulings because they’re based on Section 7 of the Charter. The question, as Stephane Dion and the Liberals have asked, is will he do this in order to enact these laws to get around the Supreme Court.

I wonder if any of our reporter friends have bothered to ask him or his rabid Justice minister – Rob Nicholson about this: Will you invoke the Notwithstanding Clause to override the Supreme Court to pass your youth crime bill, which otherwise is in obvious violation of the Charter of Rights?

UPDATE @ 9:40 pm: I see Scott has replied to me in comments at his blogpost where he does acknowledge Harper could do this, but he can’t see him doing it for fear of political fallout. I disagree. Harper hates the “liberal judges” he thinks are rife in the Justice System as much as he does the “ivory-tower” academics and criminologists who are publicly telling him his plan won’t do anything to stop this supposed crisis in youth crime. If he has a majority, he’ll invoke the NWC the first chance he gets, and he’ll revel in it (but the media and our campaign team should still be asking him to get his official on-the-record reply to whether he will do so or not).


5 comments to Will Harper invoke Notwithstanding Clause to pass his Youth Crime Bill?

  • ALW

    Good grief.

    1) The notwithstanding clause isn’t a pre-emptive tool. You don’t invoke it to introduce legislation. What would happen is that after the legislation becomes law, it would be challenged in court, and if it was struck down, then then government would have to invoke the notwithstanding clause.

    2) The notwithstanding clause is not an override of the Constitution. It is a part of the Constitution. We would not even have the Charter were it not for the notwithstanding clause; it was the compromise which brought the Charter into law. We can debate whether or not this was a good thing or not, but as it stands, that’s a fact.

    3) The Supreme Court of Canada is no less and no more partisan than the Supreme Court of the United States. All judges have a philosophical orientation, and certain judges will be viewed as more or less “conservative” or “liberal” depending on that orientation. Virtually all judges throughout Canadian and American history in high level courts can be loosely categorized one way or another.

  • RagingRanter: I don’t know exactly where you’re from, but I at least know you aren’t familiar with the Canadian judiciary. The Supreme Court of Canada does not act like the American supreme court, it is not a partisan body. That is a fact which I can reference numerous journals, professors, and texts.

    Furthermore the Supreme Court Ruling was specific in its ruling and established clear precedent that cannot be ignored or overridden by a future decision, that is how stare decisis works.

    Also just to add split decisions are not a factor in determining whether a decision was right or not. Whether it be 5 or all 9 judges, a conclusion was reached and that makes it law.

  • Hey I agree that it is theoretically possible that Harper could use the notwithstanding clause, but I don’t think it would be realistic to even think he would.

    1. He would have to have enough support in Parliament to do this. A) Either the Conservatives will have enough seats i)But even then have to convince all of them to override the Constitution let a lone our guiding principle of fundamental justice, B) Or the Conservatives don’t have enough seats to use the notwithstanding clause and if this is the case I don’t see any party supporting the Conservatives in this.

    2. He would have argue to Parliament and to Canadians why the Notwithstanding clause has to be used to override our Constitution, something I think is more politically disastrous then you give it credit. It would be a Prime Minister arguing to ignore our most important document, well at least an important part of it, and to me that seems unarguable.

    3. The Notwithstanding clause can only exist at 5 year increments before having to get approved again which would make the Conservative law temporary or at most always seen as susceptible to defeat. The Conservatives, and hopefully all Canadians would see this not as a long term fix and eventually the absolutism and concrete-ness of our Constitution would win out thus inclining the Conservatives not to use the notwithstanding clause.

    What I think is the Conservatives proposed this in haste and did not do their research or they threw this out to appease their base. Of the two I think it is most likely the latter.


  • No worries. The SC ruling sited was a 5-4 split decision. Harper has already appointed one judge who has been clear he doesn’t approve of an “activist” Supreme Court and would be “very reluctant” to overturn legislation passed by the elected legislature. He was chosen from Paul Martin’s short-list no less.

    And the PM just appointed a second judge right before he called the election. You can bet that any former split decisions that are seen as problematic will be revisited before the new and improved Supreme Court Bench.

    Hey Cari, it always cheers me to hear progressives trembling in fear. Personally I’ve never seen a politician right, left or centre who could intimidate me, yet progressives are constantly barking about how “scary” Harper is. It just confirms to me that you’re a bunch of cowards.

  • I am so terrified of this man, I do not know what to do..there are quite a few people against him, but the polls do not show it. Any Ideas on what to do? There is a Conservative in my riding, as well as 5 other parties. There will not be Strategic voting here. The Con will go right up the middle again….. we need to vote the way the Aussies do.

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