Speaker 1:
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Jordan:
Over the past few weeks, you may have heard a whole bunch of legal, political, and even constitutional terms thrown around almost always by a politician on one side or the other who wants you to agree with them, be scared of the other side, or hopefully both federal Conservative leader, Pierre Poilievre, has promised to use the notwithstanding clause to enact criminal justice reforms. If he’s elected. Federal Liberal politicians would like you to know that this means he would use that clause on anything. Meanwhile, Conservative MPs, though, notably not Poilievre, have been making noise about restricting abortion. And Liberals would like you to connect the dots between those two things. In fact, they’ll lean over and draw the line between those dots for you if you let them. On one hand, this is a classic case of pre-election, fear-mongering and name calling. Conservatives are saying the Liberals are soft on crime, are letting murderers out of jail.
Liberals saying, Conservatives will destroy your freedoms, will restrict a woman’s right to choose. But beyond those threats and those accusations, there is a real promise here, one made by a leader that seems likely to become Prime Minister, to use a powerful clause in the Charter of Rights and Freedoms in a way that it has never before been used in this country. And that would set precedents, precedents that would change our political calculations, change our criminal justice system, and yes, possibly even change our laws around abortion. So today we’re going to try to cut out the noise and learn a bit about what’s actually at stake. I am Jordan Heath-Rawlings. This is The Big Story. Daphne Gilbert is a professor at the University of Ottawa who specializes in criminal and constitutional law. Hello, Daphne.
Daphne Gilbert:
Hello. And thank you for having me.
Jordan:
Why don’t we even just start with a quick history lesson. How did abortion become legal in Canada? And here, I don’t mean Morgentaler because most people know it that way, but how does the law around that actually work?
Daphne Gilbert:
So up until 1969, abortion was totally prohibited in Canada. And then in 1969, we had a reform to the Criminal Code of Canada where section 251 was introduced. It allowed for abortions under very limited circumstances, you had to get the permission of a therapeutic abortion committee, which had to be located in a hospital. And their decision was based on their assessment of the life and health of the pregnant woman with respect to her request for an abortion. And that was the law that was tested in Morgentaler, so it took almost 20 years before we got that law, before the Supreme Court of Canada and in Morgentaler, the Supreme Court of Canada struck down section 251, which meant it was of no longer force or applicability. And what they said was that it was a violation of section seven of the Charter of Rights and Freedoms because it was turning a decision over to a committee that should be made by the pregnant woman, that it was a decision that was being made without taking into account her wishes or her life circumstances.
But in Morgan Heller, the court left open the possibility that a different kind of criminal law could in fact be introduced that would withstand constitutional scrutiny. And in fact, we’re the only country in the world that doesn’t have any criminal regulation of abortion. And so that crack in the door that was left open by Morgentaler has always been out there as a possibility. There was one attempt after Morgan to recriminalize abortion and it was defeated by the Senate. And then since then, no government has seriously contemplated criminalizing abortion. And so it’s just treated now as any medical service. It’s considered a medically necessary service and is regulated by the provinces under their constitutional authority over health.
Jordan:
Okay. So I mean, not for the first time, not even for the seventh or eighth time, but Liberal politicians federally have spent the past couple of weeks saying that if elected a Conservative government might recriminalize abortion. And we’re going to get into why we’re discussing this now based on some comments from the leader of the opposition. But first, how exactly would that work if a Conservative or any other government actually wanted to attempt this and make it stick?
Daphne Gilbert:
So I think that based on what has happened at the Supreme Court since Morgentaler since 1988, it would be extremely unlikely, and I would put my reputation out there as saying it would be impossible to completely recriminalize abortion under our Charter of Rights and Freedoms. Okay. The language that the court has used to describe people’s autonomy over decision-making is so strong that I think it would be impossible to totally ban abortion we’re seeing happening in the United States. But what we definitely could see are criminal regulations around, for example, gestational limits. That’s the most likely thing. If we receive recriminalization of abortion, it would be to say that it’s permissible only up to a certain week of pregnancy or that it has to be performed by certain kinds of healthcare practitioners or only in hospitals, those sorts of contours of criminal law that would allow for abortion, but severely restrict access to it.
Jordan:
I mentioned that this is not the first time the Liberals have claimed the Conservatives would do this. It’s obviously been an effective tactic for them in the past, but why are we having this discussion again, and particularly, and I guess this takes us into parts of criminal laws as well. What has opposition leader Pierre Poilievre said about the notwithstanding clause?
Daphne Gilbert:
So first of all, over the years, any attempt to criminalize abortion has always been made by the Conservative Party. It’s the only party that has tried to introduce any possible legislation around abortion. And it happens every year through private member bills. And not only a direct attack on abortion, but for example, a few years ago we had a pretty strong effort to criminalize an attack on a pregnant woman that resulted in the death of her fetus, where the death of the fetus would be a separate crime. And of course that would entail understanding the fetus as having an independent life from the pregnant woman. And so over the years, there have been attempts to criminalize abortion, but I think what is different about what’s happening right now is, as you said, is because of the notwithstanding clause that the leader of the opposition has said he will invoke in criminal justice matters. And so we have never seen a federal government use the notwithstanding clause, and we’ve never seen it used in criminal justice matters before. And that’s I think what’s got people worried in the abortion context.
Jordan:
Where and when has the notwithstanding clause been used in the past? You don’t have to explain every instance, but give us a sense of what’s different about any of those instances than what Pierre Poilievre is proposing here.
Daphne Gilbert:
So the notwithstanding clause, which is section 33 of the Charter of Rights and Freedoms, is a unique in the world provision which permits a government to override the Charter of Rights and Freedoms. If what’s at issue is section two of the Charter, which is the fundamental freedom section, so your right to freedom of expression or freedom of religion or sections 7 through 14 of the Charter, which is all of the legal rights that attach to people who are accused of crimes. And then section 15 of the Charter, which is our equality rights provision. So it doesn’t apply to the entire Charter, only certain sections of it. And it’s been used only by a handful of provincial governments, most notably by Quebec, which has invoked it a few times, first to protect primary French language laws. Also more recently around Bill 21, which was the bill which restricts the wearing of visible religious identification in public sector jobs. Yes, we’ve seen it in Ontario recently around election spending laws. The Ford government invoked it to shield a law that limits third party spending in elections. We’ve seen it used preemptively in Saskatchewan to shield gender identity laws, which require, for example, that teachers tell parents when students want to change their gender pronouns. So it’s been used a few times across Canada by provincial governments, but never by the federal government.
Jordan:
What also is different about using it in terms of a matter of criminal justice as opposed to some of the bills you just described?
Daphne Gilbert:
So it’s different in a number of ways. First of all, the ostensible reason why the notwithstanding clause was introduced in the Charter during the negotiations around the drafting of the Charter was because the province’s fear that they were going to lose power as against the federal government, that a constitutional Charter of rights that applied across the country to the provinces was going to diminish their authority and power. And so it was a negotiated compromise. So criminal justice is federal in Canada, and so the tensions around provincial responsibility or provincial leverage or provincial loss of autonomy don’t apply in criminal justice matters. It is squarely within the federal jurisdiction. So to use it in criminal justice, for one thing, it distorts the original reason it was brought in. But also in my criminal law class, when I’m talking to students who are first year law students and have never really thought about the law before, I always urge them to think about the incredible power of criminal law in this country, that you have all of the resources of the state with all of the expertise of prosecutors and the money that they can spend and the resources that they have to put together a case all being used against an individual who has only whatever resources they can muster as an individual to challenge the charge and the prosecution.
And that is one of the reasons why we have a really strong Charter of Rights and Freedoms with respect to legal rights that your rights when you’re arrested, when you’re detained, when you’re charged, when you’re being tried, we’re very, very aware in this country of the possibility of wrongful convictions. We know that there is racism in the justice system. We know that indigenous and black men in particular are way overrepresented in our criminal justice system. And so we have problems. And the Charter is one way of trying to combat those problems. It’s not a perfect tool, but it has resulted in strong protections for accused persons. And so to invoke a notwithstanding clause and to override Charter rights in the criminal justice system is really down on our most vulnerable people, and it is a complete distortion of why we have such strong protections in the Charter.
Jordan:
Has Poilievre or his MPs for that matter said anything about where the end would come for use of the notwithstanding clause in this matter and if it could be used around abortion? Do you see any danger I guess, here of this at least being a possibility?
Daphne Gilbert:
I certainly see it as a possibility. I have combed through what has been publicly said by the Conservative Party and by Pierre Poilievre in particular. And it’s a bit talking on both sides of their mouths that on the one hand he has said that the Conservative government will not legislate around abortion. He has also said that he would not introduce new legislation on abortion, but at the same time, he is adamant that he would consider using the Charter in criminal justice matters. And he considers that to be something that he thinks is necessary to clean up some criminal justice issues that he thinks are not going well. Where he first spoke about it was spoke about in a speech to police, and he was talking specifically about sentencing and about bail, and the case that he has invoked as the paradigmatic reason why we would need to use the notwithstanding clauses to override a Supreme Court of Canada decision, which prohibits the stacking of parole eligibility.
So this was the case of Alex Bissonnette in Quebec who killed six people in a mosque. And when he was sentenced, he was sentenced under a new law which allowed for the stacking of parole eligibility. So in Canada, you’re convicted of first degree murder, you’re not eligible for parole for at least 25 years, and that he was given a 75 year parole eligibility. And the Supreme Court of Canada struck that down and said, it’s cruel and unusual punishment to sentence someone to life in prison when with no hope of ever being released that hope is an important characteristic of rehabilitation, and we need to have that possibility that a person could be rehabilitated. The fact is that multiple murderers in this country are never released on parole. It’s extremely difficult to get parole for first degree murder and very, very rare in cases where more than one person has been murdered.
And I would venture to say it would be highly unlikely that Alexander’s Bissonnette would ever be released on parole, but the Supreme Court said, we have to at least hold onto this hope of rehabilitation if that’s one of our goals of sentencing. And so Pierre Poilievre, in the speech to the police indicated that his government would see to it that ruling rather of the Supreme Court was overridden and he would return to this possibility of having a life in prison, mean life without any possibility of parole, without any hope for rehabilitation. And so that’s the context in which he invoked it. He also talked about using it to overrule some bail reform laws that the Liberal government has brought in, laws that were directly responsive to a Supreme Court decision, but certainly were shaped by what the Supreme Court has said about the importance of bail and the importance of respecting the fact that a person who’s accused of a crime is still presumed innocent until proven guilty, and that we should prefer release and bail unless it can be demonstrated that it’s necessary to keep someone behind bars before they’ve even been convicted.
And so those were the two kind of impetuses or reasons that Pierre Poilievre said he would use the notwithstanding clause. But I think why abortion comes into the picture is because one of his party members immediately introduced a petition in the House of Commons that called for regulation of abortion. And the timing of that was a bit suspect. And I think once you’ve said you’re going to use the notwithstanding clause in matters of criminal justice once you’ve opened that door, I think that would be extremely difficult to argue that you can make principled distinctions and he’ll be under a lot of pressure from certain members of his caucus who have been very vocal about wanting to see criminal law regulate abortion again.
Jordan:
If a Conservative government was to use the notwithstanding clause on a criminal justice matter or even abortion, is there any recourse to that? What happens next? Or is it just like that’s it, this is the final card and it’s over.
Daphne Gilbert:
So we have always said that the recourse for the invocation of the notwithstanding clause is the political consequences that will come from using it. And early on, after the Charter came into force, that was the understanding was that it would be political suicide for a government to override Charter rights and for a long time, aside from the French language Law of Protection in Quebec, which was popular for other reasons, not around the Charter, but that political accountability I think had a lot of weight.
Jordan:
It’s a new era now.
Daphne Gilbert:
Yeah, exactly. In the last few years we’ve seen it used much more often, but also threatened to be used. Now governments will toss it out there as something that is in their back pocket in a way that is new and a bit unsettling from a Charter perspective. And so would there be political accountability for invoking the notwithstanding clause in sentencing? I’m not sure. I think a lot of people don’t understand how criminal sentencing works, and bail, and there’s a lot of fear and misinformation about that. So there might not be the kind of accountability that we would hope for overriding Charter rights. But when it comes to abortion, I think, although I am fearful of what a government might do if they felt completely unfettered by the Charter, I think there probably would be pretty serious blowback on the abortion question. I think that abortion is overwhelmingly approved of in Canada by people who recognize it as an equality, right for women. And I would be shocked if there wasn’t serious repercussions, but in politics right now, things are so unpredictable that it’s hard to say.
Jordan:
Let’s put aside for a minute, whether you or I or anyone listening agrees with what Poilievre has threatened to use the notwithstanding clause to achieve, let’s say the majority of voters support him and they elect him, is using that notwithstanding clause and opening up that precedent, the only way he could achieve this, or are there other methods by which he could strengthen bail laws and make sure that multiple murderers don’t have that chance for parole?
Daphne Gilbert:
Absolutely. Parole is also a federal responsibility and the regulations around the granting of parole and the appointment of parole boards are within the federal government’s jurisdiction. And so he could shape parole in that way. There are changes that can be made to the bail system that would likely pass constitutional scrutiny that would be restrictive of bail. Every government really shapes criminal law according to their values. The criminal justice system under Stephen Harper looked a lot different than it does under Justin Trudeau.
Jordan:
Right. So why go this route then? Why invoke the notwithstanding clause in all the political firestorm that comes with that if there are other ways of achieving what he’s after? If he’s elected?
Daphne Gilbert:
I think part of it is appealing to a certain part of his base who really believe in this tough on crime, lock people up, throw away the key, that sort of mentality. And he is facing some Supreme Court cases that would make it hard for him to regress completely on criminal justice matters the way that his base might prefer.
Jordan:
I see.
Daphne Gilbert:
I think it’s also responding to this idea that the Supreme Court is some kind of an elite institution that is dominated by the Liberal left or that it’s this ivory tower out of touch with the real people. And using the notwithstanding clause is a slam on the courts and the slam on the Supreme Court in particular, that responds to that criticism from the right. So there’s hidden messages to what he’s saying as well as the overt message.
Jordan:
As I mentioned kind of off the top, the Liberal government has often used the specter of Conservatives recriminalizing abortion during campaigns when they’re facing trouble in the polls, et cetera, et cetera. So I know it’s useful for them that way. But if they wanted to, in what ways could they protect abortion ahead of what, at least now seems to be the prospect of losing an election to the Conservatives sometime next year?
Daphne Gilbert:
It’s an interesting question because I know last year when the Supreme Court in the United States overturned Roe v Wade and said that there was no longer a constitutional right to abortion, there was a bit of a flurry here in Canada around the possibility that we would pass a law, an amendment to our constitution, for example, that says there is a constitutional right to abortion for women in Canada, that it can’t be curtailed or limited. And I remember talking to people at that time and being asked about my thoughts on having such a proactive law, and I’m actually not in favour of a particular specific law that protects abortion rights because I like to think of them as medically necessary services that are treated the same as any other medically necessary service. If we don’t have constitutional protections to hip replacements or heart surgery in Canada, I don’t like to see abortion treated differently.
And so putting in a law that specifically protects abortion, the very first thing that would happen is that anti-abortion groups would challenge that law, and we would then be in court discussing abortion rights. And I am happiest when no one’s talking about abortion rights and it’s just happening as part of the medical services. That’s to me, where it belongs. So I don’t think we need a special law, and I think what we need is just to continue to have the conversation to normalize abortion as it’s not something that anybody wants to have, and it’s not something that abortion providers want to have to provide, but it happens that it’s necessary and we should just treat it as any other medical service.
Jordan:
So last question then, until the next election, what will you be watching for in terms of the notwithstanding clause and criminal justice and abortion, and what would you want to know from Poilievre if you knew that you’d get a straight answer off the record to your question?
Daphne Gilbert:
Well, at one point he said that his government would be the government of the Charter of Rights and Freedoms, and that has always been the sort of purview of the Liberal government. That’s been their mantra. It was the Liberal government that brought in the Charter of Rights and Freedoms. So I would like to hear more from him about what he means when he says that he will respect the Charter of Rights and Freedoms and how it is that that would be consistent with using the notwithstanding clause, which I don’t think should be in the Charter, but it’s there. So let it be a dormant clause that does not get invoked, except in the most extreme circumstances, I don’t think tinkering with criminal justice is the kind of extreme circumstances that justifies overriding rights.
Jordan:
Daphne, thank you so much for this. It’s really insightful. I learned a lot.
Daphne Gilbert:
Thank you for having me.
Jordan:
Daphne Gilbert from the University of Ottawa. That was The Big Story. For more from us, head to thebigstorypodcast.ca. Of course, you can send us your feedback. The way to do that is via email. Hello@thebigstorypodcast.ca is the address. Or you can call 416-935-5935 and leave us a voicemail, The Big Story’s on all your podcast players. It arrives at 4:00 AM Eastern time every morning, and you can also ask your smart speaker to play it by saying Play The Big Story podcast. Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow.
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