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Conservative leadership candidates play fast and loose with Charter rights

Conservative leadership candidates just can't resist that populist urge to promise to act like an autocrat. They want to promise they'll get things done – and in the process, they keep promising to brush aside the limits on a prime minister's power.

Kevin O'Leary, in his 90-day adventure as a candidate, said he'd dock health-care transfer payments to provinces that didn't adopt his economic policies. Many candidates, most recently Lisa Raitt, have promised to override the Charter of Rights and Freedoms for various ends.

This is big, bold stuff. Like Donald Trump's promise to build a wall on the Mexican border, it's an attempt to respond to the frustrations people feel about politicians by promising to use the heavy artillery – regardless of whether it makes sense.

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It helps get attention. And it also makes a candidate sound like a doer, someone who'll brush aside obstacles. It worked for Mr. Trump. He promised he'd start building a wall in his first 100 days. Last week, he said Middle East peace wasn't hard, and he'll "get it done."

Conservative leadership candidates, it seems, think that Canadians have a hankering for that, too. It has become commonplace for a leadership candidate to promise to use the notwithstanding clause of the Constitution to override the Charter of Rights and Freedoms.

Before he left the race, Mr. O'Leary promised he'd invoke the clause so he could send asylum-seekers who crossed the U.S. border into Canada back to their native countries without any kind of hearing. Maxime Bernier, not content with a bizarre promise to call out the army to stop those border-crossers, added that he might invoke the notwithstanding clause, too.

Steven Blaney said he'd use the clause to revive the rule that the niqab can't be worn at citizenship hearings. Erin O'Toole said he'd use it to overrule a Supreme Court decision that requires criminal prosecutions to be completed in 2 1/2 years, which has caused some defendants to go free. Saskatoon-Humboldt MP Brad Trost has said he'd use the clause to overturn the rulings of "leftist judges" in general.

It's one thing to argue that the notwithstanding clause can be used in rare cases to respond to judicial overreach. But it's another to reach for it every day before breakfast. As a group, these leadership contestants sure find a lot of reasons to override the Charter.

The latest is Milton MP Lisa Raitt, who said she'd invoke the notwithstanding clause to ensure that the Energy East oil pipeline to Saint John, N.B., gets built.

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That's a head-scratcher. The notwithstanding clause isn't a magic wand. It can't be invoked, for instance, to override the rights of First Nations.

In an interview, Ms. Raitt said she would use it if Energy East was approved, but construction was blocked by protesters. She'd invoke the clause to override guarantees of freedom of expression and peaceful assembly to ensure the protesters don't block construction.

"If they get dragged away by private security, there would be a court challenge that follows that their rights to protest are infringed upon – that's what would be claimed," she said.

It seems she's looking for a reason to promise to use the notwithstanding clause. There's no Charter right that allows protesters to indefinitely block construction of a pipeline.

Courts do interpret the right to freedom of expression as allowing protesters access to public spaces, said Jennifer Klinck, a lawyer with Power Law in Vancouver. But it doesn't allow protesters to block construction indefinitely – courts often issue injunctions to stop protesters from doing that, she said.

Ms. Raitt is waving around the notwithstanding clause as a prop to make it sound like nothing will stop her. Like other candidates, she's using it for populist appeal. If they mean what they say, Canadians should be concerned by their easy devaluing of rights; If they don't, Conservatives should be upset at being played. Give credit to those who haven't used this trick, like Andrew Scheer and Michael Chong.

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A PM with a majority has extensive power, limited mainly by divided jurisdiction with provinces and the constitutional rulings of courts. The Conservative race has seen candidates casually propose to dispense with those limits. We should worry that leadership aspirants think that's what Canadians want.

Video: Tory leadership candidates react to O’Leary quitting race (The Canadian Press)
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About the Author
Chief political writer

Campbell Clark has been a political writer in The Globe and Mail’s Ottawa bureau since 2000. Before that he worked for The Montreal Gazette and the National Post. He writes about Canadian politics and foreign policy. More

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