Honourable colleagues, I speak today to Bill S-218 and in support of safeguards against use of the “notwithstanding” clause. Thank you, Senator Harder, for this opportunity to examine what is at stake.

Canadians will recall the proposals offered during this past election period that would, in defiance of rulings by the Supreme Court of Canada, increase parole ineligibility to ensure that some prisoners would only leave prison in a coffin. For good reason, the “notwithstanding” clause has never been used with respect to matters of criminal law, and especially not to excuse cruel and unusual punishment.

Indeed, in keeping with the intention that the “notwithstanding” clause be invoked only in rare and extreme circumstances, it has never been used by the federal government. Despite the ludicrous actions south of our border, in Canada, it hopefully goes without saying that governments should not pass laws that are unconstitutional. The fact that some provinces have used the “notwithstanding” clause to violate the rights of some Canadians is deeply problematic.

I hope we all commit to the principle that this chamber should reject legislation that would use the “notwithstanding” clause to salvage legislation that contravenes our constitutional values.

Both this position and Bill S-218’s restrictions on use of the “notwithstanding” clause align with crucial roles of this chamber as representatives of marginalized or minority groups and as reviewers of legislation with particular duties to uphold Charter rights.

My favourite illustration of our responsibilities — as appointed rather than elected representatives in Canada’s democratic system — was expressed by our friend and colleague the late former senator Murray Sinclair, when he reminded us that:

“We must abide by the proverb that when two foxes and a chicken are voting on what to have for dinner we will stand up for the chicken.”

Caitlin Salvino is one of countless legal experts to identify that the “notwithstanding” clause magnifies injustice and inequality for those most marginalized. The checks meant to restrain its use by governments systemically exclude and disadvantage those whose rights are at greatest risk.

First, while the designers of the “notwithstanding” clause assumed that its use would generate significant scrutiny — both in legislatures and the broader community — this scrutiny has not always occurred, and even with measures like Bill S-218, those most marginalized are least likely to have the financial resources to hire lobbyists, organize campaigns, litigate or otherwise make their voices heard.

Second, laws enacted using the “notwithstanding” clause are valid for a maximum of five years, with a view to giving Canadians the opportunity to rethink unjust and unconstitutional practices. In practice, however, thoughtful reconsideration has not taken place. For example, in Quebec, Bill 21 used the “notwithstanding” clause to require people — disproportionately Muslim women — to uncover their faces while receiving public services and to prevent public sector workers from wearing religious symbols, disproportionately excluding Muslim women from working in a variety of public service jobs.

Sadly, Quebec enacted Bill 21 and further inflamed anti‑Muslim sentiment only two years after a man killed six people in a horrific mass shooting at the Great Mosque of Quebec, and the same year he was sentenced to an unconstitutional series of consecutive life sentences.

When five years had passed and the time came to re-enact the legislation, the bill passed the Quebec National Assembly with barely any pushback. Law professors Natasha Bakht and Lynda Collins conclude, “Time appears to have blunted our outrage against state-sanctioned discrimination/Islamophobia. . . .”

Instead of galvanizing resistance to injustice and inequality, the five-year period apparently served to normalize it. Since the passage of Bill 21, Muslim women report “. . . increasingly hostile . . . environments, including Islamophobic discrimination and physical threats and aggression.” This is linked to the perception that they “. . . do not belong to Canadian society. . . .”

Professors Bakht and Collins assert that this use of the “notwithstanding” clause further marginalized and oppressed Muslim women, and that the clause cannot be employed as “. . . a bottomless pit where rights and freedoms go to die. . . .” They argue:

Instead, it is a limited exception that must —

— like every other part of the Constitution —

— comport with the overarching structure of Canada’s Constitution, including the unwritten constitutional principles of judicial independence; democracy; federalism; constitutionalism and the rule of law; and respect for minorities. . . .

They continue:

The Supreme Court . . . confirmed in City of Toronto that unwritten constitutional principles are not subject to the notwithstanding clause . . . .

They continue, saying, “. . . the text of section 33 simply does not permit the undermining of core unwritten constitutional principles.”

In other words, in addition to the moral and political flaws, a legal and constitutional perspective negates the use of the “notwithstanding” clause to exacerbate inequality for marginalized groups.

Though Bill S-218 would apply only to federal legislation, I note that Professors Bakht and Collins are of the view that provinces and territories may be justified in using the “notwithstanding” clause if doing so would comport with constitutional principles. They cite as a potentially valid use, “to promote minority rights,” Quebec’s choice to protect its laws requiring unilingual French commercial signage in the 1980s. I wonder, however, whether a similar outcome could have been achieved without having to resort to the “notwithstanding” clause, through recourse to subsection 15(2) of the Charter, which permits affirmative action.

Constitutional expert Marion Sandilands similarly asks why section 1 of the Charter is not a sufficient response. Under this provision, known as the justification clause, protection of the French language in Quebec has previously been recognized as a “. . . pressing and substantial objective capable of justifying a Charter infringement.”

Guillaume Rousseau and François Côté have attempted to justify, on the basis of Quebec’s distinctiveness, Bill 21 and Bill 96, which contain unprecedented “. . . total and pre-emptive override[s] . . .” not just of the Canadian Charter but also of Quebec’s charter. In response to their arguments, Ms. Sandilands states:

It is important to note that one can accept that Quebec’s distinct language and culture should be protected in law, yet insist that this protection has not, does not, and ought not require the ousting of human rights charters.

The protection of marginalized groups is particularly important in the context of the unconstitutional criminal law measures proposed to Canadian voters last election.

Through this chamber’s work on human rights of prisoners, we heard — and Senator Clement’s work on voting rights this election, as spoken to today, underscored — that prisoners face abuse and oppression due to the lack of transparency and accountability about what is occurring in prisons; prisoners’ lack of access to financial resources and lawyers necessary to defend their rights; and prisoners’ lack of voting clout.

The use of the “notwithstanding” clause to subject people with few political or legal protections to draconian and lifelong sentences with no opportunity for parole would only serve to further dehumanize prisoners in ways that diminish all of our humanity.

Consecutive life sentences with no chance of parole for upward of 50, 100 or 150 years are an American anomaly. Canada’s harsh and potentially unconstitutional mandatory life sentences with parole ineligibility of 10 to 25 years already make us an outlier among comparable countries. Contrary to the rhetoric, all evidence reveals that restricting access to parole does not make us safer.

Research by law professors Debra Parkes, Jane Sprott and Isabel Grant confirms that when people serving life sentences are paroled, the vast majority are successful. In fact, returns to prison generally result from onerous administrative conditions related to the release, not new offences. Furthermore, as the body of evidence summarized by the Supreme Court in the Nur decision makes clear, harsh and inflexible minimum sentences do not deter crime.

In the Bissonnette decision that struck down consecutive life sentences as unconstitutional, the Supreme Court of Canada recognized that protections against cruel and unusual punishments are a bare minimum protection of our collective humanity. The court noted:

. . . [t]he inability of [people] to repay their full debt to society and to apply for reintegration and forgiveness strikes at the very foundations of our criminal justice system . . . .

The court also stated that a consecutive sentence is the following:

. . . degrading in nature in that it presupposes at the time of its imposition that [a person] is beyond redemption and lacks the moral autonomy needed for rehabilitation. . . .

The court noted that these sentences amount to a death sentence by incarceration — something that Canada was supposed to have prohibited decades ago.

The court also made clear that Canada can insist on limits on parole ineligibility as part of a human rights-informed and constitutionally compliant criminal legal system without devaluing the humanity of victims of crime or condoning horrific acts:

[The idea of] denouncing multiple murders more strongly by imposing a sentence that reflects the value of each human life that was lost . . . is based on a retributivist approach . . . . However, as [professors] Desrosiers and Bernard put it . . . “in a legal system based on respect for rights and freedoms, the ‘eye for an eye’ principle does not apply” . . . . The courts must establish a limit on the state’s power to sanction . . . in keeping with [our Canadian Charter of Rights and Freedoms].

The court continued:

The horror of the crimes . . . does not negate the basic proposition that all human beings carry within them a capacity for rehabilitation and that, accordingly, punishments which fail to account for this human quality will offend the principles that underlie s. 12 of the Charter.

Normalizing consecutive life sentences as a punishment risks “ratcheting up” and encouraging harsher sentencing across the board, increasing acceptance and expectations of cruelty in prisons, in court and in society, thereby eroding the rights that protect all of us.

During this election period, some politicians suggested using the “notwithstanding” clause to encourage sentences that would ensure that people only ever left prisons in a coffin. These measures are ineffective and extremely costly in both human and financial terms. Worse yet, they are disproportionately experienced by Indigenous, Black and poor people, as well as those suffering from disabling mental health issues. In short, they are a Trumpian slap in the face to the Canadian principles of justice.

In fact, The Sentencing Project in the United States has underscored the reality that such approaches are rooted in racist and ableist theories promoting eugenics. As eugenics thinking rose to prominence in Nazi Germany in the early 20th century, U.S. jurisdictions were also enacting so-called habitual offender laws or three-strikes laws providing for permanent incarceration of those characterized as being prone to “criminality,” with the stated goal of separating these individuals from society and preventing them from having children. Similar measures were repealed in Germany following the Second World War. In the United States, with few amendments, these laws remain on the books a century later in 49 states and federally.

This is not the way forward for Canada. It is time to push back on incursions on our collective human rights and Charter rights wherever they occur. We can begin by relegating to a shameful chapter in our history books the attempts to use the “notwithstanding” clause to excuse, condone or celebrate cruelty and inequality.

I hope you join in this fight. Chi-meegwetch. Thank you.

Yes.

First, we have to correct that: It is not a 25-year sentence; it is a life sentence. In order to actually get out, you have to apply to the Parole Board, and there are many, many hurdles not only to get to the Parole Board but also to get out. I can’t tell you how many people I’ve worked with who are serving life sentences, even where they had defences or wrongful convictions, such as David Milgaard and Donald Marshall Jr. —

Senator Pate, I’m sorry. Your time for debate has expired. Are you asking for more time to answer the question?

Yes.

I have not asked the question, but I see that you can answer the question.

Thank you. In fact, there are many people serving life sentences who never get out. Those serving multiple life sentences or those who have been convicted of multiple murders are often among those groups.

I cannot think of anybody who has killed more than one, two or three people who is out and whom we don’t already know is dangerous. The reality is we’re actually doing a disservice to Canadians, in my humble opinion, by saying people are only receiving 25-year sentences. In fact, those are even outliers in many other Western jurisdictions.

In some cases, like Portugal, it is unconstitutional to even give a life sentence. In many European countries, a long sentence is 10 years. Here, we have people serving life sentences. That means they could die in prison. What the Supreme Court of Canada said in the Bissonnette case is that there should be some hope of redemption. There should be some hope that people could get out. In fact, when the parole ineligibility was increased from 10 years to 25 years with the abolishment of capital punishment, there was actually a provision put in place. And the last time the Supreme Court of Canada looked at the life sentence alone, they questioned whether it would be constitutional but for the faint hope clause which, as you know, was abolished in 2012. In fact, we are still seen as an outlier with a parole ineligibility period of 25 years and a life sentence.