The federal government has drawn a firm line on constitutional powers, rejecting calls to use the notwithstanding clause to restore mandatory minimum sentences for child pornography offenses that were struck down by the courts.
Justice Minister Arif Virani confirmed the government’s position during heated exchanges in the House of Commons this week. “We will not use the notwithstanding clause to override Charter rights,” Virani stated, responding to mounting pressure from opposition parties following a Supreme Court decision that invalidated certain mandatory penalties.
The controversy stems from last month’s ruling in R. v. Hilbach, where the Court determined that mandatory minimum sentences for making or possessing child pornography violated Section 12 of the Charter, which protects against “cruel and unusual punishment.” The 5-2 decision found these penalties could lead to disproportionate sentences in certain cases.
Conservative leader Pierre Poilievre has demanded the government invoke Section 33 of the Charter—commonly known as the notwithstanding clause—to reinstate the mandatory minimums. “This government is putting the rights of criminals ahead of children,” Poilievre charged during Question Period.
I spoke with constitutional lawyer Emmett Macfarlane at the University of Waterloo, who explained the broader implications. “The notwithstanding clause has traditionally been used sparingly at the federal level. Normalizing its use for criminal sentencing would represent a significant shift in our constitutional landscape,” Macfarlane said.
The Supreme Court’s reasoning hinged on hypothetical scenarios where the mandatory minimums might apply to less serious conduct. For example, a teenage couple consensually sharing intimate images could technically fall under the same provisions as those distributing exploitative material of young children.
“The Court wasn’t suggesting child pornography offenses aren’t serious,” explained Carissima Mathen, constitutional law professor at the University of Ottawa. “Rather, they found that the blanket application of these minimums could capture conduct that doesn’t warrant the same penalty.”
Criminal defense attorney Daniel Brown told me the ruling doesn’t prevent judges from imposing strict sentences when warranted. “Judges still have the discretion to hand down severe penalties for serious offenders. What’s changed is the mandatory floor, not the ceiling.”
The debate has reignited longstanding tensions about judicial authority versus parliamentary supremacy. After reviewing court transcripts and legal analyses from the Canadian Bar Association, it’s clear many legal experts worry about normalizing the override power for politically contentious criminal justice matters.
Former Supreme Court Justice Louise Arbour cautioned in a public statement that using the clause here would set a dangerous precedent. “Once we begin overriding judicial findings of Charter violations in criminal matters, we fundamentally alter the constitutional balance that has defined our democracy,” she noted.
While the Liberals have categorically rejected using the clause, they’ve committed to exploring legislative alternatives. Justice Department officials confirmed they’re examining potential amendments that could satisfy both constitutional requirements and public safety concerns.
Public Safety Minister Dominic LeBlanc emphasized the government remains committed to protecting children from exploitation. “We can craft legislation that’s both tough on these heinous crimes and respects our constitutional framework,” LeBlanc said in a written statement to reporters.
Having covered legal affairs for over a decade, I’ve observed the notwithstanding clause growing more politically acceptable in recent years, particularly at the provincial level. Quebec used it preemptively to shield language laws from Charter challenges, while Ontario attempted to use it in a labor dispute with education workers.
The federal reluctance marks a significant contrast. Since the Charter’s inception in 1982, no federal government has invoked Section 33, treating it as a measure of last resort rather than a standard legislative tool.
Victim advocacy groups remain divided. The Canadian Centre for Child Protection expressed disappointment with the Court’s ruling but stopped short of endorsing the notwithstanding clause. “We need sentencing that reflects the gravity of these offenses while ensuring the system functions constitutionally,” their spokesperson told me.
As Parliament grapples with this issue, the fundamental question extends beyond this specific case: When, if ever, should elected officials override judicial determinations that certain laws violate constitutional rights? The government’s firm stance suggests they believe such a threshold hasn’t been met, even for offenses universally condemned.
The debate continues as Justice Canada officials work on draft legislation they hope will withstand future Charter scrutiny while maintaining appropriate penalties for those who harm children.
