Many of the Conservatives’ crime policies would be unconstitutional, experts say

Conservative Leader Pierre Poilievre visits Cancoil, a manufacturer of commercial refrigeration products, to hold a press conference in Kingston, Ont., on Thursday, April 3, 2025. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA — Pierre Poilievre has pledged to end what he calls the “hug-a-thug” criminal justice policies of the Liberal government — policies he claims have turned the streets of Canadian cities into “war zones.”

At his campaign rallies, the Conservative leader tells his supporters about prolific repeat offenders being treated with kid gloves.

“Right now, if you steal 100 cars, you get house arrest,” he told a crowd in Kingston, Ont., on Wednesday evening.

“You can watch Netflix or you can play Grand Theft Auto in your living room, or walk out the front door and do the real thing all over again.”

He beamed as he finished with a pledge: “A Canada first Conservative government will end house arrest for chronic offenders and we will lock them up.”

It’s a line that seldom fails to get enthusiastic applause at Poilievre’s rallies.

It’s also part of a suite of tough-on-crime measures the Tories are promising in this election, including mandatory life sentences for multiple offences.

But experts say many of those policies have failed in the past and are likely unconstitutional.

Poilievre has promised a law that would ensure life sentences for people convicted of five or more counts of human trafficking, importing or exporting 10 or more illegal firearms, or trafficking fentanyl. Poilievre said in a campaign video he wants to “ensure these monsters rot in jail forever.”

“For the most part, the promises are basically unworkable,” said Emmett Macfarlane, a political-science professor at the University of Waterloo specializing in constitutional law, governance and public policy.

“The Supreme Court has made clear over the last decade or so that, generally speaking, most mandatory minimum sentences will not be constitutional.”

In 2022, a Liberal government bill removed mandatory minimum sentences for all drug convictions and for some firearms and tobacco-related offences. The changes reversed “tough on crime” measures passed under former Conservative prime minister Stephen Harper.

The bill came after Canadian courts pushed back against mandatory minimum sentences. In a 2016 decision, the Supreme Court of Canada struck down a number of mandatory minimum penalties in the Controlled Drugs and Substances Act.

The Supreme Court has also upheld some minimum sentences and Macfarlane noted some mandatory minimums are still in the Criminal Code.

Courts also have the discretion to impose harsh sentences.

“But in lesser contexts, like someone importing 10 or more guns into Canada, or someone trafficking fentanyl, courts are not going to impose life sentences,” Macfarlane said.

Even if courts recognize the “horrific social ills of fentanyl trafficking,” he said, they will still see life in prison as an excessive penalty.

Macfarlane said the Conservatives are “making a promise that they probably know they can’t keep.”

“Even if they pass laws to this effect, the laws are almost guaranteed to be struck down in a lot of cases,” he added.

In an emailed statement, incumbent NDP MP Peter Julian said Poilievre knows about the court rulings and the “Conservatives pretending that mandatory minimum sentences are the answer is disingenuous.”

He said Poilievre is “more interested in campaigning on slogans than putting forward responsible solutions that help people and our communities.”

A Liberal spokesperson accused Poilievre of aping U.S. President Donald Trump by using language like letting “monsters rot in jail.”

But Poilievre isn’t backing away. In a Wednesday interview with radio station 640 Toronto, he promised “the biggest crackdown crime in Canadian history when I’m prime minister.”

Poilievre said he would “end Liberal house arrest laws.”

“I will pass a law that says any repeat offender will be ineligible for bail, parole, probation or house arrest. It will be jail, not bail,” he said.

Macfarlane said courts would be very likely to strike down a blanket ban on bail.

Such a law wouldn’t be sensitive to the individual context and wouldn’t give the courts any discretion, he said, adding that even people with criminal records are presumed innocent when they’re charged with a new offence.

Defence lawyer Greg DelBigio said if there is data to show that these policy measures would make the streets safer, or legal opinions indicating that they would be constitutional, it would be helpful for the Conservatives to release them.

“It is certain that if these measures were passed, that there would be extensive litigation,” he said. “Having regard to the current state of the law, it is entirely likely that … the provisions that relate to mandatory sentences or the automatic denial of bail would be struck as unconstitutional.”

Benjamin Perrin, a law professor at the University of British Columbia, was an adviser to Harper’s Conservative government and one of the architects of the tough-on-crime policies of the Harper era. He’s since changed his mind about mandatory minimum sentences.

“We saw an explosion of mandatory minimum penalties, including through the Safe Streets and Communities Act in 2012, where the number of mandatory minimums in the Criminal Code almost reached 100. There used to just be nine mandatory minimum penalties in 1987,” Perrin said.

He called mandatory minimums a “failed policy.”

Research shows they’re not effective at reducing crime and may actually increase recidivism, Perrin said.

“They increase delays in an already overburdened system, and they perpetuate disproportionate incarceration of Indigenous and Black people,” he added.

The likelihood of court challenges has led to questions about whether the Conservatives would use the notwithstanding clause to override the Charter of Rights in order to implement these policies.

Poilievre was asked that question in February, when he first announced a plan to impose life sentences on people convicted of trafficking, producing or exporting more than 40 milligrams of fentanyl.

He told reporters he wouldn’t need to use the notwithstanding clause because the move “is not only allowed under the Charter, it is required by the Charter.”

A Conservative party spokesperson pointed to a similar answer Poilievre gave last week to a different question, when he was asked about a court ruling on safe consumption sites near schools. “The Section 7 Charter rights of children should come first,” Poilievre responded.

Perrin said it would be a “very dangerous idea” to routinely use the notwithstanding clause “to override the constitutional rights of Canadians to enact your laws.”

It’s also not a sustainable strategy, he added, since the notwithstanding clause only applies for five years before it must be renewed.

Even if the Conservatives can’t keep their promises, Macfarlane said, there are voters who are attracted to the message.

“No one views criminals with sympathy, so it’s an easy target to really spout a lot of over-the-top rhetoric about evil monsters and such … and they know that this will play very well with the Conservative base,” he said.

He noted that if a Conservative government does introduce laws that end up getting struck down by the courts, “they can then still rally their base and fundraise off of the idea that these judicial activists are playing politics with laws enacted by Parliament.”

This report by The Canadian Press was first published April 5, 2024.

Anja Karadeglija and Sarah Ritchie, The Canadian Press