The Liberal government's proposed legislation, Bill C-16, has ignited a significant debate over criminal sentencing and constitutional rights in Canada. At the heart of the controversy is the bill's approach to reinstating mandatory minimum punishments for serious crimes, many involving child victims, which courts had previously struck down.
The Core of the Controversy: Override or Prudence?
Opposition Leader Pierre Poilievre has been a vocal critic of the government's strategy. He argues that instead of the current formulation in Bill C-16, the administration of Prime Minister Mark Carney should invoke the Charter's notwithstanding clause to override judicial rulings. These rulings have found that some mandatory minimums constitute cruel and unusual punishment, thereby violating the Charter of Rights and Freedoms.
Bill C-16, however, takes a different path. While it seeks to bring back many of these mandatory minimum sentences, it incorporates a critical judicial safety valve. The legislation allows judges to depart from these prescribed minimums in exceptional cases where applying them would result in a sentence so disproportionate it would shock the public conscience.
Understanding the Weight of the Notwithstanding Clause
The notwithstanding clause, or Section 33(1) of the Charter, is a powerful and contentious tool. It permits Parliament or a provincial legislature to pass laws that explicitly operate despite certain fundamental Charter rights. Its use is often seen as a last resort.
As the article notes, Albertans have recently gained a close familiarity with this clause. When a government chooses to invoke Section 33, it is making a profound admission. It concedes that the legislation breaches individual rights and, more significantly, that this breach cannot be justified as a "reasonable limit" in a free and democratic society under Section 1 of the Charter.
Governments routinely pass laws that may infringe on rights, such as impaired driving legislation that limits the right to counsel. However, these laws are upheld because courts accept they are demonstrably justified for the greater public good. Invoking the notwithstanding clause bypasses this justification test entirely.
Bill C-16's Balanced Approach
By rejecting the notwithstanding clause and opting for the structure in Bill C-16, the federal Liberals are positioning their legislation to withstand Charter scrutiny through the normal judicial process. The bill acknowledges the court's role in determining what constitutes cruel and unusual punishment.
This approach suggests the government believes its policy of reinstating mandatory minimums for severe crimes can meet the Section 1 test of being a reasonable limit in many cases, while still respecting the judiciary's duty to prevent grossly disproportionate sentences in individual circumstances. The debate, set against the backdrop of December 2025, highlights the ongoing tension between parliamentary sovereignty, judicial review, and the protection of Charter rights in Canada's justice system.
