Last week, Pierre Poilievre announced at the Port of Vancouver that he would introduce mandatory life sentences for “fentanyl kingpins,” who he defined as anyone convicted of trafficking, producing, or exporting more than 40 milligrams of the deadly drug. He also promised mandatory 15-year sentences for traffickers caught with between 20 and 40 milligrams.
That will sound like a good plan to many Canadians. But consider that most illegal fentanyl tablets contain at least two milligrams of the drug. What this policy would mean is a potential mandatory life sentence for someone in possession of as few as 20 tablets of fentanyl. That’s hardly a “kingpin.”
For context, in 2021’s R. v. Parranto, the Supreme Court only narrowly upheld a sentence a 14-year-sentence after a man was found in possession of 27.8 grams—grams not milligrams—of fentanyl, along with other drugs, guns, and body armour.
Poilievre’s proposal demonstrates a striking disconnect between rhetoric and reality. A mere 20 tablets of fentanyl is an amount that could plausibly represent personal use by someone with opioid dependency—the population least effectively addressed by heavy prison sentences—and is at worse what a low-level dealer would possess.
If he intends to move forward with the proposal, he will almost certainly need to invoke the notwithstanding clause to prevent it from being struck down by the courts. Section 12 of the Constitution guarantees freedom from cruel and unusual punishment. If Section 33 isn’t used to immunize the law, courts would consider whether, under a reasonable hypothetical, a mandatory life or 15-year sentence could be “grossly disproportionate” to the gravity of the offence. You can safely guess where they’d land.
The most intriguing part of Poilievre’s announcement was not the policy itself but his novel legal theory in defence of it. Poilievre addressed the Charter question head-on: “What I am proposing today is not only allowed under the Charter, it is required by the Charter,” he said when asked if he was prepared to use Section 33, which he has previously indicated a willingness to do in the context of criminal sentencing.
RCMP Cpl. Derek Westwick holds a vial to demonstrate the small amount of fentanyl that could potentially kill, during a news conference at RCMP headquarters in Surrey, B.C., on Thursday, September 3, 2015. Darryl Dyck/The Canadian Press.
Perhaps to counter the accusations that he’s violating rights, Poilievre put forward an interesting new legal theory. He explained his view that “fifty thousand people”—meaning Canadians who have died from opioid-related overdoses since 2016—”have had their Section 7 right to life violated by the open borders soft-on-crime, legal-drugs policy of the Liberals.” Poilievre concluded that judges would be “obliged” to uphold his law, given the severity of fentanyl-related deaths and his law’s clear aim at preventing them.
That’s an odd position, given that Canadian conservatives have consistently maintained that the Charter is a classically liberal document that guarantees negative rights of individuals against the state— i.e., my right to keep the state out of my home, place of worship, or business, except when demonstrably justified. Poilievre’s claim would seem to be a sort of right-wing positive rights claim, in which individuals—in this case, fentanyl victims—can claim a positive obligation on the government to get tough on crime and lock up bad guys.
