Alberta utilized the notwithstanding clause on Monday, putting forth legislation to compel striking teachers to return to work. Here’s a brief overview of this rarely-used provision and its significance.
The notwithstanding clause, found in Section 33 of the Canadian Charter of Rights and Freedoms, permits federal or provincial legislatures to enact laws that infringe on specific constitutional rights and freedoms, overriding the Charter’s protection of those rights.
This clause can only override sections 2, and 7–15, which encompass fundamental, legal, and equality rights. These include crucial principles of the Charter such as freedom of expression, religion, and association, protection against unreasonable search and seizure, right to legal counsel, and protection from discrimination by the government.
However, the notwithstanding clause cannot be applied to democratic rights, mobility rights, language rights, or the sexual equality clause. It automatically expires five years after being invoked, aligning with the requirement for elections to be held at least every five years to hold the invoking government accountable.
The genesis of the notwithstanding clause dates back to 1982 when Canada brought back its constitution from the UK. Provincial governments, wary of a shift in power from legislatures to the judiciary with the introduction of the Charter of Rights and Freedoms, were convinced to agree to it through a compromise suggested by Peter Lougheed, Alberta’s premier at the time.
Since 1982, Quebec, Ontario, Saskatchewan, Alberta, and Yukon have all utilized the notwithstanding clause in passing laws. Notable instances include Alberta’s usage in 2000 for anti-same-sex marriage legislation, Quebec’s 2019 application to restrict religious symbols, and Saskatchewan’s 2023 implementation concerning sexual education.
The Charter’s stance on the right to strike has evolved over the years. Initially, in 1987, the Supreme Court held that there was no constitutional right to strike, a decision overturned in 2015. The latter ruling established that the Charter indeed safeguards the right to strike, crucial for the collective bargaining process.
In cases where workers disregard a back-to-work law, the consequences vary based on the law and its enforcement. Notably, in 2022, Ontario Premier Doug Ford faced swift backlash after invoking the notwithstanding clause to prevent education workers from striking. The ensuing standoff resulted in a repeal of the legislation and a return to negotiations after the workers persisted with their strike action.
The lesson from such incidents, according to Barry Eidlin, a sociology professor at McGill University, underscores the importance of government actions being perceived as legitimate for compliance with laws and regulations.
