Alberta used the notwithstanding clause on Monday to introduce a bill that would compel striking teachers to return to work. The notwithstanding clause, found in Section 33 of the Canadian Charter of Rights and Freedoms, permits federal or provincial legislatures to pass laws that contravene specific constitutional rights and freedoms, overriding the Charter’s protection of those rights.
The notwithstanding clause can only be employed to bypass sections 2, and 7–15 of the Charter, which encompass fundamental, legal, and equality rights. These sections include crucial principles such as freedom of expression, religion, and association, protection against unreasonable search and seizure, right to legal counsel, habeas corpus, protection against cruel and unusual punishment, and safeguard from government discrimination.
Notably, the notwithstanding clause cannot be utilized concerning democratic rights, mobility rights, language rights, or the sexual equality clause. It expires five years after being invoked, aligning with the requirement for elections to be held at least every five years, enabling the public to hold the government accountable for its use.
The notwithstanding clause was proposed as a compromise by then Alberta Premier Peter Lougheed during the constitution’s repatriation in 1982 to make the Charter more acceptable to provinces and secure their agreement to it.
Since 1982, Quebec, Ontario, Saskatchewan, Alberta, and Yukon have all enacted laws invoking the notwithstanding clause for various purposes. For instance, Alberta utilized it in 2000 to pass laws against same-sex marriage, while Quebec employed it in 2019 to restrict the wearing of religious symbols by certain public employees, extending the legislation, including the notwithstanding clause, for an additional five years in 2024. Saskatchewan also utilized the notwithstanding clause in 2023 for legislation regarding sexual education and parental notification for name or pronoun changes by students.
The Charter was clarified regarding the right to strike through a significant Supreme Court decision in 2015, affirming that employees possess a constitutional right to strike, crucial in safeguarding the collective bargaining process. The ruling marked a pivotal moment for workers’ rights in Canada, shifting the legislative landscape towards greater protection of labor rights.
In cases where governments enact laws perceived as illegitimate, the likelihood of disobedience increases. This was evident in a 2022 incident in Ontario when Premier Doug Ford invoked the notwithstanding clause to prevent education workers from striking. The swift backlash led to a general strike threat by unions, prompting Ford to repeal the legislation within four days, demonstrating the power of public perception in shaping government actions and legitimacy.