Alberta utilized the notwithstanding clause on Monday as it presented a bill to mandate striking teachers to return to work. Understanding the significance of this rarely employed mechanism is essential.
The notwithstanding clause, outlined in Section 33 of the Canadian Charter of Rights and Freedoms, enables federal or provincial legislatures to enact laws that breach specific constitutional rights and freedoms, overriding their protection in the Charter.
This clause can only supersede sections 2, and 7–15, encompassing fundamental, legal, and equality rights. Not covered are democratic rights, mobility rights, language rights, or the sexual equality clause. It automatically expires five years after activation, aligning with the legislative election cycle for public accountability.
The inception of the notwithstanding clause dates back to 1982 when Canada repatriated its constitution, with provincial governments apprehensive about ceding power to the judiciary under the new Charter of Rights and Freedoms. Proposed by then-Premier Peter Lougheed of Alberta, the clause served as a compromise to garner provincial support for the Charter.
Since 1982, Quebec, Ontario, Saskatchewan, Alberta, and Yukon have employed the notwithstanding clause in various legislative measures. Examples include Alberta’s use in 2000 to enact anti-same-sex marriage laws, Quebec’s 2019 utilization to restrict religious symbols in public roles, and Saskatchewan’s 2023 application concerning sexual education legislation and parental notification on name or pronoun changes.
Regarding the right to strike, a pivotal Supreme Court ruling in 2015 established that the Charter protects this right, emphasizing the importance of collective bargaining. This decision marked a significant shift in workers’ rights protection in Canada.
In cases where workers defy back-to-work legislation, outcomes hinge on law specifics and enforcement. An illustrative case from 2022 saw Ontario Premier Doug Ford invoking the notwithstanding clause to prevent education worker strikes. Despite initial support, swift backlash and threats of a general strike compelled Ford to retract the legislation, demonstrating the impact of public perception on government actions.