Alberta utilized the notwithstanding clause on Monday to present legislation compelling striking teachers to return to work. Delve into the infrequently utilized mechanism and its significance.
The notwithstanding clause, as delineated in Section 33 of the Canadian Charter of Rights and Freedoms, permits federal or provincial legislatures to enact laws that infringe upon specific constitutional rights and freedoms, disregarding the protection of those rights in the Charter.
This clause is applicable solely to override sections 2, and 7–15, which encompass the “fundamental,” “legal,” and “equality” rights. Included within these sections are fundamental principles of the Charter such as freedom of expression, religion, and association, protection against unreasonable search and seizure, legal counsel, and discrimination by the government.
It is important to note that the notwithstanding clause cannot be employed concerning democratic rights, mobility rights, language rights, or the sexual equality clause. The clause automatically lapses five years post its invocation, aligning with the requirement for elections every five years, allowing the public to hold the invoking government accountable.
The genesis of this clause dates back to the repatriation of Canada’s constitution from the United Kingdom in 1982. At that time, provincial governments harbored concerns regarding the new Charter of Rights and Freedoms, apprehensive of a power shift from legislatures to the judiciary. To assuage these concerns and garner provincial approval, Peter Lougheed, the premier of Alberta at the time, proposed the notwithstanding clause as a compromise.
Since 1982, Quebec, Ontario, Saskatchewan, Alberta, and Yukon have all enacted laws invoking the notwithstanding clause. Noteworthy instances include Alberta’s utilization in 2000 to pass anti-same-sex marriage legislation, Quebec’s use in 2019 to prohibit the wearing of religious symbols by public employees in authoritative roles, and Saskatchewan’s application in 2023 concerning sexual education legislation.
A pivotal moment in the evolution of workers’ rights in Canada occurred in 2015 with a landmark Supreme Court decision establishing the Charter’s protection of the right to strike. This decision marked a departure from previous practices where legislatures frequently enacted laws compelling workers back to work.
In cases where workers disregard back-to-work laws, the repercussions are contingent on the specifics and enforcement of the law. An illustrative incident took place in 2022 when Ontario Premier Doug Ford invoked the notwithstanding clause to prevent education workers from striking. The swift backlash led to only 36% of Ontarians supporting the move, prompting the workers to strike regardless. Subsequently, Ford rescinded the legislation, leading to the workers ending their strike and returning to negotiations.
