Alberta utilized the notwithstanding clause on Monday to present a bill compelling striking teachers to return to work. The notwithstanding clause, found in Section 33 of the Canadian Charter of Rights and Freedoms, allows federal or provincial legislatures to enact laws that infringe on specific constitutional rights and freedoms despite their protection in the Charter.
This clause can override sections 2, 7–15 of the Charter, which include fundamental, legal, and equality rights such as freedom of expression, religion, association, protection against unreasonable search and seizure, legal counsel rights, and protection from discrimination by the government. It cannot be applied to democratic rights, mobility rights, language rights, or sexual equality provisions, and expires five years after being invoked, coinciding with the requirement for elections every five years.
The notwithstanding clause was proposed by Peter Lougheed, Alberta’s premier at the time, as a compromise to make the Charter more acceptable to provinces during the 1982 repatriation of the Canadian constitution. Since then, Quebec, Ontario, Saskatchewan, Alberta, and Yukon have all enacted laws using the notwithstanding clause, with examples including Alberta’s legislation on same-sex marriage in 2000 and Quebec’s prohibition of religious symbols in 2019.
In a significant shift, the Supreme Court ruled in 2015 that the Charter does protect the right to strike, emphasizing its importance in the collective bargaining process. This decision marked a change in the treatment of workers’ rights in Canada, as prior to this ruling, legislatures frequently resorted to back-to-work legislation.
The consequences of ignoring a back-to-work law vary, as demonstrated by a case in 2022 when Ontario Premier Doug Ford faced backlash after invoking the notwithstanding clause to prevent education workers from striking. Despite low public support, the workers proceeded with the strike, prompting Ford to retract the legislation four days later. This incident underscores the importance of government legitimacy in enforcing laws and the likelihood of disobedience when actions are perceived as illegitimate.
