Alberta invoked the notwithstanding clause on Monday to introduce legislation compelling striking teachers to return to work. This move raises questions about the rarely-used mechanism 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 contravene specific constitutional rights and freedoms despite protection under the Charter.
This clause can only override sections 2, and 7–15, which encompass fundamental, legal, and equality rights. These sections encompass crucial principles such as freedom of expression, religion, association, protection against unreasonable search and seizure, legal counsel rights, and more. However, it cannot be applied to democratic, mobility, language rights, or sexual equality provisions.
The clause has a five-year expiration period from its invocation. It was introduced in 1982 as a compromise by Peter Lougheed, Alberta’s premier at the time, to make the Charter more acceptable to provinces and secure their agreement.
Since 1982, Quebec, Ontario, Saskatchewan, Alberta, and Yukon have utilized the notwithstanding clause in legislation. Notable instances include Alberta’s use in 2000 for anti-same-sex marriage laws, Quebec’s 2019 ban on religious symbols for public employees in authority positions, and Saskatchewan’s 2023 legislation on sexual education and parental notification for name/pronoun changes.
Regarding the right to strike, a 2015 Supreme Court ruling established that the Charter protects this right, emphasizing its importance for collective bargaining. The significance of this decision for workers’ rights in Canada cannot be understated.
In cases where workers defy back-to-work laws, the repercussions vary based on enforcement and legal specifics. For instance, in 2022, Ontario Premier Doug Ford faced swift backlash for using the notwithstanding clause to prevent education workers from striking. The workers proceeded with a strike, prompting widespread opposition and eventual repeal of the legislation.
This incident underscores the importance of government legitimacy in enforcing laws and the likelihood of disobedience when actions are perceived as illegitimate.
Overall, the use of the notwithstanding clause in labor disputes raises complex legal and societal implications that warrant attention and scrutiny.