The Alberta Government’s Use of the Notwithstanding Clause

The last few months have been a crazy time in Alberta Politics (to say the least). If you’re a student who’s been struggling to keep up or your head has been in your studies, here are some things you missed.

Teacher’s Strike

51,000 Teachers across Alberta went on strike. They were protesting low wages and poor working conditions, including large class sizes and inadequate classroom support. Larger class sizes and fewer resources mean that many students  — like students with mental health challenges, learning disabilities, or those learning English — will not have the support that they need in school.

After three weeks of protesting, the Alberta government invoked the notwithstanding clause to force teachers to return to work. The notwithstanding clause has removed Alberta Teachers’ right to the freedom of association and freedom of expression, and they are no longer allowed to strike. Following the Back to School Act, Edmonton students walked out of their classrooms in late October and protested outside the legislative building. 

Along with the Back to School Act, the government also imposed a contract on the teachers. A contract that had been previously rejected by 90% of the teachers who voted on it in September. This contract offered wage increases over 4 years and the hiring of more teachers and educational assistants. 

According to CBC, Premier Danielle Smith announced a “new class size and complexity cabinet committee” in early November. Committee Co-chair and Education and Childcare Minister Demetrios Nicolaides stated that the committee lacks the authority to allocate more than $400 million to improve school conditions, which led to the strike. This money will be allocated over the course of 3 years to provide teachers with educational assistants and to hire more teachers. 

Trans Youth Bills

On December 10, the UCP government stayed up till the early hours of the morning to pass a bill that affects three laws on transgender youth. Smith’s UCP government used the notwithstanding clause to shield these three bills from legal challenge. 

The three laws will police names and pronouns in school, ban transgender girls from participating in amateur female sports, and restrict gender-affirming care for youth under 16. This legislation will force schools to out students. 

According to TransAction Alberta, gender-affirming care can reduce depression and other mental health challenges by up to 60% in transgender people. The Alberta Medical Association has said that puberty blockers do not render a person sterile or infertile, and they can protect transgender children from more permanent changes that come with puberty. 

Smith was not in the chamber when these bills were passed.

What exactly is the notwithstanding clause, and why is it such a big deal?

The notwithstanding clause allows the government to override specific Canadian Charter Rights for up to five years. The rights affected are our fundamental, legal, and equal rights — such as the freedom of association (including the right to protest), freedom of religion, and protection from government discrimination. The notwithstanding clause cannot be applied to mobility rights, democratic rights, language rights, or the sexual equality clause. 

The goal was for the clause to be used in significant cases. Previously, Alberta has attempted to use this clause to restrict same-sex marriages — though that attempt was unsuccessful — and has been called on three times in the past by Ontario Premier Doug Ford, but has only been used twice. 

Alberta Premier Danielle Smith has invoked the clause four times in two months. 

The Alberta Teachers’ Association interviewed Professor Wayne MacKay of Dalhousie University, who has been a Member of the Order of Canada since 2006 and is one of Canada’s foremost constitutional law experts. MacKay says, “There has been an increasing use of the notwithstanding clause by provinces throughout Canada in the last few years, to the point that many charter supporters, and people generally, are expressing concern that it is being overused and that it should be revisited.”

“When we have a democratically elected government that is clearly and intentionally saying, we’re going to violate your basic rights. We don’t like that, especially when they’re doing it frequently,” says MacKay. “That’s what people find offensive.”

Now what?

Now, the Alberta Teachers’ Association is challenging the use of the notwithstanding clause in court. Sean Brown, chief negotiator and coordinator of Teacher Employment Services for the Alberta Teachers’ Association, says the court challenge is about “teacher bargaining and the ability of teachers to exercise their constitutionally protected right to go on strike.”

“The invocation of the notwithstanding clause puts into question the validity of all workers’ bargaining rights if a government can, with the stroke of a pen, dismiss them.” says Brown.

TransAction Alberta has launched an online petition to halt the use of the notwithstanding clause on trans-related laws that were recently passed. Additionally, the Canadian Medical Association has challenged the law in court, arguing that it violates a doctor’s right to freedom of conscience. 

The Edmonton Journal reported that Smith will likely use the notwithstanding clause again if the Supreme Court of Canada continues to be “unreasonable in some of its judgements, and not be deferential to the decisions and the (reasons) elected decision makers are making their policy decisions.” 

“When you have an important policy decision, what’s required for a province to set aside our charter of rights?” says MacKay, who also says that the Alberta government is “dealing with current and very significant social issues and making the statement that the province should have the final say, not the court.”