Time to limit the notwithstanding clause

You can perhaps better understand why the federal government has asked Canada’s Supreme Court to rule on whether there should be guardrails on how the notwithstanding clause can be used.

The clause enables provincial governments — and theoretically, even the federal government — to bring in legislation that violates the Canadian Charter of Rights and Freedoms.

It’s easier to understand why the federal government wants the Supreme Court’s ruling when provinces like Alberta are using the clause for things as common as imposing contracts on its employees — thereby giving those employees no ability to strike or challenge the imposed contracts in court.

The Alberta government took such an action against its striking teachers on Monday despite having other options, and despite recognizing that the law it brought in likely not only violates the Canadian Charter of Rights and Freedoms, but the Alberta Bill of Rights and the Alberta Human Rights Act as well.

The government could have legislated its striking teachers back to work and imposed binding arbitration. They didn’t. Perhaps they realized that an arbitrator was more likely to side with the teachers. Instead, the government legislated a contract and removed the teachers’ right to challenge that contract in the courts.

As Section 3 of the legislation clearly states, “This Act shall operate notwithstanding (a) sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms, (b) the Alberta Bill of Rights and (c) the Alberta Human Rights Act.”

Nothing demonstrates a lack of political skill and expertise better than resorting to changing the rules to impose your solution — a contract already rejected by more than 80 per cent of Alberta’s teachers — and then using constitutional powers to make that solution unreviewable, even by this country’s judicial system.

So just how cheap are your human rights if you happen to live in Alberta?

Cheap enough that your provincial government can snuff them out of existence in a legislative action taking less than 24 hours, leaving you no legal recourse. (There also has to be some easy comedy available in the fact that, almost exactly a year ago, Alberta Premier Danielle Smith introduced a revamped Alberta Bill of Rights, saying “In an ever-evolving world, we must be vigilant to ensure the rights and freedoms of Albertans continue to be protected…” — and the world has now “evolved” so much, she’s suspended that bill of rights for teachers.)

Smith — who took the issue of using the legislative hammer of the clause so seriously that she flew away to Saudi Arabia on a business trip instead of seeing the legislation through the Alberta legislature — has set a dangerous precedent.

And so, a constitutional failsafe is now simply a way for a provincial government to impose laws that override human rights any time that government doesn’t get its way.

You can argue this if you like, but the fact is that Albertans — particularly Albertan teachers — are now second-class citizens, deemed unworthy of the Charter rights available to other Canadians.

Meanwhile, here, Premier Wab Kinew is taking a more principled approach, echoing the submission made by the federal government to the Supreme Court — suggesting courts should be able to determine if legislation violates the Charter, even if the legislative body bringing it in uses the notwithstanding clause.

Alberta students already face the lowest per capita funding in the country. Now, they’ll have a workforce of teachers who — while still professionals who care deeply for the needs and goals of their students — have to now rank among Canada’s most angry and demoralized teachers.

As for Smith and her government?

Suffice to say she’ll face more than just the wrath of the teachers.

Buckle up, Alberta.