Critics call Alberta’s use of the notwithstanding clause a threat to democracy

School will resume across Alberta on Wednesday, marking an end to a three-week teacher strike. CTV News Edmonton's Connor Hogg has the latest.

Following Alberta’s use of the notwithstanding clause, sending 51,000 teachers back to work after a historic three-week strike, some critics are calling the move a threat to democracy at large.

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But this isn’t the first time the province has attempted to use it.

Former premier Ralph Klein used the notwithstanding clause in 1998 to limit the compensation of those seeking reparations after being sterilized unwillingly between 1927 and 1972.

It was also used in 2000 under Klein in an attempt to define marriage as only a union between a man and a woman.

Both uses faced swift public backlash and were ultimately repealed.

Bill 2, the Back to School Act, passed late Monday night, with one political science professor saying that left little time for the legislation to potentially be walked back, like it was in the previous cases.

“They compressed the legislative process, they removed the ability of the courts to weigh in, and the premier herself hopped on a flight to the Middle East and is not listening to her constituents,” said University of Alberta political scientist Jared Wesley. “That’s not the way the notwithstanding clause was intended there in the beginning.”

The notwithstanding clause was inserted into the Constitution in 1982 under the premise that legislatures would decide which rights would be removed under certain circumstances.

“Governments across the country, included here in Alberta, have ended public sector strikes with normal pieces of legislation, and those laws have been debated in the plain hour of the day, not in the middle of the night, and not with an abbreviated debate, and certainly not by short circuiting the ability of the courts to weigh in on the issue,” said Wesley.

Ontario Premier Doug Ford attempted to use the notwithstanding clause in 2022 to prevent educational assistants from striking, and Quebec has used it several times, although not in issues of labour disputes.

“Every time it’s either threatened to be used, such as in Ontario, or actually used such as it has been in Quebec and now Alberta, it does normalize what was supposed to be an extraordinary event,” said Howard Sapers, the executive director of the Canadian Civil Liberties Association (CCLA).

“It does suggest a trend, and it’s not a healthy trend for our democracy,” he said.

While teachers are being forced back to work on Wednesday, there is speculation that there could be wider repercussions from other unions.

The Alberta Federation of Labour (AFL) said union leaders from across the province will be meeting under the banner “the Common Front” to strategize a response against Bill 2.

Jason Schilling, president of the Alberta Teachers’ Association (ATA), said that while teachers will be going back to work, the fight is far from over.

“Teachers will comply with the law, but make no mistake, compliance is not consent,” Schilling told reporters at a press conference Tuesday.

He said the ATA is speaking with lawyers about the next steps and is determined to take the bill to the courts to see the government reverse its decision on invoking the notwithstanding clause.

Finance Minister Nate Horner said the reasoning for using the notwithstanding clause is that there is “very little tolerance for further strikes.”

He said the unique situation with central and local bargaining tables left a “high risk” that if there were to be dissatisfaction of a legislative deal or an interest in arbitration, it could bleed into local bargaining.

“We weren’t prepared to see that happen, so we’ve shielded it from judicial review,” Horner told reporters Tuesday.

With files from CTV News Edmonton’s Jeremy Thompson