Alberta and the notwithstanding clause: Why the province just used it, and why it was logical to do so

Ten years ago, the Supreme Court of Canada issued a decision that has since become notorious as a classic of our imperious judiciary. The case raised the question of whether section 2(d) of the Charter of Rights and Freedoms, which guarantees freedom of association, protects the right to strike. The Court’s decision not only overturned a trio of precedents (the so-called “Labour Trilogy,” one of which originated in Alberta) but, as the dissent pointed out, the new rule “[did] not accord” with a judgment of the Court issued just two weeks earlier. As noteworthy as the Court’s decision to toss out almost two decades of its own jurisprudence was its reason for doing so. There was no attempt to justify the new rule on the basis of a better understanding of the text or on dramatically changed circumstances. No, the majority simply said it felt like changing the rule. Specifically, in a now-infamous phrase, Justice Abella wrote for the majority that “It seems to me to be the time to give this conclusion [i.e., that the Charter protects the right to strike] constitutional benediction.” It seemed so to her, so it must be so. The two judges in dissent were understandably aghast at this blithe approach to changing our fundamental law. “Democratically elected legislatures,” they reminded the majority, “are responsible for determining the appropriate balance between competing economic and social interests in the area of labour relations.” More pointedly, they urged that “[i]t is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives,” especially when doing so would “usurp the responsibilities of the legislative and executive branches.” The Supreme Court’s change of heart on the question of whether the Charter protects a right to strike must have been front of mind for the current Alberta government when it decided to invoke the notwithstanding clause this week to pass legislation to end a teacher’s strike that was entering its fourth week. No doubt provincial lawyers concluded that, while the legislation might have passed constitutional muster in 2014, it would almost certainly be enjoined and eventually struck down under the rule the Supreme Court has since innovated. This analysis explains why a common objection to Alberta’s use of the notwithstanding clause in this case, namely that it is using the clause “pre-emptively,” doesn’t hold water. The Supreme Court’s decision in 2015 preempted a government’s ability to declare a strike illegal and move swiftly to end it; Alberta’s legislation is just the logical response to that new rule. Using the notwithstanding clause saves all sides the cost and time of litigating a foregone conclusion. No one objecting that Alberta’s use of the clause is pre-emptive actually doubts that. I have written before and at length about why the notwithstanding clause is not just a legitimate tool the Charter gives legislatures, but quite literally the sine qua non of the Charter, and why the Supreme Court of Canada’s unjustified and sometimes whimsical treatment of the Charter as its personal plaything has vindicated the clause’s inclusion in the Charter and justifies its more frequent use. I will not rehearse those arguments here, except to say that Danielle Smith was absolutely right when she said “The Notwithstanding Clause is integral to the Canadian Charter of Rights and Freedoms and an unassailable provincial constitutional right.” She is right, whether or not you agree with the province’s use of it in this case. I’ll go further. If you think the provincial government’s proposed solution to the teachers’ strike is precipitous or high-handed, or that it’s unnecessarily provocative and invites further labour unrest, that’s great! Let’s have that argument. I might even agree with you. Reasonable people can disagree on complex questions of education policy and the proper allocation of finite provincial resources. We are able to have that debate because it is a political question with a range of possible political solutions. More to the point, if you disagree with the government’s decision, you can do something about it: vote them out. The same cannot be said of the judges who intervened in 2015 to try to shut down these political debates. So, go ahead and make the case that the government shouldn’t impose a collective bargaining agreement on Alberta teachers, but please don’t complain that, having decided to do so, they used the notwithstanding clause. That’s what it’s there for: to keep political decisions where they belong, in the political arena where not just the government, but you and I, as voters, can do something about it.