When it comes to the Notwithstanding Clause, Alberta has a history. It’s not a good one.
As most AUFA members now know, the governing United Conservative Party in the very early hours of Tuesday morning rammed through the Alberta legislature with minimal debate and maximal authoritarian heavy-handedness its Bill 2, which unilaterally imposes a contract on Alberta teachers who had been striking for fairer wages, more teacher-hires, and reasonable classroom resources.
Not only does Bill 2 impose a contract on Alberta’s teachers, undermining completely the very precepts of collective bargaining, but it uses our Constitution’s Notwithstanding Clause to pre-emptively bar teachers from challenging the law’s blatantly obvious and naked abrogation of their constitutional rights.
The Alberta government since the coming into force of the Charter in 1982 has tried to use the Notwithstanding Clause on only two occasions. Neither time has been a good look.
Notwithstanding: Eugenics in Alberta
Between 1928 and 1972, the province’s United Farmers government and its successor, the Social Credit government, oversaw a program of forced sterilization of nearly 3000 women and men deemed “mentally defective” by panels of ‘experts.’ It was a program as shockingly callous as it was criminally arrogant.
It was a horror show. Its tentacles reached deep and wide into the lives of ordinary people. And it remains one of the darkest stains on Alberta’s history.
In 1998, after Alberta’s 700 or so sterilization victims won the right to sue the province for forcibly taking away their right to have children, then-premier Ralph Klein’s government introduced legislation to limit their compensation to $150 000 each, promising to extend the horrors of forced eugenics right into the twenty-first century.
Knowing full well that doing so would deny the victims’ Charter rights, the Klein government included in the legislation the Notwithstanding Clause to forestall any of the victims’ recourse to the courts for justice. In the end, so vociferous was public outcry over the Alberta government’s efforts that Klein and his cabinet backed down and scratched the bill.
Notwithstanding: Same Sex Marriage
The second time Alberta used the Notwithstanding Clause was in 2000, when the Klein government tried to limit the definition of marriage to a union between a man and a woman. Boldly flying in the face of both popular opinion and basic decency, the Alberta government again turned to the Notwithstanding Clause, once more fully knowing that the legislation plainly discriminated against people on the basis of their sexual orientation. In the end, the Supreme Court ruled the legislation ultra vires when it found that marriage fell under federal rather than provincial jurisdiction. The province, in other words, lacked the jurisdictional competence to legislate what constituted marriage in the first place.
Notwithstanding: Alberta on the wrong side of history
In both instances, the Alberta government stood on the wrong side of human rights and on the wrong side of history. In both instances, the Alberta government offended not just the Charter—it deeply offended Albertans, too.
On Tuesday, Alberta’s UCP government showed itself once again on the wrong side of human rights, of history, and of public opinion. For only the third time in the entire 43-year history of the Charter of Rights and Freedoms, Alberta’s government has turned to the Notwithstanding Clause, this time to limit Alberta teachers’ fundamental freedoms as outlined in Section 2 of the Charter itself.
Let’s be clear: the UCP government’s wholly unnecessary decision to use the Notwithstanding Clause, the ‘nuclear option’ of Canadian legislation, is its conscious and deliberate removal of Albertans’ civil rights. It says it well knows that the Back to School legislation takes away our Charter rights, and that it doesn’t care.
And they won’t stop there. The UCP government is poised to invoke the Notwithstanding Clause again to force legislation banning access to gender-affirming care and otherwise stripping the rights from trans youth in this province.
Using the Notwithstanding Clause to force unpopular and unconstitutional laws says to all Albertans that the UCP government doesn’t care about labour or civil rights; it doesn’t care what our judicial system says; and it doesn’t care what the vast majority of Albertans think.
How this impacts AUFA members
The passage of the Back to School Act doesn’t just force teachers’ back to work. It doesn’t even just unilaterally impose a contract on them. It takes away their right to bargain collectively, to withdraw their labour, or to challenge the government in court.
While this precedent affects all Albertans, it immediately and directly impacts those of us, like AUFA, who are currently at the bargaining table with our public sector employers. The government’s Bill 2 signals that none of us can count on anything at the table because our bargaining process is dictated to a large extent by a government that has no qualms about side-stepping Alberta workers’ Charter rights to collectively bargain with their employer.
What AUFA members can do
The labour movement’s response to this egregious attack is still developing, as unions across the province educate and consult with their members about the issues and possible actions to take. In the meantime, AUFA members should:
complete the online survey sent internally on October 29.
phone and/or write your MLA, the Education Minister, and the Premier.
add yourself to the Common Front’s action list by texting RESIST to 55255.
attend as many upcoming rallies as you can.
make known your outrage.
In any other ways, tell the Alberta government that when it takes away the rights of one of us, it takes away the rights of all of us. Tell the Alberta government that this will not stand.
Eric Strikwerda
Associate Professor, Canadian History, and AUFA Job Action Committee member