Last month, Alberta Premier Danielle Smith ended a three-week teachers’ strike by passing Bill 2—the Back to School Act, a nasty piece of legislation stripping teachers of their Charter-protected right to strike. To do so, her government invoked Section 33 of Canada’s Charter of Rights and Freedoms. This is the infamous notwithstanding clause, which allows governments to pass legislation that infringes on Charter rights and grants them immunity from challenges in court.

The blowback was immediate. Amnesty International declared that Smith’s government had placed “political expediency ahead of people’s human rights.” Howard Sapers, executive director of the Canadian Civil Liberties Association, said it was unhealthy for Canada’s democracy. Of course, Smith had her defenders. Former Alberta premier Jason Kenney defended the government and irately condemned Sapers as a “left-wing activist,” and conservative-leaning law professor Mark Mancini wrote in the National Post that the constitutional right to strike wasn’t even real, having been “invented” by an “activist Supreme Court” in a prior decision.

The throwdown over Bill 2 was just the latest in a string of commotions related to the notwithstanding clause across Canada, all of which have followed the same dynamic: a conservative government invokes the clause in order to pass legislation that would otherwise be prohibited by the Charter. Outraged leftists then decry the abuse of the Charter—and curse the notwithstanding clause that makes it possible.

It happened in 2019, when François Legault’s CAQ government in Quebec invoked Section 33 to pass Bill 21, which barred some public employees from wearing religious symbols—an infringement of Charter-protected rights to freedom of religion. In 2023, the government of Saskatchewan used Section 33 to pass a law requiring parental consent for students under 16 to change their pronouns at school. And this year, an Ontario judge put a pause on Doug Ford’s plan to force the city of Toronto to remove bike lanes, stating that it would violate Charter rights to security of the person by putting people at increased risk of harm and death. Ford........

© Macleans