The Alberta Teachers’ Association is weighing its legal options to challenge back-to-work legislation imposed by the provincial government.
“The association will fight this abuse of power with every tool the law provides, and every ounce of conviction we possess,” ATA president Jason Schilling told reporters on Tuesday.
The Back to School Act pre-emptively invokes the notwithstanding clause to stop teachers from striking and prevent courts from overturning the law.
The government has said the use of the clause was justified to prevent localized strikes and ensure school is not interrupted again.
The ATA has been mum on what it plans to do. But CBC spoke to lawyers and civil liberty associations to get a sense of whether the back-to-work order could be challenged in court.
Can the clause be challenged in any way?
The notwithstanding clause, or Section 33 of the Canadian Charter of Rights and Freedoms, allows governments to pass legislation that violates certain portions of the Charter for up to five years.
Using the clause means the legislation can not be overturned, but Marion Sandilands, a partner at Conway Litigation said how a court can rule alongside the notwithstanding clause remains an open question.
“Even if it can’t strike it down because of the notwithstanding clause, the court can declare whether or not it violates Charter rights,” she said.
“So in this case, the court might be asking itself, does this violate the right to collective bargaining, for example?”
There are two high-profile recent cases where the notwithstanding clause has been invoked and challenged in court: In Saskatchewan and Quebec.
In 2023, Premier Scott Moe’s Saskatchewan Party government brought in a law preventing children under 16 from changing their names or pronouns at school without parental consent.
And in 2019, the Quebec government used the notwithstanding clause to pass its secularism law.
Both cases saw legal challenges and were appealed by the provincial governments with contrasting results.
In Saskatchewan, the court of appeal said courts can make declarations about constitutionality, even if a law can’t be struck down, but that wasn’t the case in the Court of Appeal of Quebec.
“The courts of appeal in the different provinces have come to different conclusions about how much courts can intervene,” said Vibert Jack, litigation director with the BC Civil Liberties Association.
Both the Quebec and Saskatchewan cases are being appealed to the Supreme Court. It hasn’t yet agreed to hear the Saskatchewan case yet.
Jack said the cases raise a philosophical question about whether courts can review and make declarations about Charter rights being violated once the notwithstanding clause is invoked.
“The law will continue to operate, have legal effect, but beyond that, it’s not totally clear what remedies the courts could provide,” Jack said.
Federal lawyers have argued the clause doesn’t shield laws from judicial scrutiny.
If it can’t be struck down, why bother?
Sandilands said while it can’t be struck down, the court could rule on whether Alberta’s back-to-work legislation itself violates the right to freedom of association.
“That’s at the very minimum of moral victory for the union. And it might also influence public opinion around the issue,” she said.
Jack agrees that symbolic recourse could be worthwhile.
“It’s not meaningless, it puts the government on notice and it puts the electors on notice that there’s a problem with this law that needs to be addressed.”
What’s next?
The ATA has said it will comply with the law. Teachers were back in the classroom on Wednesday.
The Canadian Bar Association’s Alberta branch has taken issue with the pre-emptive use of the clause.
“By doing so, they are seeking to remove the judicial branch from the democratic law-making process,” president Christopher Samuel said in a statement.
“If the notwithstanding clause is to be invoked, it should only be used as a tool of last resort, after the courts have had a chance to examine the legislation.”
The Canadian Civil Liberties Association would be interested in applying to be an intervener if there is a legal challenge, executive director Howard Sapers said.
Sapers, a former MLA for the Alberta Liberal Party, said using the clause in this way is problematic.
“Without sounding alarmist, it is anti-democratic and it undermines people’s confidence in certain things, in certain systems that we’ve taken maybe a little bit for granted — like the right to collective bargaining.”
