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 with every ounce of conviction we possess,” ATA President Jason Schilling told reporters Tuesday.
The Back to School Act preemptively invokes the notwithstanding clause to prevent teachers from striking and prevent courts from overturning the law.
The government has said that the use of the clause was justified to prevent localized strikes and ensure that school is not disrupted again.
The ATA has not said anything about what it plans to do. But CBC spoke to lawyers and civil liberties associations to get an idea of whether the return-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 parts of the Charter for up to five years.
Use of the clause means the legislation cannot be overturned, but Marion Sandilands, a partner at Conway Litigation, said it remains an open question how a court can rule along with the notwithstanding clause.
“Even if you can’t revoke it because of the notwithstanding clause, the court can declare whether or not it violates Charter rights,” he said.
“So in this case, the court might ask: Does this violate the right to collective bargaining, for example?”
There are two recent high-profile 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 enacted a law that prevented children under 16 from changing their names or pronouns at school without their parents’ consent.
And in 2019, the Quebec government used the notwithstanding clause to pass its secularism law.
Both cases faced legal challenges and were appealed by provincial governments with contrasting results.
In Saskatchewan, the appeal court said courts can make declarations about constitutionality even if a law cannot be struck down, but that was not the case in the Quebec Court of Appeal.
“Appeal courts in different provinces have reached different conclusions about the extent to which courts can intervene,” said Vibert Jack, litigation director for the British Columbia Civil Liberties Association.
Both the Quebec and Saskatchewan cases are being appealed to the Supreme Court. He has not yet agreed to hear Saskatchewan’s case.
Jack said the cases raise a philosophical question about whether courts can review and make declarations about violations of Charter rights once the notwithstanding clause is invoked.
“The law will remain in force and have legal effect, but beyond that, it is not entirely clear what remedies the courts could provide,” Jack said.
Federal lawyers have argued The clause does not protect the laws from judicial scrutiny.
If you can’t tear it down, why bother?
Sandilands said that while it cannot be overturned, the court could decide whether Alberta’s own return-to-work legislation violates the right to freedom of association.
“That is at the very least a moral victory for the union. And it could also influence public opinion on the issue,” he said.
Jack agrees that the symbolic appeal could be worth it.
“It’s not meaningless, it puts the government and voters on notice that there is a problem with this law that needs to be addressed.”
What’s next?
The ATA has said it will comply with the law. Teachers returned to classrooms on Wednesday.
The Alberta branch of the Canadian Bar Association has taken issue with the preventive use of the clause.
“In doing so, they seek to remove the judiciary 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 the opportunity to examine the legislation.”
The Canadian Civil Liberties Association would be interested in applying to be an intervenor if there is a legal challenge, said executive director Howard Sapers.
Sapers, a former Alberta Liberal Party MP, said using the clause in this way is problematic.
“Without sounding alarmist, it is undemocratic and undermines people’s confidence in certain things, in certain systems that perhaps we have taken a little for granted, such as the right to collective bargaining.”
