Alberta utilized the notwithstanding clause on Monday to present a bill compelling striking teachers to return to work. The seldom-used clause’s significance and workings are outlined below.

The notwithstanding clause, found in Section 33 of the Canadian Charter of Rights and Freedoms, permits federal or provincial legislatures to pass laws that infringe on specific constitutional rights and freedoms, overriding their protection in the Charter.

This clause can only override sections 2, and 7–15, encompassing “fundamental,” “legal,” and “equality” rights, such as freedom of expression, religion, and association, protection against unreasonable search and seizure, legal counsel rights, and more. However, it cannot be applied to democratic rights, language rights, or the sexual equality clause.

The notwithstanding clause has a five-year limit, coinciding with the election cycle, allowing the public to hold the government accountable for its use. Originally proposed by Peter Lougheed, Alberta’s premier, the clause was a compromise during the 1982 constitution repatriation to appease provinces uneasy about the Charter’s implications.

Since 1982, Quebec, Ontario, Saskatchewan, Alberta, and Yukon have employed the notwithstanding clause in various instances. For instance, Alberta used it in 2000 for anti-same-sex marriage legislation, Quebec in 2019 to restrict religious symbols in public authority roles, and Saskatchewan in 2023 for education and parental notification laws.

In 2015, a pivotal Supreme Court decision established the Charter’s protection of the right to strike, overturning an earlier ruling. This decision was deemed crucial for workers’ rights in Canada by Barry Eidlin, a sociology professor at McGill University.

In case workers defy a back-to-work law, the outcome hinges on the law’s specifics and enforcement. A notable example occurred in 2022 when Ontario Premier Doug Ford faced rapid backlash for invoking the notwithstanding clause to prevent education workers from striking. Following widespread opposition and threats of a general strike, Ford retracted the legislation, illustrating the importance of perceived government legitimacy in compliance with laws.