The Alberta government has invoked the notwithstanding clause to order teachers back to work. The "Back to School Act" imposes a collective agreement on teachers and prohibits them from striking until August 31, 2028. By invoking the notwithstanding clause, this legislation will take effect even if it violates the rights protected by sections 2 and 7 through 15 of the Canadian Charter of Rights and Freedoms. These rights include the right to freely associate, the right to peaceful assembly, the right to freedom of expression, and the right not to be deprived of life, liberty or security of the person.
All rights set out by the Charter are subject to reasonable limitations. The government has invoked the notwithstanding clause before the Court has had an opportunity to examine the law and determine whether it constitutes a reasonable limit. By doing so, they are seeking to remove the judicial branch from the democratic law-making process. 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.
Moreover, the entire legislative lifecycle of the Bill - first reading, second reading, the committee stage, and third reading - occurred within a single evening. Our representative democracy requires our elected representatives to thoroughly debate, discuss, and consider all proposed laws, particularly laws that are as impactful as the Back to School Act. Drastic limitations on debate run contrary to these values and risks undermining the core democratic principles of transparency and accountability.
The preemptive use of the notwithstanding clause cannot be allowed to normalize. Neither should the curtailment of legislative debate become routine. Overuse of these extraordinary measures—especially when coupled with provisions that also set aside the Alberta Bill of Rights and the Alberta Human Rights Act—risks undermining the constitutional and human-rights architecture that protects all Albertans. We cannot take the Rule of Law for granted; if we do, it may not be there to protect our rights when we most need it.
Christopher N. Samuel
President, Canadian Bar Association – Alberta Branch
About CBA Alberta
The Canadian Bar Association is the largest professional association for lawyers, representing 40,000 lawyers, judges, legal academics and law students across Canada, with over 5,600 members in Alberta. As the essential ally and advocate for our members, CBA Alberta promotes fair justice systems, facilitates effective law reform, and upholds equality in the legal profession and beyond.
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