When Danielle Smith, the premier of Alberta, rushed a law through shutting down a strike by the province’s 51,000 teachers, she turned to a back-to-work order that was propped up with what’s increasingly becoming a familiar crutch for some provinces.
Because the order defies a Supreme Court of Canada decision upholding the right of Canadian workers to strike, she turned to a part of the Constitution awkwardly known as the notwithstanding clause.
It is, in effect, a measure that allows provinces and the federal government to pass laws that violate parts of the Charter of Rights and Freedoms and then shield those laws from being overturned by courts.
Despite that, the teachers’ union in Alberta is going to court. It will ask for an injunction that will lift the law and allow its strike to restart. It’s also initiating a separate challenge over the government’s use of the notwithstanding clause.
One poll, by the Léger market research company, suggests that Albertans are divided over the government’s overriding of the teachers’ rights. Léger found that 39 percent of respondents favored the use of the clause, while 47 percent disagreed with it.
Use of the powerful constitutional tool has long prompted debate. And now, for the first time since 1987, the Supreme Court has agreed to hear two cases involving provinces’ use of the clause.
The first involves Quebec’s Bill 21, which prohibits public servants like teachers, prosecutors and police officers from wearing, while at work, garments or accessories associated with their faith, such as yarmulkes, turbans, head scarves and crucifixes. That law invokes the notwithstanding clause.
[Published in 2020: A Quebec Ban on Religious Symbols Upends Lives]
This week, the court said that it would review a Saskatchewan law that prohibits children under 16 from changing the names or pronouns they use at school without the permission of their parents. Again, the province invoked the override clause.
Here’s an overview of the debate and what’s at stake.
What is the notwithstanding clause?
According to the federal Justice Department, nothing like Section 33 of the Charter of Rights and Freedoms is found in the constitutions of other democracies.
Just five sentences long, it lays out how provinces or the federal government can introduce laws that override rights and freedoms — with some exceptions, like those guaranteeing elections.
It sets a five-year expiration date for laws that invoke the clause but allows provinces to renew them.
Why does Canada have it?
The clause was a key, last-minute step in breaking gridlock in the talks that led to the 1982 Constitution.
Several premiers believed that for the sake of accountability, elected legislators, rather than appointed judges, should have the final say on constitutional questions.
Opponents of the clause have argued that it potentially allows the majority to sweep aside the rights of vulnerable minorities.
Who has used it?
It has been invoked more than two dozen times since 1982, and a flurry of cases has come along in recent years. The federal government has never used it.
Between 1982 and 1985, the Parti Québécois put it in every law passed by Quebec’s National Assembly — but as a protest against the Canadian Constitution, not to override rights.
A later Liberal government in Quebec invoked it to pass a law regarding the use of English on signs and in ads. The Supreme Court upheld that law in 1988 but had little to say about the clause in its decision other than rejecting its retroactive use.
What’s being asked of the Supreme Court?
No hearing date has been set for either case.
The Quebec case has attracted a long list of outside parties with a wide a range of views.
“There would have been no charter without” the clause, Alberta notes in its submission, which argues against any review of its use by the courts in the interest of “preserving parliamentary sovereignty.”
Others want the Supreme Court to allow courts to rule on the use of the clause by governments in what would be largely symbolic actions. The idea is that such rulings would allow voters to better assess the decisions of politicians.
The federal government goes much further.
Noting that the overriding of rights under the clause is only temporary, lasting for just five years, it argues that the clause cannot be used in cases “that would lead to an irreparable impairment of the rights and freedoms guaranteed by the Constitution.”
It adds that any right overridden under the clause must “retain its integrity so that it can be fully exercised when the declaration expires — just as a lightbulb should shine as brightly as it did before being temporarily turned off.”
“It’s a little bit surprising that the federal government has argued as it has,” Dwight Newman, a professor of constitutional law at the University of Saskatchewan, told me. “The Constitution guides when it is legal or illegal to use it. It doesn’t say everything that could be said about when it’s good or not to pass certain kinds of laws.”
Trans Canada
-
My colleague Vjosa Isai went to Brampton, Ontario, where workers feel angry and betrayed by the decision of Stellantis to move production of a Jeep model from there to Illinois, despite a production deal with the Canadian and Ontario governments.
-
A legendary jewel of the Hapsburg dynasty, which had not been seen since 1919 and was widely thought to have vanished, has emerged. Robin Pogrebin, a Times culture reporter, was in the room at a bank in Quebec when the 137-carat Florentine Diamond and other jewels were taken out of a vault after more than a century.
-
Canada is on track to lose its place among the nations that have eliminated measles, Vjosa and Rebecca R. Ruiz report. They found that at critical points, as measles was gaining new footholds in Canada, provincial politicians stopped public health officials from speaking out about the value of vaccination.
-
Shawna Richer writes about what followed the Toronto Blue Jays’ loss to the Los Angeles Dodgers in Game 7 of the World Series: “Jays fans watching in jammed bars drifted despondently onto the downtown streets. The Rogers Centre crowd, who applauded the Blue Jays as they left the field, couldn’t bear to watch as the Dodgers piled onto it.” (Prince Harry apologized to Canadians for wearing a Dodgers cap.)
-
Margaret Atwood’s new memoir, “Book of Lives,” reveals the experiences (and a few slights) that have shaped her work, Alexandra Alter reports. In his review, Dwight Garner, a Times book critic, writes that “this book, more than most literary memoirs, is a vessel of wrath — and wrath is interesting.”
-
John Irving, the literary titan, is still publishing books from his adopted home of Toronto at 83. But you will not see him back in the United States anytime soon.
-
Hundreds of ostriches at a farm in British Columbia were culled after a lengthy battle between the farm owners and the Canadian Food Inspection Agency, which killed the animals because some among them were sick with avian flu last year.
-
A corporate recruiter from Canada is among a group of people suing ChatGPT, saying the chatbot adversely affected their mental health.
-
The U.S. Supreme Court heard arguments for and against many of President Trump’s tariffs this week. But Ana Swanson, my Washington-based colleague who covers trade, writes that even if the court rules against the administration, Mr. Trump’s tariffs are not going away.
-
Mark Carney unveiled his first budget as prime minister this week. While it laid out several big spending promises, details of the cuts to government that will partly offset them were fuzzy.
-
Before leaving South Korea on a tour of Asia, which I tagged along on, Mr. Carney said that he had apologized to President Trump for anti-tariff television ads commissioned by Doug Ford, Ontario’s premier, and aired on American television.
Ian Austen reports on Canada for The Times. A Windsor, Ontario, native now based in Ottawa, he has reported on the country for two decades. He can be reached at austen@nytimes.com.
How are we doing?
We’re eager to have your thoughts about this newsletter and events in Canada in general. Please send them to nytcanada@nytimes.com.
Like this email?
Forward it to your friends, and let them know they can sign up here.
