Alberta Strong and Free, Notwithstanding

The UCP's Bill 2 skirts the legislature and the courts, leaving it up to the public to push back swiftly

TL;DR

• Alberta’s Bill 2 goes well beyond ending the teachers’ strike. It represents a new and worrying approach to breaching Canadians’ Charter rights.

• The UCP is sidestepping important constitutional safeguards to eliminate Albertans’ rights and freedoms.

  • The Charter requires legislatures — not just premiers — to decide whether to remove our rights. By fast-tracking Bill 2, the UCP is preventing the assembly from providing this important oversight.

  • The Charter allows courts — not just cabinets — to weigh in on rights issues. The UCP’s pre-emptive use of the notwithstanding clause eliminates this judicial scrutiny.

• The UCP is banking on everyday Albertans acquiescing. This would set a dangerous precedent for future cases where the constitution stands in the way of their policy goals.

• Albertans have minutes, not hours or days, to convince their MLAs to vote against the proposed law.

The Introduction of Bill 2

Today, the Government of Alberta introduced a back-to-work law for teachers (Bill 2). That, in and of itself, is not unusual. Governments have legislated an end to public sector collective bargaining in the past.

What is new: the UCP has chosen to fast-track the legislation (using time allocation to limit debate to just a few hours), and it has invoked the notwithstanding clause (to remove the Charter rights of workers without judicial review).

Notwithstanding the premier’s comments to the contrary, neither of these steps was necessary to reopen classrooms. These were political choices, not legal requirements.

This matters far beyond this strike because it tells us how this populist government intends to handle Charter rights when they get in the way of its plans.

Here’s the thing about the Charter, though: it not only provides Canadians with rights and freedoms — it obliges us to stand up for them when governments threaten to take them away.

Now is one of those times.

Skirting the Legislature

Governments of all stripes from across Canada fast-track bills from time to time. Usually, this takes place in times of crisis. Limiting debate on legislation ought to be a rare occurrence, as it impedes the constitutional obligation of parliamentarians to scrutinize the government’s actions.

For the UCP, the use of time allocation or closure has become more routine. Indeed, nearly half of all instances of time allocation in Alberta since 1971 have been invoked by the UCP in the last 6 years.

In this sense, we shouldn’t be surprised that Premier Smith has fast-tracked Bill 2. Time allocation has become an instrument of choice for her.

However, we should expect a bill that explicitly removes the Charter rights of Albertans to be given the utmost scrutiny. It should be thoroughly debated and sent to committee — if not for public consultation — before being passed.

This is a conservative principle: the government should be held to account by the legislature (and by extension, by the people). The UCP disagrees.

Therein lies an important irony (and hypocrisy):

Defenders of the UCP’s use of the notwithstanding clause remind us that the Charter contains provisions that allow legislatures to override the constitution and the courts. Yet the UCP has demonstrated no respect for the role of MLAs to exercise this duty.

Instead, as it has done before, the Smith government has substituted the premier’s own judgment for that of the other two branches.

Real conservatives would take issue with that approach, particularly those in the Lougheed tradition (given the former premier’s steadfast defense of parliamentary supremacy and s.33).

The Courts and Public

Let’s be clear about what Bill 2 represents. The province already had the power to legislate an end to a strike and send the parties to binding arbitration. Governments have done that before, here and elsewhere, without touching the Charter’s override.

By adding Section 33, the government didn’t suddenly create authority it lacked; it attempted to place that authority beyond immediate judicial scrutiny.

Some will say this is just “using the tools the Constitution provides.” That’s true to an extent. Section 33 is part of the Charter. Like other provisions (like s.1), it allows governments some leeway in defining how certain rights are defined in a free and democratic society.

But the notwithstanding clause was designed a speedbump to force us to slow down and weigh the consequences of abrogating Canadians’ rights. Not an off-road detour around the Charter process entirely.

When a government reaches for s.33 pre-emptively in an ordinary policy dispute, it sends a signal: the political cost of overriding rights is now lower than the cost of justifying limits on those rights in court.

That’s a constitutional choice, but it’s also a political one. Critics warn us: every time the override is normalized in one area, it becomes easier to reach for in the next. Today it’s association rights. Tomorrow it could be expression or due process. If we shrug now, we’ll have less ground to stand on later.

Why does this matter to people who aren’t teachers or parents? Or even those who side with the government on the strike? Because the rights at stake are ours, collectively. The courts recognized years ago that the right to strike is a fundamental component of meaningful collective bargaining.

You don’t have to like legislatures or the opposition or strikes — or even agree fully with the teachers’ bargaining position — to see the risk in governments turning the override into a routine management device.

The UCP has already normalized the use of closure to shut down legislative debate. It’s important we not allow them to do the same by using s.33 to routinely cut out the courts.

It’s also important to understand the role the Charter assigns to all of us. Too often, we talk about rights as if they are something lawyers argue about and judges decide. That’s a mistake.

The Charter created not just individual rights and freedoms but civic obligations. It rests on a compact:

• governments will act within constitutional bounds,

• legislatures will hold them accountable,

• courts will review those actions when asked, but

• citizens will keep politicians in line through pressure and elections.

Section 33 is a textbook example. It doesn’t hide an override; it requires governments to declare it openly and to renew it in the full light of day. That transparency exists for one reason: so that we, the public, can respond.

By invoking time allocation, the UCP has deliberately limited the amount of time we have to fulfil our duty. But the obligation remains.

What now?

The story doesn’t end with the introduction of Bill 2. That’s the opening page. The next chapters are political, not legal. We decide what the cost of overriding rights will be, and whether that cost is worth paying.

When other governments have flirted with or invoked section 33, they’ve backed down or recalibrated when their constituents made the price of proceeding clear. That didn’t happen by handwringing or slacktivism. And it didn’t happen in court. It happened because people organized, spoke up, and called their representatives —respectfully, persistently, and in large numbers.

So what should we do now? Start where the Charter points us: democratic accountability. Protests and rallies are important. Join them if you can.

But you need not leave home to make a difference.

Pick up the phone and call your MLA — government and opposition alike. Don’t just email, and don’t just shitpost. A phone call, followed by a short note, matters far more in politics. Constituency offices track them and MLAs hear about it. They can then voice their concerns to the leader.*

Some tips:

• Be firm, civil, and authentic. Don’t yell and don’t use form letters or scripts. Use your own voice.

• Say that you oppose the use of section 33 to end this or any strike. Governments that want to end collective bargaining don’t need to remove rights to do so.

• Say that if legislation is necessary, it should be thoroughly debated, narrow, time-limited, and paired with fair, independent arbitration that could stand on its own feet under the Charter without an override.

• Ask for a commitment to vote against the fast-tracking of Bill 2. If the government is confident in its legislation, it should allow a full airing. Governments owe this to the very citizens whose rights they’re taking away.

• Ask for the removal of the notwithstanding clause from the bill. If the government is confident in its legislation, it should be able to defend it in court as necessary in a free and democratic society.

Don’t stop there. Get at least 3 to 5 other people to call their MLAs, too.

• Talk to friends, family, and neighbours who don’t follow politics and explain, in plain language, what the issue is and why it matters. Even if they’re frustrated by the strike. Don’t let the teachers carry this fight on their own; the consequences are much larger than one sector, one labour dispute, or one side of the spectrum.

• Make a special point of talking to conservatives in your circles. Remind them that (real) conservatives stand up for human rights, resist government over-reach, respect constitutional principles and traditions, and prize the role of the legislature in holding governments to account. It is also helpful to remind folks about the upcoming UCP AGM and the fact that there are a number of other parties that respect constitutional norms.

• Talk to moderates, too. Many of them are uncomfortable with the UCP’s populist approach to policymaking that insists the premier knows better than the public. Albertans also respect parliamentary democracy, the courts, and the Charter. Libertarians, in particular, stand up for checks and balances on government power. These core institutions are at stake when a premier decides to remove rights without proper legislative and judicial review.

• Progressives in your life won’t need much convincing to dig in on this issue. But they could use some encouragement, given the wide range of policy disputes they have with the UCP. Remind them that this particular fight is an urgent one, and one with broad backing; there are only a few hours left to stop the government in its tracks. Opposition MLAs need to hear from you, too, so that they have an accurate sense of public opinion.

This is not a left-right issue. It’s a constitutional one. The more cross-partisan the pushback, the more likely governments are to rethink the costs and benefits of short-cutting democracy.

The Dangerous Precedent

The UCP government chose to use time allocation and the notwithstanding clause on Bill 2 not because it had no other legal path, but because it wanted to set a precedent: when opposition and rights are inconvenient, it will override them.

That precedent won’t stay confined to this dispute. It will travel. The only reliable counter is public resistance that’s broad, sustained, and unmistakably democratic.

Fortunately, our institutions are designed to lay bare the challenge ahead of us.

While time allocation is designed to limit scrutiny, Section 33 was written to force transparency. Today, Danielle Smith’s government was forced to tell us plainly that it intends to limit a fundamental freedom rather than justify that limit in the legislature or in court.

The UCP has also made it clear that it does not think Albertans care enough about fundamental rights to stand in their way.

That clarity is a gift if we treat it as a call to action.

So let’s answer. Pick up the phone. Call your MLA. Ask your friends to do the same. Be respectful, be relentless, and be counted. And then let’s hope the government has the wisdom to reconsider, and to recommit to solving hard problems the right way.

*There are naysayers who feel calling MLAs won’t change anything. They’re wrong. Ralph Klein’s caucus stopped him from invoking s.33 after their constituents rose up. The UCP, in particular, has done big policy U-turns after their MLAs received pressure from constituents. I’ve been in enough rooms with decision-makers to know that elected officials watch their inboxes and phone logs closely, especially when a move risks alienating the quiet middle who don’t usually call. When the volume goes up, caucus discipline gets harder. Cabinet calculus changes. Leaders look for off-ramps. That’s how pressure works in a representative democracy like Alberta.