Since the Smith-led UCP government in Alberta saw fit to invoke The Notwithstanding Clause (S33) of The Charter of Rights and Freedoms (The Charter) to order teachers back to work (Bill 2), I have seen some discussion in various forums arguing that once S33 is invoked, there is very little anybody can do.
I propose that this is not entirely true. Certainly, Bill 2 imposes onerous, if not excessive, fines for any "labour action" over the next 4 years which would make most teachers hesitant to act directly, like all of us, they have families to support and generally have to pay the bills, the penalties aimed at the ATA are clearly designed to bankrupt the ATA very quickly.
I've argued in other posts that Bill 2 is exceptionally bad legislation, and as such presents a clear danger to Canadian democracy and our legal system. It is not the only legislation that the UCP has passed which is of dubious value, but it finally seems to have galvanized people's attention on the potential for abusing S33.
Broadly speaking, I contend that laws which require the government to invoke S33 should be subject to much greater scrutiny, for the government's invocation of S33 is essentially an admission that the law not only curtails rights guaranteed under The Charter, but that they acknowledge that the law would not stand scrutiny with respect to The Reasonability Clause (S1). In other words, the application of S33 must be of the most urgent nature, and for circumstances that the government could not reasonably mitigate with other statutory tools.
This brings me to the Crown's "reserve powers". As the title suggests, "reserve powers" are only to be used in the most urgent of situations. One of these powers is "disallowance". Disallowance is a rarely used power where The Crown steps in and removes Royal Assent from the law.
Many have argued that these reserve powers are "dead letter law" because they have not been used in a very long time. However, just because the power has not been used does not mean it has gone away. I think such an argument falsely claims that in order for a constitutional power to be valid, that it must be regularly exercised. Certainly, the Crown's "reserve powers" should only be exercised in the most serious of matters, but those powers exist in part because the possibility of a "bad actor" government has always existed.
What could possibly be more serious than a government acting so capriciously against its citizens as Alberta has done with Bill 2, and Bills 26, 27, and 29 (which Smith is musing loudly about applying S33 to as well)? Are we seriously going to let the provinces turn The Charter into a mere legislative suggestion to be referred to when it's convenient and ignored the rest of the time?
Bill 2, as discussed here, takes a very heavy-handed approach to the teachers and in doing so the government demonstrably left numerous statutory remedies untouched which they could have used instead of the sledgehammer approach in Bill 2. Bill 2, itself, were it the only "rights-shredding legislation" the Alberta UCP government has passed, might stand as an unfortunate bill that the government argued was absolutely necessary in the circumstances. When you put it in context of other legislation this government has passed, it demonstrates a willingness on the part of the UCP to attack rights and put themselves in the position of arbiter of what rights a citizen may enjoy.
The UCP's legislative agenda is one of tearing things apart - and one of its targets is quite clearly The Charter.
Where the applications of S33 differ between Quebec (the heaviest user of the clause by far), and conservative provincial governments in English-speaking Canada is that the Quebec applications (up until recently, with Bill 21 coming to mind) have largely been focused on cultural issues where a francophone minority (in the broader fabric of Canada) is trying to preserve its language and culture. (Bill 21 does not meet that threshold, and ventures more into suppressing certain types of religious expression). Conservative governments in English-speaking Canada have used S33 more often as a tool to attack minorities and groups that generally conservative politicians "don't like".
Bill 2 in Alberta is a fundamental attack on unionization and associated rights of association, collective bargaining, and collective action. Bills 26, 27, and 29 are simply best understood as legislation designed to strip transgender people of access to health care, sports, and even the expression of their own identities in classroom settings.
These latter laws are based on a bunch of fear mongering from so-called "parents rights" groups who believe that somehow, transgender youth (or even adults) aren't legitimate people, and pose some kind of amorphous threat to their worldview. There is no substantive evidence that backs up any of the claims - implied or explicit - that those bills are based on. One can only conclude that they exist for the same reason that similar bills exist in the US - because the proponents want toIt erase a minority from society.
In my opinion, these laws are profoundly unjust, and by unjust I mean that they violate tenets of fundamental justice that underpin Canadian democracy. They represent gross overreach on the part of governments, intrusion into fundamental rights structures that vastly exceed principles in Canadian law such as "minimal interference". These are laws written to offend The Charter, and more broadly, to offend fundamental principles of equality and rule of law in Canada.
Unjust laws cannot be allowed to stand - even if they are technically "legal" under the Constitution, they are still unjust. This point brings me back to the reserve powers issue. Given the open state of flux around S33 resulting from Quebec's application of it in Bill 21, these laws should be subjected to the application of Disallowance. Once the Supreme Court of Canada has ruled on English School Boards of Montreal v. Attorney General of Quebec, then perhaps these bills can be revisited if desired by the government of the day.
For now, the Disallowance power should be dusted off and applied - no matter how uncomfortable it may be for the government of the day in Ottawa. Nothing less than the framework of rights created when The Charter became part of Canada's Constitution is at stake.
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