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.
