For nearly four decades after the 1982 enactment of the Canadian Charter of Rights of Freedoms, provincial governments rarely invoked Section 33, the so-called notwithstanding clause. Outside Quebec, a complex exception, the clause was used only three times before 2018 and never between 2005 and 2018.
Indeed, the Canadian Encyclopedia online entry on Sec. 33, updated in June 2021, remarks: “Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the ‘nuclear option,’ because its use is considered extremely severe.”
Not anymore.
As reflected in two member resolutions to CAUT’s November Council meeting, the current Alberta government has few qualms about taking a Sec. 33 shortcut when it wants to enact legislation that tangles with rights listed in Charter Sections 2 and 7 to 15. These cover fundamental freedoms and core equality and other legal rights.
In its Back to School Act, Alberta’s United Conservative government used Sec. 33 to suspend the Alberta Teachers’ Association’s right to collectively bargain or strike until September 2028, ordering teachers back to work under a contract they had voted overwhelmingly to reject. The Fairness and Safety in Sport Act restricts participation in female-only competitions to “biologically female” athletes. While targeting trans athletes, anyone whose status is challenged under the act must prove their “sex at birth,” leaving all women and girls vulnerable to gender policing. As the motion to Council noted, because it captures collegiate sports, the law also intrudes on the institutional autonomy of Alberta’s universities and colleges.
Alberta is not alone. Since 2018, the notwithstanding clause has been invoked to restrict religious expression in Quebec’s public sector, restrict third-party political expression and education workers’ right to strike in Ontario, and compel formal parental permission before students can change their pronouns in Saskatchewan schools.
Even where governments don’t use the constitutional override, many legislatures are ready to constrain core rights. Another member resolution to Council condemned Quebec’s Bill 3, which would interfere with unions’ ability to use dues for social, political and legal action. As the motion noted, Bill 3 reflects a wider agenda to erode democracy by weakening critical voices and the rule of law in Quebec.
No federal government (yet) has used Sec. 33 to suspend Charter rights. But legislation tabled on issues ranging from border controls to hate crimes has worried civil liberties organizations, and the government used Sec. 107 of the federal Labour Code to end multiple strikes in 2024-2025 without the inconvenience and publicity of parliamentary debate on back-to-work legislation.
Faced with legislative threats to civil and labour rights, judicial remedies may seem the appropriate response. These are vital tools in our kit, just as grievances and arbitrations are vital to defending our collective agreement rights. But as Council’s keynote speaker Wassim Garzouzi observed, our grievance and arbitration system is in some respects “broken.” It moves so slowly that, even when we win, the damage is often done before we get a resolution.
The same goes for court challenges. Court challenges and arbitrations are also exclusive in the sense that action centres on relatively few people with specialist knowledge.
Two recent examples offer an instructive contrast. In 2022, Ontario’s government reversed course inside a week of using Sec. 33 to block education workers’ right to strike. Second, when striking flight attendants defied a Sec. 107 ruling last August, Air Canada pivoted to contract improvements it had refused for months. The federal government did not lift the order — the union has filed for judicial review — but the attention should make future uses of Sec. 107 harder.
In both these cases, organized labour was at the heart of mass opposition that won the day by making things “politically difficult” again for the offending governments and employers.
To protect our rights, we must be prepared to exact a political price for overriding them. Our capacity to do so is strengthened when we involve many people and join with others, within our own and in wider associations. That is not just about rearguard action either. It is essential for building the equitable and democratic society we want, starting in our own institutions.
We have the will. Council delegates voted unanimously to defend fundamental rights essential to democracy in Alberta, Quebec and beyond. Now let’s build the organized power we need to put it into action.
