Notwithstanding Clause is good for Alberta

The Clause is only applicable in respect of sections 2 and 7 to 15 of the Charter.

The Government of Alberta has used the Clause twice in this legislative session: Bill 2, titled Back to School Act, to end the strike and restart school and Bill 9, titled Protecting Alberta’s Children Statutes Amendment Act, to insulate laws protecting children and female sports from judicial interference.

There have been false statements made in respect of the Clause, including for Bills 2 and 9. The following discusses pertinent Charter freedoms in sections 2,7 and 15; the balancing of freedoms, in section 1; the role of the courts; and the important function of the Clause in section 33.

The statements and opinions are my own, and if there are errors, they are mine alone.

Section 2 – “Fundamental Freedoms”

Section 2 of the Charter lists fundamental freedoms, including freedom of religion, expression, peaceful assembly, and association.

There is no right to strike listed as a fundamental freedom in the Charter. And in 1987, the Supreme Court of Canada (“Court”) held that the right to strike was not a fundamental freedom and not a Charter right.

Yet, in 2015, a 5-2 majority of a more activist Court, reversed the precedent and decided to read in to the freedom of association to invent a public union strike as a Charter right and fundamental freedom.

That has been a very costly, bad mistake. Elevating a public sector union’s right to strike as a fundamental freedom runs contrary to parliamentary supremacy because democratically elected legislatures have the responsibility to balance interests between employer, employees and the public – whereas, a public sector union, often a monopoly, or near monopoly, has no such responsibility to the public.

What is the result of the activist Court’s decision? More and more union strikes. We see union monopolies in vital industries and public services regularly striking, holding the public hostage and causing great economic destruction in Canada.

Section 7 – “Right to Life, Liberty and Security of the Person”

Families are the foundation of society. The Charter right to liberty includes parental rights to raise one’s children and enjoy vital familial relationships without government interference.

While parental rights should be almost absolute, they should not be completely absolute, and are subordinate to protect children from serious, objective harm.

Hence, section 7 modifies this right by stating that deprivation of these rights can only occur “in accordance with the principles of fundamental justice”.

Section 15 – “Equality Rights”

Section 15 prohibits discrimination on “based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability”. The Court have interpreted the ground of “sex” to include “gender identity” and “gender expression”.

Section 15 results in conflicts of rights. Is the ability of transgender individual to compete in female sports more important than the rights of biological females to compete in sports on a level playing field?

Rights AND Responsibilities – Section 1

Some claim rights without acknowledging responsibilities.

But a functioning free and democratic society requires adults to exercise rights RESPONSIBLY.

If individual rights and freedoms are exercised irresponsibly, they will often limit or interfere with others’ rights and freedoms.

Take the fundamental freedom of expression. Should that charter right permit an individual with an open-ended right to yell and swear or use obscene language in public spaces?

No.

This would interfere with the rights of other individuals and families to access, use and enjoy public spaces.

In this example, governments have laws that limit one’s ability to yell and swear in public spaces even though they limit the Charter right of freedom of expression.

As rights are not exercised in a vacuum, impacting others’ rights, section 1 of the Charter limits Charter rights “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

It is true that government actions properly addressing the irresponsible exercise of rights and freedoms allow others more freedom to responsibly exercise rights and freedoms.

For example, the judge invented Charter right of the ATA union to strike was limiting the rights of 740,000 children to get an education. The Alberta government decided that the right of 740,000 children limited a judge invented Charter right to strike.

For example, the Alberta government has concluded that the rights of biological females to compete in sports on a level playing field will not permit biological males to compete in female sports.

And in the case of parental rights, the vast majority of parents, love their children and should be trusted. Therefore, the Alberta government moved to protect parental rights and prevent schools from keeping secrets from parents if minor children are changing pronouns.

However, parental rights are not unlimited and altering one’s gender is a very serious matter. Better decisions are made when an individual has all relevant information available to him or her. Thus, it is not wise to alter one’s gender as a minor as the very matter being altered is itself changing or evolving through natural processes and can result in very serious regrets. The Alberta government decided that protecting minors from making an adult decision on changing their gender while a minor was a reasonable limit under section 1, even if it limits parental rights. Unfortunately, a judge decided to put an injunction against this protection.

The Increase in Activist Courts

Courts have the stewardship to interpret the scope of Charter and apply it to actions taken by governments, as a shield from misuses or abuses of power by government.

When I went to law school, I read Charter cases where section 1 Charter legal tests were applied strictly, resulting in individuals charged with crimes going free.

But where was this robust Charter scrutiny during COVID? Why did our courts fail to scrutinize across-the-board government actions — such as shutting down schools, closing and bankrupting businesses, vaccine passports, lockdowns, restrictions on family gatherings, funerals and weddings, some of which were obvious overreach, not minimal, proportionate or rational — with the same rigor and zeal as was applied in those criminal cases?

Yet on the other hand, we have seen the Charter used as a sword by some judges giving cover to impose progressive, activist biases. So now we see some judges use the Charter to justify stopping public policy decisions to shut down bike lanes, resulting in big traffic jams, or closing supervised consumption sites, which are destructive to communities, or dismantling encampments, wrecking public parks and spaces, and so on.

The Check and Balance on Courts – the Notwithstanding Clause

The Clause reflects the foundational principle that in Canada, elected and accountable representatives of the legislative branch get the ultimate last word over unelected and unaccountable judges of the judicial branch.

Here is why – if legislators are incorrect in the use of the Clause, they are accountable to the public for that use, and if wrong, those legislators can be unelected and replaced by the public by a government who can reverse that use.

The misplaced use of the Charter by some judges when it should not apply and the failure to use the Charter when it should apply, has required more use of the Clause as an exceptional measure.

Bill 2 ended the strike and restarted school. The Clause was the preferred way of doing so, as Alberta’s government was not going to risk an unelected, unaccountable judge or arbitrator to potentially impose additional billions in taxpayer costs, more uncertainty or delay, or reward a union for choosing to strike during the school year. That would be a bad precedent.

Under Bill 9, Alberta’s use of the Clause insulates laws protecting minors, parental rights, and females in sport, from judicial interference.

The Notwithstanding clause is good for Alberta.”

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EDITOR’S NOTE: The views expressed above are those of the author and do not necessarily represent those of rdnewsNOW or Pattison Media. Column suggestions and letters to the editor can be sent to news@rdnewsNOW.com.

by Jason Stephan, MLA, Red Deer-South

Notwithstanding Clause is good for Alberta

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