It’s time to admit our Charter rights are under attack

Posted on November 4, 2025 in Governance Debates

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TheStar.com – Politics
Nov. 1, 2025.   By Althia Raj, National Columnist

It’s time to admit our Charter rights are under attack.

Too many premiers are testing citizens’ willingness to accept gross power grabs, the targeting of vulnerable groups for political purposes, the weakening of groups they dislike, by invoking the notwithstanding clause.

This week, Alberta Premier Danielle Smith’s government passed a law in one day — with no study and voted on it in the middle of the night — to end a three-week teacher strike. The United Conservative Party’s (UCP) legislation doesn’t send the teachers back to work by forcing them into binding arbitration, such as the federal Liberals did this summer with Air Canada’s flight attendants. Instead, Bill 2, the “Back To School Act,” pre-emptively invokes the notwithstanding clause to suspend rights guaranteed under Canada’s Charter of Rights and Freedom, as well as rights laid out in the Alberta Bill of Rights and the Alberta Human Rights Act, and imposes a contract on teachers that 89.5 per cent of them voted to reject in September.

The new law also bans strikes and lock outs for the next three years, until Aug. 31, 2028; prohibits “a person” from calling for, threatening, or encouraging a strike; and imposes punitive fines — worth $25 million a day ($500 on every teacher, and $500,000 on the union) — if they engage in illegal strike activity. It also makes it illegal for the Labour Relations Board, an Alberta human rights tribunal, an arbitrator or an arbitration board, to “inquire into” or “make a decision” as to whether any parts of this law is constitutional, whether it breaches the Alberta Bill of Rights, contravenes the Alberta Human Rights Act, questions any terms of the legislated collective agreement, or “any action taken” under the new law by the Alberta government, the premier, any ministers, or any of their agents, staff or appointees.  Oh, and the bill also tries to protect the government against any lawsuits flowing from it.

It’s a draconian response to a three-week strike. The UCP government had other options. In his speech shutting down debate in the legislature, Finance Minister Nate Horner acknowledged there were questions about why the Alberta government hadn’t sought to use a disputes inquiry board, a public emergency tribunal, or arbitration.

“Each was carefully reviewed,” he said. “Every one of those paths would have meant more delay and more uncertainty. Delay means more lost learning and deeper harm to students. That is something this government simply cannot accept,” he added.

It wouldn’t have meant more uncertainty for students, only for the government in terms of what the final collective agreement would look like. And, if the government felt so strongly about students missing classroom time, Smith could have reconvened the legislature earlier to deal with the matter.

Horner said his government invoked the notwithstanding clause “to help ensure stability for the school system moving forward.”  But he and his government didn’t need to use it. So why did it choose to?

Are they seeking to normalize its use? To normalize breaches of rights? As governments across the country reach to use section 33 of the Charter, which allows them to override certain Charter rights for a renewable period of five years, it ceases to become controversial. There is little outcry; it is barely newsworthy.

Then governments can impede whatever rights they see fit. They can crush their opponents in the labour movement, by suspending teachers’ rights to free assembly. They can bar veiled Muslim women from public employment. They can discriminate against trans teenagers. Or, as we see south of the border, they can snatch people off the street without due process.

Constitutional lawyer Marion Sandilands noted on the Star’s “It’s Political” podcast this week that “overriding and disregarding fundamental rights shouldn’t be normal.”

Alberta wasn’t the only province to use the notwithstanding clause this week. Thursday, Quebec’s CAQ government used the notwithstanding clause to expand its old secular law, Bill 21, which banned those working in positions of authority, such as teachers, judges and police officers, from wearing religious symbols. That legislation is currently before the Supreme Court of Canada.

This new Bill 94 builds on Bill 21, by extending the ban on religious symbols — hijabs, kippahs, turbans — to everyone who interacts with students at school: psychologists, day care workers, janitors, library volunteers, etc. It bans students and those working at schools from wearing face coverings. It prevents new holidays to accommodate religious celebrations, and prevents schools from adapting their menus to respect religious diets, such as halal meats.

In their coverage of the story, Radio-Canada and La Presse, the largest newspaper in the province, didn’t mention the use of the notwithstanding clause.

“What we’re seeing is an erosion of that very, very basic principle of human rights as a way to structure relations in society, and provide a check on government power,” Sandilands said.

And that’s what really worries her.

“When we see the rise of authoritarianism worldwide, that necessitates a rejection of fundamental rights as a check on government power,” she said.

In Alberta, the labour movement is trying to mobilize and fight back through a general strike, the same way unions in Ontario joined forces back in 2022 when Premier Doug Ford sought to pre-emptively use the notwithstanding clause to ban educational support workers from striking. Labour’s swift action, the public outcry, and the prime minister at the time, Justin Trudeau, weighing-in to the debate, successfully led to Ford backing down.

For labour, Smith’s actions are an existential threat, a dangerous precedent, a union-busting move that Alberta Federation of Labour President Gil McGowan believes is an intentional way to get around constitutional rights outlined by the Supreme Court.

“This is actually bigger than collective bargaining or labour relations, because a government that’s willing to strip its citizens of democratic rights in one area is going to be a government that is going be willing to reach for that tool in other areas,” he told the Star. “Who’s next, right?”

https://www.thestar.com/politics/political-opinion/it-s-time-to-admit-our-charter-rights-are-under-attack/article_15042667-34d5-4692-a21f-5e287866d2d1.html?source=newsletter&utm_content=a06&utm_source=ts_nl&utm_medium=email&utm_email=0C810E7AE4E7C3CEB3816076F6F9881B&utm_campaign=pol_hl_24376

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