Alberta Premier Danielle Smith's recent invocation of the notwithstanding clause has reignited discussions about its role in Canadian governance. This move comes as the Alberta government passed the Back to School Act, which mandates that striking teachers return to work. The act explicitly states it operates "notwithstanding sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms," which include rights related to freedom of association and the right to life, liberty, and security.

This marks the seventh time since 2018 that a provincial government has utilized the notwithstanding clause, a significant increase in its application. Historically, this clause was rarely invoked outside of Quebec, where it was often used as a form of protest against the Charter itself. However, in recent years, provinces like Ontario, Saskatchewan, and New Brunswick have also begun to employ it more frequently.

The rise in the use of Section 33 coincides with a notable increase in court decisions that have struck down legislation on Charter grounds. Research indicates that from 2011 to 2020, the Supreme Court invalidated 51 percent of federal laws challenged under the Charter, a sharp increase from 30 percent in the first 30 years of the Charter's existence. For provincial laws, the invalidation rate rose from 21 percent to 62 percent during the same period.

Constitutional scholars Geoffrey Sigalet and Dave Snow noted that the political costs associated with invoking Section 33 have diminished, particularly for conservative leaders. They argue that today’s provincial conservatives are more inclined to use all available constitutional tools, including the notwithstanding clause, in response to perceived overreach by the federal government.

Smith's Back to School Act is seen as a direct response to a 2015 Supreme Court ruling that recognized a constitutional right to strike. This ruling reversed a long-standing precedent and established that the right to freedom of association includes the right to strike. Smith did not mention the notwithstanding clause in her public statements regarding the act, but its inclusion is likely intended to counteract the implications of the Supreme Court's decision.

The Alberta Teachers Association (ATA) has announced plans to explore all legal avenues to challenge the Back to School Act. This includes examining whether Section 33 can be invoked preemptively, as well as the potential for courts to issue moot declarations regarding rights violations despite the invocation of the clause. The ongoing case of English Montreal School Board v. Attorney General of Quebec may provide insights into these legal questions.

The ATA's legal strategy may also involve arguing for the availability of remedies, including monetary damages, even after Section 33 has been invoked. This could challenge the notion that the invocation of the clause precludes any judicial remedy.

The debate surrounding the notwithstanding clause reflects broader tensions between legislative authority and judicial interpretation of rights in Canada. As the legal landscape evolves, the implications of these discussions will likely shape the future of governance in Alberta and beyond. Smith's administration, while navigating these challenges, maintains that the democratic process allows citizens to hold their leaders accountable through elections, contrasting this with the permanence of judicial appointments.