This article originally appeared in the National Post.
By Mark Mancini, October 30, 2025
It has been labelled a “dark day for education” and a “threat to democracy,” but Alberta’s Bill 2 — the legislation forcing teachers back to work — is in effect. The Alberta Legislature adopted the law with a cherry on top: a provision declaring that the law will operate notwithstanding particular provisions of the Charter, specifically s.2(d), which protects “freedom of association.” The notwithstanding clause has reared its head.
Fire and brimstone aside, the constitutional right to strike, abrogated by Bill 2, is not a longstanding right. It was only recognized by the Supreme Court in 2015 in the Saskatchewan Federation of Labour case. Despite the fact that the Supreme Court previously decided that this right did not exist in the Charter, a new bench — armed with an apparent image of the Constitution as a “living tree” — sought to create that right.
The fact that this is the creation story of the right to strike makes Alberta’s use of the notwithstanding clause unsurprising.
In the 1980s, the Supreme Court held quite clearly that there were no substantive legal restrictions on the use of the notwithstanding clause. There is no legal rule that it cannot be used prior to a judicial hearing on the issue, as Alberta has done in this case.
Politically, however, it is legitimate to query whether particular uses of the notwithstanding clause meet broader, non-legal standards of political morality. The public might evaluate these invocations by considering the quality of the debate in the legislature; the rights and interests affected by the invocation; the government’s own interest in using the clause; and any judicial pronouncements on the matter. But this is politics, and there is no precise formula in every case. That is the magic of the notwithstanding clause — it is the stuff of democracy itself.
In this case, it is true that Bill 2 was adopted in the dark of night, with little debate. That is a relevant fact for the Alberta public (rather than the courts or lawyers) to consider when it comes to an election. It is surely not the gold standard for the adoption of legislation.
But weighing heavily in this case is the Supreme Court’s decision in Saskatchewan Federation of Labour. That decision simply announced a right to strike. Justice Rosalie Abella concluded that because a meaningful process of collective bargaining requires a right to strike, the right to strike should be recognized as a component of that process. To reach this result, Justice Abella expressly overturned a previous decision of the Supreme Court which held that the right to strike is not protected by the Charter.
But the manner in which she did so must have piqued the interest of the Alberta government as it crafted its back-to-work legislation. In concluding that the right to strike was self-evidently included in the Charter, Justice Abella simply declared that “(i)t seems to me to be the time to give this conclusion constitutional benediction.” Deploying an eclectic interpretive method that sought to vindicate “the arc of workplace justice,” she concluded that the time had come for the right to exist.
It is tempting to look at this line as a throwaway flourish. But it is a deeply revealing statement about the way this right to strike came to exist — not from a line of cases saying so, but from a judge declaring that “it is time.” As the dissent, penned by Justices Marshall Rothstein and Richard Wagner (now chief justice) pointed out, it was long-established that courts should defer to the longstanding statutory definition of, and limits on, the right to strike. In other words, the right to strike is not one that Canadians have long enjoyed, nor is it one fundamental to the set of rights defined in the Charter since 1982. That it was given “benediction” does not make the right deeply rooted in our law.
One might say that the Charter is a living tree, and so the right to strike should be recognized. But this is not an argument as much as it is a desired conclusion dressed up with metaphor. The answer cannot be that the judge decides what rights, from time to time, will be recognized. That is not legal adjudication, nor is it what was expected under the Charter.
Justice Abella’s overturning of foundational jurisprudence in this area was justified, she said, by the history of striking as a means of fostering collective bargaining rights. She also pointed to international instruments recognizing the right to strike. But as Justices Rothstein and Wagner pointed out in their dissent, all of this history was known to the Supreme Court when it decided that a right to strike did not exist. The international context is informative, but should not create a new right out of whole cloth. The dissent worried that the majority went too far, and it predicted unforeseen consequences.
One of those consequences, in this case, must be the use of the notwithstanding clause. The rather weak reasoning in the Saskatchewan Federation of Labour case led to a conclusion that legislatures would not be able to impose a contract on striking workers without a meaningful bargaining process. The Alberta government, seeing this reasoning — and evidently disagreeing with it — turned to the only tool it has left.
There is much these days about “threats to democracy.” One can look at the impotent American Congress, unable and unwilling to exercise its constitutional functions. But naming everything as such a threat merely cheapens liberal democracy, leaving us without any terminology to label and distinguish between those operating within or outside the constitutional order. Where the Supreme Court goes out on a limb, and reasons its way to the creation of a new right; where there is deep division on the court about the existence of that right; and where there is a pressing public interest, it is unsurprising to see the Alberta government use a tool written in the constitutional text, in black and white. It may suffer consequences for doing so. But those consequences are entirely democratic.
The Charter stands and falls as a whole. One cannot pick and choose the rights and freedoms that one likes, and uphold those, while deriding parts of the Charter one does not like. This is what people who wish to turn the Charter to their own political ends might do. The rights and freedoms in the Charter came to be because of a process of remarkable compromise, which included the notwithstanding clause. There are reasons in particular cases for the public to worry when the clause is routinely and unjustifiably invoked — though it is legal to do so.
But where a case like Saskatchewan Federation of Labour haunts the landscape, one can expect governments to react this way.
Mark Mancini is an assistant professor in the faculty of law at Thompson Rivers University.
