Alberta's Bill 2, which mandates teachers to return to work, has sparked significant controversy. Critics have labeled the legislation a "dark day for education" and a "threat to democracy." The Alberta Legislature passed the law, which includes a provision that allows it to operate despite certain protections in the Charter, specifically section 2(d), which safeguards "freedom of association."

The use of the notwithstanding clause in this context has raised eyebrows. The constitutional right to strike, which Bill 2 effectively nullifies, was only recognized by the Supreme Court in 2015 in the Saskatchewan Federation of Labour case. Prior to that ruling, the Supreme Court had determined that this right was not protected under the Charter. However, a new court bench interpreted the Constitution as a "living tree" and established the right to strike.

The Supreme Court's ruling in the 1980s indicated that there were no substantial legal restrictions on the use of the notwithstanding clause. This means that Alberta's government can invoke it without waiting for a judicial review. Politically, however, the appropriateness of using the clause can be questioned based on the quality of legislative debate, the rights affected, and the government's motivations.

Bill 2 was passed with minimal debate, which some view as problematic. This lack of discussion is a significant point for the public to consider, especially as elections approach. The Supreme Court's decision in the Saskatchewan Federation of Labour case is pivotal. Justice Rosalie Abella stated that a meaningful collective bargaining process necessitates a right to strike, thus recognizing it as part of that process. This conclusion overturned a previous ruling that denied the right's existence under the Charter.

Justice Abella's assertion that it was time to acknowledge the right to strike reflects a broader judicial philosophy. However, dissenting Justices Marshall Rothstein and Richard Wagner cautioned against this approach, emphasizing that courts should respect established statutory definitions and limitations regarding the right to strike. They argued that the right is not deeply embedded in Canadian law and that its recent recognition does not make it a fundamental right.

The dissenters expressed concern that the majority's reasoning could lead to unintended consequences, including the invocation of the notwithstanding clause. The Alberta government, disagreeing with the Supreme Court's interpretation, opted to use this constitutional tool. This situation has led to discussions about threats to democracy, particularly in light of the current political climate.

The ongoing debate about the use of the notwithstanding clause raises questions about the integrity of the Charter. Critics argue that selectively upholding certain rights while disregarding others undermines the entire framework of rights and freedoms established through compromise. While the legal invocation of the clause is permissible, its frequent use in contentious cases may warrant public scrutiny. The Alberta government's actions in response to the Saskatchewan Federation of Labour ruling illustrate the complexities of balancing legislative authority and constitutional rights in a democratic society.