Way back in 2022, when COVID-19 was central to both federal and provincial policy debates and political discussions, Danielle Smith was clear: the Canadian Federal Government, headed by Trudeau, had set a “dark and dangerous precedent” by using the Emergencies Act. She argued that those citizens who participated in the “Trucker Convoy” should be allowed to gather peacefully. Then just a regular member of society – albeit with a bigger megaphone than most -, “citizen” Smith argued that a peaceful protest doesn’t rise to the use of the Emergencies Act (Canada).

This was one of her consistent talking points: from her role as a citizen, to a candidate, and eventually to Premier. Premier Smith argued that she supports the Canadian Charter of Rights and Freedoms, and has since railed against the federal government.

As such, her use of the “Notwithstanding Clause” of the Canadian Charter of Rights and Freedoms, to restrict the teachers’ right to freely associate, is a deeply ironic act. In fact, it is an act which could probably make the Trudeaus blush. After all, Pierre Elliot Trudeau was so mortified about his use of the War Measures Act to stop the October Crisis that he spent the rest of his time in politics working to bring forth the Canadian Charter of Rights and Freedoms. While his son, the Right Hon. Justin Trudeau, in using the  Emergencies Act – an act sought by the Government of Brian Mulroney to replace the War Measures Act – found himself held accountable to the tools of the legislation, and his actions were reviewed by a Judicial Inquiry. In contrast, Danielle Smith is taking away the ability of teachers to act in association for five years; and, she is taking away teachers’ ability for judicial review without any judicial inquiry.

That’s right, Premier Danielle Smith is forcing a 5-year contract upon the teachers in a time when Canada is not at war, in the middle of an insurrection, or in the middle of a pandemic. No one is sick. No one is dying. The only problem is simple: Danielle Smith just finds it inconvenient to negotiate with teachers. 

To understand the scope of the decision, the problems that it could cause, let’s just look back at what Section (2) protects. Because Section (2) doesn’t only protect Teachers’ Unions. Section (2) is as follows: 

2. Everyone has the following fundamental freedoms:

1. freedom of conscience and religion.
2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
3. freedom of peaceful assembly;
4. freedom of association.

So section (2) protects more than just unions. It protects Lions’ Clubs and debate clubs. It protects churches, synagogues, mosques, temples, and universities. Section 2 protects media organizations and authors. It protects our ability to think freely and clearly. While it is not absolute, it provides a brake against government action. Imagine what would happen if the Government of Alberta was able to override our section (2) rights out of convenience.

Well, we don’t have to imagine. Under the War Measures Act, in World War I and World War II, Canada had internment camps. In World War I, more than 8,000 people were interned in 24 camps across Canada; and the majority of them were of Ukrainian descent. The only crime that these Ukrainian-Canadians had committed was that they spoke the same language as one of the combatant countries. In World War II, the same thing happened to Japanese, German, and Italian Canadians for the same thing. 

Back in the days before the Charter, under the leadership of the Social Credit Party, the Government of Alberta sterilized many women who were disabled, indigent, indigenous or poor. Further, the Alberta Legislature passed two pieces of legislation: the Land Sales Prohibition Act and the Communal Property Act. Those pieces of legislation ensured that between 1942 and 1973, Hutterite communities had difficulties buying land. In fact, as a lawyer named Percy Davis noted in the 1950s, “although Canada as a nation has long since made peace with the German Reich, Alberta remains at war with its Hutterites”. One doesn’t need to work hard to find examples where Governments in Canada applied a different standard to those who are different. Imagine if we start to turn the Charter on those who have a different religion,  thought, belief, opinion, and expression. Imagine what the world would look like if we took away the rights of the press, the freedom to communicate, or the right to gather, or join a group or association, peacefully.

When temporary measures were requested during the COVID pandemic, citizen Smith yelled. Even though most of the leadership of the Christian, Muslim, and Jewish Faiths in Canada indicated temporary change to religious services was not sacrilegious; Smith, some Conservatives, and other supporters argued that it was unnecessary to restrict the size of gatherings or to have religious groups move to online services. If the restrictions of rights was unnecessary when it comes to a pandemic that most of the scientific and medical community was concerned about, how can Premier Smith argue that the restriction of teachers rights makes sense outside of a revolution, rebellion, revolt, pandemic or other mass casualty event? 

Or put differently, would it be okay to stop the building of a Church, Synagogue, Mosque, Temple, or other religious building tomorrow?  Would it be okay to stop atheists from holding a seminar about their feelings on religion? Would it be okay to ban a media source for five years because you disagree with them? 

Now, for those who argue that Premier Smith and the United Conservative Party of Alberta were merely protecting children by forcing a 5-year contract upon teachers and by taking away their ability to go to a court to review that action, let me describe the other options that the Province had. The province could have appealed to various labour relationship boards that exist in Alberta. Or the province could have worked with teachers to organize rotating strikes; thus, providing enough time for childcare, or the province could have worked with the teachers – like they do with doctors, nurses, and EMT professionals – to ensure that schools could function at a safe and minimal level during the dispute.

If you wanted to get creative, the province could have changed the school year to make up for lost days. The province could have even raised taxes a little; or paid less money to private schools. All of these options would not have jeopardized the “Alberta Advantage”; nor abandoned the idea of school choice. However, all of them would have ensured that Alberta students could learn and that Alberta students don’t have the lowest per capita investment in them. After all, on a per capita basis, Alberta spends the lowest amount to educate our children. Or is the future of Alberta not important?

In being the first Alberta Premier to use the Notwithstanding clause, Premier Smith has made history, and she has become infamous. Unlike Premiers Lougheed, Getty, Klein, Stelmach, Redford, Hancock, Prentice, Notley, and Kenney, Premier Smith required the use of the Notwithstanding Clause to end a labour dispute. In that one action, in asking the legislature to disregard the Charter for political convenience, Premier Smith has become historical and infamous.

It is sad that we have to witness the use of the Notwithstanding Clause for a petty action; but witness it we should. We should witness it because this is how we understand what is wrong. In witnessing the action, we collect evidence. We can understand what we want to change and how we want to change it. We can move from evidence and its collection, to reasoning, and from reasoning to understanding and maybe wisdom. In this action, we can see that the Premier of the Province of Alberta is hurting Alberta by acting for the short term, in not resolving an issue that will just linger for the next five years. Alberta will have fewer teachers because teachers, both prospective and existing, will not be able to trust the government. Teachers who will retire may not be replaced, and the glib actions of the Premier and her Government will likely be the cause. In that sense, her actions are not in the interest of the majority. 

In fact, by using the Notwithstanding Clause as a blunt tool and not as a last option, the Premier has shown that her bill could not have been made constitutional any other way. As a result, Premier Smith has used a Constitutional Gimmick to pass a bill that will not benefit society. It is a bill that will not benefit the “majority”, nor will it benefit significant social groups like teachers, students, or chambers of commerce. The least of us will do worse, and the rest of us will do no better. 

This is not what forward-looking leadership is, and it is a shame. It is a shame that a Premier who professes to value freedom would seek to undermine it in such a historic way. This is one way of getting into the history books, but it is not the way I would do it.