Alberta’s Premier Danielle Smith has signaled a growing willingness to invoke the rarely used notwithstanding clause, a powerful tool allowing the government to override certain Charter rights. This shift marks a significant hardening of her position on judicial rulings she believes diverge from the values of Albertans.
The Premier’s comments came during a recent year-end interview, following two instances in the past three months where her government deployed Section 33. These included compelling striking teachers to return to work and shielding legislation concerning transgender individuals from legal challenges.
Smith expressed concern over the composition of the judiciary, noting that most judges are appointed by the federal government under Prime Minister Justin Trudeau. She questioned whether these appointments adequately reflect Alberta’s values and suggested a growing ideological influence in judicial decisions.
She defended the use of the notwithstanding clause as a necessary response to rulings perceived as unreasonable, emphasizing the accountability difference between elected officials and appointed judges. Unlike politicians, judges don’t face the electorate and aren’t subject to recall for perceived errors in judgment.
The notwithstanding clause, included in the 1982 Charter of Rights and Freedoms, allows legislatures to temporarily override specific rights for up to five years, requiring renewal for continued effect. It’s a controversial measure intended as a last resort, balancing judicial independence with democratic governance.
Smith also voiced support for other provinces considering the clause, particularly in response to a recent Supreme Court of Canada decision regarding mandatory minimum sentences for child pornography. She argued that if courts continue to issue rulings deemed unreasonable, legislatures will increasingly utilize this power.
The Alberta Next panel, chaired by Smith, previously recommended seeking public support through a referendum to gain provincial authority over appointments to the Alberta Court of King’s Bench and Alberta Court of Appeal. Currently, the federal government manages these appointments based on independent committee recommendations.
This assertive stance represents a notable evolution from Smith’s previous views. In a 2022 interview, she stated she couldn’t foresee a scenario where she would employ the notwithstanding clause, emphasizing her commitment to individual rights and freedoms.
However, in subsequent interviews, she acknowledged observing its use by other provinces and suggested her government’s legislation might necessitate its application – a possibility that has now materialized. Quebec remains the province most frequently utilizing this constitutional tool.
While acknowledging the courts’ role in occasionally counteracting majority opinion, Smith firmly asserted the primacy of elected officials. She believes the courts must recognize the legitimacy of the democratic will expressed through legislatures, and that politicians ultimately face accountability through re-election.
Alberta has previously attempted to use the notwithstanding clause, though unsuccessfully, to limit compensation for victims of forced sterilization and to restrict same-sex marriages. The current situation signals a renewed willingness to explore this powerful, and often contentious, constitutional mechanism.
