Alberta's Smith says notwithstanding clause increasingly likely amid unpopular court rulings

Alberta Premier Danielle Smith said her government is increasingly willing to use the notwithstanding clause to counter judges who she believes have strayed too far from the public interest in their rulings.

Smith made the remarks in a year-end interview with Postmedia on Nov. 27.

In the past three months, her government used Section 33 of the Canadian Charter of Rights and Freedoms – also known as the notwithstanding clause – to mandate striking teachers back to work and later to shield three of its laws regarding transgender persons from legal challenges.

She said the decision to use the controversial clause in those instances was in part informed by the need to respond to judicial rulings she believes do not reflect the values of Albertans.

“Do we have confidence that our judiciary is reflective of the values that we have in our province? Because most of our judiciary is appointed by the federal government, and we’ve had 10 years of judges being appointed by Justin Trudeau,” she said.

“When you see ideology getting into these judgments and the judges, they don’t face the electorate the way we do.”

In the interview, Smith defended forcing teachers back to work as being necessary to prevent learning loss among children, and described the decision around trans laws as being “reasonable and evidence-based and also balanced.”

“That’s kind of the test that you have to look at,” she said.

Federal and provincial leaders agreed to the inclusion of the notwithstanding clause during the creation of the 1982 Charter. Section 33 permits certain rights to be overridden for a period of up to five years upon which it must be renewed or abandoned.

Smith was among several premiers to call on Ottawa to use the clause in response to an October Supreme Court of Canada ruling that struck down a one-year mandatory minimum sentence requirement for possession and access to child pornography, citing the potential ramifications for teenagers who engage in sexting.

“If the court is going to continue to go down a certain path, and I think, be unreasonable in some of its judgments, and not be deferential to the decisions and the (reasons) elected decision makers are making their policy decisions, they should expect that more legislatures are going to use the notwithstanding clause.”

She said judges do not have the same accountability as elected politicians.

“There is no recall. There is no process for someone to say you made a mistake, whereas for us, we’re the ones who now have to live with the consequences of the court, essentially saying to us that you cannot punish somebody who possesses child porn in the way that you want to.”

Save for supreme courts, judicial decisions can be appealed and judges can be removed based on their conduct through a complaints process.

The final report from the province’s Alberta Next panel, which was chaired by Smith, recommended the province should seek public support via referendum for the authority to appoint judges to the Alberta Court of King’s Bench and Alberta Court of Appeal.

Currently, the federal government appoints those judges based on recommendations from an independent advisory committee.

The use of section 33 represents the culmination of a gradual softening of Smith’s stance on the clause.

In a 2022 year-end interview, she told Postmedia she could not foresee an instance where she would want to use the notwithstanding clause.

“The problem with the notwithstanding clause is that it’s used to override sections of the Charter of Rights and Freedoms, so that wouldn’t be how I’d want to use it,” she said during the Dec. 14, 2022, interview.

“I’m a big supporter of individual rights and freedoms and I think we should do a better job of protecting them.”

In a year-end interview 12 months later, Smith said she was watching how the clause was being used by other provinces, said that “we haven’t found a need to use it at this point,” but added her government’s compassionate-intervention legislation may require the use of section 33, though that has not come to pass.

Quebec has employed section 33 more than any other province. Previously, Alberta had attempted to use the clause to limit compensation for forced sterilization victims and later to restrict same-sex marriages, though neither effort was successful.

Smith last month acknowledged courts sometimes must make decisions counter to majority opinion, stating, “it is a conversation,” but again asserted elected officials should be supreme.

“There has to be a recognition that does go both ways, that the courts aren’t always right,” she said.

“The courts need to understand that sometimes the democratic will is one that is better expressed through the legislatures, and if the legislators get it wrong, they have to face re-election in four years.”

mblack@postmedia.com

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