Calgary lawyers have been divided on whether or not the teachers strike should have happened and what the solution would be—but the one thing they all agreed upon was that the use of the notwithstanding clause was unjustified.

Calgary’s Criminal Lawyers Defence Association (CDLA), along their colleagues at the Criminal Trial Lawyers Association, Southern Alberta Defence Lawyers’ Association, and Red Deer Criminal Defence Lawyers Association sent an evening statement condemning the province’s use of the notwithstanding clause in Bill 2 on Nov. 4.

“The Alberta government has chosen not only to exempt this legislation from constitutional labour protections, but also from an entirely unjustified, seemingly unrelated, and broad range of other fundamental freedoms and protections guaranteed by the Canadian Charter of Rights and Freedoms,” said the joint statement.

Among those rights identified by the lawyers as having been preempted by the government included the right to freedom of expression, the right to counsel, the right to equal protection and benefit of the law, the right to be free from unreasonable search and seizure, and the the fundamental right to life, liberty, and security of the person.

The joint statement also decried the government exempting teachers from the fundamental rights enshrined in the Alberta Human Rights Act and Alberta Bill of Rights.

“As organizations of criminal defence lawyers, whose role is to protect and preserve the rights and freedoms we all cherish and rely on, we are profoundly concerned by the extraordinary use of the notwithstanding clause by the government,” said the statement.

“When governments seek to normalize the removal of robust Charter protections, it imperils all rights, including those that shield citizens from arbitrary or unjust state action within the criminal justice system.”

The four associations also took issue with the government’s desire to begin using the notwithstanding clause for other political issues, saying this instance might be to help “inoculate” Albertans against future uses.

Rights not respected say lawyers

Kelsey Sitar, President of the Calgary Defence Lawyers Association, said that the statement came after a period of coordinating a response to Bill 2 by the four associations. She said it was due to both the unprecedented push through of Section 33, and the breadth of rights being suspended.

“It was one of those issues that we just felt as organizations, and given what we do every day and what we see in the courts every day, we couldn’t stay silent when this was going on,” she said.

She said that suspending section two of the Charter, along with sections seven through 15 was basically all of the rights that Canadians are accustomed to having protected. Sitar said the result was that Alberta teachers no longer feel free to exercise fundamental rights like freedom of expression to challenge the government.

“They’ve got no rights right now. I think many are even afraid to sort of speak out in their private lives, or to attend protests or speak with their MLA anything that looks like job related action,” she said.

“It’s a scary time, I think, to be a teacher in Alberta, and it’s a scary time to be someone who’s part of any labour union, or at least it should be.”

That included provisions like section nine of the Charter which prevents arbitrary detention by the state—an example of which is the police picking a person up and taking them to an undisclosed location without cause said Sitar, something seen in authoritarian and undemocratic states.

“In furtherance of this Act, section eight is search and seizure, and that’s what protects us from the government just being able to demand to walk into our demand to walk into our houses and dig through our telephone our cell phones and our computers. I cannot fathom, unless it’s just a truly draconian plan, why all of those rights needed to be listed in this legislation,” she said.

More rights for shoplifters than teachers

The effect for Calgary teachers from Bill 2 was that if a teacher was arrested for something criminal unrelated to their job, they would have more rights afforded to them, said Sitar.

A teacher who was caught shoplifting for example would have the full protection of the Charter of Rights and Freedoms, but a teacher who protested the government would have none under Bill 2.

“If they are arrested for something to do with job related action, some sort of civil disobedience, or something of that nature there could be an argument to be made that somehow those rights have been suspended, which would then limit their ability to get legal advice before they’re questioned by the police. It could arguably limit their right to get access to a bail hearing,” said Sitar.

Speaking to her colleagues at the Crown Prosecution Service, Sitar said that it would be unlikely that any of those lawyers would voluntarily argue that teachers don’t have rights to be protected.

“Realistically, I don’t think that any of my crown colleagues would stand in a courtroom and argue that a teacher shouldn’t have a bail hearing, or that a teacher shouldn’t be able to search or challenge a search of their computer or their vehicle or their person,” she said.

That goodwill from professionals being the last line of defence for rights was one of the reasons that other legislatures like Manitoba have been looking at providing extra provisions against the notwithstanding clause, said Sitar.

She said the province should reverse course on Bill 2 and on the use of the notwithstanding clause, noting that it’s been done before due to public pressure.

“It is an interesting provision within the act itself that essentially would allow the government, or an active cabinet to essentially repeal it. And so they have that power available to them,” said Sitar.

“I frankly think people should be asking their MLA, particularly if they’re not someone who’s in cabinet, when did you get this legislation? When did you read it? I think those are important questions to ask your MLA,” she said.

She said the possibility of the government reversing course was low.

“Frankly, with a premier who is overseas and appears to not be engaging on the topic, I’m not sure how likely it is we’ll see cabinet act. So at this point, it would take some sort of court proceeding, and then, even then, a court is going to be limited,” said Sitar.