Alberta’s use of the notwithstanding clause in the proposed Protecting Alberta’s Children Statutes Amendment Act and other controversial laws might impact Albertans’ Charter rights.
EDITOR’S NOTE This article was published on November 24, 2025. The Alberta Legislature passed Bill 9, the Protecting Alberta’s Children Statutes Amendment Act, 2025, on December 10, 2025.
Last month, LawNow published an article that asked whether the Alberta Legislature would use the notwithstanding clause in the Canadian Charter of Rights and Freedoms (the Charter) to shield controversial laws from court challenges. Since then, the Alberta Legislature has invoked, or started the process to invoke, the notwithstanding clause in four laws.
The notwithstanding clause
The notwithstanding clause (section 33 of the Charter) allows Parliament or a provincial legislature to declare in a statute that the statute, or a provision in the statute, shall operate notwithstanding the rights and freedoms guaranteed by sections 2 and 7 to 15 of the Charter. When Parliament or a provincial legislature invokes this clause, it removes the courts’ power to invalidate the statute/provision for violating certain Charter rights and freedoms – that is, for being unconstitutional.
Alberta laws that invoke, or will invoke, the notwithstanding clause
In late October, the Alberta Legislature enacted the Back to School Act. This controversial law forced striking teachers back to work and imposed a collective agreement on them that will not expire until August 2028. Section 3 of the Back to School Act reads, “This Act shall operate notwithstanding … sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms”. So, the law invokes the notwithstanding clause.
Just last week, the Alberta Legislature introduced Bill 9, Protecting Alberta’s Children Statutes Amendment Act, 2025. Once enacted, this proposed law will amend three controversial laws to invoke the notwithstanding clause. The Fairness and Safety in Sport Act, certain provisions in the Health Professions Act, and certain provisions in the Education Act will soon declare that they too shall operate notwithstanding sections 2 and 7 to 15 of the Charter. Combined, these laws:
- require participants in girls’ or women’s sports to confirm that the sex they were assigned at birth is female (Fairness and Safety in Sport Act),
- severely restrict access to gender-affirming care for youth (Health Professions Act, sections 1.91-1.93),
- require learning and teaching resources on gender identity, sexual orientation or human sexuality to be approved by Alberta’s Minister of Education and Childcare (Education Act, sections 18(1)(d.1) and (d.2) and 18.1),
- require parental notification and consent before teachers and school staff can use the new gender-related preferred name or pronouns of a student under the age of 16 (Education Act, section 33.2), and
- require parental notification and consent for school instruction on gender identity, sexual orientation or human sexuality (Education Act, sections 58.11 and 58.12).
Laws that invoke the notwithstanding clause cannot be struck down by the courts for violating any of the rights and freedoms guaranteed by sections 2 and 7 to 15 of the Charter. It is less clear whether such laws are shielded from court review and other declaratory relief.
Court challenges
Most of the controversial laws have ongoing court challenges against them. The Alberta Teachers’ Association filed a lawsuit against the Alberta government alleging that provisions in the Back to School Act take away teachers’ rights to engage in collective bargaining and labour action (striking). Section 2 of the Charter protects these rights.
The Canadian Medical Association and three Alberta doctors filed a lawsuit against the Alberta government alleging that the Health Professions Act provisions violate doctors’ right to freedom of conscience. Section 2 of the Charter protects this right.
Egale Canada, Skipping Stone and five Alberta youths (the challengers) filed a lawsuit against the Alberta government alleging that the Health Professions Act provisions unreasonably limit the Charter rights of gender-diverse youth. Specifically, they alleged that the provisions infringe these Charter rights:
- the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (section 7),
- the right not to be subjected to any cruel and unusual treatment or punishment (section 12), and
- the right to equal protection and benefit of the law without discrimination (section 15).
Earlier this year, the challengers got a temporary injunction that stopped the Health Professions Act provisions from taking effect (coming into force): Egale Canada v Alberta.
Egale Canada and Skipping Stone also filed a lawsuit against the Alberta government alleging that the name and pronoun restrictions in section 33.2 of the Education Act violate the section 7, 12, and 15 Charter rights of gender-diverse youth.
It remains to be seen how the Alberta courts will deal with these challenges once the laws all invoke the notwithstanding clause.
Court decisions in other provinces
Given how the courts in other provinces have dealt with challenges to controversial laws that invoke the notwithstanding clause, it looks like the Alberta courts have two options. One option is to follow the Court of Appeal of Quebec’s reasoning and conclude that a legislature’s use of the notwithstanding clause in a law removes the courts’ jurisdiction (power) to review the law, to assess its compliance with sections 2 or 7 to 15 of the Charter: Organisation mondiale sikhe du Canada c. Procureur général du Québec. The other option is to follow the Court of Appeal for Saskatchewan’s reasoning and conclude that, when a legislature uses the notwithstanding clause in a law, the courts still have the jurisdiction (power) to consider whether the law is constitutional and declare if it violates the rights protected under sections 2 or 7 to 15 of the Charter: Saskatchewan (Minister of Education) v UR Pride Centre for Sexuality and Gender Diversity.
Looking ahead
The Alberta courts are not legally bound to follow either of the appeal decisions from other provinces, but they will surely find them useful. The Supreme Court of Canada (SCC) has agreed to hear appeals from both the appeal decisions. When the SCC weighs in on the issue, its decision will bind our courts and all other courts in Canada.
It is uncertain how the Alberta courts will deal with the lawsuits that challenge the controversial laws that now, or soon will, invoke the notwithstanding clause. What is no longer a mystery is the Alberta Legislature’s willingness to use the notwithstanding clause to protect laws that likely breach some Albertans’ Charter rights. The Alberta Legislature’s recent, rapid, and repeated use of the notwithstanding clause to shield controversial laws from Charter-based court challenges is alarming and should alert all Albertans that their constitutional rights are at risk.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Jennifer Taylor
