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Notes -
Overriding the Constitution to avoid negotiating with janitors
The Canadian Charter of Rights and Freedoms has a little escape hatch that has gotten more attention in recent years. By now I suspect there are even a handful of Americans who have heard of the notwithstanding clause; a segment of the Charter that allows provincial/federal governments the ability to temporarily pass laws that violate certain Charter rights (essentially all the rights except those that pertain to the democratic process). The Canadian Charter is a very popular document (in my opinion, it's one of the best things about my country), and the notwithstanding clause gained a sort of mystical aura in Anglo Canada since 1982 as a big red button that Should Never Be Touched. Outside of Québec, it had only been used a handful of times, and for fairly minor issues that many times were deemed by the courts unnecessary after-the-fact. A few other times it had been employed as a sort of rhetorical tool or threat, ultimately avoided because the legislatures did their job and resolved whatever problem they faced without having to use it. The political norm against not abusing it had become very strong.
Enter Doug Ford. Not the most respectful of norms (in the style of his late brother, who as Mayor of Toronto did a number of turned-out-to-be illegal things, and I'm not talking about smoking crack). His first use of the notwithstanding clause was immediately upon gaining power in 2018, in order to halve the size of the Toronto city council in the middle of Toronto's municipal election. Traditionally the provincial government does not interfere in the affairs of municipal governments, but again this was tradition only and ultimately the courts found that the use of the notwithstanding clause was not necessary. In 2021 he used the notwithstanding clause again to limit third-party political advertising in the run-up to the provincial election that he handily won. In this case the courts did rule that his actions were unconstitutional as they were restrictions on freedom of expression.
But his third use of the notwithstanding clause is the most bizarre, norm-upsetting, and (to me) infuriating of all. The contract for the province's school workers (janitors, early childhood educators, school monitors, basically the blue-collar school employees) is up. The average employee in this union makes $46k CAD (~33k USD). Their wage increases over the last decade was lower than last year's inflation. And meanwhile the cost of living has exploded, especially in the province's most populous areas. So obviously the province owes it to these critical workers to give them a good deal, right? This is not a case of some fat public-sector union, and the provincial government and society at large has spent the pandemic fêting the heroics of these essential "front-line workers".
Well, no. Instead the government is using the notwithstanding clause to override their Charter right to strike. Note that this is not back-to-work legislation; that process involves binding both parties to a neutral arbitration process that tends to give labour a fair shake. Instead this is the unilateral imposition of a labour contract by the state, a first in modern Canadian history. The union has declared its intent to strike anyways, but because this would now be illegal, the potential fines for this are up to $200 million per day.
There are no legal countermeasures available to the union. The provincial governments in Canada are very strong by design, but this was supposed to be balanced by social norms against abusing these powers. But with the increasing polarization of Canadian society and centralization of power within political parties, apparently the weight of the potential backlash has been weakened. It was never the intent of the notwithstanding clause to give provincial governments the ability to just force people to work on the state's terms because they can't be bothered to negotiate, yet here we are regardless. Unless the Prime Minister (or the Governor General) were willing to intervene from on high and use their big red button that Should Never Be Touched (disallowance), there's nothing to be done. But that would kick off a constitutional crisis over janitors, and I don't think Trudeau has the balls; he's no friend of labour regardless and oddly buddy-buddy with Ford (that's another topic though).
Even if you were indifferent to the situation of the workers, there's reason for concern here. This kind of flagrant norm-breaking is what tends to start unraveling countries. The notwithstanding clause was not supposed to be employed this way; indifferent and repeated use of it could turn the Charter into a piece of paper. What's to stop other provincial governments from using their powers in this way? What's to stop retaliation when some other party inevitably comes to power? It used to be that Canadian politics was largely regional, with provincial and federal representatives responsive to local concerns and willing and able to keep their leaders in line. That's gone. The safeguards against misuse of power have disappeared.
The strike starts on Friday, and I'm going to be out showing my support. I've tried to keep this write-up somewhat tonally neutral, but I'm truly incensed about this.
Constitution aside (since the inclusion of that clause guaranteed its eventual abuse, and no one should be surprised by the current situation), if asked privately, nearly every parent would be in favour of preventing a strike. So it’s really the parents tyrannizing the workers, using the province as their attack dog. The trouble is, though, that in order to pay the CUPE workers more, the population has to be taxed, and taxation involves the threat, however distant, of death. So CUPE would be tyrannizing the people of Ontario, with the province as their attack dog. And since shutting down schools does not hurt the government they way shutting down the kitchen hurts McDonald’s, CUPE is threatening kids’ and parents’ time (the least renewable non-renewable resource) in order to hurt the government’s money (they make more of it every day), which is a form of hostage-taking, and must also count as tyrannizing the people of Ontario. So in this exact public-sector union dilemma I count CUPE as aspiring to be twice as tyrannical as the government of Ontario, and therefore, bizarrely, prefer that the government win this one.
I can’t see a way to defend abolishing public sector unions, but they at least have to be honest about the fact that, in the end, they’re not extorting money from greedy capitalists, but time from ordinary citizens (and permanent residents).
It's the law of supply and demand that is the engine here. The value of goods and services is determined conclusively by the intersection of supply and demand, and that is as true of labor as it is of anything else. No one is tyrannized by earning only what their labor is worth. The tyranny inheres in permitting collusive behavior in the labor market (unions, organized strikes) to inflate the cost of labor above what it is worth. Preventing the strike averts the union's attempted tyranny over school children, parents and taxpayers.
If janitors aren't being paid enough for our sensibilities, then by all means supplement their income with the welfare state, but apply it evenly to everyone who isn't being paid enough, not just for those lucky enough to be able to hold schoolchildren hostage to their demands.
Hopefully my comment provides such a defense.
Isn't a limiting factor of unions' ability to bargain the employer's cost of firing everyone, and then hiring and training new employees? If the unions were to argue (without caving) for a crazy amount, like one million dollars per year per member, then it would be more cost-effective to replace the entire work force. It doesn't seem like it is possible for union members to inflate the cost of their labor far above what it is worth (cost of training could make paying an inflated salary preferred in the short-term). Unless there are laws about companies firing their entire workforce/an entire union, which there could be (maybe in France, I've heard they have strong laws supporting unions) but I am ignorant about laws surrounding unions.
I agree that there are limits to what a union can extort above the clearing wage in a free labor market, but limited extortion is still extortion.
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It seems strange to use the word "tyrannizing" in the context of the government voiding constitutional rights, but having it apply to the ones whose rights are being violated
Is it actually a constitutional right at all if the constitution provides a "notwithstanding clause" that explicitly permits the government to violate it? I would argue that it isn't. At most it's a violation of norms.
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Because this specific right isn't a real one, its a privilege. A right is something you can do as a human being as a result of existing. There is no right to be a government schoolteacher who is paid, because that requires dozens of prerequisites that cannot be assumed.
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The government always could have passed back-to-work legislation and send this to arbitration. But instead they chose to unilaterally impose a contract on the union.
Politicians have gotten handsome raises throughout the pandemic. Does that not count as extorting the public?
I don't think back-to-work legislation would be constitutional anymore. In 2015, Canada's Supreme Court ruled that striking is a constitutional right, a component of collective bargaining which is protected in the charter under the freedom to associate. And Ontario courts struck down the 2012 back-to-work legislation as infringing on the collective bargaining rights of school employees.
So using the notwithstanding clause seems like the only way to actually do this, since I doubt the courts will see janitors as essential as police or w/e (and I never read the full Supreme Court case, so who knows, maybe police and doctors are allowed to strike?).
Since then there have been numerous instances of governments using back-to-work laws. Off the top of my heads the feds used it for Canada Post in 2018 and CP Rail in 2019
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Sure, it counts. But we’re not talking about who is evil and who is righteous; we’re talking degrees of bad in badly conceived system.
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