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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.
Well yeah, including a process like this for provincial governments guarantees it’ll get used for crap like banning opposition parties right before elections and underpaying Janitors. And TBQH, after the federal government used a similar process to seize the property of dissidents(albeit temporarily), it was probably inevitable that provincial governments would use it for progressively dumber stuff. I mean, did anyone trust Doug Ford at any point?
Covid let the cat out of the bag on authoritarian ‘emergency’ powers that governments had very strong norms against not abusing. They will continue to use these powers to accomplish their agendas, over and over again, regardless of whether you like it or not, and given the incentives that apply to politicians making the rules, this will eventually be to tilt elections and renegotiate state obligations. Sucks, but it’s what happens.
How could they use the notwithstanding clause to ban political parties and why hasn't it happened yet?
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