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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.
Very interesting, thanks for the well argued post.
Being American, I'm uninformed as to how federalist the Canadian system is relative to your southern neighbor. I think most would argue the US to be more polarized than Canada, and certainly at this moment in time. I think federalism helps moderate polarization as a whole...? Razor thin presidential elections result in radical policy shifts every four years that cannot be moderating, whereas having states be the laboratories of policy allow truly disillusioned individuals to move to more amenable environments, and of course make it more obvious just what policies are good or bad over time. Experimenting on a local/regional level, on the other hand, feels a bit too fractured, especially considering negative impact on commerce at the national level, so state/provincial feels like a good compromise in between.
In other words, I question your assumption that having other provincial governments abuse the notwithstanding clause thanks to Ford's lead is necessarily bad. Yes, janitors, like most working class professions, feel sympathetic to the average voter, but that sympathy gives them political power disproportionate to what the free market may otherwise dictate. Why not see what happens to the province when public unions are forbidden from striking? Maybe it results in a leaner state that is better off for growth and attracts taxpayers.
In Canada, pretty much everything of note policy-wise is decided at the provincial level, minus international affairs/defence and building cross-provincial infrastructure. The federal government's biggest role is collecting taxes and then distributing it to the provinces. Even the biggest federal projects enacted in the last few years has been childcare (and soon?!?) dental deals which again, amounts to giving cash to the provinces to spend on specific things.
However Canada's political culture is obsessed with the federal government, as well as the United States. So we have a very unproductive public discourse. Take the convoy truckers; the COVID restrictions they were protesting against were almost all provincial (except the federal border restrictions, but we were just mirroring the US and even if we had struck ours down it wouldn't have made a difference). Yet it was the federal government and Trudeau who was the target of the protests. It's not like they were going to protest against the mainly conservative Premiers.
I'm aware of this issue. Certainly there are specific public sector unions which use their position to extract excessive concessions from the government. But this union's raises in the past decade combined were less than inflation last year. They have not been milking the province for all they could get. To have the government refuse to negotiate with them and just impose a unilateral contract on them is galling. If the PCs had wanted to they could've just enacted back-to-work legislation, schools would remain open, and arbitration would take care of it and get a fair-ish deal for everyone.
Though the union seems to be asking for annual wage increases of 11.7%. I'd imagine this is a 5-year contract. So the average will go from $48k to $80k. And this would be what every other union asks for. Basically doubling Ontario's expenditures.
All the more reason to engage in negotiation or arbitration, as expected, rather than pushing the constitutional “FU” button.
As a taxpayer, I want my government to use every reasonable tool available to keep costs down. Why should the government negotiate if it doesn't have to and if it might result in them overpaying their employees?
Is deploying this provision "reasonable"?
A government is more effective when it is predictable and accountable. Following the Charter is more predictable than breaking with it at random points. Waiving the potential for judicial review is a blow to accountability--at least from my American perspective.
More broadly, I think there's merit to some of the rights being suppressed here, and that it's unjust for the government to say they're protected up until they're suddenly not. That's not a right, but a privilege. I would be worried about a law which "notwithstandinged" Section 10 to deny me legal counsel, or Section 12 to decide that torture is fine just this once, or Section 2 to demand I convert to a religion. Freedom to form contracts isn't as sympathetic, but it's important nonetheless.
What recourse, if any, should the government have when the courts go rogue and start inventing rights that never existed before at the taxpayers' expense? Your argument seems to rely on the assumption that it's important to protect rights just because the Supreme Court decided it was protected by the constitution.
I'm not saying that it's good the government va always override the constitution on most matters. But I do think that it is good in this case, because allowing public sector unions to strike is harmful.
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