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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.
It's debatable whether the Charter of Rights and Freedoms really protects the right to strike. It's true that the Supreme Court has interpreted it as doing so through the right of freedom of association.
I don't understand this. As a general principle, employers can have you agree to give up constitutionally protected rights as a condition of employment. You can get fired for violating a non-disclosure agreement for example. You can also be fired for your political views. That is their freedom of association.
After all, if you're fired, you're in the same position respect to your former employer as everyone else. You don't have a right to your job (that you aren't even doing). You certainly never had a right to be hired by that employer against his will.
So the provincial government is using its constitutional power to unilaterally revoke a right that the courts unilaterally invented, and it's probably for the public good, because I don't see how public sector unions can be justified.
Public sector unions work by restricting the supply of labour available to the government to inflate wages above market rates. This can perhaps be justified when it comes at the expense of corporations, but how can it be when the taxpayer is the one paying? This gives an unearned special status to government employees to extract rents from the rest of the population. If the argument is that they aren't paid very much, why not give them money that everyone with their income level can access?
You can read the two decisions that led to this here and here. The 2015 decision ruled that the Charter protected the right to strike because it was a essential to collective bargaining which was guaranteed by the 2007 decision, and because it promoted equality between employers and employees. I don't see how allowing public sector employees to extract rents from the general by giving them power equal to their government promotes equality. Equality means treating people the same, not elevating one special interest group above everyone else. After all, I don't have a right to get paid by the government while providing nothing in return. Instead, by virtue of who my employer is, I would be forced to pay government employees while they do nothing for me. I never agreed to this, while they did agree to do the work they are now refusing to do.
The 2007 decision ruled that the right to collective bargaining existed because it existed before the Charter (according to what it doesn't say and in any case I don't see how that means the constitution enshrines that right), because of human rights obligations (why does that have any bearing on the constitution?), and because it "reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter." As I explained above, it goes against the value of equality. It obviously goes against the value of democracy when it is the democratically elected representatives of the people whose rights are restricted and whose money is being taken in favour of this special interest group.
The relationship between collective bargaining and dignity and personal automony are nebulous. Why isn't my dignity harmed by having rents extracted from me? I suppose there is some dignity and autonomy gained by being able to renege on one's contracts and extort the general public, but it seems like the public's dignity and autonomy pay the price.
The notwithstanding clause serves a specific purpose, which is to uphold the principle of parliamentary supremacy. The courts were not meant to use the Charter to legislate from the bench and undermine the people's representatives. Pierre Trudeau even said at the time it was passed in 1982 that it changed nothing, it only enshrined already existing laws. Clearly not.
@johnfabian 's post raised the same question for me. Where did this right to strike come from? I wasn't able to get any farther than that line in Health Services. It's baffling.
It seems less "found" than invented out of whole cloth.Edit: actually, later in the document, they elaborate, going on for several pages detailing the history of labour relations up to the Charter, but IMO including nothing of relevance until:
Which I think settles it. I mean, I don't think that's what most people would interpret "freedom of association" to mean, but if that's what was originally intended, then the court's decision is reasonable.
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