BC teachers in court as province appeals decision

[cybercoma]

Socialist hasn't posted this yet, so here you go. BC's appeal of the decision in favour of BC teachers goes to court today. The earlier ruling found that the BC government violated the teachers' charter rights, when the government undid collective agreement clauses related to class sizes and composition. The province is appealing on the grounds that it has the right to control educational policy.

The crux of the issue, imo, is that the government decided to legislate away agreements that the teachers' freely made as part of the collective bargaining process with the BC government. If the courts allow the government to renege on its negotiated contracts, then the courts will undermine teachers right to free negotiations for their labour. However, this does not take away from the fact that the government has a right and responsibility to write educational policy. The argument on the government side is that writing out those clauses is part of their constitutional responsibility to make educational policy.

I don't expect the government will win this one. Their problem in this case is that the government freely negotiated the contracts with the teachers. If they don't have to honour those contracts, then there is no such thing as a free negotiation. The government already exercised its right to write educational policy when it agreed to its contracts with the teachers. The government is free to write educational policy, but changes to the employment contract must be negotiated. They can't simply legislate away a fairly negotiated contract because they have a right to write educational policy.

Read the news story here: http://www.cbc.ca/news/canada/british-columbia/b-c-teachers-in-court-tuesday-as-province-appeals-decisions-in-their-favour-1.2796914?cmp=fbtl&utm_content=buffer425a8&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer

[Hal 9000]

I can't believe we even entertain the idea of legally giving employees say over their employers regarding policy.

I'd love to demand that my employer pay me to prepare or give me more crew people, but no, i just have to carry on and do the best job with what i get. Teachers really don't even pretend to live in the same world as the rest of us.

[Bryan]

Even if they lose the appeal, the BC govt can (and absolutely should) just apply the not-withstanding clause. The Feds should be doing this too when courts interfere with policy.

[Wilber]

Even if they lose the appeal, the BC govt can (and absolutely should) just apply the not-withstanding clause. The Feds should be doing this too when courts interfere with policy.

Why have a constitution at all then? Remember, any party that is in power can play that game. Not just the ones you like.

[Bryan]

Why have a constitution at all then? Remember, any party that is in power can play that game. Not just the ones you like.

All parties should. The clause is there for a reason.

[Wilber]

All parties should. The clause is there for a reason.

It`s there because they couldn`t get an agreement on a constitution without it, not because it was a good idea. Seven provinces and the federal government have never used it. Why? Because it is a crappy clause and Quebec's use of it has justifiably given it a bad rep. Any government that does use it is taking a big risk because they are saying, we don't give a crap what the constitution says, we're doing it anyway.

[cybercoma]

I can't believe we even entertain the idea of legally giving employees say over their employers regarding policy.

I'd love to demand that my employer pay me to prepare or give me more crew people, but no, i just have to carry on and do the best job with what i get. Teachers really don't even pretend to live in the same world as the rest of us.

How about when your employer guarantees a particular crew size in your freely negotiated labour contract?

[cybercoma]

It`s there because they couldn`t get an agreement on a constitution without it, not because it was a good idea. Seven provinces and the federal government have never used it. Why? Because it is a crappy clause and Quebec's use of it has justifiably given it a bad rep. Any government that does use it is taking a big risk because they are saying, we don't give a crap what the constitution says, we're doing it anyway.

I would seriously expect a sustained and even violent protest if it were ever used to overturn a constitutional decision by the supreme court.

[Wilber]

I would seriously expect a sustained and even violent protest if it were ever used to overturn a constitutional decision by the supreme court.

And so it should. Not keen on the violent part.

Edited October 19, 2014 by Wilber

[cybercoma]

I'm not either, but when your rights and freedoms are ripped up and thrown in the garbage, what other choice is there?

[cybercoma]

Regardless, that's neither here nor there in this case. It's a ludicrous hypothetical that's never going to happen. The province would be painfully stupid to invoke the notwithstanding clause over a labour contract dispute.

[Wilber]

I'm not either, but when your rights and freedoms are ripped up and thrown in the garbage, what other choice is there?

Elections.

[cybercoma]

Elections.

We need to protect our rights for more than just 10 minutes every 4 years.

[Wilber]

We need to protect our rights for more than just 10 minutes every 4 years.

It's more than that. A big reason governments are so reluctant to use it is fear of the next election. That and I think a majority of our elected representatives believe in the constitution and what it stands for.

[Hal 9000]

I'm not either, but when your rights and freedoms are ripped up and thrown in the garbage, what other choice is there?

Oh, the drama!

[overthere]

Elections.

BC just had an election and the government got a strong mandate.

[Wilber]

BC just had an election and the government got a strong mandate.

Not to do anything they want. They got a mandate based on balancing the budget. They did not get a mandate to break the law in order to do it. When the SC hands down a decision it becomes law. The notwithstanding clause gives government the ability to break the law. Governments breaking the law is never a good thing.

[Derek 2.0]

I would seriously expect a sustained and even violent protest if it were ever used to overturn a constitutional decision by the supreme court.

Are you suggesting that BC teachers would/could/should utilize violence if the BC Government used the not withstanding clause to overturn a ruling over class size?

[socialist]

The BC government knows they lost the PR battle in the teacher lock out. They are lucky there isn't an election on the horizon or they would be where Kim Campbell was. The residents of BC are ticked off at the assault on public education, and rightfully so.

[cybercoma]

Are you suggesting that BC teachers would/could/should utilize violence if the BC Government used the not withstanding clause to overturn a ruling over class size?

im saying any government that frivolously uses the notwithstanding clause has no legitimacy and should be overthrown, even if it's by force.

[TimG]

im saying any government that frivolously uses the notwithstanding clause has no legitimacy and should be overthrown, even if it's by force.

Gee, when the CPC started calling a coalition an "undemocratic coupe" you were ready to lecture people about the "rules" of the system which make coalitions perfectly legitimate. Yet when we are talking about a government using different set of perfectly legitimate rules you start mumbling about violent overthrow. Shameless hypocrisy.

The Notwithstanding Clause exists because the final arbitrator of what financial obligations go with "charter rights" should be elected officials - not unelected and unaccountable judges. If you don't like the Notwithstanding Clause then you could push for constitutional change but for now it is a legitimate tool that elected governments can and should use from time to time when courts make bad decisions.

Edited October 19, 2014 by TimG

[Michael Hardner]

What if an NDP government used the Notwithstanding Clause to seize the assets of the 1% ?

[Michael Hardner]

Or made it illegal to express private opinions of some kind ?

[Wilber]

Gee, when the CPC started calling a coalition an "undemocratic coupe" you were ready to lecture people about the "rules" of the system which make coalitions perfectly legitimate. Yet when we are talking about a government using different set of perfectly legitimate rules you start mumbling about violent overthrow. Shameless hypocrisy.

The Notwithstanding Clause exists because the final arbitrator of what financial obligations go with "charter rights" should be elected officials - not unelected and unaccountable judges. If you don't like the Notwithstanding Clause then you could push for constitutional change but for now it is a legitimate tool that elected governments can and should use from time to time when courts make bad decisions.

The final arbitrator of your rights is the Constitution as interpreted by the Supreme Court. That's why we have a Constitution and a Supreme court. Your rights do not exist at the whim of a particular government, premier, or finance minister according to the flavour of the day. The Constitution and Supreme Court exist to prevent exactly that.

The notwithstanding clause is not a legitimate tool to ignore the Constitution, that is why it is hardly ever used. Quebec for it's language laws. Saskatchewan once to enforce back to work legislation, Alberta once to prevent gay marriage and the Yukon once for a piece of legislation that never came into effect.

That's it in 34 years.

Edited October 19, 2014 by Wilber

[cybercoma]

Gee, when the CPC started calling a coalition an "undemocratic coupe" you were ready to lecture people about the "rules" of the system which make coalitions perfectly legitimate. Yet when we are talking about a government using different set of perfectly legitimate rules you start mumbling about violent overthrow. Shameless hypocrisy.

The notwithstanding clause is specifically so government doesn't have to follow the rules. In a constitutional monarchy, laws are valid because they're given royal assent and they're constitutional. If a law is unconstitutional, it has no legitimacy. The notwithstanding clause should have never been written into the constitution because it allows governments to completely ignore constitutionality of their laws. Constitutionality is determined by a panel of constitutional experts in the Supreme Court. If the government ignores their determinations, then it's the responsibility of the people to protect their rights.

Coalition governments are entirely legitimate in our political system. The notwithstanding clause is by the strictest legal pragmatist sense legitimate, but it's designed as a way for governments to ignore the judiciary and decisions that determine their laws are illegitimate. A government that would invoke the notwithstanding clause frivolously, should not be seen as a legitimate government. A coalition does not undermine legitimacy whatsoever. In fact, it strengthens a government's legitimacy by getting the co-operation of more democratically elected representatives in support of the governing bench. Coalitions do the exact opposite of what the notwithstanding clause does.