BC teachers in court as province appeals decision

[cybercoma]

The final arbitrator of your rights is the Constitution as interpreted by the Supreme Court.

You are the final arbiter of your rights. They're only as strong as your will to defend them. The notwithstanding clause allows governments to ignore the courts.

[Wilber]

You are the final arbiter of your rights. They're only as strong as your will to defend them. The notwithstanding clause allows governments to ignore the courts.

The notwithstanding clause does allow governments to ignore the law. It is a really bad clause in our constitution that flies in the face of the very spirit of having a Charter of Rights. However, you are also required to act within the law when defending your rights. Mob rule is no more legitimate than a government ignoring the law.

Edited October 19, 2014 by Wilber

[cybercoma]

The notwithstanding clause does allow governments to ignore the law. It is a really bad clause in our constitution that flies in the face of the very spirit of having a Charter of Rights. However, you are also required to act within the law when defending your rights. Mob rule is no more legitimate than a government ignoring the law.

If the government ignores the laws, then there is no Law.

[Wilber]

If the government ignores the laws, then there is no Law.

Yes there is. Governments break laws regularly and are held responsible by the courts and public opinion. Also, provinces can only invoke the notwithstanding clause in regard to issues that are in their jurisdiction. That is why Alberta's application of the clause regarding same sex marriage was declared invalid. The definition of marriage is exclusively a federal domain.

[TimG]

The final arbitrator of your rights is the Constitution as interpreted by the Supreme Court.

You have not read the constitution then. The Notwithstanding Clause exists and that clause says the final arbitrator is and should be the legislator.

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.

Nonsense. Rights always come into conflict - especially when they cost money. There is a constant balancing act required that courts are not equipped to deal with. That is why the final arbitrator has to be elected officials.

The notwithstanding clause is not a legitimate tool to ignore the Constitution, that is why it is hardly ever used.

Many tools are rarely used but that does not make them any less essential. The notwithstanding clause is the only protection we have against tyranny created unelected and accountable judges choosing to impose their values on nation that does not agree.

[TimG]

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.

Judges are human. Judges are corruptible. Any system that gives the final power to make such decisions to unelected judges is not a democracy. The Notwithstanding Clause is essential to preserving the integrity of the system.

A government that would invoke the notwithstanding clause frivolously, should not be seen as a legitimate government.

A strawman. No Canadian government has ever invoked the clause frivolously. We we discussing a hypothetical based on a possible court ruling. If the ruling is bad then the government can legitimately overrule it. Until we see the actual ruling you have no basis for your suggestion that the use of the clause would be frivolous.

In fact, it strengthens a government's legitimacy by getting the co-operation of more democratically elected representatives in support of the governing bench.

The Notwithstanding Clause strengthens the legitimacy of the constitution by giving elected governments the option of ignoring some of the rules. Canada would not be unified today if the clause did not exist. Edited October 19, 2014 by TimG

[cybercoma]

So judges are human and corruptible but politicians aren't? So that's why the notwithstanding clause is needed?

[TimG]

So judges are human and corruptible but politicians aren't? So that's why the notwithstanding clause is needed?

Politicians can be tossed out of office and laws reversed. That is how the system protects against fallible and corruptible politicians. That I why I rarely support any law that cannot be easily reversed by a future elected government. The Notwithstanding Clause is the only protection we have against fallible and corrupt judges. Edited October 19, 2014 by TimG

[Derek 2.0]

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

A Government that would use said clause to prevent a drastic financial burden on BC taxpayers over teachers having to teach a handful of more students merits, in your view, to be overthrown violently?

I've heard of militant unions............

[cybercoma]

A Government that would use said clause to prevent a drastic financial burden on BC taxpayers over teachers having to teach a handful of more students merits, in your view, to be overthrown violently?

I've heard of militant unions............

If the Supreme Court upheld your rights to have weapons and the government trampled on it with the notwithstanding clause, would you not be ready to revolt?

[cybercoma]

At the end of the day, people's rights are only as secure as their will to stand behind them with violent force if necessary. If a government took away your right to vote, then I would expect people to protect that right through violent means. No different from any other rights. The government is bound by the constitution and charter of rights and freedoms. They dictate what laws and legislation are legitimate. A government that doesn't care about the legitimacy of its laws has no legitimacy as a government of the people. And shame on you if you wouldn't stand up for others' rights as you would your own. If the Supreme Court upheld a decision that ruled it unconstitutional for the government to take your guns and the government used its notwithstanding clause to ignore the ruling of the Supreme Court, I would stand beside you denouncing that government and its laws as illegitimate. The government doesn't unilaterally and arbitrarily decide what rights and freedoms we have and any government that would ignore them ought to be fought tooth and nail.

This is all very beside the point. There isn't a Supreme Court challenge here and there isn't the threat of a notwithstanding clause. This is entirely hypothetical and nonsensical for the situation. It won't get that far and if it does, I would expect everyone, especially free-market conservatives, to stand up for free and binding negotiations. If the employer can just ignore the contract they agreed to, then there is no reason the employees have to honour their side of the contract. Protecting private rights and freely negotiated contracts is a cornerstone to a fair free-market economy. To support an employer unilaterally backing out of a freely negotiated contract and to argue that the contract should not be enforced under the law, is to support government tyranny in the markets. It just so happens that the government in this case is the employer, so it has a conflict of interest in that it can legislate away its responsibility. Imagine the government legislating away employees responsibilities under a contract with a private employer though. This is the exact same thing with the shoe on the other foot. It undermines our economy and it undermines our ability to sell under a fair contract negotiation the only thing that is fundamentally ours from birth: our labour. If labour contracts can't be trusted because the government is willing to legislate away one party's obligations under those contracts, then the entire idea of free negotiations to buy and sell labour is thrown in the dumpster. I support the ability for employers and employees to negotiate the purchase and sale of labour and I believe those contracts ought to be backed by force of the courts. Allowing employers to legislate away their responsibility is unconscionable in a free-market economy.

[TimG]

At the end of the day, people's rights are only as secure as their will to stand behind them with violent force if necessary.

When rights come into conflict the government must make a decision to suppress some rights in order to protect others. The decision on which rights should be given priority is a political decision and there are no absolutes. That is why the notwithstanding clause needs to exist.

It won't get that far and if it does, I would expect everyone, especially free-market conservatives, to stand up for free and binding negotiations. If the employer can just ignore the contract they agreed to, then there is no reason the employees have to honour their side of the contract.

You seem to be missing the point. Everyone agrees that people are entitled to fair compensation if a government breaks a contract. However, the government should have a right to break a contract because unbreakable contracts are too open to abuse by officials. The issue in this court ruling is the government did not even attempt to negotiate and I agree that was wrong.

The biggest problem with the ruling is it suggests that once a clause gets into a union contract it can never be removed: even if the contract expires. This is what is problematic and this is what would require a notwithstanding clause if the SCC is dumb enough to let it stand. If the SCC simply rules that the teachers were entitled to fair compensation for the 2-3 years let on the broken contract then I would not complain.

Edited October 19, 2014 by TimG

[cybercoma]

The biggest problem with the ruling is it suggests that once a clause gets into a union contract it can never be removed: even if the contract expires.

Bullshit. The clauses were legislated out while a contract was still active. It had been freely negotiated.

You might be ok with a society where contracts aren't legally enforceable, but I'm not.

[Wilber]

You have not read the constitution then. The Notwithstanding Clause exists and that clause says the final arbitrator is and should be the legislator.

Actually, it's use is in effect for a maximum of five years. The law does not change.

Nonsense. Rights always come into conflict - especially when they cost money. There is a constant balancing act required that courts are not equipped to deal with. That is why the final arbitrator has to be elected officials.

They do come into conflict and it is the SC's job to resolve that conflict according to the Constitution. Government is the biggest single offender. The notwithstanding clause does not change the law, it just allows a government to ignore it for five years. Apparently you think that is a good idea. I don't.

Many tools are rarely used but that does not make them any less essential. The notwithstanding clause is the only protection we have against tyranny created unelected and accountable judges choosing to impose their values on nation that does not agree.

You have it exactly backwards. The charter and courts protect you from government and anyone else who would abuse or deny your rights. If there had been a Charter of Rights during WW2, it could have prevented what was done to Japanese Canadians. The notwithstanding clause would have allowed government to do it anyway. Apparently you think that is a good idea. I don't.

[TimG]

Actually, it's use is in effect for a maximum of five years. The law does not change.

So?

They do come into conflict and it is the SC's job to resolve that conflict according to the Constitution.

Nonsense. Unelected judges simply rule according to their personal biases and prejudices because in most cases there is no written law covering the circumstances.

If there had been a Charter of Rights during WW2, it could have prevented what was done to Japanese Canadians. The notwithstanding clause would have allowed government to do it anyway. Apparently you think that is a good idea. I don't.

I think it is necessary because laws passed by politicians are temporary by definition but judge made laws are forever. Unlike you I don't think major policy decisions should be made by unelected and unaccountable judges. It undermines the entire principal of democracy. I want politicians to make the big decisions - not judges and lawyers. Edited October 19, 2014 by TimG

[TimG]

Bullshit. The clauses were legislated out while a contract was still active. It had been freely negotiated.

BS. You are just whining because the government in this case is pushing back against abusive union demands. If it was a business or any other group that you despised you would have absolutely no problem with it. That is why I called you a hypocrite.

You might be ok with a society where contracts aren't legally enforceable, but I'm not.

Then I assume you oppose expropriation. After all, a land title is simply a government contract. I also assume that you think governments should be liable if a change in environmental regulations that decrease the value of someone's assets because in a rule based society if governments causes harm it should be liable. Edited October 19, 2014 by TimG

[cybercoma]

Did you have anything to contribute to the topic, TImG or are we done here? You're literally arguing for the very foundation of a free economy to be torn up and thrown in the trash. It's laughable from someone who claims to be a libertarian. If contracts are not legally binding and enforceable, then what's the point? We might as well have a state-guided economy.

[Wilber]

So?

So the law does not change. Government has to re envoke the act every five years if they want to keep it in effect.

Nonsense. Unelected judges simply rule according to their personal biases and prejudices because in most cases there is no written law covering the circumstances.

And politicians are squeaky clean in this respect. There are written laws, they are called the Constitution and Charter of Rights. They were made by politicians, not judges. You want governments to arbitrarily decide which of their own laws they will obey and which they will not, which rights they will respect and which they will not, according to their own personal prejudices and whatever popular mentality they can generate through things like attack adds in order to get themselves re elected. In reality, government is mob law given legitimacy by an election. There needs to be safeguards against that. They are the Charter and the courts.

I think it is necessary because laws passed by politicians are temporary by definition but judge made laws are forever. Unlike you I don't think major policy decisions should be made by unelected and unaccountable judges. It undermines the entire principal of democracy. I want politicians to make the big decisions - not judges and lawyers.

Unlike you, I don't think civil rights should be left in total control of people who pander to public emotions in order to keep their jobs. They are too fundamental for that. I'm amazed that many of the same people who go on about Canadians dieing in wars to protect our rights are so quick to kiss those rights off to accommodate expediency and the political flavour of the day.

[TimG]

Unlike you, I don't think civil rights should be left in total control of people who pander to public emotions in order to keep their jobs.

Spare me the melodrama. The important rights have been long established and protected. All the courts do now is turn trendy social causes into "rights". It is the same emotions, same pandering that politicians do. The only difference is judges are never held to account for the costs of turning everything into a "right".

The basic difference between you and I is I don't put judges on a pedestal. There are the same as politicians and given a choice between a politician making a choice that can be overturned in the next election and a judge making a choice that is near impossible to reverse I say let the politicians decide.

Edited October 20, 2014 by TimG

[TimG]

You're literally arguing for the very foundation of a free economy to be torn up and thrown in the trash.

As long as governments have the power the use force to make people to pay taxes they need the power to manage costs - even if that means breaking contracts with reasonable compensation if necessary. No private individual or corporation has the power to force other people to pay to cover the costs of bad deals so the same rules do not apply.

IOW - there are no "fundamentals of the free market" at risk here. Just a recognition of the government, at its core, is not like a business.

Now if you wanted to make taxes voluntary then we could talk about a regime were the government is stuck with a contract like any other corporation but you know that is not going to happen so spare us the rhetoric.

Edited October 20, 2014 by TimG

[Wilber]

Spare me the melodrama. The important rights have been long established and protected. All the courts do now is turn trendy social causes into "rights". It is the same emotions, same pandering that politicians do. The only difference is judges are never held to account for the costs of turning everything into a "right".

The basic difference between you and I is I don't put judges on a pedestal. There are the same as politicians and given a choice between a politician making a choice that can be overturned in the next election and a judge making a choice that is near impossible to reverse I say let the politicians decide.

I don't put them on a pedestal and I certainly don't always agree with them but unlike politicians, they have no vested interest in the results of their decisions, they are there strictly to rule on whether people and governments are acting according to the laws that governments passed. Laws mean nothing if they aren't enforced and that is the judiciary's job. As a result, I have a lot more confidence in them to look after my rights than I do politicians with an agenda. It is worth remembering the Nazis were elected to power. All it takes is enough people willing to play fast and loose with the rights of others. Before long it is their rights that are dissapearing.

Edited October 20, 2014 by Wilber

[overthere]

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.

They got a mandate to govern, a strong one, and that includes doing things you don't agree with.

Too bad for you.

No, the Supreme Court does not make laws, where do you come up with this gibberish?

Unelected court officials do not make laws in Canada. The Parliament of Canada makes laws.

The Supreme Court may and does interpret laws enacted by the elected government, but the day they make it is the day democracy has departed.

[cybercoma]

They got a mandate to govern, a strong one, and that includes doing things you don't agree with.

Too bad for you.

No, the Supreme Court does not make laws, where do you come up with this gibberish?

Unelected court officials do not make laws in Canada. The Parliament of Canada makes laws.

The Supreme Court may and does interpret laws enacted by the elected government, but the day they make it is the day democracy has departed.

They interpret the validity of laws in relation to the Constitution and the Charter of Rights and Freedoms. The government doesn't get to do whatever it wants.

Some of you are seriously talking absurdity here with the suggestion that people's rights don't matter.

TimG over there is literally arguing that contracts shouldn't be enforced. That there is no such thing as a legally valid contract with the government because they can change the terms at any time they want. There's hundreds of thousands of contractors with the government that would find this belief extremely troubling.

When the government acts as an employer, then it is bound by the same employment standards as every other employer. When they freely negotiate to a contract, they are legally obligated to abide by their responsibilities. To even suggest that as an employer the government shouldn't have to abide by the contracts that it agrees to is some kind of Kafkaesque joke.

[TimG]

I don't put them on a pedestal and I certainly don't always agree with them but unlike politicians, they have no vested interest in the results of their decisions, they are there strictly to rule on whether people and governments are acting according to the laws that governments passed.

Judges may not have a direct financial interest in the decisions but they are making decisions based on their personal moral framework - a framework which may or may not be shared by the majority of Canadians. It is simply wrong to claim that value judgements made by a few appointed judges represent fundamental rights that should never be abrogated. They are simply value judgements that the elected representatives should be entitled to overrule if they decide that is what the people want.

Quebec's sign law is a good example. The elected representatives in Quebec have made the decision that preserving French on signs is more important than freedom of expression and they should be entitled to do so. Fortunately, the notwithstanding clause gives them the option. If Quebec did not have that option they would have likely already separated and created a new constitution that allowed them to ban English signs.

That said, I think it would be wrong for governments to routinely overrule court decisions. I am only arguing that the ability to overrule court decisions is necessary to preserve democracy. The five year renewal requirement is a good way to balance the two competing priorities.

Edited October 20, 2014 by TimG

[TimG]

TimG over there is literally arguing that contracts shouldn't be enforced. That there is no such thing as a legally valid contract with the government because they can change the terms at any time they want. There's hundreds of thousands of contractors with the government that would find this belief extremely troubling.

That is the reality today. Governments generally choose to honour contracts because they understand that the cost of not honouring would be much higher in the long run. Government is simply too big to allow the public purse to be plundered by corrupt officials that sign sweetheart deals that can never be revoked if/when they are discovered.

When the government acts as an employer, then it is bound by the same employment standards as every other employer. When they freely negotiate to a contract, they are legally obligated to abide by their responsibilities.

Governments can't easily go bankrupt which means there is no way to limit union greed. The ability to legislate agreements over the objections of the union is the only way to balance the power of public service unions.

That said, I have said over and over again in this thread that the BCTF was entitled to reasonable compensation for the removal of the clauses and the government was wrong to refuse to provide compensation for the 2-3 years in question. But once that original contract expired then so did their right to compensation. If the government does not want class size in the contract then it should not be there. The courts have no business saying otherwise.

Edited October 20, 2014 by TimG