To safeguard against tyranny
By Rob Wipond, March 2014
Read deeper and BC Supreme Court Justice Susan Griffin’s ruling in support of teachers against the provincial government is about much more than just our schools.
It seems appropriate that the late-January BC Supreme Court ruling won by the BC Teachers Federation has received attention in our news media. But there’s an undercurrent that permeates Justice Susan Griffin’s Reasons for Judgment that hasn’t been discussed nearly as much as it should be: Her very worrying evaluation of the state of our democracy.
For those who haven’t been following the story, the BC Liberal government passed legislation in 2002 that seemed to be a blatant attack against the most basic civil rights of teachers to freely associate and take action collectively. It deleted hundreds of agreements from existing contracts and stripped the BCTF of virtually any powers to bargain on key issues about teachers’ working conditions—primarily with respect to the number of students in classes, and the learning environments for children with special needs. Those are issues that, obviously, do dramatically affect not just teacher working conditions, but also classroom management, children’s education, and probably the emotional state of many schoolchildren. So they’re issues worth discussing.
But the government legislated otherwise. It was as if your boss were not only to refuse your requests for office supplies, but were to suddenly threaten to have you dragged to jail if you so much as tried to discuss or negotiate issues concerning office supplies.
It wasn’t a reasonable approach from the government. And that’s what the courts said, too. In fact, the courts determined that the BC Liberals’ legislation violated teachers’ basic civil rights under the Canadian Charter of Rights and Freedoms.
But the provincial government ignored the courts. Repeatedly.
When, in 2004, the BC Supreme Court first struck down an arbitrator’s decision upholding the government’s legislation, the government simply re-wrote the legislation anew and made it apply retroactively. And for good measure, they wrote into this new version of the legislation that it would remain in force, “Despite any decision of a court to the contrary…” It was like kamikaze legislating: The BC Liberals enacted a law that was deliberately aimed at destroying the authority of our own legal system.
After a challenge brought by the BCTF in 2011, the BC Supreme Court struck down the legislation as contravening teachers’ constitutional rights. (Er, didn’t I say that already?) The government reacted by basically changing some words here and there and passing the same unconstitutional legislation all over again. So the BCTF had to take the government to court all over again. And the BC Supreme Court struck down the legislation as unconstitutional—all over again—this January.
It’s crucial to understand that relatively little substantive was actually being negotiated during many of these years. Rather, the teachers were for the most part simply trying, again and again and again, to win back their basic right to at least be able to discuss and negotiate their working conditions with government.
Appropriately, then, Justice Griffin’s January 2014 decision was hard on the government. She acknowledged that government “has a role and responsibility” to establish “some fiscal and policy parameters” around the teachers’ collective bargaining process. And she noted that there was “a plethora of tools” available to both sides to resolve impasses, such as mediation and arbitration. However, Griffin said the government’s actions for the past ten years were “not in good faith” and flatly “unlawful”.
Griffin further determined that, particularly in the past few years, the government’s representatives delayed unnecessarily, “wasting time,” wouldn’t engage in meaningful dialogue, didn’t listen or make any reasonable efforts to reach agreements, and often simply “ignored” the BCTF. The government even engaged in efforts to sabotage negotiations by refusing to repeal the unconstitutional legislation, and trying backdoor routes to reduce teachers’ pay and cancel teachers’ leaves and professional development days. Indeed, with access to confidential cabinet documents and the capacity to compel testimony, Griffin heard enough evidence to state unequivocally that the government was in fact “preoccupied” with such sabotage. “From the start…the government had a strategy in mind that it would be to its benefit if negotiations failed and if collective bargaining resulted in a strike and impasse,” wrote Griffin. “The government representatives thought this would give government the opportunity to gain political support for imposing legislation on the union.”
All of the news coverage that I’ve seen of the court decision essentially stopped at this point. Those are certainly already damning enough findings to report, but as I reflected on these insights, and read more of the Reasons for Judgment, I saw an even darker, more broadly significant undercurrent emerging.
First, it’s important I think to really absorb some of what we’re hearing. The BCTF is one of the biggest unions in the province, representing 41,000 people. It has immense funding, paid staff, ready access to volunteers, researchers and lawyers, and a professional communications arm. Essentially, the BCTF is one of the bigger and more powerful political entities in British Columbia apart from the provincial government itself, the federal government, or some major corporations and their lobby groups. But the BCTF’s attempts to understand the government’s positions were constantly deflected. The government frequently simply ignored the BCTF for long spans of time. The government flouted the law in teachers’ faces, tried to upset them so they’d act rashly and discredit themselves in the public eye, and then tried to undermine their source of income. Basically, the government kicked the mighty teachers’ union around like it was no more significant than, say, to use an example I can personally relate to, a lone freelance journalist writing for some small publication.
Even more sinisterly: Our government was actually covertly working hard behind the scenes trying to orchestrate a province-wide, full teachers’ strike, in order to justify a harsh crackdown on the teachers. It’s really the most deceitful, duplicitous, publicly manipulative and pernicious way of governing possible. It’s like employing undercover police to launch a riot at a peaceful demonstration, so you can justify sending in the riot squad to bash heads. If you’d seriously argued at the time that the government was secretly trying hard to provoke a strike, a lot of people probably would have mocked you as a cynical, feverish conspiracy theorist.
With these perspectives in mind as I waded deeper into Justice Susan Griffin’s nearly 50,000-word decision, I started to think that she was actually trying in her own way to warn us all of the seriousness of this situation we’re in with our government.
Griffin’s ruling described part of what was at stake in this legal case as being Canada’s democratic structure itself “which requires that governments must act legally, within the supreme law of the country, the Constitution.” She wrote that “Democratic institutions and democratic philosophy are at their root based on a belief that society should be structured in a way that is fair”—and she described our government’s actions as “fundamentally unfair.”
Discussing the historical context for her decision, she wrote that political forces often desire “to consolidate and gather more power and to seek to diminish any restraint on that power.” Conversely, she wrote, “A democratic system has institutional checks to counter that tendency and to safeguard against tyranny.” And one critical check on tyranny, Griffin wrote, is our Charter of Rights and Freedoms—which our provincial government has for ten years running deliberately spurned.
When Griffin considered what level of financial penalty against our government would be appropriate, she cited the moral and legal context for her determination as government conduct that could be placed somewhere on a spectrum between negligent “wilful blindness” and a clearly wrong “abuse of power.” And without substantial penalties for such actions, she argued, it was simply “too tempting” for governments to dismiss and extinguish the basic civil rights of the governed. (Griffin ultimately fined the province $2 million, indicating understanding that there could also still be substantial costs for the government in making re-dress to teachers, and expressing reluctance “to unduly take from the public purse and other public programs.”)
Absorbing all this, I thought, how much more dire a warning about our government could a high-ranking representative of our judiciary give us? And isn’t this the kind of court finding that 20 years ago got governments scandalized and politicians turfed from power?
Yet no sooner was this BC Supreme Court judgment rendered, than Premier Christy Clark (who was a principal architect of the legislation) announced that the government would appeal. It shows how emboldened our governments have become in their disdain for democratic process and their comfortable confidence in our collective passivity or ineffectualness in protest.
And now add to this disturbing reality the fact that the students in this year’s high school graduating class were in kindergarten when all this began; their entire schooling has been shaped by these circumstances. So what have the BC Liberals taught an entire generation of our children? And where is it leading us all?
Rob Wipond can be reached at rob(at)robwipond.com.