The Canadian Charter: a toothless dog?

It’s a serious concern that the taxpayers have been put into the awkward position of having to pay in arrears for the government’s failure in the BC Teachers Federation vs. Government of BC ruling. It’s like finding out that your mortgage payments were too low and that you now owe 12 years’ worth of catch-up payments. Not good. But there’s a lot more at stake as the Griffin decision goes to appeal.

This ruling came about because the government flouted the law of the land. In 2011 the BC Supreme Court ruled on a teachers’ constitutional challenge of the governments Bill 28, which had been made into law in 2002. The court ruled that indeed the legislated contract for teachers was unconstitutional. The basic premise of the ruling was that the Canadian Charter guarantees employees the right to bargain working conditions: in this case class size and composition (It’s worth noting that the government did not appeal that ruling). But the court also recognized a reality that during 10 years of legal wrangling leading up to the decision, new protocols had been put into schools, and setting things right would require time and creative problem solving. The court suspended the ruling for 12 months to give the government enough time to address the repercussions of the decision.

But instead of negotiating a remedy with teachers, the government simply shut the door on negotiations and rewrote the same legislation. This was a slap in the face to the BC Supreme Court.

Furthermore, evidence was found that the Government not only refused to negotiate in good faith, but that it re-created the impugned legislation in an effort to goad the teachers into a strike that would turn public opinion in the government’s favour. The Court must have seen this as trifling with law – an act which shows some contempt for the Court ruling and one that the Court would not look kindly on.

The price tag of the ruling is yet another boondoggle for BC taxpayers. Taxpayers are already reeling over the news of a sudden surge in Hydro rates caused by lack of government oversight in the power industry. This ruling will put another huge burden on taxpayers. It’s a lot of money.

But more than the money, what is really is discomfiting is the possibility that if the Court of Appeal softens the consequence for the government (read: taxpayers), any government will feel free to create unconstitutional legislation over and over, knowing that the Charter is a toothless dog. Such a situation invites tyranny.

And it’s not just unionism that is at risk. If the constitution is violable, then anything the government wishes can be put into legislation. What if a more socialistic government were to achieve power and put a ban on corporate donations to political parties? Surely this would be unconstitutional, but in the absence of consequences, why wouldn’t a government try this? Many scenarios can be imagined, depending on the political ideology and goals of any given government. If we allow government to violate the Charter with impunity, we’re in big trouble. The de-toothing of the Court in matters related to the Charter of rights is a threat to everyone.

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