The real meaning of the BC Supreme Court’s decision: Your government broke the law again.

There seems to be confusion in public perception of the court’s latest decision in the BC Teachers Federation vs. Government of BC case. I am particularly disturbed by what I see in the press – or rather, by what I don’t see. Many reporters have repeatedly characterized the Court decision as simply a political victory for one side, as if the BC Supreme Court is on the side of one party or another. This is a great disservice to the Court, and a distraction from the truth.

I have read and re-read both court rulings that the BCTF claims as victories. And indeed, they vindicate the union in the sense that they uphold a Charter right that had been denied teachers by the government: namely the entitlement of workers to negotiate collectively (i.e. as a union) for their contracts, and indeed, both rulings chastise the government for bargaining in bad faith and for flouting the law. But even though the most recent decision benefits the BCTF, it only does so in the sense that it restores something that was taken away. It is unfair for anyone to characterize the Court’s decision as being “in favour” of either the BCTF or the government. And it is an insult when reporters see the Court decision as a mere volley in the political tennis match between the two parties.

The Court has ruled on an issue of law, and not on a political issue. When the press glosses over this fact in an effort to be “balanced”, it creates a situation in which truth is equivocated. The presumption of innocence, which we hold so dear in our justice system, necessitates that the burden of proof for any plaintiff be very heavy. It is extremely rare that a  court of law mistakenly finds for the plaintiff. Therefore, it must be assumed beyond any reasonable doubt that the Court got it right. In fact, the government has not objected to the factual basis of the court’s decision – only the hardship that the decision presents.

In considering the evidence, Mme Justice Griffin, as all judges do, suspended her biases and loyalties, and poured over the history of legal precedents that apply to this case. The court did not take sides in education policy debate at all. The judge’s loyalty is strictly to the word of law as articulated in the Canadian Charter of Rights and in clarifications made in case law over the years.

This loyalty to the law becomes obvious when one reads the Court decisions. In the ruling that strikes down Bill 28, the Court affirms that its decision is not political, as it concedes that the constitutional violation by government was not in preventing the BCTF from getting its way on the issue of class size and composition; but rather, it was in preventing the BCTF from being allowed to address the issue. The court framed it thus:

” [179] In the context of labour relations, the duty to bargain in good faith is concerned with the parties’ intentions during bargaining, not with the outcome of the positions taken. Parties can take ‘hard’ positions, hoping to persuade the other side to agree. But parties bargaining must have a ‘genuine intention’ to try to reach agreement. If they pretend to try to reach agreement but have no real intention of doing so, this is bad faith ‘surface bargaining’…”

What is at issue in BC, then, is that the Court (in these and other cases) has found that the government has violated unions’ constitutional rights. It therefore is the responsibility of the press to present the “news” of the court’s decision in the proper light: to wit, we are living in a province in which the government has broken the law repeatedly. BROKEN THE LAW! The issue is far more concerning than the issue of how to fund an education system. A government that breaks the law is undemocratic. The press needs to present this fact clearly.

And this is far beyond a BC issue or a 2014 issue. The court’s jurisdiction is not limited to its province or its time. The precedents in law are nationally applied, and referred to from this day forward. This time it is convenient, maybe even popular, for the government to violate labour laws. If it can get away with this, one must begin to wonder what else it might try. Given the propensities of our prime minister to shut out the press, it is conceivable that a government might one day try to keep reporters out of our court rooms or out of parliament.

Justice Griffin reminds us, “The Charter protects against unconstitutional actions by the state.” Well we have a “state” that has violated the constitution numerous times. And yet I do not see this being presented as an issue by the press. Our collective yawn on this matter is dangerous to democracy. It invites tyranny. They have come for the labour unions. Who is next?

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7 thoughts on “The real meaning of the BC Supreme Court’s decision: Your government broke the law again.

  1. I think your thoughts about Madame Justice Griffin’s decision(s) deserve wider circulation. I wonder if you’ve thought of contacting David Beers or Geoff D’Auria at TheTyee.ca to see if they’d be interested in posting the whole of it as a stand alone article. I wouldn’t be surprised if they’d be willing to do so. Rabble.ca might also be a possibility.

  2. Excellent recitation of the details, facts and reasons for Madame Justice Griffin’s decision. Certainly better, and more accurate, than anything I’ve seen in the commercial press. The one exception to this has been the excellent commentary of John Heaney on CBC Victoria’s Political Panel discussion – which airs at about 7:40 am every Friday morning on FM 90.5 here in Victoria.
    Thank you.

  3. I am not entirely sure that I will be able to hold the proverbial candle to the two of you but I do know, with great surety, that recent discussions of the court ruling, as well as the “message” we all received from Mr. Fassbender, has really pissed me off (to be much less eloquent for a moment)!

    Since the court ruling, I have wished that a reporter/film maker would follow me around for a couple of weeks or a month just to “walk in my moccasins” for a while. For me, added to the task of delivering curriculum is the task of trying to make sure that the most damaged and needy student are fed literally and metaphorically. Sometimes it really feels like the harder I try to help these kids feel like they matter to a world that has turned its back on them, the harder the world tries to beat these kids down via governmental cuts and “fiscal restraints.”

    We are living in a province with a shameful child poverty record, repeatedly slashes money from mental health, disability payments, and other supports designed to help those who cannot help themselves.

    I just want people to understand that this job, our job, is not the cushy position the government tries to paint for the public. We do the best we can with less and less year after year. The teachers at my son’s school in Mission have to share one box of chalk – so deep have been the supply cuts in that district. We have classes in our school, as you both know, where there is not enough room for the kids because there are over 30 kids in the classroom.

    WHEN WILL THE MADNESS END?

    AND….

    The new Ed plan is the worst thing possible in a world where kids do not get face to face time often with people who can make a true difference in their lives. Kids need flesh and blood human beings to hug them once in a while and tell them that they matter; that their lives matter.

    Ok. So clearly I need to take a minute and calm down. I do have a letter to Fassbender “brewing” in my head. I’ll probably throw it your way when it is done.

    …I need to breathe first, though. Clearly. lol

  4. Very fine, my friend. You say what needs to be said, and say it well. These court decisions are not now, nor have ever been, about politics. I’m glad, however, that the press – even some of the usual right wing fascists, seem to see the point, and are calling for the government to do the right thing in the face of consecutive, clear legal decisions detailing exactly how the BC Libs have treated the Law (that venerable and final arbiter of what is right and what is wrong – the cornerstone of a democracy). Christy Clark and her cabal have seen the Law and the Courts as mere annoyances, to be flouted and insulted, knowing that they can endlessly appeal decisions that rule against them, and bankrupt all those who have to defend themselves yet gain in the process.

    One key similarity of all the major legal challenges, and illegal legislation the BC Libs have undertaken is this: labour unions have been at the centre. This execrable group of ruffians studies and follows all the Republican Governors in the US, and learn from them how to break the last organizations standing in their paths to total domination of all government departments: public sector unions. The private sector unions have already been decimated by two decades of the spreading of false economic “downturns,” which led to so many workers turning against their own unions (the ones my grandfather fought for in the ’40s, and that built the middle class prosperity we are rapidly losing today). Currently, we have construction workers, and even skilled trades like electricians and plumbers, working for national and multinational corporations, reporting that they feel “lucky to have a job” at $15-$20 an hour, when these very same skilled workers made $$40 and hour 20 years ago as union workers.

    Thus, we in the public sector are the final bulwark against the ruination of the one thing that once opened a life of relative prosperity for Canadians and Americans: the union. If we fall (or listen and act according to the pusillanimous union members who council against any sort of strong action in the face of a clear and present danger to our very existence), it is not only we who are doomed. Once all the unions are gone – either through attrition and weakness, or legislation that with the stroke of a pen makes unions illegal (don’t think there isn’t ink drying on just such a document in Victoria!) our children will then have no choice but to join the lines of numberless workers, plebes, who – no matter their education or skill, will seek themselves like slaves to anyone who will pay them the minim wage.

    We teachers are in a fight that means much more than our bargaining rights. The fight is for the very soul of this country. We are the working middle class, if you will, and because we still have unions to protect us, we are morally obligated to join the fight with our brother and sister unions, and even to start the formerly-respected profession of “union organizer.”

    I feel – or hope – that soon, those huge non-unionized factories, retail stores, and construction sites will again be receptive to the union organizer, who explains the criminally shitty deal they are all receiving from their “generous and kind” employers. We can bring back that previously proud possession, the union card, and anonymous union vote that got employees this very special piece of paper. We can also work to protect employees through laws that – so far, in Canada – still exist to allow free union votes, without the interference of the corporation. Stephen Harper is already mulling over laws identical to the U.S. “right to work” laws, which make voting a union into a workplace basically a criminal act.

    So, we can continue to be thankful that we have a union, and it deserves to be fought for, but that others can fight for themselves, and good luck to them, or we can do what I state above. I hold little hope, and I wish I could say differently, but too many of us (yes, we are all implicated) continue to buy our $3 t-shirts from Walmart, and our condos built largely with temporary workers, because skilled Canadians cost too much – not because they are hard to find, as Christy Clark and Stephen Harper would have us believe.

    ANyway, Jim, sorry to piggyback on your excellent article, but I am “Mad as Hell, and I’m not going to take it anymore!”

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