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:
”  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?