Premier Ford To Use "Notwithstanding" Against Education Staff- split fromFreedom Convoy Protests

[Kilted]

Litigation will not gut the NWC. It’s part of the Constitution Act. CUPE would need a non-Charter based argument and would probably tackle, more narrowly, the imposition of a four year contract. Wielding s. 33 against the collective bargaining rights and the right to strike is hard to fight legally, and will be more of a political affair, I believe.

The federal government could override this law through Disallowance, but that’s a rare and politically risky power.

If they didn't use it to stop Quebec from the religious items ban, I don't see how they morally do it here.

 

[Remius]

If they didn't use it to stop Quebec from the religious items ban, I don't see how they morally do it here.

They won’t. They hum and haw but as mentioned the political fall out would be similar so best to avoid,

 

[brihard]

If they didn't use it to stop Quebec from the religious items ban, I don't see how they morally do it here.

Morally? Easily. Politically? No, it would be unwise, and probably damaging to the stability of Canadian confederation. This is now a provincial level political crisis where the government has acted in a way that is both lawful, and manifestly ethically wrong. This is an Ontario problem for Ontarians to sort out.

 

[dapaterson]

More cynically, any other actors attempting to alter the course merely draw themselves into the debates. Much more beneficial politically to snipe from the sidelines.

 

[Brad Sallows]

It isn't manifestly ethically wrong. It's a tool in the toolbox. It was put there to give provinces a counter to the courts. The courts in part contributed to this state of affairs by affirming a right to strike. It's ridiculous to make it hard for a province to meet the ends it seeks and then complain when it uses provisions which make it easier.

People who don't like it ought organize to remove the NWC, rather than wasting time making up a point of moral high ground and trying to occupy it.

 

[brihard]

It isn't manifestly ethically wrong. It's a tool in the toolbox. It was put there to give provinces a counter to the courts. The courts in part contributed to this state of affairs by affirming a right to strike. It's ridiculous to make it hard for a province to meet the ends it seeks and then complain when it uses provisions which make it easier.

People who don't like it ought organize to remove the NWC, rather than wasting time making up a point of moral high ground and trying to occupy it.

We will not come to agreement on the ethics of using the Notwithstanding Clause to trample collective bargaining rights that are enshrined in the Charter, so I won’t try to convince you.

The province has other, lesser options. They have eschewed arbitration and instead have discarded tens of thousands of workers’ rights, because they know that, with a majority, they legislatively can. I don’t think they’ve properly assessed this. There’s already a ton of resentment from public sector labour over bill 124 which capped certain sectors at 1% annual raises despite inflation. The government has now taken the legislative hammer one of the lowest paid public sector unions, but they’ve done so in a way that other unions - several currently in negotiations themselves - are thinking ‘shit, they could do that to us.’. The provincial government is risking a significant labour solidarity movement.

 

[Brad Sallows]

"the ethics of using the Notwithstanding Clause [which is enshrined in the Charter] to trample collective bargaining rights that are enshrined in the Charter"

The whole point of the NWC is to trample rights.

Coming soon: illustrated guide to Good Charter and Bad Charter.

 

[Brad Sallows]

"The provincial government is risking a significant labour solidarity movement."

Probably. All it takes in BC is two or more big unions on strike at the same time for the BC Fed warhorses to come out and start snorting; I suppose in ON the trigger isn't much greater.

 

[brihard]

"the ethics of using the Notwithstanding Clause [which is enshrined in the Charter] to trample collective bargaining rights that are enshrined in the Charter"

The whole point of the NWC is to trample rights.

Coming soon: illustrated guide to Good Charter and Bad Charter.

Yes, I know that’s the point of the NWC. It was a necessary ugly compromise to get Quebec to sign on to the patriated constitution. You’re absolutely right; NWC in a context like this (and in most conceivable contexts, very much including the way Quebec uses it) is very much ‘bad Charter’. It’s super weird how many people will heap scorn on Quebec and clearly object to Quebec suppressing English language rights, But are totally cool with this. The use of NWC, as previously noted, explicitly means the government concede that this is NOT a ‘reasonable limitation’ of Charter rights. They accept its unreasonableness and are cool with doing it anyway.

But you do at least acknowledge that the trampling of rights is happening. I’ll give you some credit for that I suppose.

 

[Brad Sallows]

Of course I acknowledge it. I want the NWC gone, and I want the "reasonable limits" language gone. I want most rights to be beyond the power of politicians and judges to debase them, and I want all the people who think such things are OK to feel shame proportionate to whatever degree they agree with occasions on which those clauses are used, particularly if they object when their own oxen are gored. But change isn't going to happen while the people in charge are happy to have their rights-trampling powers intact. A lot of people will have to be trampled to work up the necessary public furor to require a re-opening of the Charter.

 

[brihard]

It isn't manifestly ethically wrong. It's a tool in the toolbox. It was put there to give provinces a counter to the courts. The courts in part contributed to this state of affairs by affirming a right to strike. It's ridiculous to make it hard for a province to meet the ends it seeks and then complain when it uses provisions which make it easier.

Of course I acknowledge it. I want the NWC gone, and I want the "reasonable limits" language gone. I want most rights to be beyond the power of politicians and judges to debase them,

These two statements you’ve just made appear to be utterly inconsistent with each other. Is it wrong or not?

and I want all the people who think such things are OK to feel shame proportionate to whatever degree they agree with occasions on which those clauses are used

Based on what you said that I quoted… then isn’t this you?

 

[Jarnhamar]

They passed the bill to make any strike action illegal, and they're striking anyways. I guess this is another one of those ignore people breaking the law things?

 

[Brad Sallows]

These two statements you’ve just made appear to be utterly inconsistent with each other. Is it wrong or not?

It's not "wrong". It's the way things were set up, but it's half-assed to set up a constitution to protect individual liberties while including weasel clauses to take them away. Given the way it's currently written, it's foolish to whine about it. Improve it.

"Governments shall make no law infringing freedom of expression, except when they really need to." - weak, but not "wrong"

"Governments shall make no law infringing freedom of expression." - strong

What people ought feel ashamed of is lacking the courage to face the hard work of getting things done without having to water down rights, and for supporting the erosion of some rights while demanding others. I don't like to see the NWC used, but egregious use might set the political conditions for removing the NWC and restoring rights. "The way out is through."

 

[Furniture]

They passed the bill to make any strike action illegal, and they're striking anyways. I guess this is another one of those ignore people breaking the law things?

Seems like a good time for the Emergencies Act.

 

[brihard]

It's not "wrong". It's the way things were set up, but it's half-assed to set up a constitution to protect individual liberties while including weasel clauses to take them away. Given the way it's currently written, it's foolish to whine about it. Improve it.

"Governments shall make no law infringing freedom of expression, except when they really need to." - weak, but not "wrong"

"Governments shall make no law infringing freedom of expression." - strong

What people ought feel ashamed of is lacking the courage to face the hard work of getting things done without having to water down rights, and for supporting the erosion of some rights while demanding others. I don't like to see the NWC used, but egregious use might set the political conditions for removing the NWC and restoring rights. "The way out is through."

That basically sounds like you’re saying that infringements of rights in the present are acceptable in hopes that they become so profound that the system is dismantled in future?

Ironically, bringing it back- in your absolutist take on this, the s. 2(d) rights to free association, which has also been held to guarantee rights to collective bargaining, would mean any employees would have an absolute right to strike, essential services included, and the state could not legislate them back. One of the many, many own goals that revoking s. 1 would score.

 

[Fishbone Jones]

.

 

[brihard]

They passed the bill to make any strike action illegal, and they're striking anyways. I guess this is another one of those ignore people breaking the law things?

Ignore? No, they definitely aren’t ignoring it. It’s one of those cases where an unjust law faces so much pushback that the solution will likely have to be political, not enforcement.

 

[Quirky]

Rules are only good if they’re enforced.

 

[Kilted]

Of course I acknowledge it. I want the NWC gone, and I want the "reasonable limits" language gone. I want most rights to be beyond the power of politicians and judges to debase them, and I want all the people who think such things are OK to feel shame proportionate to whatever degree they agree with occasions on which those clauses are used, particularly if they object when their own oxen are gored. But change isn't going to happen while the people in charge are happy to have their rights-trampling powers intact. A lot of people will have to be trampled to work up the necessary public furor to require a re-opening of the Charter.

You can't run a country like that. No rights are absolute, they will all eventually run up against each other. You take away s. 1 and .33 and you will start to see things such as hate speech and child pornography become legal.

 

[brihard]

Rules are only good if they’re enforced.

Or at least enforceable. We shall see in coming days and weeks whether the government thinks it can enforce this particular rule, and if so, whether the body politic is willing to go along with that.

My personal opinion, if 55,000 people decide to defy the illegality of a strike, I’m at a loss as to what enforcement mechanisms would be effective in solving the underlying problem. An enforcement focus basically means that the state will double down on the coercion. That’s a relatively linear path where the choices quickly narrow to withdrawal or further escalation, with few branches to other options. Will they try to enforce against individuals striking (eg fines)? Some unions are already saying the strikers won’t eat the cost, unions will cover it. Will they try to go after the union itself? That would quickly further inflame the ire of more of organized labour.

The social context is interesting. For the past couple years, the working class have arguably been becoming more conscious of their rights, of how they ought to be treated, and of collective action. Society has been so shaken up in the past couple years that there are a ton of fractures and divides. There’s a lot of distrust and disdain towards government at all levels. Here we have a conservative government (hardly beloved by the more activist demographics) going after workers that a lot of normal people can sympathize with. This isn’t the cops or firefighters or other high income professionals. Janitors, librarians, early childhood educators… These are relatively sympathetic individuals that are on the shit end of this stick, and the state’s trying to clawback essential labour rights. I really really hope the province takes a deep breath, sucks back, reassesses, and comes back to the table in good faith before this brews up further.