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With Bill 28 is the government serving the people or are the people serving the government?

The most recent court decision in the dispute between the British Columbia Teachers’ Federation (BCTF) and the provincial government is of historic importance to Canadians everywhere. My daughter and son-in-law are teachers, but that is not the reason for my interest in the case. The decision rendered by Madam Justice S. Griffin is not concerned with teachers’ earnings and benefits, or with their working conditions. The case has nothing whatsoever to do with public education, or with how that education is provided and paid for.

The decision is concerned with the Constitution, specifically the Canadian Charter of Rights and Freedoms. Section 2 of the Charter states that “Everyone has the following fundamental freedoms: (d) freedom of association.” The dispute arose when the government interfered in negotiations between the BCTF and the British Columbia Public School Employers’ Association (BCPSEC).by enacting legislation to exclude certain working condition elements from the parties’ contract negotiations. The government’s initiative was presented to the Legislative Assembly in January 2002 by way of Bill 28. Following the Bill’s adoption the BCTF decided to challenge its legitimacy. The court’s decision, a 103-page document rendered on April 13, 2011, set out in great detail how and where the legislation contravened Canada’s constitution. The court declared Bill 28 to be “unconstitutional and invalid”, but it suspended the declaration of invalidity “for a period of twelve months to allow the government time to address the repercussions of this decision.” The government did not appeal the court’s decision.

The government responded with Bill 22 which was to take effect in April 2012, the expiry date of the reprieve for Bill 28. The BCTF in turn responded with a renewed legal action. The court found that the legislation enacted with Bill 22 was “virtually identical” with the provisions declared to be unconstitutional in the 2011 decision. The court’s decision in this second case amounts to a 107-page lecture restating the constitutional arguments of the 2011 decision. This time, however, the court did not grant the government time to correct its error; it ordered the government to pay compensation to the BCTF in the amount of $2 million.

Governments have adequate resources to ensure that their laws comply with the constitution. It is not unusual, however, for differences to arise in the interpretation of constitutional principles. When such differences arise it is the courts, not governments that determine the correct interpretation. The initial dispute in this case was on a question of principle; the second one, however, concerned the government’s refusal to respect the court.

A court decision can be wrong. That is why a democratic judicial process includes a Court of Appeal to reconsider lower court decisions, and a Supreme Court to reconsider Court of Appeal decisions. The Supreme Court of Canada’s decisions are final. If governments disagree with the Supreme Court, they have the option to amend the Constitution. (The Canadian Charter of Rights and Freedoms was a constitutional amendment to establish certain fundamental freedoms.) Judicial interpretation and safeguard of the constitution, more so than free and fair elections, protects citizens in a democracy from the abuse of power by elected governments.

The provincial government did not appeal the court’s 2011 decision. It all but ignored that decision, proceeding instead to pursue its ideological objectives. If governments were to be allowed to deny teachers and their employer a constitutional right, what would prevent any government from denying any constitutional right to any citizen and for any reason? Allowing governments to enact laws in defiance of the Constitution and to ignore the courts would eviscerate our democracy.

Will the B.C. government pursue its ideological fixation all the way to the Supreme Court, or will it finally decide to apply much needed resources to public education objectives? It should not be a difficult choice.

Andre Carrel is a retired City Administrator, journalist, author, and full-time grandpal.