Ford use of notwithstanding clause and sovereignty acts

Recently we have seen a number of centre-right governments propose disturbing legislations. First is more regular use of notwithstanding clause including Ford using it to impose a contract on CUPE support educational staff. Other is Alberta and Saskatchewan bringing in sovereignty acts.

Ford has for third time used the notwithstanding clause to impose a contract unilaterally on CUPE support educational staff. While this may be legal as notwithstanding clause is part of the charter, it is totally a misuse of it and I do not approve of it whatsoever. I likewise disapprove of Legault using it for Bill 21 and Bill 96. Unlike some I believe notwithstanding clause has legitimate use, but it is a nuclear option and much like nuclear weapons is something there if needed but hopefully never have to use. Clearly the impending strike does not meet threshold for using it. I think biggest mistake was to allow a simple majority as it was only a matter of time before abuses would happen. Require 2/3, 3/4 or even 80% of legislature would still allow it to be used in extreme cases, but require multi-party support thus act as strong deterrent against abuse. I understand after students not being in class for much of last two years, last thing any parent wants is their kids to miss more school. And likewise, I understand 11.7% increase every year for next three years is not fiscally sustainable. But there are other solutions. For starters stay at bargaining table as usually initial offer is just that on the understanding final result will be something in between the two proposals. And even perhaps include an inflation clause whereby increase would be government’s offer but if inflation is higher, than increase will match that. Right now no one knows what inflation will be like in next few years so CUPE wants to avoid a real decline in wages while government wants to ensure raises are affordable and if inflation stays high; CUPE’s request is closer to what is reasonable whereas if falls back to 2%, government’s is. But problem is no one can say for sure which it will be so I think including inflation clause is one solution. Or maybe have a shorter contract of one year whereby 8% increase this year to match inflation and then return to bargaining table next year. Those are all options government refused to explore. Now yes due to harm of kid’s missing school, I am fine with imposing back to work order. Many governments have done this without notwithstanding clause. Solution then would be binding arbitration or could even impose a contract and then wait for courts to rule which will take time and after ruling decide. Pre-emptively invoking notwithstanding clause should not be done ever. Even if for use of clause, it should only be done after court ruling never before.

Some have suggested the federal government should use disallowance. I believe that would cause more harm than good. While Ontario residents may be okay with it since largest province and people tend to have more attachment to country than province, I believe it could make Quebec and Western separatism a much bigger threat. Quebec due to cultural differences and Alberta & Saskatchewan due to smaller populations rightly fear federal government having unlimited power to pass whatever law they wish and override them. So I think risk of disallowance is too great and federal government should look for other alternatives. May be cutting transfer payments like they already do with Canada Health Act is a better solution or even perhaps send a reference to Supreme court on notwithstanding clause to clarify when its use is appropriate. Some have said collective bargaining is a court invented right therefore appropriate. It is true in a 1987 judgement, courts ruled it was not a charter right but then reversed that in 2015. While one can disagree with decision, I think courts as imperfect as they are; we should still respect rulings even if we dislike them. Courts are not meant to override parliament, they are simply there to ensure parliament follows laws of the land. There is nothing stopping provinces from amending constitution if they can get enough support. It is just very difficult to do so but can be done. Like any law you will get different interpretations and sometimes we won’t like rulings, but following them even if imperfect is far less harmful than overriding them. And notwithstanding clause with higher threshold still gives parliament ultimate say, just ensures there is actual broad support and a good reason to override it, not being done for pure partisan purposes.

Many on right have said collective bargaining is not a fundamental right and I strongly disagree. Fact is management and workers are not on an even playing field and it is only through collective action of unions that there can be a level playing field. Rights are not just about absence of rules or limiting power of government, they are also to protect the dignity of individuals. Being paid a fair wage is recognized as a basic human right. Fact is without unions, we would not have a strong middle class and not having a middle class will lead to a worse society. I am no fan of left wing redistribution policies so strong unions are a way to ensure those are not needed. I also don’t want a far left government with views like Jeremy Corbyn, but I fear if middle class is hollowed out too much, that is what we will get. Some say public sector unions are not same as private sector unions and I do to some extent agree. But still all workers have rights whether in public or private sector. At same time governments must balance greater interest of public and I believe that absolutely can be done within the bounds of the charter. It is funny Conservatives talk about being party of freedom but yet when it comes to using notwithstanding clause and charter violations, they have by far the worst record. Yes I get some on right wish we had a more libertarian type constitution similar to US, not what we have. But reality is charter is about protecting freedom and freedom is a multi-faceted idea and the Canadian version of it much different than the American version. Canada has never been a libertarian country and fact our charter is not that simply reflects this. In Canada we recognize we are part of a larger society, not individuals in isolation so we always try to balance collective vs. individual rights and not have one trump the other. And I would say on balance our system while far from perfect has worked much better than the American of absolutism.

Saskatchewan and later Alberta are bringing forward their sovereignty acts. I believe besides being economically stupid as will attract less investment it is unconstitutional and will lead to unnecessary fights with Ottawa. Also, could create a constitutional crisis which is last thing we need now. Much of how it came to this is supposed view federal government hostile to both provinces. Considering Liberals can win without a single seat in either, it’s probably true those two provinces get less priority than provinces they do win seats in. But I wouldn’t say Trudeau totally hostile to them. Most on left in both provinces are disgusted with provincial governments and likely want more Ottawa. This is more right wing unhappy with a progressive federal government. So it’s more right wing alienation than Western alienation. This is despite the fact Alberta had a PM for almost 10 years not too long ago and if Freeland becomes next Liberal leader, then both main parties will have Alberta born leaders. So as someone not living in Alberta or Saskatchewan, to be blunt both come across as a bunch of petulant whiners and I suspect many others in rest of Canada feel same way. That doesn’t mean both don’t have real concerns but being part of federation involves both dialogue and a give and take. Canada is one of the greatest countries on earth and both provinces are very fortunate to be part of such a great country. Governments come and go, but relations with rest of country last far beyond one election cycle. By all means if one thinks Trudeau bad for their province, vote him out which will get an opportunity to do so. Never mind those two are the two richest provinces per capita so if both were struggling and poorer than rest of country, people might have more sympathy. Part of being Canadian means helping those who are less fortunate. Equalization is same reason we have social safety net and progressive taxation. We can and should debate exact details, but all three are sound ideas in principle

I think bigger issue is Trudeau wants to take bold action on climate change and Alberta emits 39% of Canada’s GHGs despite only 11% of our population. As such action to deal with climate change will hurt those two more than others. By same token because they are wealthiest provinces and have not provinces would be much worse off without their wealth, much which comes from energy industry, they do have a strong case. But they need leaders like Peter Lougheed who can make the case to rest of Canada, not ones like Smith & Moe try to throw flames and just make things worse. I do support pipelines and oppose C-48 and C-69, but Lougheed’s actions during National Energy program is how you deal with it, not sovereignty act.

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