So, Alberta has used S33 as part of its “Back To Work” legislation for ending the teachers strike. There will be many pixels of virtual ink spilled over this. Much of that will go on breathlessly about how this is “unprecedented”, “shocking”, and so on. Rest assured, none of this is shocking. The UCP has been looking for an excuse to use S33 for quite some time - going back to Jason Kenney, if you have been paying attention. Kenney’s Bill 1 would have become that bill - except the excuse for Bill 1 vaporized.
The UCP is being purposeful. They started musing about S33 to buttress their anti-trans legislation a while ago, but I think they also realized that outside their base, the broader public has little appetite for such a move. This application of it is “temporary”, and addresses events that are directly affecting families (often an easy sell for conservatives who love to spout off about family values).
This use of S33 serves other purposes for the UCP.First it creates a precedent in the public’s mind where they can look at it and say “well, that didn’t affect me too much”. Second, it’s a warning shot at other public sector unions: “Accede to our demands, or we’ll strip you of your rights too”. In essence, it allows the UCP to impose “settlements” on government workers without having even engage in arbitration. They simply write a law imposing a settlement, and that’s it. The UCP has spent considerable time and effort spinning this as “the oh-so-reasonable government versus the unreasonable union” to sell this. I suspect invoking S33 was part of their plan from the outset.
It’s no secret that the UCP despises unions, and I think if you could get the unofficial chats and emails they use to communicate, that you would find out very quickly that Bill 2 was planned for a long time ago.
However, there is more to this than a reflexive disdain for unions. This is a power play - with the sole goal of seeing how far the government can go in forcing its will upon the people.
Consider the following:
The central issue that the teachers have been concerned about is class size / class complexity. The UCP has refused to engage on this matter - at all, and several offers have been soundly rejected by the teachers as a whole. In terms of negotiation, this shows us that beyond all doubt, the UCP had already decided that it was going to ignore this matter - and I suspect the reasons for this are ideological, not practical.
So, over the course of the last year (or more) of negotiations, the two parties (the government and the teachers) were basically speaking two very different languages. On a matter like this, you are unlikely to come to any kind of agreement when one party simply refuses to budge on a topic that the other side sees as a central issue.
Arguably, you can suspect that the UCP was pushing the teachers to a strike, on the clumsy political imagining that the UCP could control / reset the narrative as being about "the greedy teachers". Cynical, yes, but predictable. The strike itself was entirely avoidable, had the UCP chosen to have the political will to actually listen to the teachers.
Now, let's talk about the power play. The power play here contains several dimensions. The first is that the UCP chose to legislate a "settlement" (which was a rehash of what they had offered before and had been soundly rejected). In the past, such disputes were usually referred to binding arbitration as part of the legislation. Clearly, the UCP didn't feel it wanted to deal with an arbitrator who might make an agreement that wasn't precisely what the UCP had in mind. While it isn't beyond the powers of the government to impose a settlement, it's relatively unusual.
It's the secondary parts of this that are much more concerning. Invoking S33 turns into a much uglier proposition because suddenly it sends a clear message to labour (and really, the people as a whole): Your rights under the Charter are irrelevant to the UCP. The UCP will legislate them out of existence if they see fit to do so.
The second part of the "power grab" is the insertion of a "you can't sue the government" over this clause. This one is concerningly dangerous because the not only does the invocation of S33 render it impractical to pursue Charter relief in the courts, this is a secondary attack on your rights because it effectively places the government outside of other forms of legal accountability.
A third aspect of this exists in the recent changes to how regulating societies work, which place them very much under the thumb of the minister. This means that the minister now gets to decide what behaviour is punishable for the teachers - not the ATA.
Basically, with Bill 2, the UCP government has essentially claimed that it has no obligation whatsoever to negotiate with any part of the public service in good faith. The attitude that they have adopted is that they will tell the other party what settlement they are going to get, and if they don't like it, too bad.
To me, this situation reveals a few things of interest and note. First, it makes abundantly clear that the Federal Attorney General's arguments discussed back here, are more important than we might have first thought. Not only is a framework of limits around S33 needed, it is in fact essential if we are to remain a constitutional government in any meaningful sense. Second, it reveals a second line of attack that needs to be addressed - namely the application of S33 when the government has other statutory tools at its disposal that it has not exhausted. S33 should be a tool of absolute last resort - the one used only when there are truly no other options.
Second, in a constitutional context, no government should be able to legislate in such a way that the government is above the law. The notion that legislators can write clauses into their laws that make them beyond the reach of review in the courts. By definition, this is placing the law itself outside the system of checks and balances which exist within our constitution. Such clauses should be Ultra Vires. No law, no act of government should exist outside of scrutiny by other parts of our system - be they the electorate, or the courts.
I find it amusing that the UCP, supposedly a party concerned with small government and individual freedoms is turning itself into a clearly authoritarian party whose primary interests are in fact a more invasive government, and restricting the liberty of people that they have decided that they don't like.
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