Wednesday, November 02, 2022

Doug Ford may not pay any political price for his use of the notwithstanding clause

Ontario Premier Doug Ford and his Education Minister Stephen Lecce have passed legislation to avoid having to go through that tiresome collective bargaining process with the education workers union CUPE. If that were not sledgehammer enough, they are coupling it with an invocation of Section 33 of the Canadian Charter of Rights and Freedoms, the notorious "notwithstanding clause".

Having offered a paltry 2.5% pay increase to the 55,000 CUPE workers (1.5% for those earning more than $43,000 a year), at a time when inflation is running at around 7%, the Ontario government decided to go straight to the nuclear option and table legislation to "terminate any ongoing strike" by CUPE, supposedly in the interests of hard-pressed kids and parents. So desperate were they to push through this piece of legislation that they arranged a rare 5am parliamentary session to do it. The use of the notwithstanding clause is designed to ensure that the union has no legal recourse, even if the legislation can be shown to be an illegal curtailment of labour rights under the Charter. So, essentially, Ford is using the notwithstanding bludgeon because he knows that what he's doing is wrong and illegal.

Think what you may about the notwithstanding clause - and I know what I think of it! - it was not designed to be used like this. Quebec Premier Fran├žois Legault has used it several times, and now Doug Ford is getting the hang of it. This is the second time Ford has used it in the last two years (and he threatened, but ultimately did not need, a third). The more often it is used, the less strong the taboo against its use becomes. It's not supposed to be a get out-of-jail-free card, to be used whenever it is considered expedient, and Mr. Ford is receiving some significant blowback over it (and quite rightly so!)

Prime Minister Trudeau just called it "wrong, in a rather lame-sounding but still unequivocal condemnation, and federal Justice Minister David Lametti commented, "Using the notwithstanding clause and using it preemptively is exceedingly problematic ... It de facto means that people's rights are being infringed and it's being justified". None of this is going to worry Doug Ford too much. The Canadian Civil Liberties Association issued a statement saying that, "the flagrant disregard of individuals rights is wrong, and it is dangerous to our constitutional democracy". Ho hum...

The Ontario Federation of labour called it a "full frontal attack on basic labour freedoms", but presumably he won't lose any sleep over that either. One of Canada's largest construction unions, the Labourers' International Union of North America (LiUNA) - one of the unions that, surprisingly, threw its support behind Ford at the last election - has warned that the use of the notwithstanding clause in this case represents "a dangerous precedent that aims to erode respect for collective bargaining rights and unionized labour in Ontario", and is calling on Ford to revoke the unprecedented back-to-work legislation. So, some of that union support that Ford managed, inexplicably, to acquire may be on its way out.

Historically, though, there has been little or no political consequence for provincial premiers' use of the notwithstanding clause, despite the seriousness of the implications of its use. Neither did the Ontario electorate punish Ford for his 2021 use of the notwithstanding clause - he was re-elected in 2022 with an even larger majority. It seems like it can be invoked with impunity, depressing though that thought is.

Multiple legal authorities say that Ford's use of the notwithstanding clause just to avoid an unpleasant labour negotiation and strike is unprecedented, controversial and politically fraught. I have seen few or no comments in favour of the move, even among Conservatives. But it seems that Ford & Co just don't really care any more. Maybe they can't see themselves being re-elected a third time anyway, so there is no real political risk (the notwithstanding clause exempts the decision from Charter scrutiny for four years, i.e. after the next election).

CUPE maintains that it will go ahead with the one-day strike planned for this Friday, regardless of the fact that it is now an illegal, not a legal, strike, and the union will just pay the $4,000 a day fines that it will trigger (and as much as $500,000 for the union itself, which the Ford government vows to enforce). Informal talks are apparently still going on between CUPE and the government, but you can imagine there is a lot of bad blood between the two sides after a move like that.

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