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Teacher Newsmagazine Volume 18, Number 2, October 2005

Shirley Bond playing with political dynamite

by Susan Fonseca

After an LRB arbitrator ruled that teachers have a constitutional right to criticize educational policies during parent-teacher interviews and on school bulletin boards, BCPSEA appealed the ruling to the B.C. Court of Appeal. The court subsequently upheld the arbitrator’s favourable ruling.

According to Vancouver Sun reporter, Janet Steffenhagen, B.C.’s new minister of education, Shirley Bond, said she, "won’t allow that to stand" (September 6, 2005). If the B.C. Public School Employers’ Association does not appeal to the Supreme Court of Canada, she said she "will introduce legislation to keep partisan politics out of schools." History shows, however, that governments rarely enact such threats of constitutional sabotage.

Under Canada’s constitution, the only way that the minister could override teachers’ constitutional rights, is to invoke the controversial "notwithstanding clause" of the Charter of Rights and Freedoms. Before she proceeds down that politically mined path, Bond should call Ralph Klein and Stephen Harper. Both have learned the hard way that threatening to override Canadians’ fundamental freedoms and constitutional rights is political dynamite.

The "notwithstanding" or "override" clause of the charter has been invoked rarely in Canada since it was introduced as part of the Charter of Rights and Freedoms in 1982.

The first time the clause became controversial on the national stage was in 1988 when the Parti Quebecois government introduced the Charter of the French Language, also known as Bill 101, which overrode the freedom of the minority English speakers of the province to read public signs in English. This use of the override clause to enforce a key political objective of the Quebec nationalists was eventually revoked by the Bourassa Liberal government in 1993.

The second time the clause was used was in Saskatchewan when the Conservatives under Premier Grant Devine introduced the Saskatchewan Government Employee’s Union Dispute Settlement Act to establish firefighters as essential services. This was later seen as "unnecessary" by the courts as a routine application of the charter’s Section 1 limitations clause would have served the purpose of showing that the designation was "demonstrably justified in a free and democratic society."

Since then, Alberta’s Ralph Klein has threatened to use the clause several times, but has never ultimately invoked it in legislation. In March 1998, the Alberta government of Ralph Klein introduced Bill 26, the proposed Institutional Confinement and Sterilization Act, which would limit compensation to victims of forced sterilization to $150,000 per claim and protect the government from legal challenges under the charter by invoking the notwithstanding clause. The announced legislation was met with an overwhelming outburst of protest from the media, civil-rights groups, and the general public. Within 24 hours, Bill 26 was dead.

The next case involved gay minority rights. Delwin Vriend was fired from his teaching job at an Edmonton Christian college in 1991 after his employer learned he was in a same-sex relationship. He tried to take the issue to the Alberta Human Rights and Citizenship Commission, but was told they couldn’t take the case because discrimination on the basis of sexual orientation wasn’t included in the province’s Human Rights, Citizenship, and Multiculturalism Act.

The court ruled in the Vriend case that the Klein government could no longer prevent discrimination on the basis of sexual orientation from being included in the province’s human-rights legislation. The Supreme Court of Canada unanimously supported his claim that Alberta’s Individual’s Rights Protection Act violated the Canadian Charter of Rights and Freedoms by failing to protect against discrimination on the basis of sexual orientation.

The Supreme Court’s decision had sweeping implications. From then on, the court directed, Alberta’s human rights laws would be interpreted as protecting gays and lesbians, even if the province did not amend them. After the Supreme Court of Canada judgment, Premier Klein threatened to use the "notwithstanding" clause to block the ruling from taking effect. However, at the last minute, the province backed down.

In the last federal election, Conservative candidate Randy White was exposed on video referring to the Supreme Court of Canada as "a joke" and Conservative leader Stephen Harper spoke cryptically about circumventing the Supreme Court of Canada’s ruling on same-sex marriage. Liberal support surged in the final days of the federal election with Paul Martin campaigning passionately as the protector of Canadians’ charter rights and freedoms.

Minister Bond would be wise to reflect on the history of using the "notwithstanding clause" before lighting such political dynamite. No Liberal government has ever used the notwithstanding clause. If she attacks teachers’ fundamental freedom of expression, what would stop the government from attacking doctors’ and nurses’ freedom to discuss underfunding of healthcare with patients? Or lawyers from discussing the underfunded legal-aid system with clients? Where would it end? Whose fundamental freedoms of expression would be next on the legislative hit list? The Civil Liberties Associations across the country would be only a few of the organizations requesting intervener status in a potential high-profile constitutional case against the B.C. government.

The Court of Appeal stated that, "Through the various materials the BCTF asked its members to distribute, teachers voiced their concerns about government policies on issues of particular importance to them. This is, of course, political expression of the kind deserving of a high level of constitutional protection."

Teachers’ objections to being stripped of such fundamental protection through partisan legislation would be amplified amongst the general population. Bond would be playing with proverbial political dynamite.

For the full text of the Court of Appeal decision, go to www.courts.gov.bc.ca/jdb-txt/ca/05/03/2005bcca0393.htm

Reprinted from The Link, the Langley Teachers’ Association bulletin. Susan Fonseca, a teacher in Langley, is editor of The Link and a member of the Teacher Newsmagazine Advisory Board.

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