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Why Clark Refuses to Hear What Supreme Court Tells Her (Twice)

Teacher-bashing Liberals remain hellbent on gaming the political system.

By Crawford Kilian 29 Jan 2014 |

Crawford Kilian is a contributing editor of The Tyee.

When B.C. Supreme Court Justice Susan Griffin handed down her Jan. 27 decision that found the B.C. government's legislated restrictions on bargaining class sizes unconstitutional, she did not merely uphold the position of the provincial teachers' union.

She implicitly condemned the BC Liberal governments of Gordon Campbell and Christy Clark as contemptuous of the law itself, working consistently and cynically for over a decade to exploit the justice system rather than work within it.

And judging from their initial reaction, the Liberals haven't learned a thing. They still think systems are for gaming, not respecting.

You can read the decision for yourself; it is an extensive, heavily documented judgment. Justice Griffin uses it, among other things, to set out a concise labour history of the dealings between the government and the BC Teachers' Federation (BCTF) for years before the passage of Bills 27 and 28 in late January 2002 -- precisely 12 years ago.

That was less than a year after Gordon Campbell had smashed the BC NDP in the 2001 election. The New Democrats were reduced to two MLAs against 77 Liberals.

Campbell didn't take long to impose right-wing policies. The day after he took power, he cut provincial income taxes by 25 per cent, as well as reducing corporate income tax and erasing the corporate capital tax.

Just as when Prime Minister Stephen Harper cut the GST 15 years later, these steps reduced government revenues so Campbell could then plead poverty as he slashed government services and gave away government assets -- selling the fast ferries for a fraction of their value, deregulating industries, closing courthouses and selling BC Rail to CNR. Soon after, he passed legislation making education an essential service, hobbling teachers' right to strike.

While he'd promised not to sell BC Rail, his plans for education were well known before the May 2001 election -- so well known that then-BCTF president David Chudnovsky urged Campbell not to "make any unilateral changes to the collective bargaining system."

Tearing up contracts

Campbell replied with Bills 27 and 28, which subverted the one task that even libertarians concede to governments: the power to uphold and enforce contracts. The teachers' collective agreement was torn up, and the result was 12 long years of deteriorating schools. During those years the kids didn't learn much, but the Liberals did: They could get away with anything.

Speaking to The Tyee from Ottawa, NDP MP Jinny Sims recalled the spring of 2002, when she had been first vice-president of the BCTF executive. Asked how the executive had responded to Bills 27 and 28, she said: "A lot of shock. We didn't think that in a developed country you could take such heavy-handed measures. In the whole labour movement, the reaction was... 'Wow. This is happening in B.C.?'" It reminded her of the restraint era of the early 1980s under the Socreds: "A chill fell over B.C."

That early example of shock-and-awe politics taught the Liberals a valuable lesson: The only real judge in B.C. is the electorate. In 2001, that judge condemned the NDP to exile, implicitly giving the Liberals the freedom to do as they pleased -- legal or not.

As Christy Clark, then education minister, helped to frame those bills, she may have been hazy on their legality. But she was part of a caucus with plenty of lawyers and plenty of legal advice. The Campbell government must have known that tearing up contracts and destroying collective bargaining would be legally dubious and open to challenge. If they got any advice telling them to find another way, they ignored it.

Endless litigation, at your expense

As the Griffin decision shows, that led to years of expensive litigation (with taxpayers covering the government's expenses) and a predictable decision in favour of the teachers in 2011. The government was given a year "to address the repercussions of the decisions." Instead of doing the right thing by restoring collective bargaining and restoring a decade of funding, the Liberals brought in Bill 22, which essentially re-passed Bills 27 and 28.

By then, they must have been confident that neither law nor political tradition could hinder them. Mike Harcourt had resigned as premier not because he'd done anything wrong, but because his government had been entangled with a crook named Dave Stupich. Then Glen Clark resigned when facing charges that he had accepted favours; he hadn't, and he was exonerated, but he had done the right thing in the parliamentary tradition.

But when Gordon Campbell was busted for drunk driving, doing the right thing was the farthest idea from his mind. He toughed it out, remaining in power and setting an example for later politicians like Rob Ford.

Similarly, the Campbell Liberals drew on their chutzpah to sail through the legislature raids and the BC Rail scandal, and then to pay the $6 million to cover the legal expenses of David Basi and Robert Virk after they changed their plea to guilty on some charges.

During all this, the Liberals won an acquittal from the Court of the Electorate, in 2005, and another in 2009. Not until Campbell brought in the Harmonized Sales Tax, after swearing he wouldn't do so, did he lose his case with the voters. Even then, he staged a graceful exit to London, where he has been ensconced as Canadian High Commissioner since 2011.

As for the rest of the Liberals, they got another acquittal in the 2013 election, and Justice Griffin's decision should be no more than a minor annoyance.

Bad faith? Who cares?

Not bargaining in good faith? Ignoring earlier rulings and stringing this out for a dozen years? Harming the education of a whole generation of kids? Bring it up in the 2017 election and see if anyone remembers. Hence Clark's comment on Jan. 28 that her government will likely appeal this decision.

In the process, the government will likely spend a lot more than the $2 million damages awarded to the BCTF by the Griffin decision. But that's not the real issue; taxpayers, not MLAs, would pay the money.

Justice Griffin also stated that since Bill 28 is unconstitutional, it has been invalid since it was enacted. She noted that the government knew it was when it framed Bill 22, replacing its key invalid points. She then says: "While not a perfect remedy, I conclude that the return of the Working Conditions clauses to the BCTF and BCPSEA collective agreement, which will have retroactive effect, is the most appropriate remedy in the Bill 28 Action."

That would mean hiring hundreds or thousands of new teachers, learning assistants and support staff to meet the teaching and learning conditions agreed to before Bill 27 and 28 in 2002 -- and then sustaining that level of funding while bargaining to develop new conditions to meet the needs of a new decade.

While the HST gave the Liberals their only near-death experience, they're not about to find hundreds of millions of tax dollars for the next generation of B.C. students. And while they unconstitutionally deprived the current generation of students of the education they should have had, they're far past being shamed into doing the right thing. Doing the right thing, after all, is for chumps like Mike Harcourt and Glen Clark, people with respect for the parliamentary system.

All that Christy Clark and her Liberals respect is the ability to game that system, to exploit the loopholes and the public's short attention span. Then they'll be all smiles before the Court of the Electorate, chirping merrily about "growing the economy" while they pray for one more acquittal -- and failing that, a soft gig at the Canadian High Commission in London.  [Tyee]

Read more: BC Politics

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