Ontario Premier Doug Ford’s casual reliance on the notwithstanding clause – for the third time now in his roughly 4½-year tenure – is a conspicuous sign of his government’s insecurity. It’s like a 10-year-old who has discovered the awesome and invincible power of declaring, “Called it!” A kid who no longer has to argue why he deserves the front seat or make the case that it was, in fact, his sister who broke wind – “It was her, called it!” – to consider the matter closed.
The Ford government has opted to invoke or threatened to use Section 33 of the Charter of Rights and Freedoms twice before: first, in 2018, when Mr. Ford passed legislation to reduce the size of Toronto City Council (though the clause was not ultimately invoked in that case), and then, in 2021, to push through legislation limiting third-party advertising ahead of elections.
On Monday, the government invoked it again in introducing the Keeping Students in Class Act, legislation that pre-emptively blocks strike action by, and imposes new collective agreements on, educational workers. The legislation notes that it shall operate “notwithstanding sections 2, 7 and 15 of the Canadian Charter of Rights and Freedoms,” which means the Ford government gets to essentially skip the part where it tries to ensure its back-to-work legislation is Charter-compliant.
On Sunday, the Canadian Union of Public Employees (CUPE) provided the requisite five-day notice for job action, which would have allowed roughly 55,000 workers – including custodians, educational assistants and early childhood educators – to walk off the job this Friday (which would have meant school closures in at least a few boards).
The union had been negotiating with the province for weeks over pay increases, among other things. Ontario most recently offered 2.5-per-cent annual increases to workers earning less than $43,000, whereas CUPE had been demanding 11.7 per cent.
The government is now touting its blunt-force effort to trample collective bargaining rights as a way to “deliver stability, support mental health and ensure students stay in class to catch up” after “two years of pandemic disruptions.”
Putting aside the fact that it was this government’s clumsy handling of the pandemic that resulted in Ontario students experiencing the greatest disruption to in-class learning in all of Canada, the Ford government’s political calculus may nevertheless be correct. While organizations such as the Canadian Civil Liberties Association are already recoiling at the nonchalant invocation of Section 33, and while plenty of education workers, their allies and regular Ontarians will be justifiably disgusted to see Mr. Ford, professed advocate of the little guy, pre-emptively snuff out education workers’ right to strike, many more Ontarians may be quietly content to see the Premier do all he can to keep kids in schools. Indeed, some parents won’t like how Mr. Ford is going about keeping classrooms open, but chances are they would not have enjoyed scrambling for child care and watching their kids fall behind – yet again.
In normal times – that is, when kids aren’t coming off two years of classroom disruptions – union efforts to get the public onside, especially when strike action is on the table, are a tough slog. A Campaign Research survey from March, 2020, just ahead of the pandemic, indicated that a majority of respondents sided with the government in its ongoing negotiations with teachers’ unions. Ipsos polling from 2013 suggested the public was largely split over the question of whether the province was justified in imposing a contract on teachers – and whether teachers should have the right to strike at all.
Today, when Ontarians working in all sectors are struggling to keep up with the rising cost of living – and when most can’t even dream of an 11.7-per-cent raise (or even a 2.5-per-cent one) – unions may find they have far less support for job actions than they may have previously enjoyed. And the province, conversely, may find it has far greater licence to do what it can to keep schools open.
It could all be for naught, in any case: CUPE has indicated its workers will walk off the job regardless of the province’s legislation and despite the threat of fines. If they do, some schools will be forced to close. But Mr. Ford will nevertheless get to claim that he pulled out all the stops in a bid to help Ontario’s students. Parents are in no mood for a strike, and the province knows it. Mr. Ford’s actions might have been seen as a massive overreach at any other time, but coming off a pandemic, it’s likely a political win.