It's Suzanne Anton's job to tell Christy Clark to open public schools

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      In Canada, we're accustomed to having a reasonable level of essential public services. When we break our leg, for example, we're given medical treatment in a hospital.

      When we're old and poor, we receive free prescription medications.

      When we're young, we have access to public education. That is unless you're enrolled in a public school in British Columbia in 2014. An ongoing teachers strike means there is no reasonable level of public services for these students.

      That's unconstitutional.

      As I've written earlier, section 36(c) of the Constitution Act, 1982—the supreme law of the land—states that legislatures are committed to provide "essential public services of reasonable quality to all Canadians".

      Under section 93 of the British North America Act, also part of our constitution, education falls squarely within the jurisdiction of the provinces.

      Therefore, it's reasonable to conclude that there's a legal obligation on the legislature of British Columbia to provide a reasonable level of public education, given that schooling is essential for the well-being of young Canadians.

      That's not a constitutional requirement of the federal government, the B.C. Teachers' Federation, the Canadian Union of Public Employees, or even the boards of education across the province.

      Even if the teachers started the strike, it's the legislature's commitment to provide essential public services of reasonable quality. And when it comes to education, that's a provincial responsibility.

      For some strange reason, we haven't heard anything from MLAs of any stripe about this constitutional commitment to provide students with this service.

      Are all of our provincial politicians that ignorant of the country's constitution?

      If so, when parents take their kids on playdates to MLAs' offices, they could bring along a copy of the Constitution Act, 1982 and draw a huge circle around section 36.

      Click to enlarge to read section 36 of the Constitution Act, 1982.

      Now, let's move to the attorney general, Suzanne Anton.

      Under the Attorney General Act, part of her job is to serve as the "official legal adviser" to the cabinet.

      As such, she must advise the cabinet that it is the government's constitutional commitment to provide a reasonable level of public services, including educational services.

      If she hasn't told Premier Christy Clark and Education Minister Peter Fassbender about this constitutional commitment to provide a reasonable level of educational services, then Anton is not very good at her job.

      That's because under the act, she "must advise the heads of the ministries of the government on all matters of law connected with the ministries".

      Similarly, the NDP attorney general critic, Leonard Krog, should be raising this issue of the government's constitutional commitment to provide a reasonable level of public services. If he's not doing this as the opposition critic, can he be trusted to accept his constitutional responsibility to do this should he ever become attorney general?

      There are three ways this strike can be ended: through legislation, binding arbitration, and negotiation.

      Fassbender has already said there won't be a legislated end to the strike. He's also rejected binding arbitration.

      This means parents and students may have to wait months for a negotiated settlement for the legislature to meet its constitutional requirement to provide an essential public service of reasonable quality.

      That's not good enough. I would argue that under the constitution, it's not legal for students to have to wait weeks or months to receive public education. That's not reasonable, particularly for students in Grade 12 who are preparing for postsecondary education.

      If the government doesn't legislate or agree to binding arbitration, it's leaving itself vulnerable to a legal challenge from these students who could claim that the government has infringed on their constitutional rights. Anton has a duty to inform her cabinet colleagues of this possibility.

      If the schools remain closed for months, it has the makings of a very expensive class-action lawsuit.

      It's Anton's job to inform the cabinet about all the potential legal consequences that flow from its failure to meet its constitutional requirement to provide schooling.

      It's easy to blame the BCTF for the shutdown because it went on strike. But it's the government, not the BCTF, that has constitutional commitment to provide essential public services.

      The government could easily avoid all of this trouble by legislating teachers back to work with a bill that doesn't violate anyone's constitutional rights.

      Of course, this would mean accepting what the B.C. Supreme Court has already said twice about class size and composition. And that's something this B.C. Liberal government has been loath to do.

      Comments

      53 Comments

      AC

      Sep 7, 2014 at 10:21am

      If there was any doubt any of us could do a politician's job, it's watching Anton do hers.

      Sarah Hudson

      Sep 7, 2014 at 10:32am

      Has this article been sent to Suzanne Anton?

      Who's Job?

      Sep 7, 2014 at 10:34am

      None of these ministers are doing their jobs, can't expect another meat puppet to know how to do hers. CC, Factbender, etc. are breaking the law because they are legally bound to uphold the public school system. RECALL!

      Jmc

      Sep 7, 2014 at 10:44am

      Thank you for laying out the legalities so clearly! This government has shown repeatedly it's contempt for laws that it finds in it's way. Kids needs, environmental safety, teacher rights - none of these rates even a heartbeat of their time. Corporate greed drives them, that and a pretense of serving "taxpayers" (but not citizens like children who pay No taxes) by reducing taxes at huge cost to effective service and inevitable increases in user fees that quickly swallow up all financial gains from those lower taxes for anyone not in the highest brackets. It's time to hold these so called leaders accountable!

      Philip

      Sep 7, 2014 at 11:14am

      With 580,000 public school students in BC, that's a lot of plaintiffs, a lot of damages.

      Maureen McCann

      Sep 7, 2014 at 11:15am

      You have left out one key factor here. If this strike continues we will lose the bank of educated, experienced and qualified professional teachers. As a teacher on strike, I, for one, having no income at all since mid June, have given this strike one more week before I start trying to build a new career. I am a single mother, single income household. We have nothing left. I studied 9 years in university and have been developing myself as a teacher for 15 years since then. All of this education and expertise will be lost to BC, as I will retrain or leave this province should the strike not settle. Parents have thanked me with tears in their eyes. They have called me a blessing to their families. This is lost, and I'm sorry, but you can't just stick another body into that job and expect the same level of education to happen. I'm so sad for BC right now.

      Karen Struve

      Sep 7, 2014 at 11:41am

      Going along with all this stuff you might be interested in reading a book by Jeff Dutton called "The Wisdom of Psychopaths. Charming and ruthless!

      Bob Turecki

      Sep 7, 2014 at 12:45pm

      Your right on one thing Charlie. Its the teachers that decided to strike, not the government. Here's a solution - replace them all with non-union teachers.

      bryan

      Sep 7, 2014 at 12:46pm

      You're right - the government needs to act. I say do what Reagan did with the air traffic controllers. Tell the teachers that unless they get back to work they're fired and will never teach in BC again. There are plenty of young people with teaching certificates that would LOVE to take their place.

      sam

      Sep 7, 2014 at 12:48pm

      Why arent parents going to the labour relations board to have education deemed e ssential. They have a
      Right to this.