Author Archives: Rob Wipond

“To Safeguard Against Tyranny”

Read deeper and BC Supreme Court Justice Susan Griffin’s ruling in support of teachers against the provincial government is about much more than just our schools.

It seems appropriate that the late-January BC Supreme Court ruling won by the BC Teachers Federation has received attention in our news media. But there’s an undercurrent that permeates Justice Susan Griffin’s Reasons for Judgment that hasn’t been discussed nearly as much as it should be: Her very worrying evaluation of the state of our democracy.

For those who haven’t been following the story, the BC Liberal government passed legislation in 2002 that seemed to be a blatant attack against the most basic civil rights of teachers to freely associate and take action collectively. It deleted hundreds of agreements from existing contracts and stripped the BCTF of virtually any powers to bargain on key issues about teachers’ working conditions—primarily with respect to the number of students in classes, and the learning environments for children with special needs. Those are issues that, obviously, do dramatically affect not just teacher working conditions, but also classroom management, children’s education, and probably the emotional state of many schoolchildren. So they’re issues worth discussing.

But the government legislated otherwise. It was as if your boss were not only to refuse your requests for office supplies, but were to suddenly threaten to have you dragged to jail if you so much as tried to discuss or negotiate issues concerning office supplies.

It wasn’t a reasonable approach from the government. And that’s what the courts said, too. In fact, the courts determined that the BC Liberals’ legislation violated teachers’ basic civil rights under the Canadian Charter of Rights and Freedoms.

But the provincial government ignored the courts. Repeatedly.

When, in 2004, the BC Supreme Court first struck down an arbitrator’s decision upholding the government’s legislation, the government simply re-wrote the legislation anew and made it apply retroactively. And for good measure, they wrote into this new version of the legislation that it would remain in force, “Despite any decision of a court to the contrary…” It was like kamikaze legislating: The BC Liberals enacted a law that was deliberately aimed at destroying the authority of our own legal system.

After a challenge brought by the BCTF in 2011, the BC Supreme Court struck down the legislation as contravening teachers’ constitutional rights. (Er, didn’t I say that already?) The government reacted by basically changing some words here and there and passing the same unconstitutional legislation all over again. So the BCTF had to take the government to court all over again. And the BC Supreme Court struck down the legislation as unconstitutional—all over again—this January.

It’s crucial to understand that relatively little substantive was actually being negotiated during many of these years. Rather, the teachers were for the most part simply trying, again and again and again, to win back their basic right to at least be able to discuss and negotiate their working conditions with government.

Appropriately, then, Justice Griffin’s January 2014 decision was hard on the government. She acknowledged that government “has a role and responsibility” to establish “some fiscal and policy parameters” around the teachers’ collective bargaining process. And she noted that there was “a plethora of tools” available to both sides to resolve impasses, such as mediation and arbitration. However, Griffin said the government’s actions for the past ten years were “not in good faith” and flatly “unlawful”.

Griffin further determined that, particularly in the past few years, the government’s representatives delayed unnecessarily, “wasting time,” wouldn’t engage in meaningful dialogue, didn’t listen or make any reasonable efforts to reach agreements, and often simply “ignored” the BCTF. The government even engaged in efforts to sabotage negotiations by refusing to repeal the unconstitutional legislation, and trying backdoor routes to reduce teachers’ pay and cancel teachers’ leaves and professional development days. Indeed, with access to confidential cabinet documents and the capacity to compel testimony, Griffin heard enough evidence to state unequivocally that the government was in fact “preoccupied” with such sabotage. “From the start…the government had a strategy in mind that it would be to its benefit if negotiations failed and if collective bargaining resulted in a strike and impasse,” wrote Griffin. “The government representatives thought this would give government the opportunity to gain political support for imposing legislation on the union.”

All of the news coverage that I’ve seen of the court decision essentially stopped at this point. Those are certainly already damning enough findings to report, but as I reflected on these insights, and read more of the Reasons for Judgment, I saw an even darker, more broadly significant undercurrent emerging.

First, it’s important I think to really absorb some of what we’re hearing. The BCTF is one of the biggest unions in the province, representing 41,000 people. It has immense funding, paid staff, ready access to volunteers, researchers and lawyers, and a professional communications arm. Essentially, the BCTF is one of the bigger and more powerful political entities in British Columbia apart from the provincial government itself, the federal government, or some major corporations and their lobby groups. But the BCTF’s attempts to understand the government’s positions were constantly deflected. The government frequently simply ignored the BCTF for long spans of time. The government flouted the law in teachers’ faces, tried to upset them so they’d act rashly and discredit themselves in the public eye, and then tried to undermine their source of income. Basically, the government kicked the mighty teachers’ union around like it was no more significant than, say, to use an example I can personally relate to, a lone freelance journalist writing for some small publication.

Even more sinisterly: Our government was actually covertly working hard behind the scenes trying to orchestrate a province-wide, full teachers’ strike, in order to justify a harsh crackdown on the teachers. It’s really the most deceitful, duplicitous, publicly manipulative and pernicious way of governing possible. It’s like employing undercover police to launch a riot at a peaceful demonstration, so you can justify sending in the riot squad to bash heads. If you’d seriously argued at the time that the government was secretly trying hard to provoke a strike, a lot of people probably would have mocked you as a cynical, feverish conspiracy theorist.

With these perspectives in mind as I waded deeper into Justice Susan Griffin’s nearly 50,000-word decision, I started to think that she was actually trying in her own way to warn us all of the seriousness of this situation we’re in with our government.

Griffin’s ruling described part of what was at stake in this legal case as being Canada’s democratic structure itself “which requires that governments must act legally, within the supreme law of the country, the Constitution.” She wrote that “Democratic institutions and democratic philosophy are at their root based on a belief that society should be structured in a way that is fair”—and she described our government’s actions as “fundamentally unfair.”

Discussing the historical context for her decision, she wrote that political forces often desire “to consolidate and gather more power and to seek to diminish any restraint on that power.” Conversely, she wrote, “A democratic system has institutional checks to counter that tendency and to safeguard against tyranny.” And one critical check on tyranny, Griffin wrote, is our Charter of Rights and Freedoms—which our provincial government has for ten years running deliberately spurned.

When Griffin considered what level of financial penalty against our government would be appropriate, she cited the moral and legal context for her determination as government conduct that could be placed somewhere on a spectrum between negligent “wilful blindness” and a clearly wrong “abuse of power.” And without substantial penalties for such actions, she argued, it was simply “too tempting” for governments to dismiss and extinguish the basic civil rights of the governed. (Griffin ultimately fined the province $2 million, indicating understanding that there could also still be substantial costs for the government in making re-dress to teachers, and expressing reluctance “to unduly take from the public purse and other public programs.”)

Absorbing all this, I thought, how much more dire a warning about our government could a high-ranking representative of our judiciary give us? And isn’t this the kind of court finding that 20 years ago got governments scandalized and politicians turfed from power?

Yet no sooner was this BC Supreme Court judgment rendered, than Premier Christy Clark (who was a principal architect of the legislation) announced that the government would appeal. It shows how emboldened our governments have become in their disdain for democratic process and their comfortable confidence in our collective passivity or ineffectualness in protest.

And now add to this disturbing reality the fact that the students in this year’s high school graduating class were in kindergarten when all this began; their entire schooling has been shaped by these circumstances. So what have the BC Liberals taught an entire generation of our children? And where is it leading us all?

Previously published at Focusonline.

 

Are Local Police Being Covertly Militarized?

Vancouver and Victoria police told academic researcher Adam Molnar they’ve started training in combat exercises with the US military. Police weren’t so forthright when Focus came asking.

Western Canadian police forces and the US military have been skirting laws on both sides of the border in secretive, controversial, urban-combat training exercises, says researcher Adam Molnar. Molnar recently completed his Political Science PhD thesis for the University of Victoria, titled “In the Shadow of the Spectacle: Security and Policing Legacies of the Vancouver 2010 Olympics.” His study provides a behind-the-scenes look into how the biggest peace-time security operation in Canadian history permanently re-shaped British Columbia policing with respect to governance, use of electronic surveillance, public order emergencies, and public-private partnerships. One of its most provocative chapters outlines the creation of the Vancouver Police Department’s “Military Liaison Unit,” and the spread of the model to other police departments including Victoria’s.

Molnar can’t disclose the names of the police sources he interviewed due to university research ethics requirements; however, he can discuss his research. Molnar says the Vancouver Police Department (VPD) Military Liaison Unit (MLU) was created in the early 2000s. Under then VPD Chief Jamie Graham’s direction, the MLU was intended to improve working relationships between the Canadian military and Vancouver police for the Olympics. In Molnar’s study, one VPD MLU official is quoted as saying that, prior to the Olympics, there was a long-standing “myopic viewpoint” that police and military shouldn’t work closely together. “Times have changed,” the official said.

And indeed, the official added, the VPD MLU garnered a flood of Olympics funding to hire personnel with battleground experience and become more well-equipped than many military brigades. The MLU also helped forge agreements between Vancouver police and Canadian Forces outlining jurisdictional and logistical responsibilities when operating together. Today, MLU training continues with major exercises occurring between four and six times per year at a US National Guard facility in Yakima, Washington, says Molnar, typically involving the US Department of Defense, US Army, Bureau of Alcohol, Tobacco and Firearms, and Washington National Guard, often working alongside Canadian Forces military personnel and police officers from Vancouver, Victoria and/or Calgary. Molnar says participants use live ammunition in “reality-based training” of “asymmetrical warfare operations” modelled on foreign military occupations and urban house-to-house tactical fighting. Police and military also train each other in their respective rules of engagement and use of force, explosives ordinance disposal, vehicle and person searches, prisoner handling, crowd control, building raids and room clearing, and counter-terrorism responses in urban domains.

Read more at Focusonline.

Police Chiefs: Public or Private?

BC’s Information Commissioner launches an inquiry into police chief associations.

Information and Privacy Commissioner Elizabeth Denham has launched an inquiry into British Columbia’s two police chief associations. Denham is considering recommending to government that the BC Association of Chiefs of Police (BCACP) and the BC Association of Municipal Chiefs of Police (BCAMCP) should be declared governmental “public bodies” and be made subject to the Freedom of Information and Protection of Privacy Act (FIPPA). According to her December 6 “letter to stakeholders,” the Commissioner is also inviting public input about this possible recommendation until February 14, 2014.

The Office of the Information and Privacy Commissoner (OIPC) evidently has some of the same concerns about the associations that Focus has been reporting on for two years, as it’s become clear that these secretive associations have been doing everything from crafting the government’s policing legislation to ordering police media spokespersons around the province to promote the virtues of mass surveillance. “In my reflections on this issue to date,” Denham’s two-page letter states, “it appears that the policy argument in favour of such a recommendation is based on two related considerations.” Denham describes “the important public role that the Chief Constables and the Associations play in our society,” while “government and others treat the Associations as the focal point for contact with the Chief Constables on matters of public policy.” However, she points out, “the appropriate level of transparency of Association records can be achieved for FIPPA purposes only if a member of the public can request current and historical records from the Association itself, rather than relying on what might be piecemeal and incomplete records held by individual Chief Constables at any given time.”

What prompted this action? “We had inquiries, we had letters, we had calls, and we examined the implications of [freedom of information] and its application to these associations in some mediation files,” said Denham in an interview with Focus. “So we’ve had interest in the question. We’ve had evidence presented to us in relation to this question.”

Read the rest at Focusonline.

OIPC Launches Inquiry into Police Chief Associations

The BC Office of the Information and Privacy Commissioner is investigating the legal nature and practices of British Columbia’s two police chief associations and, as part of that process, will be soliciting public input until January 17th, 2014 (revised deadline is now February 14, 2014.). Commissioner Elizabeth Denham is considering whether to recommend that the BC Association of Chiefs of Police (BCACP) and BC Association of Municipal Chiefs of Police (BCAMCP) should be declared to be “public bodies” and be made subject to the Freedom of Information and Protection of Privacy Act (FIPPA). The OIPC’s official announcement will appear within the next few days. (Dec. 11: Her letter to stakeholders has now been released.)

This inquiry comes after I submitted to the OIPC in late October a 9-page letter and about 70 pages of evidence showing that the BCACP and BCAMCP have been secretly operating as de facto governing bodies for all police forces in British Columbia for decades.

The key issue here is important: BC police chiefs certainly should have the freedom to associate with each other in private, and to lobby government and publicly advocate. At the same time, however, it’s vital that important decisions by our police chiefs that affect the governance and operations of our public police forces should be reasonably transparent and accountable to the public. The problem is the way that our police chief associations are doing these two things at the same time, at the same meetings; the associations are operating as both private lobby groups and as public bodies, and up until now they have been doing it all in absolute secrecy out of the reach of laws covering either public or private bodies.

So either the associations must change the way they do business by clearly separating their private activities from their public activities, or the associations must be made fully subject to our public freedom of information laws.

If you’re media and would like to interview me, contact 250-388-6064 or email rob at robwipond dot com. If you have an interest in or concerns about policing in British Columbia, then I encourage you to write a letter to the OIPC at info@oipc.bc.ca . I also suggest sending copies to Andrew Wilkinson, Minister of Technology, Innovation and Citizen’s Services (the ministry in charge of FIPPA) at TIACS.minister@gov.bc.ca  and to Suzanne Anton, Minister of Justice and Attorney General at JAG.Minister@gov.bc.ca  (the ministry in charge of policing), and to Premier Christy Clark at premier@gov.bc.ca

This could be precedent setting, because across Canada, many police chief associations have been for many years secretly operating in a similar kind of dual capacity, as both private lobby groups and as public governing bodies, and engaging in deep conflicts of interest and a total lack of accountability while doing so. In addition, this is a good opportunity to clarify a legal and political ‘test’ for what constitutes a public agency versus a private group — something which is relevant in many other situations where governments are increasingly operating in private-public ‘grey areas’. (See for example the 2009 Canadian Supreme Court case involving the Greater Vancouver Transportation Authority in which the court worked to define “government body” as it relates to our Charter of Rights and Freedoms.)

To learn more about the associations, here are the articles for Focus magazine that I’ve researched and written on this subject that have led up to this OIPC decision, along with some of the actual document evidence.

The articles in order:

Are BC Police Chiefs Evading the Law? (October 2012)

Is the Law Catching Up to BC’s Police Chiefs? (May 2013)

“Curiouser and Curiouser” (July 2013)

Coup de Police (November 2013) (If you’re only going to read one article, read this one.)

And if you’re keenly interested to know more, below are the records finally obtained during mid-2013 which are discussed in “Coup de Police”. These are pdf files that contain hundreds of pages, so they’ll take some time to download. I suggest right-clicking on the filename and choosing “save link as” or “save file as”:

Records pertaining to the BCACP and BCAMCP from the past two years in the custody of the BC Ministry of Justice, which were generated by the BC government.

All records pertaining to the BCAMCP in the custody of the Victoria, Saanich, Central Saanich, and West Vancouver police departments.

All records pertaining to the BCACP in the custody of the Victoria, Saanich, Central Saanich, and West Vancouver police departments.