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Is Jinny Sims Going to Jail?

What the courts have said about leaders of 'illegal strikes.'

David Schreck 7 Oct 2005TheTyee.ca
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"They could threaten to put me in prison." -- Jinny Sims, BCTF President, quoted in The Province, October 6, 2005

There is one important ambiguity in what Sims said: who are "they"? They are not the government. Governments used to include nasty penalties in back to work legislation, but modern labour law puts the really mean stuff over to the courts.

Sims and the BCTF executive may be stubborn but they aren't stupid. They knew that the employers' association would attempt to get a ruling from the Labour Relations Board by Thursday afternoon, and that the employers would certainly succeed in getting an order by Friday afternoon that a full scale withdrawal of services is an illegal strike.

The order will then be registered in BC Supreme Court where the union will be called up on charges of contempt of court for failing to abide by the order. If the union directs its members to return to work immediately, it might get off with a finding of civil contempt and relatively minor fines. If the job action continues, the union and its officers could be found in criminal contempt of court with substantial fines and jail sentences.

Supreme Court ruling

Case law on "illegal strikes" was made in Alberta when the United Nurses of Alberta went on strike in January, 1988, contrary to directives made under the Alberta Labour Relations Act forbidding the strike. The nurses were found to be in criminal contempt of court and fined $400,000. In 1992, the Supreme Court of Canada ruled that a union can be held in criminal contempt of court, upholding the criminal contempt conviction. A dissenting opinion said:

"The conduct of the union leadership was not sufficient to transform the civil contempt into criminal contempt. The element of public injury was missing from the breach of the order. The nurses neither flaunted their disobedience of the order nor presented any threat of violence. The diffidence of their spokesperson in discussing the matter with press indicated that the union did not intend to bring the administration of justice into disrepute or hold it up to scorn."

Consequences

The fact that the teachers are willing to risk fines and jail shows how angry they are with the Campbell government for using legislation to break their contract and remove their right to bargain working and learning conditions, class size, number of special needs students per class, whether special needs students must have assistance and other matters that are crucial to how classrooms function.

Many of the civil rights we take for granted were only achieved because someone was willing to take on the establishment with civil disobedience. The teachers are at the threshold of deciding how far they will go with their civil disobedience. The government could defuse the conflict by agreeing to discuss working and learning conditions at a separate table, as recommended by its fact finder, or it can stand back and let the process unfold, complete with the court process.

Those who engage in civil disobedience have to be ready to accept the consequences. It looks like the teachers are prepared.

Political analyst David Schreck publishes the online journal Strategic Thoughts where a version of this appeared.  [Tyee]

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