This is where it gets really risky for journalists. Once you start giving opinions on court cases, you cannot avoid the problem that they will be inherently legal ones.
Just as if you aren’t a surgeon, you wouldn’t know what the complications of major heart surgery are, if you aren’t a lawyer, you likely won’t be aware of the many hidden legal realities that lurk behind the parties’ legal positions, no matter how clear the explanations appear to be on their face.
Unfortunately, here, Brodbeck falls deeply into the “I’m not a lawyer” trap.
The Difference between a Law and a Bill
First off, the heading. The Public Services Sustainability Act is not ‘hypothetical’. The Act has been passed; its terms are fixed. And everybody knows exactly what will happen the minute the Act is proclaimed.
You could have said all that Brodbeck does about the uncertainty due to the PSSA’s legal status if, and only if, it was still Bill 28. That is because bills are only drafts of proposed legislation, and can, and frequently are, rejigged and revised many times before they become law.
If the PSSA was still Bill 28, then the question Brodbeck raises – how can you rule on a bill that has yet to be proclaimed – would be relevant. But that question doesn’t apply to the PSSA, because the PSSA is not a theoretical bill, it is already a law.
Brodbeck keeps referring to the PSSA as a bill, or Bill 28, throughout the entire piece, making the mistake of not appreciating the difference between a draft bill and an act. And that matters, because PSSA isn’t just a bill. It’s an existing law that has been passed by the legislature.
So the correct question before the courts, no matter what the government says, is:
Can the courts rule on a law that has been passed but not yet proclaimed?
Legal Effect v. Actual Effect
Can the courts rule on a law that hasn’t been proclaimed? In the words of my old Administrative Law prof, the late Professor Butch Nepon, well, that depends.
A law that has only been passed may have no legal effect until it is proclaimed, but that does not mean that it is not having any actual effect. And whether it has actual effect – as in it impacts reality – depends on the law itself and the context it resides in.
In the case of the Public Services Sustainability Act, the evidence has demonstrated that the PSSA has been affecting, and negatively impacting, collective bargaining in Manitoba all over the place.
This should not be surprising, since, as Brodbeck mentions, the PSSA is designed that way:
But in the case of Bill 28 [should read the PSSA], the delay appears to be tactical — the Pallister government was trying to avoid the risk of an unfavourable court ruling while still having the bill influence contract talks.
Furthermore, as Brodbeck describes,
It worked to some degree.
All right then, the government’s deliberate strategy was to pass the PSSA so that they could “still have the bill influence contract talks”, i.e. they wanted to have the PSSA have an actual effect even though it wasn’t proclaimed. And, it worked! Which means of course that the PSSA did have an actual impact on reality even as it lingers in limbo.
You can’t do indirectly what you can’t do directly
What’s worse, for both Brodbeck and the government, is that this tactical genius of not proclaiming the PSSA to avoid an adverse court ruling, but throwing in the retroactivity provisions so that the PSSA would influence collective bargaining in the meantime, is totally bonkers.
I go into the whole history of this in the post: Bye Bye, Dumbo, but the short version is that the law does not let people get around the law by doing something indirectly that they are prohibited from doing directly.
Say there is a law that states that anyone whose name begins with “B” cannot buy apples on Wednesday. But it’s Wednesday, and Babar is really hungry, and only an apple will do. So, Babar gets his cousin, Celeste, to buy an apple for him. Nope sorry, the courts would say. Babar is trying to do indirectly what he cannot do directly, and that just won’t do.