covering the media coverage

the challenges of covering court cases

It is really hard for the average journalists to cover court cases. They mostly get what happens right. But without a legal background, they don’t always know what it means.

This becomes a serious problem for democracy in cases like this, where the government’s law and associated actions are being challenged. The whole point of the Charter was to have the courts correct unconstitutional, and therefore improper and excessive laws, made by Canadian governments at all levels. If their governments are behaving badly, then this is something Canadians ought to know. But, Canadians cannot know exactly what went wrong unless someone with the right background is able to explain it to them. Paul Wells of Maclean’s once commented that all media outlets needed a journalist who was also a lawyer to cover court cases. (A court case had been posted on their website and was being debated in the comments, which were all a little off, including the original piece, until a lawyer stepped in.)

It’s a flaw in the system, one that arose over time. Governments govern, courts set limits, and the media keeps everyone honest by informing the public through their reporting. That’s how democracy is supposed to work. But, when the media cannot give clear and accurate information on the whatever illegal and unconstitutional thing a government is supposed to have done, the circle is not closed, and the corrective action of the courts remains incomplete.

Democracy Dies in Darkness, so the Washington Post says. And without proper explanation of allegations that a Canadian government is acting outside the clear legal limits, the people of Canada will remain in the dark.

Closing that gap was one the main reasons I created this blog. So, here, I will take a look at what the press says about the Public Sustainability Act on trial, and see how they do.

WINNIPEG FREE PRESS – nOVEMBER 19, 2019

I found these two articles in the print version of the Winnipeg Free Press from November 19, 2019. They also appear in the November 18, 2019 digital version – the day the trial started. They both offer some commentary on the opening statements in the trial. And, they both offer a good illustration of how journalists can get it wrong, or at least kinda fuzzy, simply because they don’t have a legal background.

First article: By larry Kusch

Winnipeg Free Press

 ¤COURTS

Contentious legislation that freezes salaries ‘may never become law,” government lawyer says. 

Opening Shots fired in wage bill battle

LARRY KUSCH

A public-sector wage-control bill passed by the Manitoba legislative assembly two years ago is not yet law and “may never become law,” according to a lawyer defending the government in a court challenge launched by organized labour.

In her opening statement in Court of Queen’s Bench on Monday, government lawyer Heather Leonoff described the fact the 2017 Public Services Sustainability Act has not been proclaimed as “the elephant in the room.”

“The PSSA is not law. It is having no legal effect on anyone. It may never become law. At some point, you

will need to decide what that means for how this trial is resolved,” Leonoff told Madam Justice Joan McKelvey.

She said the province would have “lots more to say” on the subject as the court case proceeds.

Meanwhile, the government will argue the PSSA (also known as Bill 28) is constitutional as it does not “substantially” interfere with the collective bargaining process, Leonoff said.

The legislation’s constitutionality is the one legal issue central to the case, she said.

The Manitoba Federation of Labour and 28 unions representing more than 110,000 workers — close to 20 per cent of the entire provincial workforce — are asking the court to strike down

the provincial wage-freeze legislation.

The PSSA mandates a two-year wage freeze as each new public-sector collective agreement is negotiated. Wage increases are limited to 0.75 per cent and one per cent in Years 3 and 4 of any new deals, respectively.

While a few new public-sector contracts have been negotiated since the PSSA was passed, the bargaining of several large contracts, including those with nurses and provincial civil servants, has been placed on hold.

On Monday, a lawyer representing organized labour said the unions will argue the PSSA violates their charter rights to collective bargaining.

Shannon Carson said the Supreme Court of Canada ruled in 2007 that the

Canadian Charter of Rights and Freedoms protects collective bargaining. The High Court has built upon this key decision in subsequent rulings, she said.

Carson said among the issues in the case is how the provincial legislation affects the power balance between the government and its employees.

She also noted the preamble to provincial Labour Relations Act encourages the practice of collective bargaining.

“Our legislature has deemed collective bargaining to be a good thing,” she told the court.

¤WAGE BILL, CONTINUED ON A2    ¤TOM BRODBECK/A2.

my comments

My quarrel with this article is not about the content. I thought Kusch did a really good job of explaining the two sides that came out in opening arguments. What I take issue with is the way it has been edited, specifically, the over-focus on the government’s position that the law cannot be challenged because it is not in effect.

The fact that the Public Services Sustainability Act is not law and may never become law is in the subheading, the lede of the article, and takes up the whole first column, along with Heather’s “Elephant in the Room” bit. It would leave those Manitoban readers who may not pay that much attention with the impression that this is the main, and only issue in the case. And it is not likely for a member of the uninvolved public to bother with something that is presented as some weird legal technicality. Flip and forget that. Nothing to do with me.

Focusing so much on the government’s side, smacks a little of “homerism” for the government – cheering the government on, as opposed to being an impartial reporter, there to inform the public referees. Because of the way it was presented, the article reads as though it was cribbed from the government’s communications department, who no doubt would be highlighting this as their prime defence.

The problem is that if this is the government’s only defence, then they don’t really have one, because this whole “the PSSA has not been proclaimed, so it has no legal effect” is the most specious aspect of the entire lawsuit. A law that has been passed may not need to have legal effect if it is already having an actual impact.

Furthermore, to the extent that the government has passed the Act with retroactivity provisions, but deliberately not proclaimed it to try to prevent Labour from legally challenging, this is just a legal game that no one is ever allowed to get away with.

The equitable maxim :

“You cannot do indirectly what you cannot do directly”

has been a cornerstone of English jurisprudence for over 500 years. (I go into this in more detail in the post: Bye, Bye Dumbo.)

I wouldn’t expect Kusch or his editors to know any of this, and to be fair, there is no reply in opening statements, so Labour’s lawyers never got the chance to comment on it. But, if they were lawyers, or if they had asked a lawyer about it, the Free Press probably would have gotten some idea that this elephant was not much of an asset to the government’s case.

Rewritten with full knowledge of the legalities, and giving equal focus to both sides, you might write the subheading as:

Government lawyer says “Contentious legislation that freezes salaries ‘may never become law.’ ”         “Round hairy rolls of ridiculous hooey,” say legal commentators.

Ok, so professional legal commentators would never say that. So, how about:

Government lawyer says “Contentious legislation that freezes salaries ‘may never become law.’ ” 

“But a law does not need to be in effect to have an effect,” say legal commentators. “And the government cannot try to do something indirectly that they cannot do directly.”

Of course, since the result is embarrassing for the government, if the Winnipeg Free Press had been aware of these realities, they probably wouldn’t have made much mention of the not-in-effect elephant in the room, and they certainly wouldn’t have highlighted it.

I’m not sure what they might have done instead, but it is clear nonetheless, that not having a legal background certainly limited the Free Press’s effectiveness in informing Manitobans about things their government is doing that might matter to them in this instance.

Manitoba didnt’t even attempt to achieve its fiscal goals through collective bargaining before wielding its legislative club, Carson said. 

She noted in 2010, following the 2008 global financial crisis, the provincial government asked public-sector workers for two years of wage freezes — and got them.

The freezes were achieved through collective bargaining, she said, with the tradeoffs for workers including job security provisions and prohibitions over the contracting out of work.

The PSSA was imposed on workers in an economic environment nowhere near as dire as in 2010, Carson said in her opening statement.

The trial is expected to run until Dec. 5, and resume for three days in February.

Lawyers for the unions said they plan to call more than a dozen witnesses, including two expert witnesses.

The government will call several witnesses of its own, including an expert witness who is expected to testify even when wages are constrained by legislation, there are many issues that can be bargained, including workplace health and safety, recruitment and retention of employees, harassment policies and overall working conditions.

An expert witness to be called by the unions is expected to argue the PSSA reduces labour’s bargaining power over non-monetary issues because the government doesn’t have to give anything up to achieve its wage-freeze goal.

This reduction in bargaining power constitutes substantial interference in the bargaining process, labour will argue.

[email protected]

Note: This article is reproduced for the purpose of comment and criticsm which cannot be completed fairly or fully without reproducing the article in its entirety. 

second article: by tom brodbeck

‘Hypothetical’ wage-freeze law faces real-life court test

tom brodbeck

The question of whether the Pallister government has the legal right to impose a wage freeze on public servants should be a straightforward one for the courts to decide.

What will be more complicated to explain is how a court can adjudicate the constitutionality of a bill that hasn’t been proclaimed into law.

Monday was the first day of what’s expected to be a lengthy trial into the legality of Bill 28, the Manitoba government’s controversial Public Sector Sustainability Act. The bill imposes a two-year wage freeze on all public-sector workers, followed by modest increases in the third and fourth year of a contract.

All other aspects of collective agreements are open to negotiation.

A group of Manitoba unions, which has launched a lawsuit against the province, says the wage freeze violates their charter rights to collective bargaining. The province argues since the Supreme Court of Canada has ruled governments can legislate some aspects of collective agreements, they’re on solid legal ground.

The bigger question is: how can the courts rule on a bill that has yet to be proclaimed into law?

It’s a point the province appears eager to argue. In her opening statement, provincial lawyer Heather Leonoff said Bill 28 “is not law” and courts don’t deal with “hypothetical law.” She said the bill may never become law.

Bill 28 was passed by the legislative assembly and received royal assent June 2, 2017. But in order for a bill to become law, it has to be proclaimed. Some are proclaimed upon royal assent, via the lieutenant-governor; others require cabinet approval, which Bill 28 hasn’t received.

There are often valid reasons for such a delay, including the need to draw up regulations. But in the case of Bill 28, 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.

It worked to some degree. Some contracts have been negotiated under the terms of Bill 28, including a new deal for Manitoba doctors earlier this year.

But now the bill is before the courts.

If it’s ruled unconstitutional, the legislated wage freeze is off. However, if the courts see it as a reasonable limit on collective bargaining rights, it will be a major defeat for the union movement.

Whatever Queen’s Bench Justice Joan McKelvey decides will almost certainly be taken to the Manitoba Court of Appeal.

What’s less clear is how the courts can render a decision either way if the bill hasn’t been proclaimed into law. Governments sometimes ask courts to rule on the constitutionality of bills before they’re introduced; this isn’t one of those cases.

It’s not law, as the province argues, but it does have the effect of being law since it can apply retroactively, if and when it’s proclaimed. It doesn’t affect contracts in place prior to the passage of the bill, but it does apply to new contracts that fall within the bill’s “sustainability period.”

If a bargaining unit concludes a new collective agreement and the provisions of Bill 28 are ignored, the bill could apply retroactively if it’s proclaimed at a later date.

It’s a legal rat’s nest.

To complicate matters further, the Pallister government last month introduced an amendment to the Public Service Sustainability Act, which — among other things — would give cabinet more discretion on how the legislation is applied.

Under these circumstances, it may be appropriate for the courts to weigh in, even though Bill 28 is officially not law. How else are employers and bargaining units supposed to interpret this legal quagmire?

Imposing a short-term wage freeze on public servants is a reasonable step under the circumstances. The Tories inherited a massive deficit and soaring debt from the previous NDP government, which resulted in three credit rating downgrades. Immediate steps to reverse that trend were critical to the financial well-being of the province.

But refusing to proclaim Bill 28 has caused unnecessary confusion and unfairness for both sides in the collective bargaining process.

It will now be up to the courts to sort out this mess.

[email protected]

Note: This article is reproduced for the purpose of comment and criticsm which cannot be completed fairly or fully without reproducing the article in its entirety. 

my comments on the brodbeck piece

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.

I’m not sure where Brodbeck got this information about the strategy of passing the PSSA but not proclaiming it. I assume that it was mentioned somewhere in the government’s press releases on the case. In any event, what this is, is an attempt to have the PSSA act indirectly (through the retroactivity provisions) without having it act directly (by being proclaimed). Not only that, the government apparently thinks this is a great tactical plan.

Thus, it looks like the government is not only trying to get away with doing something indirectly that they apparently know that they cannot do directly, they seem to be bragging about it.

It would appear that there is a significant gap in communication between Cabinet and the government’s lawyers, and it may be in part due to the fact that the Pallister government has never had a Minister of Justice who is actually a lawyer. (It is definitely preferable to have a lawyer in this position, but if not, it would be wise for any such government to then be that much more scrupulously careful in getting legal vetting of all legal ploys from people who are.)

Not only can a court strike down a law that tries to get away with doing something indirectly that they cannot do directly, this is exactly the type of situation where justice demands that a court step in.

No “legal rats nest” 

The question is not – how can the courts rule on a bill that isn’t law yet? The correct question is  – can you rule on the constitutionality of a law that has not been proclaimed into force?

And the legal response is – well, you can if you can show that it has an effect, an actual impact on reality in the meantime, or if the Government of Manitoba is trying to do something indirectly that they cannot do directly.

Neither of these are particularly “big” questions, nor do they really create a “legal rat’s nest.” The answers to both questions are fairly simple and clear – yes you can, and yes you can, because courts tend to take their responsibility to put a stop to these types of shenanigans fairly seriously.

Facts or Claims?

This is where Brodbeck really gets it wrong, and I am certain that it was entirely accidental.

Take a look at this paragraph:

Imposing a short-term wage freeze on public servants is a reasonable step under the circumstances.

The Tories inherited a massive deficit and soaring debt from the previous NDP government, which resulted in three credit rating downgrades.

Immediate steps to reverse that trend were critical to the financial well-being of the province.

These are stated as though they are facts, when they aren’t facts at all. The government will have to prove all this in evidence. At this point in the trial, these are nothing more than bare assertions made by the government.

Therefore, to be accurate, the paragraph would have to be rewritten as something like this:

The Tories claim that they inherited a massive deficit and soaring debt. [Interesting how the hyperbole becomes clear when phrased this way.]

The government claims that immediate steps were critical to reversing that trend.

Therefore, the government claims that a short-term wage freeze for public servants was a reasonable step.

Having correctly identified these as issues, not facts, in order to present them fairly with both sides represented, the paragraph should have been followed with something like:

Labour claims that the government overstated the problems, and that even if there were financial challenges there were other, better ways to meet them.

• • • • • • • • • •

On the whole, Brodbeck seems to be making a good faith attempt to make sense of tricky legal issues. And since he is not a lawyer, and presumably didn’t have access to one to review the piece for legal accuracy, getting it wrong was almost inevitable, given the legal games that are being played.

As a result, this article does tend to demonstrate just why it is so difficult for journalists to provide full, fair, and accurate information when they are reporting on legal cases.