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Ontario Premier Doug Ford faced legal challenges on two fronts this week, with opponents seeking to strike down his government's efforts to adopt environmental and sex-education policies of the distant past.
Environmental groups want the courts to rule that Ford acted illegally, when his government cancelled the province's climate change strategy, while a union representing elementary school teachers is seeking to stop the Ford government from imposing a twenty-year old sex-education curriculum in their classrooms.
In both legal challenges, the Ontario government is arguing that the cases should be dismissed.
Greenpeace Canada and Ecojustice were in the Ontario Superior Court on Monday, arguing that Ford had no right to withdraw cap and trade so quickly after his Progressive Conservatives assumed government in June, without undergoing the legally mandated public consultation required by Ontario’s Environmental Bill of Rights.
On Wednesday, the Elementary Teachers Federation of Ontario and a representative teacher presented arguments to a three-judge panel of the Divisional Court reviewing the Ford government’s reversion to a sex-ed approach from 1998.
As their filing put it, that time was “prior to the advent of social media, same-sex marriage, and human rights protections for gender identity, to say nothing of contemporary understandings of consent.”
The Ford policies followed Progressive Conservative campaign promises that had become hot-button issues during the provincial election campaign in May and June, when Ford promised to pull Ontario out of an international cap and trade market and the emission-reducing programs it funds while also fighting a federal carbon price.
The sex-education push came from social conservatives in the Progressive Conservative party who felt that current classroom teachings weren’t age appropriate. Former conservative leadership candidate Tanya Granic Allen spewed out these ideas as part of her platform, prior to being defeated by Ford and coming in last in the leadership race.
Granic Allen was the only candidate who stood next to Ford after he declared his victory in the Ontario Progressive Conservative leadership race on March 10, 2018. Granic Allen is also credited with helping him secure the narrow victory over rival Christine Elliott, who is now deputy premier and health minister.
Cancellation of cap and trade was 'unlawful:' Greenpeace
Ford’s election campaign largely consisted of rallies and photo-op stops among supportive types, with barely a policy platform to speak of beyond offering citizens the opportunity to buy one-dollar beer or get 10 cents off a litre when they filled up their gas tank. He railed against Hydro One mismanagement and promised to cancel what had come before; Kathleen Wynne’s key climate change strategy being Enemy Number One.
Less than a week after forming government Rod Phillips, the newly-minted environment minister, was revoking the regulations that provided the framework for cap and trade, despite a requirement to post notice and allow 30 days of public comment. The official reason given by the government was that the election campaign effectively serves as public consultation.
While it would be very unlikely that the court rules the program must be resuscitated, a positive result for the groups “will be to demonstrate that literally the first action Doug Ford took in government was to break the law,” said Amir Attaran, a lawyer with Ecojustice.
Greenpeace said that it wrote to Phillips on July 23 to oppose his revocation and on Aug. 15 was promised a “substantive reply as soon as possible” that has still not come. On Sept. 11, Greenpeace served the government notice it will applying for judicial review of the move.
The next day Ford’s government decided to consult Ontarians about its climate change policies.
PARTIAL VICTORY! Ontario government decided to consult the public on cancelling cap and trade — mere hours after we filed our lawsuit.— Greenpeace Canada (@GreenpeaceCA) September 12, 2018
Full statement: https://t.co/MZkooNLiLw #onpoli #DougFord #ActOnClimate pic.twitter.com/ozc7l4LMxS
The Greenpeace suit alleges that Ford’s environment minister, Rod Phillips, did not “do everything in his power to notify the public of the proposal and allow the public to comment on it for a period of at least 30 days before the proposal is implemented” as the province’s environmental bill of rights promises.
In light of all this, Greenpeace senior strategist Keith Stewart is looking for the courts to say “they can’t do it again.”
Ford’s government now says the case is moot, since even if it was found they acted illegally the cap and trade program is well and truly dead. Ecojustice compared this logic to suggesting that a murderer escape trial because the victim was already dead.
“Imagine a defence lawyer saying the victim of this murder is dead so there’s no point in conducting a trial of the accused, my client, because even if you find my client guilty, the victim can’t come back,” said Attaran. “It’s utterly perverse, bankrupt logic of the attorney general.”
The environmental justice groups said that Ford’s campaign-trail promises to cancel the cap and trade scheme were not equivalent to a consultation process with the public.
“There’s been no case like this, not even close” said Attaran. “But has there ever been a government like the Ford government before? That’s the real question.”
Stewart believes the legal challenges is increasingly important in light of other environmental policies in the works, that could remove protections of the greenbelt and clean water. “We want to make sure (the government) can’t say ‘oh because we won the election we’re allowed to ignore Ontarians’ environmental rights,’” he said.
“What we’re trying to do is send a clear message that we don’t elect dictatorships and you still have to follow due process even if you form government,” Stewart added. “That’s something some politicians clearly need to be reminded of.”
Reversal of sex-ed curriculum is violation of the Charter rights of students and teachers
On Wednesday, the Elementary Teachers Federation of Ontario, which represents all 83,000 teachers and other education professionals working in Ontario’s public elementary schools, presented their arguments about how the Ford government’s decision to revoke the 2015-era elementary school sex-ed curriculum, which included updated information about LGBT relationships, and replace it with an older version violated the Charter rights of students and teachers.
The new curriculum was set to be taught in the school year beginning September 2018, but was revoked a few weeks prior. Initially, teachers were advised to exercise their professional judgement, but the government’s new curriculum interfered with that.
In announcing the curriculum change, Ford warned teachers they would face repercussions if they didn’t follow suit. “Make no mistake, if we find somebody failing to do their job, we will act,” he said. His government also launched a website called ForTheParents.ca, which some critics likened to a snitch line to report on teachers who continued to teach the 2015 curriculum.
ETFO argues that the earlier curriculum, which was replaced in 2015 after years of consideration, is fundamentally less advanced than its successor on issues such as consent, gender identity and sexual orientation, and cyber bullying.
Critics worry that avoiding learning the proper names for body parts makes it more difficult for a child to discuss problems related to them, for example.
For one thing, the internet did not exist in anything like its current form in the 20th century. A child did not have to learn what types of photographs may not be appropriate to share in certain circumstances, or be prepared for the fact they could find any sort of pornography they seek there.
“When all the pieces of the puzzle are put together our case asserts that the government’s fumbling of the curriculum has intimidated teachers, constrained their professional judgement and ensured that students will no longer be exposed to the comprehensive content of the 2015 curriculum that was stripped away by the government,” Sam Hammond, the union’s president, said in a press release.
The union was joined by two HIV/AIDS advocacy groups as interveners as well as the Canadian Civil Liberties Association.
“It’s a case about equality and whether or not a government can exclude a group of people in a a way that amounts to degrading or discriminating against them,” said Michael Bryant, the executive director of CCLA and former Ontario attorney general.
“The challenges are all going to be in the hands of the government,” he said in a phone interview. “One question is what will the remedy be if the court agrees with us? If they strike down the directive, does that necessarily mean the 2015 curriculum gets put into place or are we just going to have no sex ed curriculum at all in 2019. We’ll have to see what happens.”
“We’re fighting to have the 2015 curriculum put back where it was. It was going to be taught in September. That all changed on August 21 2018. We’re trying to turn the clock back to August 21 2018.”
According to court documents filed by the province, sexual health topics in school are not a matter of constitutional law. The onus, according to the government, is on teachers who have the discretion to create lesson plans that can be inclusive of all students, including LGBTQ.
CCLA disagrees. Bryant said the concerns of main complainant Becky McFarlane, who’s a queer parent of a sixth grader, are indicative of students and LGBTQ families who are left feeling that there is something about their families that is shameful and stigmatized — or else the teaching about the LGBTQ families would’ve been included in the curriculum as it was until up to 6 months ago.
Bryant told National Observer that there are two possibilities moving forward: either the case heads to appeal and possibly the Supreme Court of Canada (depending on what position the divisional court judges take), or the government changes the curriculum through their ongoing consultation process.
NDP MPP Terence Kernaghan said when children see themselves reflected in the curriculum, they “thrive both educationally and socially.”
“By deliberately removing LGBTQ identities and families from the curriculum, the Ford Conservatives put students at risk,” Kernaghan, the NDP’s critic for LGBTQ issues, said in a statement. “Any person, and any parent of a child who’s been a victim of cyberbullying, a survivor of sexual violence, or subjected to discrimination because of their LGBTQ identity, can tell you how devastating it is for a child’s mental and physical health to be denied information, empowerment and a safe space.”