SCC labour rulings not revolutionary: it’s the Charter going to work

Posted on in Equality Policy Context

TheGlobeandMail.com – Globe Debate
Feb. 03 2015.   Eric Adams

Eric M. Adams teaches constitutional law and employment law at the University of Alberta, Faculty of Law. Follow him on twitter @ericadams99

There is no hierarchy of rights within the Canadian Charter of Rights and Freedoms – each provision of the Charter is as important in law as any other. In the broader world of constitutional culture, however, there have always been rights widely celebrated, broadly cherished, and frequently invoked in legal and popular argument, while others are only dimly known, often forgotten, or generally ignored.

Ask a Canadian to name the four “fundamental freedoms” guaranteed in the Charter and you will hear plenty about freedom of religion and freedom of expression, but likely very little about freedom of peaceful assembly and freedom of association. That may be about to change.

It will be difficult to overlook freedom of association after two recent decisions by the Supreme Court of Canada. The first held that the Charter’s guarantee of freedom of association meant that RMCP members had the right to form a fully independent association of their choosing to represent them in their dealings with their employer. The second, released last week, held that the government of Saskatchewan’s blanket prohibition on the right of government workers to strike infringed their right to freedom of association. A constitutional right to strike will have deep impact for Canadian labour law, especially in the public sector where more than 70 per cent of workers belong to a union.

Canada’s entire labour relations model is premised on restricting strikes (and lockouts) to when the term of the collective agreement has expired. Beyond that general limit, many government sector workers are prevented from striking entirely. That makes sense. Governments are not in the business of making profit, but providing services to the public. The loss of truly essential services because of labour unrest could endanger public safety. No one wants to see police and paramedics on picket lines.

A constitutional right to strike will certainly embolden unions to challenge elements of existing labour legislation, and some schemes will require amendment, especially to the definition of who qualifies as providing an essential service. But Charter rights are not absolute. Governments will still be able to defend limitations on the right to strike for a variety of pressing purposes, the health and safety of the public chief among them. In that sense, the rulings will not be as revolutionary as critics fear, or as proponents hope.

The judgments will still inspire criticism, especially in conservative quarters. As Justices Marshall Rothstein and Richard Wagner argue in dissent, the right to strike abandons existing precedent, handcuffs government policy flexibility, and, in tipping the scale in favour of unions, meddles in the delicate and essentially political field of labour relations. Worse still, reading the right to strike into a Constitution in which that phrase does not appear, the dissenters suggest, undermines the constitutional order by engaging in a kind of wishful and illegitimate judicial creativity.

In the guise of fidelity to the Constitution, the dissenters purport to treat the Charter’s fundamental freedoms as King Lear treated his daughters: to play favourites. The freedom to associate is as much a part of Canada’s human rights tradition as rights to speech and religion. It was among the freedoms proclaimed by the Universal Declaration of Human Rights in 1948 and protected by the Canadian Bill of Rights in 1960. In different ways, the Charter’s four fundamental freedoms each and together seeks to protect and promote the rights of citizens, but also groups of citizens, to a free, equal, and democratic society.

Courts have rightly rejected interpreting Canada’s other Charter rights as frozen to past definitions or limited by literalism. So it is that freedom of religion includes the protection of religious practices and freedom of expression includes activities intended to convey meaning. Modern constitutionalism also means understanding abstract constitutional concepts in light of both the purpose of the right and present day context – what is considered discriminatory today may not have been the case twenty years ago.

Defining freedom of association in Canadian constitutional law should be no different. Strikes – the ability of workers to collectively withdraw their labour in order to achieve workplace goals – have always been an essential feature and central purpose of associations of labour, even if the law has not always recognized the fact. The freedom to associate without the right to strike is a little like recognizing the freedom of religion but not to practice it.

Certainly these decisions mean that courts will hear more cases involving the freedom to associate, and governments will be forced to more frequently justify prohibitions on the right to strike as a reasonable limit in a free and democratic society. But just as these decisions will not revolutionize labour relations, they will not overturn the proper role of judges in our constitutional order. Balancing rights and freedoms against broader public goals in a democratic society is never easy, but that is the role the Constitution has assigned governments in legislating and the judiciary in supervising that legislation against constitutional standards. Ignore the cries of distress about the constitutional right to strike, that is just the Charter going to work, as it must, as it should.

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