Tuesday 3 February 2015

The right to strike and the Charter "at work".

 Eric Adams offers a cogent defence of the Supreme Court of Canada’s right to strike decision in today’s Globe and Mail (February 3, 2015).
His essential point is that in this case the Court was simply “putting the Charter to work”, interpreting its fundamental freedoms in a way that is not “frozen to past definitions or limited by literalism.”
Well, I am quite firmly in the camp of those who believe that the Charter must be a living document, and that its interpretation by the courts can and ought to evolve over time.
But that does not relieve us from the task of asking whether this particular decision is justified.
In the first place, there is a difference between a decision which puts a new gloss on old words in order to make the Charter’s guarantees work in novel and unanticipated circumstances, and a decision where the Court simply overrules itself.  In the former case, the Court seeks to extract the essential principles and values that underlie the written words of the Constitution and find a way to give them life and relevance in a changing world.  In the latter case, where the Court is, in essence, disagreeing with itself, something more significant is happening.  The Saskatchewan Federation of Labour case falls into the second category, not the first. 
Are there circumstances where the Court is justified in overruling itself? What about situations where the social, political, or moral context of an issue has radically changed?  Take, for example, the profound changes in attitudes towards same sex relationships that have occurred in the past half century.  In such circumstances, it seems to me that it is legitimate for the Court, faced with a prior decision that reflects a now plainly discarded set of societal values, to say that the constitution must keep pace with the changes in the world in which it must operate, and may legitimately overrule its prior decision.
But that is not this case.  Remember that the Charter came into effect in 1982.  By 1982, every jurisdiction in Canada had enacted comprehensive labour law regimes regulating collective bargaining and the right to strike.  The right to strike had been expressly recognized in Article 8 of the United Nations International Covenant on Economic, Social and Cultural Rights, enacted in 1966. The right to strike was hardly nascent or imperfectly understood when the Charter was drafted. As Eric Adams himself notes, “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.”
And yet the Charter (unlike the constitutions of dozens of countries) does not say anything about a right to strike.
And for the first 25 years of the Charter’s existence, the Court on several occasions carefully and thoughtfully ruled that the “freedom of association” expressed in section 2(d) could not be “interpreted” to provide constitutional protection for collective bargaining.  The Court had to overrule itself in order to create a free-standing constitutional right to strike.
Had something in society changed?  Was it was plain that the social, political or moral conditions which earlier supported the Court’s previous rulings had changed?  No. Not even close.
The majority of the Court unintentionally admits as much in this critically important passage from its reasons:
The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized:

"The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter."
(Laws Against Strikes (1972), at p. 8)

The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

Yes, the source relied upon for this statement is a book written in 1972. 
I agree with Eric Adams when he says, “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.”  But that only works when there are constitutional standards.  There are no standards here.  All that has really changed here is the composition of the Court.  Different judges, with different opinions.  This is not the Charter “at work”. It’s something quite disappointingly different.  


  1. Geoff:

    Thank you for your thoughtful engagement with my article. You are certainly right that the freedom of association decisions – like many others of the Court of late – raise the issue of stare decisis in constitutional matters. When can the Court depart from its previous jurisprudence and in what circumstances? Certainly the values of stability and predictability as elements of the rule of law suggest the need for a system of precedent. But if we accept that the the Constitution is a document capable of growth and change, and if we accept that judges are fallible and that previous decisions can sometimes be wrong, then we must accept that a Court should be prepared to overrule itself when circumstances warrant. But when should that be?

    In practice, the doctrine of precedent in Canadian constitutional law has proven a remarkably flexible instrument capable of a range of outcomes. There is, of course, a long history of simply ignoring, qualifying, and distinguishing precedents. So it was that the POGG power could radically transform over time from expansive (Russell, 1882) to narrow (Snider, 1925) to balanced (Crown Zellerbach, 1988) without the Court ever expressly overruling itself.

    In other instances the Supreme Court has been more express about overruling its past decisions. The Court made clear, for example, that it would not be bound by any of its decisions under the Canadian Bill of Rights during the Charter era. Obviously, the constitutional status of the Charter provided clear evidence of a significant legal change, but had the concept of freedom of religion really changed in society during that period? It is difficult to see much in the way of dramatic societal transformation between the finding that the federal Lord’s Day Act did not infringe freedom of religion (1963) and that it did (Big M Drug Mart, 1985).

    Within the Charter era itself constitutional law has proven to be equally dynamic. Think of the different articulations and conceptions of s. 15 (from Andrews to Law to Kapp to Withler) and s. 7 (Morgentaler to Bedford). The Court upheld discrimination against same sex couples in 1995 (Egan) and rejected similar discrimination four years later in M v. H. It is not societal or legal transformation alone that drives the evolution or rejection of precedent, but the practice of constitutional decision-making itself, revising and refining legal assumptions in the context of real cases and context.

    In similar fashion, although the 1987 Labour Trilogy expressly found that s. 2(d) did not encompass a right to strike, it has been clear since at least 2001 (Dunmore) that the Court was rejecting key aspects of those rulings. The last fifteen years have seen the incremental expansion of s. 2(d) culminating in the right to strike as an aspect of collective bargaining found in the Sask Fed Labour case.

    It is, I think, reasonable to argue that the Court should be more strictly bound by its own precedents. But I think to sustain that argument one must be consistent in doing so, i.e. no Vriend, and M.H., no Bedford, no Carter.

    For me, I am not convinced that interpretive adaptations, re-conceptions, and even overrulings (and I accept that such change can flow in both directions from rights granting to rights limiting) in constitutional matters imperil the rule of law so much as give expression to another of its fundamental postulates: that constitutional law be just.

    1. Professor Adams,

      With considerable respect, I do not think this is a compelling response.

      As you note, the Supreme Court's recent judicial innovations in this area constitutionalize a certain conception of justice. But it is one conception of justice, which is opposed by many other competing good faith conceptions of justice. There is, in other words, considerable reasonable disagreement among reasonable people. Were this an area in which empirical researchers had coalesced around a consensus, one might be inclined to accept that the court should nevertheless ignore the disagreement and proceed with incorporating a right to "meaningful" collective bargaining and a right to strike into the constitution anyway. However, I think the fairest reading of the economic literature suggests that the unknowns are very considerable indeed, and that the very arguments which proponents of constitutionalization make (that unions benefit workers through the improvement of working conditions and wages, etc.) may not in fact hold. Given the empirical uncertainty and the complex balancing of competing interests of multiple parties (employers, employees, and consumers) implicated by labour policy, it seems to me that this is exactly the sort of situation in which the Court should have exercised forbearance and stuck with precedent, leaving this issue for political and democratical resolution.

      A willingness to overturn constitutional precedents solely for reasons of obtaining justice rather than reasons like those set forth in Comeau would create far more uncertainty, as Mr. Plant observes. More importantly, and the source of greater fear on my part, is the possibility that it will politicize the Court. We need only look asquint stateside to see what happens when judges on the highest court in the land feel they have the power (and maybe even the responsibility) to overrule established precedents which do not comport with contestable views of what is just and what is not.

      As a side note, I think it should observed that the treatment of labour associations is very odd indeed from my untutored perspective. The argument that the right to strike is needed to secure a central purpose of labour associations ignores the fact that s. 2(d) includes no language which suggests that the purposes for which associations are formed need to be secured. No other section of the Charter provides specific protection of labour rights either. So why should the purposes for which associations of employees are formed receive constitutional "benediction" under s. 2(d), when (as far as I can tell) no similar protection has been provided for the purposes of other sorts of associations. (The flippant question example would be to ask why labour cartels are the only form of cartel that receive protection, whereas seller cartels receive no such protection. Why not let book publishers which deal with Amazon form a price-fixing cartel? This is conduct which got publishers in hot water in United States v. Apple.) There is also the fact that, according to the Supreme Court's delimitation of the right to good faith collectively bargaining in Health Services, employees negotiating in groups seem to have constitutional rights which employees acting alone lack.

  2. The root problem with the SCC appears to me (as a layperson) to be that it is dealing now in political, not legal, opinions. As such, its handling of precedents inevitably becomes somewhat random. However, on Section 2(d), there is a discernible pattern, namely, that everything is done to uphold the core fiction that forced membership in unions is a rational variant of freedom of association.

    The fact is, these are not Section 2(d) cases at all. They are cases brought by the corporate entities that enjoy the benefit of forced membership, not by individual plaintiffs acting of their own volition. I don't know what section of the Charter they should be under, if any. But their outcome is that an organization can empower itself politically on the basis of a legal right that accords to individuals, without their permission. A rational body of jurisprudence cannot be built up around such a flawed proposition.

    1972 is actually not a bad time to go back to. Wellington and Winter had just written compelling articles explaining that transferring the private sector collective bargaining model to the public sector would fundamentally alter the political process, yet governments everywhere went ahead and did just that. What these otherwise prescient gentlemen did not foresee, however, was the threat that public sector collective bargaining would pose to the integrity of the law and the legal system itself. That risk, in my opinion, is what we are now seeing realized, at the SCC and throughout what now passes as legal scholarship in the field of labour law.

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