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.
