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.