Last week, the Supreme Court of Canada released what is arguably its most troubling decision of the 21st century. In Saskatchewan Federation of Labour v. Saskatchewan, a 5-2 majority of the Court held that there is a constitutional right to strike, even for certain services that the government deems essential. In putting forth this ruling, our highest court has removed a significant policy question from the realm of democratic choice.
Constitutional questions will often, by their very nature, carry with them policy implications. It is therefore essential that whenever the courts are called upon to interpret the Constitution, they do so based on the ordinary meaning of the text that was enacted by the people’s elected representatives. Saskatchewan Federation of Labour all but ignores the text and, in the process, undermines more than a quarter-century of precedent.
The Supreme Court grounded its decision in section 2(d) of the Charter which protects everyone’s “freedom of association.” Freedom of association is described in the preamble to section 2 as a “fundamental freedom” along with freedom of religion, freedom of thought and expression and freedom of assembly. These rights are much older than the Charter and are derived from our ancient common-law tradition. In the famous “Labour Trilogy” decisions of 1987, Justice McIntyre discussed the historical meaning of freedom of association as essentially being the freedom to do collectively what one has a right to do individually. Like all freedoms set out in section 2, freedom of association belongs to the individual; it does not vest independent rights in the group.
In the Labour Trilogy, the majority found that freedom of association does not protect the right to collectively bargain or to strike, since they are the “creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise.” As Justice McIntyre correctly recognized in his concurring opinion, to grant a constitutional right to strike would be to grant the members of the association “greater constitutional rights and freedoms than they, as individuals, possess.”
Beginning in 2001, the Supreme Court began to chip away at the Labour Trilogy precedent, all the while maintaining that the decision remained good law. In Dunmore v. Ontario, the Court held that section 2(d) compels the government to enact legislation to facilitate the establishment of trade unions. The Court assured the public, however, that the right to strike and collectively bargain were still “excluded” from constitutional protection. The Supreme Court then reversed itself in two subsequent decisions over the following decade — Health Services and Fraser — and held that section 2(d) protects the right to “meaningful” collective bargaining. The decision in Saskatchewan Federation of Labour goes one significant step further and hammers the final nail into the Labour Trilogy’s coffin.
Few would dispute that the modern labour relations regime has served Canada well for the most part. But it has done so precisely because the task has been left to the legislature to craft policies that adequately balance the interests of business and labour. Saskatchewan Federation of Labour upsets this balance by preventing the legislature from taking the necessary steps to ensure that labour law keeps apace with new social and economic realities. As Justices Rothstein and Wagner put it in their dissent, striking is an “economic or political weapon” and to grant it Charter protection “plainly tips the balance of power against employers and the public and fails to respect the important role played by democratically elected legislators in balancing the complex competing interests at stake in labour relations.”
It will now be left to future panels of the Supreme Court to determine when an infringement of the right to strike is justified as a “reasonable limit.” In practical terms, this means costly litigation with no predictable outcome. Indeed, if the rights guaranteed by the Charter are not based on the ordinary meaning of the words, but are instead dependent on what judges believe the Constitution ought to protect — such that the meaning of “freedom of association” can undergo a fundamental alteration within the span of a single generation — then there is no way to know with any certainty what rights we as Canadians actually possess.
If the meaning of section 2(d) can change so drastically over such a short period of time, then so, too, can the meaning of our other fundamental freedoms. Freedom of religion could be reinterpreted to force the government to finance the building of churches, synagogues and mosques. Freedom of expression could compel newspapers to publish all perspectives on political issues so that “every voice is heard.”
It may sound far-fetched, but 25 years ago so was a constitutional right to strike.
This article was originally published by the National Post and is being reprinted courtesy of the National Post: www.nationalpost.com