{"id":2471,"date":"2017-08-30T20:52:19","date_gmt":"2017-08-30T20:52:19","guid":{"rendered":"https:\/\/www.ruleoflaw.ca\/?p=2471"},"modified":"2018-08-31T18:45:28","modified_gmt":"2018-08-31T18:45:28","slug":"courts-legislatures-and-the-illusion-of-dialogue","status":"publish","type":"post","link":"https:\/\/www.ruleoflaw.ca\/courts-legislatures-and-the-illusion-of-dialogue\/","title":{"rendered":"Courts, Legislatures, and the Illusion of “Dialogue”"},"content":{"rendered":"

I.\u00a0\u00a0\u00a0\u00a0 WHAT IS A CONSTITUTIONAL RIGHT?<\/strong><\/p>\n

It has been said that Constitutions are a \u201cmirror reflecting the national soul\u201d[1]<\/a>.\u00a0 While these comments were made before the Canadian Charter of Rights and Freedoms<\/em> (Charter<\/em>) came into effect, there is no reason to believe that the Charter<\/em>, which focusses on a guaranteed set of civil liberties (Charter rights), should be any less of a looking glass into our collective psyche than the other matters addressed in the Constitution Act<\/em>.\u00a0 Indeed, the matters addressed by the Charter<\/em> (fundamental freedoms in Section 2, democratic rights in Sections 3 through 5, mobility rights in Section 6, legal rights in Sections 7 through 14, equality rights in Section 15, language rights in Sections 16 through 22 and majority language educational rights in Section 23) are far more likely to have a real-life impact on the citizen than the more dry, legalistic issues addressed by such things as the separation of powers between the federal government and the provinces dealt with in other parts of the Constitution.\u00a0 I do not think it is an overstatement to say that for most citizens, the Charter<\/em> and the Constitution are one and the same.<\/p>\n

It is not very often that issues related to legal decisions from the Supreme Court of Canada (SCC or the Court) \u00a0regarding the Charter<\/em> create a lasting furor.\u00a0 They are usually commented on for a day or two in the media and then attention shifts to other issues.\u00a0 However, the recent Supreme Court of Canada decisions regarding collective bargaining and the right to strike appear to have struck a nerve.\u00a0 The legal blogosphere has engaged on issues arising from these decisions like no other issue in recent memory.\u00a0 This was accompanied by editorial pieces, opinion columns and letters to the editor in newspapers and magazines throughout Canada.\u00a0 Opinion on these decisions appears to be hotly divided, largely along the lines of those who view the recent decisions as an inappropriate level of judicial activism involving the Court in socio-political judgments best left to lawmakers and those who believe that the Court was merely performing the task assigned to it. \u00a0For those who hold this latter view, the Court\u2019s task embraces an impersonal interpretation of rights created by the Charter<\/em> using tried and true methods for interpreting the language used, relying upon, but not hidebound by, precedent; all within a framework which requires a deft balancing of the need for stability and consistency in the law while remaining somewhat aloof from their own personal views on a matter.\u00a0 Their role is to divine the intent of legislators, subject to ongoing development, not impose their own views.<\/p>\n

However, lurking beneath the surface of these debates are concerns which may imperil two long-held, almost uniquely Canadian, views of our constitutional law.\u00a0 The first is that our Constitution is a \u201cliving tree\u201d.\u00a0 This phrase arose from the decision in Edwards v. The Attorney General for Canada[2]<\/strong><\/a><\/em>, a decision of the Judicial Committee of the Privy Council when it served as the court of last resort for Canada.\u00a0 This case is often referred to as the \u201cPersons Case\u201d as the interpretive issue was whether the word \u201cpersons\u201d in the Constitution included members of both sexes.\u00a0 The actual quote is:<\/p>\n

    \n
  1. The British North America Act<\/em> planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act<\/em> was to grant a Constitution to Canada.\u00a0 Like all written constitutions, it has been subject to development through usage and convention. \u2026<\/li>\n<\/ol>\n

    This metaphor has been returned to many times by our courts to emphasize the ability to and need for our Constitution to develop with the times, to evolve within the natural limits of the text which \u201caccommodates and addresses the realities of modern life\u201d, and includes the advent of the Charter<\/em>[3]<\/a>.<\/p>\n

    As a result, in contrast to constitutional law in the United States, we have been able to avoid the dreary debate between those who are \u201cstrict constructionists\u201d who emphasize that the meaning of the Constitution must reflect the intentions of the original framers of the Constitution and those who view the law as inherently evolutionary.\u00a0 The \u201cliving tree\u201d metaphor has served us well.\u00a0 Laws, like trees, are planted in the soil of the past but ought to grow or evolve over time to reflect the fact that society itself very gradually evolves and changes its laws in response to changes in social and political life.<\/p>\n

    The other, more recent, informing notion in Canadian constitutional law is the idea that Charter<\/em> cases allow for a constructive dialogue between the legislative branch and the judiciary.\u00a0 It is argued that this dialogue is a necessary adjunct to the fact that the Charter<\/em> contains a legislative override clause (Section 33) and has been described as follows:<\/p>\n

    \u2026 Where a judicial decision is open to legislative reversal, modification or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue.\u00a0 In that case, the judicial decision causes a public debate in which Charter<\/em> values play a more prominent role than they would if there had been no judicial decision.\u00a0 The legislative body is then in a position to devise a response that is properly respectful of the Charter<\/em> values that have been identified by the Court, but which accomplishes social or economic objectives that the judicial decision has impeded<\/u>. \u2026[4]<\/a>\u00a0 (emphasis added)<\/em><\/p><\/blockquote>\n

    The value of the theory behind this dialogue has been somewhat undercut by the fact that there is a large body of opinion that suggests that it is unfair for there to be a public debate about the decisions of the Court.\u00a0 It is, some say, particularly unfair if politicians choose to be critical of a decision and express their views publicly.\u00a0 The rationale behind this view is, again, \u00a0that the Court is simply doing its job and it is not fair to criticize them as they do not have the ability to defend themselves as a result of our longstanding tradition that the judiciary speaks through their decisions and do not otherwise comment.<\/p>\n

    I confess that I was a long-time adherent to this position, a position which I clearly abandon by writing this comment.\u00a0 My \u00a0abandonment of this view is a direct result of my ceasing to believe in the notion that our constitutional law is developed and assisted by a constructive dialogue between legislators with socio-political motivations who need to be tempered by a Court whose role is to identify enduring values by applying legal reasoning to the interpretation of our Constitution.<\/p>\n

    As I said, I believe that these two fundamental aspects of the Canadian constitutional rubric have been imperilled by the recent decisions regarding collective bargaining and the right to strike.\u00a0 For the purposes of this comment, I do not think I need to delve more deeply or more academically into the notions of the \u201cliving tree\u201d metaphor nor the notion that Charter<\/em> cases can result in a constructive \u201cdialogue\u201d between Legislatures and the courts.\u00a0 Thus, I will briefly set out another distinctive feature of our Charter<\/em> and then move to a very brief, thumbnail, outline of Charter decisions in the area of collective bargaining and the right to strike.<\/p>\n

     <\/p>\n

    II.\u00a0\u00a0\u00a0\u00a0 SECTION 33 \u2013 THE OVERRIDE PROVISION<\/strong><\/p>\n

    The most distinctive element of our Charter<\/em> is the \u201cnotwithstanding clause\u201d (often dignified by the Latin term, the non obstante<\/em> clause).\u00a0 Under Section 33 of the Charter<\/em>, Parliament or the Legislature of a province may, in passing a piece of legislation, provide that the whole piece of legislation, or a provision of it, shall operate \u201cnotwithstanding a provision included in Section 2 or Sections 7 to 15\u201d.\u00a0 The effect of such a declaration is that the legislation, or a part of it, operates as it would have \u201cbut for the provision of the Charter<\/em> referred to in the required declaration\u201d.\u00a0 This type of declaration ceases to have effect five years after it comes into force but may be renewed.\u00a0 There is no limit on the number of times it can be renewed.\u00a0 (Two technical observations: first, the section of the Charter<\/em> being \u201copted out\u201d of must be specifically referenced; second, the notwithstanding clause does not apply to all of the rights granted by the Charter<\/em> but only those included in Section 2 or Sections 7 to 15.)<\/p>\n

    This type of provision appears to be one not often found in a constitution.\u00a0 That being the case, why does Canada have this provision?\u00a0 How did it come to be in our Constitution?\u00a0 Here, I am going to crib liberally, and summarize, from recollections of those who were involved\u00a0 in the heady days of the late 1970s and early 1980s when the Charter<\/em> was developed.\u00a0 Except where I have used exact wording, I do not propose to provide citations for this brief history except to say that I found a most interesting summary in a paper by Thomas Axworthy, The Notwithstanding Clause: Sword of Damocles or Paper Tiger<\/em>, Policy Options, March 2007.<\/p>\n

    Apparently, the inclusion of the notwithstanding clause (in conjunction with the limitation clause found in Section 1) was a key feature of Canada even having a Charter<\/em>.\u00a0 The provinces were divided, there being many who objected to an unelected judiciary having the final say over our laws.\u00a0 Thus, the negotiators had to develop a method to bridge the gap between those who championed parliamentary supremacy and those who, like the federal government of the day, were prepared to cede the final say to the judiciary.<\/p>\n

    The notwithstanding clause was not a new thought.\u00a0 Indeed, there is one in the 1960 Canadian Bill of Rights<\/em>.\u00a0 Further, in the late 1970s there had been a number of commentators speculating on the use of such a device during the run-up period to our constitutional negotiations in 1981.\u00a0 Axworthy notes that the Pepin-Robarts Task Force on Canadian Unity suggested, in its January 1979 report:<\/p>\n

    Including a clause in the Constitution which would permit a Legislature to circumvent a right (and incurring the odium of doing so) by expressly excepting a statute from respecting that right.<\/p><\/blockquote>\n

    Further, Paul Weiler, in the 1979 Killam lecture, gave what I believe is the most apt description of the notwithstanding clause when he said:<\/p>\n

    \u2026 In typical Canadian fashion, I propose a compromise, between the British version of full-fledged Parliamentary supremacy and the American version of full-fledged judicial authority over constitutional matters.<\/p><\/blockquote>\n

    Of course, that compromise was the notwithstanding clause.<\/p>\n

    Assuming that it is true that those who were there have accurately described the negotiation dynamic, and there is no basis to assume the contrary, it appears we wouldn\u2019t have a Charter of Rights<\/em> without the notwithstanding clause.\u00a0 It was the absolutely crucial element in forging the consensus necessary for us to have the Charter<\/em> included in our Constitution.\u00a0 However, there are very few examples of the notwithstanding clause being used.\u00a0 Why is this the case?\u00a0 I would speculate that it\u2019s because of the very \u201codium\u201d associated with its use referred to in the Pepin-Robarts Report.\u00a0 Further, I think our legislators have, to this point, accepted the notion that there should be a \u201cdialogue\u201d between law-makers and the judiciary so that, with the judiciary\u2019s guidance, legislation doesn\u2019t transgress the rights granted under the Charter<\/em>.\u00a0 Given the experience with the right to strike which I\u2019m to very briefly examine below, and the discussion which follows it, I no longer believe our legislators should feel so constrained.<\/p>\n

     <\/p>\n

    III.\u00a0\u00a0\u00a0\u00a0 CONSTITUTIONALIZING THE RIGHT TO STRIKE<\/strong><\/p>\n

    The Charter<\/em>, and in particular Section 2, is intended to protect \u201cindividual rights\u201d, in the form of the fundamental freedoms identified in Section 2, from being curtailed by government action (except in the circumstances where Section 1 is applicable).\u00a0 The Charter<\/em> does not define the content of the fundamental freedoms.\u00a0 The boundaries of those freedoms are subject to development, on a case-by-case basis, by the judiciary.\u00a0 With regard to freedom of association and freedom of expression, cases emanating from the area of labour relations law have played a major role in the development of the boundaries of these concepts.<\/p>\n

    I now turn to a very brief analysis of case law from the Court regarding the issue of whether the Charter<\/em> protects collective bargaining and the right to strike.\u00a0 My descriptions of the judgments are brief.\u00a0 The full decisions are far more nuanced and should, of course, be read carefully.<\/p>\n

    In 1987, a plurality of the Court, sitting as a seven-person bench, decided what has come to be known as the \u201cLabour Trilogy\u201d[5]<\/a>.\u00a0 In these cases, the Court expressly held that the constitutional guarantee of freedom of association in Section 2(d) of the Charter<\/em> did not include a guarantee of the right to bargain collectively or the right to strike.\u00a0 It held that the implications of extending a constitutional guarantee to engage in any particular form of activity under the concept of freedom of association was inherently troublesome.\u00a0 The Court noted that the right to bargain collectively and to strike were creatures of legislation, in which legislators were balancing competing societal interests.\u00a0 This observation, they said, called for judicial restraint.\u00a0 In a concurring judgment, a single justice focused on the notion that freedom of association under the Charter<\/em> meant the freedom to engage collectively in activities which would be constitutionally protected for an individual.\u00a0 He held that people could not, simply by combining, create an entity which had greater constitutional rights and freedoms than they as individuals possessed.\u00a0\u00a0 He also noted that the right to strike in legislation in Canada was of a relatively recent vintage (its first appearance coming in 1949) and it was difficult to conceive of it as an enshrined fundamental freedom.\u00a0 Two dissenting judges charted a completely different path, holding that freedom of association included not only the freedom to form and join associations but also the freedom to bargain collectively and to strike.\u00a0 They held that if the associational interests of employees in the collective bargaining process were to receive effective constitutional protection, it also required a protection of their right to strike.\u00a0 However, the dissenting judges were at pains to point out that freedom of association did not entrench for all time the system of labour relations (generally referred to as the Wagner Act<\/em> model) which existed in Canada at the time of the decision.\u00a0 They noted that the area of labour law was subject to significant regulation by legislators, with the caveat that the regulation could not define the scope of the underlying freedom.<\/p>\n

    Fourteen years later in 2001, the Court decided Dunmore v. Ontario (Attorney General)[6]<\/strong><\/a><\/em> (\u201cDunmore\u201d<\/em>).\u00a0 This decision was rendered by a bench of nine justices, none of whom were part of the Court rendering the decisions in the Labour Trilogy.\u00a0 The Dunmore<\/em> case involved agricultural workers who were excluded from collective bargaining under a specific piece of legislation.\u00a0 This piece of legislation was subject to constitutional challenge and, in the result, was overturned.\u00a0 A seven-member plurality held that trade unions had needs and priorities distinct from their individual members and could not function if freedom of association protected only the lawful activities of individuals.\u00a0 They held that the law must recognize that certain trade union activities may be central to the freedom of association even though they were inconceivable on an individual level.\u00a0 The Court also held that freedom of association under the Charter<\/em> may impose a positive obligation on legislators to extend protective legislation to unprotected groups.\u00a0 This was completely new ground.\u00a0 Rather than freedom of association being a concept which set protective limits on government\u2019s right to legislate, the Court found that unions could be protected against under-inclusive legislation because under-inclusion sent a message that, at least in the agricultural sector, the role of a union was not recognized.\u00a0 This would have a chilling effect on freedom of association in the form of the right to unionize.\u00a0 \u00a0The Court held that, at a minimum, the agricultural workers were entitled to a legislative scheme which protected their right to join any association for the purpose of making collective representations to their employer.\u00a0 A concurring judgment by a single justice took this a step further by saying that not only must fundamental freedoms be protected from state action, they must be given undefined \u201cbreathing space\u201d.\u00a0 The lone dissenting justice held that freedom of association did not impose positive obligations on the state to make collective bargaining available to agricultural workers.<\/p>\n

    Six years later, in Health Service and Support \u2013 Facility Subsector Bargaining Association v. British Columbia[7]<\/strong><\/a><\/em> (Health Services<\/em>), a seven-person bench, four of whom sat on Dunmore<\/em>, dealt with legislation which was adopted as a response to challenges facing British Columbia\u2019s health care system.\u00a0 The legislation overrode existing collective agreement provisions on significant matters and had been passed very quickly.\u00a0 There was no meaningful consultation with any of the affected unions before it became law.\u00a0 The legislation was challenged on the basis that there was a constitutional right to bargain collectively which had its roots in the freedom of association provisions of the Charter.\u00a0 The Court held that the recognition of the right to bargain collectively is encompassed by freedom of association and reaffirmed the values of dignity and personal autonomy, qualities in a democracy which underlie the Charter.\u00a0 However, the concept of \u201ccollective bargaining\u201d which freedom of association protected was identified as being somewhat attenuated from the Wagner Act<\/em> model.\u00a0 It was described as embracing a right to unite, present demands collectively to government employers and to engage in discussions in an attempt to achieve agreement.\u00a0 The Court clearly concluded that freedom of association did not guarantee any form of legislated dispute resolution mechanism in case of an impasse.\u00a0 Further, and this was likely a response to the types of provisions in the collective agreement which were being over-ridden, the Court held that freedom of association protected only against \u201csubstantial interference\u201d with associational activity in the form of collective bargaining.\u00a0 With regard to the Court\u2019s previous judgments in the Labour Trilogy, there was no analysis of societal developments in the intervening years since those judgments were rendered.\u00a0 Rather, the earlier decisions were rejected because they did not withstand \u201cprincipled scrutiny\u201d.<\/p>\n

    Two years later, in Ontario (Attorney General) v. Fraser<\/em> [8]<\/a> (Fraser<\/em>), the Court addressed the legislation which had been developed by the Province of Ontario in response to Dunmore<\/em>.\u00a0 Six of the nine justices who ruled on the Health Services<\/em> case were present for the appeal in Fraser<\/em>.\u00a0 It appeared that the Ontario government had followed, at least in a minimal way, the Court\u2019s directions from Dunmore<\/em> and had provided agricultural workers in Ontario with the right to join an association and make collective representations to their employers.\u00a0 The legislation was again subject to challenge on the basis that the rights it granted were not meaningful association rights.\u00a0 The decision in this case appeared, at least to me, to be a bit of a retrenchment from some of the wide comments which had been made in Health Services<\/em> and which had been subject to significant academic commentary.\u00a0 The Court confirmed that freedom of association protected the ability to achieve workplace goals through collective actions but also emphasized, once again, that the identification of this Charter right did not impose any particular process of collective bargaining.\u00a0 As long as the process was meaningful, it need not meet the requirements of any particular model.\u00a0 The Court denied that its comments in Fraser<\/em> were intended to overturn Health Services<\/em>.\u00a0 Indeed the Court commented that the threshold for reversing a precedent of the Court was extremely high and that Health Services<\/em> was consistent with Canadian values, consistent with Canada\u2019s international commitments, and consistent with the Court\u2019s purposive and generous interpretation of the Charter.\u00a0 In the result, the Ontario Legislature was not required to provide any particular form of collective bargaining rights such as the Wagner Act<\/em> model.\u00a0 The Court confirmed that the right to bargain collectively is an individual right and that the process of associational activity is derived from that individual right and did not guarantee any particular process or result.\u00a0 The legislation was upheld.<\/p>\n

    This brings us to the most recent decisions; \u00a0Saskatchewan Federation of Labour v. Saskatchewan[9]<\/strong><\/a> <\/em>(\u201cSFL\u201d<\/em>) and Mounted Police Association of Ontario v. Canada (Attorney General)<\/em>[10]<\/a> (\u201cMPAO\u201d<\/em>).\u00a0 These cases were issued as companion judgments and five of the seven judges signatory to the opinions were on the Court for the Fraser<\/em> judgment (three of them had been present for the judgment in Health Services<\/em>).\u00a0 In MPAO<\/em> the Court considered whether the exclusion of RCMP officers from collective bargaining under the Public Service Labour Relations Act<\/em> (PSLRA<\/em>) which also, by way of regulations, established the Staff Relations Representative Program (SRRP) as the mechanism by which RCMP members could raise labour relations issues with their employer.\u00a0 In the result, the exclusion from collective bargaining under the PSLRA<\/em> was struck down and the SRRP was held not to provide a meaningful process of collective bargaining because it did not provide employees with the right to choose their representative.\u00a0 Therefore, it lacked sufficient independence to enable RCMP officers to pursue their collective interests.\u00a0 The Court identified three elements of freedom of association as being protected:\u00a0 the right to join with others and form associations; the right to join with others in pursuit of other constitutional rights; and the right to join with others to meet with, on more equal terms, the power and strength of other groups or entities (in this case, their employer).\u00a0 The provisions of the PSLRA<\/em> were held to be a substantial interference with RCMP members\u2019 freedom of association and the SRRP was not independent enough from the employer to respect RCMP members\u2019 freedom of association in both its purpose and effects.\u00a0 There was a vigorous dissent from a single justice characterizing the majority opinion as being an expansion of the rights identified in Fraser<\/em>; an expansion which occurred in four short years.\u00a0 The dissent commented that Fraser<\/em> had established a high threshold for finding an infringement of the derivative right to collective bargaining, a threshold which had been dramatically lowered by the majority in this case.<\/p>\n

    In SFL<\/em>, the same set of judges were called upon to deal with the issue of whether very broadly-drafted legislation prohibiting essential service workers from striking was a breach of the freedom of association provisions of the Charter<\/em>.\u00a0 A majority of five judges (one of the judges signing the majority opinion in MPAO<\/em> now shifting to support the dissenting justice from that case) held that legislation to be unconstitutional.\u00a0 The fundamental holding was that the right to freedom of association included the right to strike.\u00a0 In a summary at the commencement of the majority judgment, brief reference was made to the case law which had been developed in labour relations matters since the Labour Trilogy.\u00a0 After this thumbnail sketch of the development of this jurisprudence, the Court noted that \u201cthe arc bends increasingly towards workplace justice\u201d.<\/p>\n

    The summary also concludes that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations and such a conclusion is supported by history, by jurisprudence and by Canada\u2019s international obligations.\u00a0 The summary concludes that the right to strike is an indispensable component to the right to engage in collective bargaining and to the majority it seemed, \u201cto be the time to give this conclusion constitutional benediction\u201d.\u00a0 The dissenting justices were very critical of the conclusion that the right to strike is protected by freedom of association.\u00a0 In the introduction to the dissent, the dissenting justices canvass the same series of cases cited in the introduction to the majority judgment, concluding that the majority in SFL<\/em> now casts off those precedents and injects a one-sided view of \u201cworkplace justice\u201d into freedom of association under the Charter<\/em>.\u00a0 The dissenting justices assert that the majority has so \u201cinflated the right to freedom of association that its scope is now wholly removed from the words of s. 2(d)\u201d.<\/p>\n

     <\/p>\n

    IV.\u00a0\u00a0\u00a0\u00a0 COMMENTARY<\/strong><\/p>\n

    As should be apparent from the very abbreviated descriptions of the cases involving Charter rights in a labour relations context, it is not my purpose to quarrel with the merits of the outcomes of the case law post the Labour Trilogy.\u00a0 What is important about those judgments is not what they say but what they do not say.\u00a0 The \u201cliving tree\u201d metaphor under which constitutional rights grow and evolve to accommodate the realities of modern life posits that changes in constitutional entitlements ought to reflect a measured analysis of changes in Canadian society across a time span which permits the Court to sensibly observe and rely upon those changes.\u00a0 While it may be arguable that there were significant societal changes in the approximately twenty year period between the Labour Trilogy and the Health Services<\/em> case there is simply no commentary in Health Services<\/em> about what those changes may have been, let alone any analysis of how they influenced the outcome in the Health Services<\/em> case.\u00a0 (Parenthetically, in the life of nations, a time period of twenty years hardly seems sufficient for the type of radical societal evolution which would result in a complete judicial about face on the relationship between freedom of association and collective bargaining.)\u00a0 Rather, the majority judgment in Health Services<\/em> simply undertakes to chart its own path rejecting the earlier decisions in the Labour Trilogy as not standing up to \u201cprincipled scrutiny\u201d.\u00a0 This constitutional change was simply the result of one group of justices disagreeing with a previous group of justices.\u00a0 It is certainly not a change in result required by any organic change in society contemplated by the living tree metaphor.<\/p>\n

    The pace of change in the content of freedom of association in a collective bargaining context between the Fraser<\/em> case and the SFL<\/em> case, a period of some four years, is more distressing.\u00a0 As the Federal Court of Appeal once commented about the \u201cliving tree\u201d analogy,[11]<\/a>, pithily responding to an argument that there had been a substantial evolution in the content of freedom of association in the two year period between the passage of the Charter and the litigation before the Court:\u00a0 \u201ceven the liveliest of living trees takes time to grow – – it is a tree, not a weed \u2026..\u201d.<\/p>\n

    No credible argument can be made that changes in Canadian society occurring during the four year period between those cases justified further the reversal of field by the Court in SFL<\/em>.\u00a0 Indeed, in the SFL<\/em> case there is more reliance upon material which pre-dated the Charter as well as the constitutions of several other countries (France, Italy, Portugal, South Africa and Spain) than there is to any changes in Canadian society as a \u00a0backdrop to collective bargaining.\u00a0 In fact, the majority in the SFL<\/em> case were abundantly clear about what prompted the change in approach between Fraser<\/em> and the SFL<\/em> case.\u00a0 The majority simply held that the \u201ctime had come\u201d to give the right to strike constitutional benediction.<\/p>\n

    The reader will have noticed that I have catalogued the changes in the makeup of the Court since the Labour Trilogy.\u00a0 Given that there does not seem to be any analysis of changes in Canadian society which would have prompted the changes in the content of freedom of association, it is clear that the factor driving change has been the composition of the Court.\u00a0 What we have, in the place of growth of the living tree, is a series of magisterial pronouncements about the meaning and content of freedom of association ebbing and flowing as the composition of the Court changes.\u00a0 One would have never believed that it would be so obvious.\u00a0 However, the risk of this approach to our constitutional values is clear.\u00a0 If our constitutional rights are to be a product of ongoing and changing revelation based only upon the composition of the Court rather than on incremental changes in Canadian society, we must necessarily be concerned about the prospect that any particular group of justices of the Supreme Court of Canada may be disconnected from the values of Canadian society.\u00a0 If our constitutional protections are subject to change by way of the opinion of a particular agglomeration of judges at any particular time, our constitutional protections are valueless.\u00a0 Surely constitutional values must be more consistent and predictable than what is exhibited in the recent cases.<\/p>\n

    It is also clear, particularly from comments like, \u201cit is now time for the Court to give its constitutional benediction to the right to strike\u201d, that the process being undertaken is not an interpretation of the words of the Charter.\u00a0 For the Court to make such a statement a few short years after conflicting statements in the previous precedents makes it patent that what occurred was a tipping point brought about by changes in the composition of the court since the previous judgments were made.\u00a0 This permitted a new corpus of justices to engineer a result which is in keeping with their individual views.\u00a0 Perhaps it is too much to ask of our judges that they place the values of consistency and stability ahead of their own individual views in some areas.\u00a0 However, it ought not to be too much to ask in an area like the elucidation of Charter rights reflecting the values of the nation.<\/p>\n

    The recent changes also make the notion of a \u201cdialogue\u201d between the courts and our legislatures an illusion.\u00a0 The concept of dialogue is intended to lessen resort to the legislative override in s.\u00a033 of the Charter when the Court reverses a decision of the Legislature.\u00a0 The underlying theory behind the identification of the dialogue is that the Court\u2019s overturning of legislation would prompt a public debate with the legislative body then being in a position to devise a response to the judicial reversal of legislation which is both respectful of the Charter values identified in the judicial decision and also informed by the public debate responsive to the judicial decision.\u00a0 This should, it is argued, lead to new legislation which properly accomplishes the social or economic objectives that the original judicial decision impeded.\u00a0 If our Charter protections are the product of a majority view of any particular group of Supreme Court justices at any given time then this dialogue cannot occur.\u00a0 Simply put, it is impossible for legislators to be respectful of values identified in the judicial decision if they never know how enduring those values will be or how long that judicial decision will remain the operative precedent.\u00a0 The current matrix created by the most recent decisions on the issue of the extent of freedom of association in collective bargaining is far too unstable to permit any sort of reasonable conclusion by our law makers about what is permissible legislation or not in the area of labour relations.<\/p>\n

    In response to this uncertainty do we simply give up the expectation that the democratic legislative process should be used to settle issues of social policy and instead cede that ground to a group of nine unelected justices who have clearly demonstrated that they are prepared to impose their own views on legislators?\u00a0 For those who accept that the recent case law makes it clear that our Charter protections are only a function of changes in the composition of the Court, the question comes down to who do you wish to have the power to impose such views, a body you can vote out if you don\u2019t agree with their legislative program or a group of unelected justices who you cannot displace?\u00a0 In my opinion, confidence in the Court as being a moderating objective alternative to legislators may not survive the most recent series of cases.\u00a0 This is not an attack on the integrity of the justices of the Supreme Court of Canada but, rather, a belated recognition that we appear to have asked too much of them in our expectation that they would be able to put aside their own views in the interest of the stability that comes with consistency in constitutional adjudication tied to developments in Canadian society.<\/p>\n

    Given this lack of consistency, there can be little doubt that legislators will soon resort to the use of the legislative override rather than face the often significant costs associated with Charter litigation in circumstances where they have no reason to believe that the outcome of that litigation will chart the path for the future.\u00a0 To paraphrase the title of the Axworthy article referred to earlier, these decisions may have changed the \u201cPaper Tiger\u201d of s. 33 into the \u201cSword of Damocles\u201d.\u00a0 Where does it leave us if our legislators believe they cannot rely upon the \u201cliving tree\u201d and \u201cdialogue\u201d elements of our constitutional law and therefore feel compelled to resort to ongoing use of the override provision in s. 33?\u00a0 It leaves us with a system of parliamentary supremacy unmoderated by sage advice from our highest court, the very Canadian compromise our Charter was intended to ensure.\u00a0 No matter whether one agrees or disagrees with the merits of the outcomes of these decisions, the process of constitutional adjudication adopted by the Court in these cases should be of grave concern.<\/p>\n

    In his famous lectures, originally published in 1921 and now compiled in the book The Nature of the Judicial Process (Quid Pro Quo LLC, 2010)<\/em> Justice Benjamin Cardozo wrote eloquently about what is involved in \u201cjudging\u201d.\u00a0 One of the most important tools in a judge\u2019s tool box, he argued, was the concept of stare decisis.\u00a0 Existing precedent,\u00a0 he said, was important because it \u201cfixed the point of departure from which the labour of the judge begins\u201d.\u00a0 Without dilating on the matter, it is clear that he felt that reliance upon existing precedent was an important element of the rule of\u00a0 law as it provided significant stability for both the judges who are required to consider existing precedent and the citizens who would be affected by any change.\u00a0 Given the importance of constitutional law in our legal hierarchy it is difficult to think of an area in which this stability is more important.\u00a0 Respectfully, rule of law is threatened by judges who do not acknowledge the importance of this stability and who believe that existing precedents are subject to ongoing review as the composition of the Court changes.\u00a0 The historical criticism of this type of approach is that it turns the \u201crule of law\u201d into the \u201crule of men and women\u201d and makes the rule of law no longer a law of rules.<\/p>\n

     <\/p>\n

    Notes<\/em><\/p>\n

    [1]<\/a> \u00a0\u00a0Cheffins and Tucker, The Constitutional Process in Canada (2d Edition), 1976, p. 4<\/p>\n

    [2]<\/a> [1930] 1 DLR 98<\/p>\n

    [3]<\/a> See the cases discussed in Canada, Attorney General v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429)<\/p>\n

    [4]<\/a> The Charter Dialogue between Courts and Legislatures (or Perhaps the Charter of Rights isn\u2019t such a Bad Thing After all (1997) 35 Osgoode Hall Law Journal 75, at p. 79<\/p>\n

    [5]<\/a> Reference re Public Service Employee Relations Act (Alberta) [1987] 1 S.C.R. 313; PSAC\u00a0 v. Canada [1987] 1 S.C.R. 424; RWDSU v Saskatchewan [1987] 1 S.C.R. 460.<\/p>\n

    [6]<\/a> [2001] 3 S.C.R. 1016.<\/p>\n

    [7]<\/a> [2007] 2 S.C.R. 391<\/p>\n

    [8]<\/a> [2011] 2 S.C.R. 3<\/p>\n

    [9]<\/a> [2015] SCC 4<\/p>\n

    [10]<\/a> [2015] SCC 1<\/p>\n

    [11]<\/a> Public Service Alliance of Canada v. The Queen in Right of Canada
    \n[1984] 2 F.C. 889; appeal dismissed [1987] 1 S.C.R. 424<\/p>\n","protected":false},"excerpt":{"rendered":"

    I.\u00a0\u00a0\u00a0\u00a0 WHAT IS A CONSTITUTIONAL RIGHT? It has been said that Constitutions are a \u201cmirror reflecting the national soul\u201d[1].\u00a0 While these comments were made before the Canadian Charter of Rights and Freedoms (Charter) came into effect, there is no reason to believe that the Charter, which focusses on a guaranteed set of civil liberties (Charter …<\/p>\n","protected":false},"author":3293,"featured_media":1572,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[36],"tags":[107,45,86,384,385,383,53,345,190,224,350],"_links":{"self":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2471"}],"collection":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/users\/3293"}],"replies":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/comments?post=2471"}],"version-history":[{"count":4,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2471\/revisions"}],"predecessor-version":[{"id":2474,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/posts\/2471\/revisions\/2474"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media\/1572"}],"wp:attachment":[{"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/media?parent=2471"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/categories?post=2471"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.ruleoflaw.ca\/wp-json\/wp\/v2\/tags?post=2471"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}