Table of Contents I. CHARTER JURISPRUDENCE AND LABOUR RIGHTS A. Context: Labour in the Time of the Charter B. Labour Rights Under the Charter: the First Two Decades C. Opening the Door to Labour Rights: Lavigne to Dunmore D. The High-Water Mark: Health Services E. A Change in Direction?: Fraser II. The Legalization of Labour Politics A. Constitutionalizing the Wagner Model at the Moment of its Decline B. The Charter and the De-Radicalization of the Labour Movement III. CONCLUSION When the Canadian Charter of Rights and Freedoms (1) was enacted in 1982, the impact it would have on progressive politics in Canada was uncertain. Would the Charter herald a new era of respect for human rights, or were the Charter's promises only lip service? Questions of democracy loomed: unelected judges were granted new, far-reaching powers to review and overrule the legislative decisions made by the elected representatives of the people. (2) For those who supported the Charter as an advancement of Canadian democracy, democracy meant more than just voting in elections: the Charter would promote democracy by protecting the central values at the core of the democratic project. That is, the Charter, despite its execution by unelected judges, would uphold fairness and equality, the essence of democracy, where the elected legislators failed to do so.
Thirty years later, it is not altogether clear whether the Charter has delivered on these promises. Charter jurisprudence has produced mixed results regarding political, legal, equality and, as I will discuss in this paper, labour rights. The Charter put in place stringent procedural protections for accused persons in criminal trials; yet, our rates of incarceration are at historic highs, and Aboriginal people continue to be vastly overrepresented in Canadian prisons. Freedom of speech, purported to be an essential feature of democracy, has been interpreted to include the rights to spread racist lies and to advertise to children. (3) Our Charter right to "life, liberty and security of the person" (4) has been interpreted extremely narrowly, yet somehow just broadly enough to include a right to private medical care. (5) In many areas of law and society, the Charter's legacy thus far has been mixed at best, and it is difficult to find much to celebrate.
Labour rights provide a possible exception to this pattern. While the courts were initially slow to include labour rights in their interpretation of the Charter, in recent years the Supreme Court of Canada (the "Supreme Court") has extended constitutional protection to picketing (6) and to collective bargaining (in a limited form). (7) In the context of the struggle between labour and capital, the courts seem to have shifted, ever so slightly, towards the side of labour. Has the Charter, then, delivered on its promises of democracy in the realm of labour rights?
Whether the Charter has been positive or negative for labour rights and the labour movement is a deceptively difficult question to answer. Comparing the status of labour in Canada before and after the Charter can't sufficiently answer this question, since this approach fails to isolate the effects of the Charter from the myriad other political, economic, and social changes occurring in the past three decades. Narrowly examining the jurisprudence and tallying Charter decisions for and against labour is also inadequate: the legal meaning of a ruling in a court is not necessarily the same as the social and economic meaning of a ruling as it is implemented or responded to in the real world. Courts do not operate in a vacuum, and law is meaningless without its social context. To understand the impact the Charter has had on labour in Canada, a more nuanced approach and a more complex question are required.
Therefore, in this paper I seek not to superficially assess whether the enactment of the Charter has been good or bad for labour; instead, I take as a starting point that the Charter is a defining feature of the contemporary legal landscape, and ask, how has the Charter structured the legal and political terrain of labour politics in Canada? This inquiry has two parts: first, I examine Charter jurisprudence on the rights to bargain collectively and to strike; and second, I suggest wider implications of the adoption of Charter litigation as a strategy of labour's struggle. I argue that the jurisprudence on labour rights under the Charter, while not overwhelmingly favourable, has offered some incremental advances to the labour movement, and more importantly, holds out the possibility of greater developments. Yet, in the latter part of my inquiry, I also note some of the potential pitfalls of pursuing Charter litigation as a labour movement strategy, including the possibility of de-radicalizing and bureaucratizing the struggle. Overall, I argue that Charter litigation offers a tool to unions in advancing labour rights, and that in this moment of relative weakness, any tool that can deliver results is a tool that should be used.
CHARTER JURISPRUDENCE AND LABOUR RIGHTS
Context: Labour in theTime of the Charter
In the three decades since the Charter's enactment, labour's power in society has declined. Labour's social power is distinct from, though related to, the legal status of labour rights: Professor Arthurs notes that although "labour's legal fortunes under the Charter" (8) have improved in recent years, this narrow legal improvement coincided with broader decline. The many indicia of this decline include falling rates of union membership, a decrease in labour's bargaining power, declining job security and incomes for workers, ineffective labour market regulation by the state, and a decline in "labour's political influence and cultural salience."(9) Union density peaked in 1982, the year of the Charter's enactment, at 40 percent, and declined for two decades to plateau around 30 percent. (10) Rates of job action have also declined, dropping more than seventy percent between 1980 and 2005. (11) Of course, none of these points of data presents a complete measure of labour's power in society, but it is widely apparent that the labour movement is at a moment of historic weakness, and that the turn in labour's fortunes began just before or with the enactment of the Charter. This timing suggests that, legal rulings aside, the Charter was bad news for the labour movement: if not a death knell, at least an ill omen.
However, correlation is not causation: between 1982 and the present, many other aspects of Canadian society, equally or more determinative of the status of labour, have changed as well. Arthurs lists numerous changes, all integrally linked to the neoliberalization of our economic and political systems, that have weakened the power of labour vis-a-vis capital: key factors include the global division and redistribution of labour, technological change, the decline of the welfare state, the erosion of state regulation of markets and the increasing tendency towards nonstandard and precarious employment relationships in many sectors. (12) Arguably, these political, economic and social changes have had a far more significant impact on labour rights and the labour movement than the legal changes wrought by the Charter. This was especially true in the first two decades of the Charter, when no substantive legal changes had yet been wrought. Amid these changes, and in the face of the concerted attack on labour rights that they constituted, the courts declined to take any steps to interfere to uphold labour rights or check government attacks, but the courts did not change the legal status of labour rights as it stood pre-Charter, until more recently.
Even after recent, more far-reaching decisions, however, it remains the case that "[p]olitics still explains much more about labour law than constitutional law does." (13) In the context of the vast changes in Canadian and global political economy, it simply doesn't make sense to attribute labour's precipitous decline to the enactment of the Charter, especially when organized labour in other parts of the world has been hit as hard or worse by these same changes whether or not they have extended judicial review to labour rights. In the United States, union density has dropped to less than 12 percent, (14) barely more than a third of the rate in Canada; this decline does not coincide with the advent of constitutional legislation of fundamental rights (i.e. the Charter) as it does in Canada. At worst, the Charter has done little or nothing to mitigate the deleterious effects of neoliberal globalization on the Canadian labour movement, standing on the sidelines as political and economic attacks on labour rights have continued unabated.
Professor Arthurs explains that it is no accident that politics explains more than law does about the status of labour rights: he points to labour's long-standing "autonomy project", (15) whereby labour relations were regulated and disputes resolved in a parallel system of labour boards and statutes, outside the legal mainstream. The labour movement sought legal autonomy partly because individual judges tended to be hostile to the interests of workers, but also because the legal system functions within and in support of a social paradigm that positions workers as subordinate. (16) Because of this intrinsic bias, the labour movement has long sought mechanisms and structures for managing disputes that can place workers' interests on a more equal footing with their employers'. Arthurs further notes that the courts have long resisted labour's autonomy project, and sees the envelopment of labour rights into the Charter fold as another example of courts, with their inherent anti-worker bias, intruding in a way that can only lead to workers' defeat. (17)
Therefore, it must be kept in mind that Charter jurisprudence is merely one factor, and not a deciding factor, in the power of labour and the status of workers...