The freedom of association mess: how we got into it and how we can get out of it.

• Author: Langille, Brian

Canadian constitutional law regarding freedom of association for workers is a mess. The jurisprudence to date has taken an approach to state action and positive obligations to legislate which is inconsistent with section 15, and has failed to articulate the relationship between the abstract statement of basic rights or freedoms and the detailed statutes and regulations that instantiate and enforce them. This paper focuses on the impact of the recent decision of the Supreme Court of Canada in BC Health. The author argues that this case misunderstood Canada's labour law history, international labour law obligations, "Charter values", and the distinction between "freedoms" and "rights".

This paper argues that by using labour relations statutes as a starting point and applying the constitutional idea of equality, courts can protect freedom of association for workers and find a way out of the mess we are in.

Le droit constitutionnel canadien relatif a la liberte d'association des travailleurs est un fouillis. Jusqu'a present, la jurisprudence a traite de l'action etatique et des obligations positives de legiferer de maniere incoherente avec l'article 15. Elle n'a pas reussi a articuler la relation entre l'enonciation abstraite des droits et libertes fondamentaux et les lois et reglements detailles qui leur donnent vie et les mettent en oeuvre. Cet article se concentre sur l'impact de la decision recente BC Health de la Cour supreme du Canada. L'auteur affirme que plutot que de clarifier le fouillis de la liberte d'association, cette affaire a mal saisi l'histoire du droit du travail au Canada, les obligations internationales en droit du travail du pays, les valeurs de la Charte, la nature des droits du travail et la distinction entre <> et <>.

Cet article affirme qu'en s'appuyant sur les lois relatives aux relations de travail et en appliquant l'idee constitutionnelle d'egalite, les tribunaux peuvent proteger la liberte d'association des travailleurs et trouver une solution au fouillis actuel.

Introduction I. The Four Propositions A. The First Proposition: The Historic Refusal to Apply Section 2(d) to Collective Bargaining Was Incorrect B. The Second Proposition: The Exclusion of Collective Bargaining from the Ambit of Section 2(d) Is Inconsistent with Canada's Labour History C. The Third Proposition: International Law Treats Collective Bargaining as a Component of Freedom of Association D. The Fourth Proposition: The Court's Interpretation of Section 2(d) in BC Health Is Consistent with Other Charter Rights II. Thinking About Constitutional Labour Rights A. How the Court Boxed Itself into the Freedom of Association Mess B. Dunmore's Judicially Imposed Labour Code C. BC Health's Impact D. The Way Out Conclusion Introduction

Canadian constitutional law regarding freedom of association for workers is a mess. As the title of this article suggests, it is a mess that we have gotten ourselves into and one that we can get ourselves out of. As usual, the getting out part depends on understanding the mess we are in and how we got there.

This paper focuses on the recent decision of the Supreme Court of Canada in Health Services and Support--Facilities Subsector Bargaining Association v. British Columbia. (1) This decision explicitly overruled a quartet of the Court's recent holdings on freedom of association and has now replaced those judgments as the key to our constitutional law on this topic. In BC Health, the Court struck down, as violating the Canadian Charter of Rights and Freedom's section 2(d) guarantee of "freedom of association", (2) certain provisions in a statute passed by the government of British Columbia to curtail health-care costs. The government adopted a number of strategies in these provisions, including rewriting existing collective agreements and forbidding renegotiation of the resulting changes, and did so without consulting or negotiating with the unions involved.

BC Health has been widely hailed as a step forward for workers' freedom of association. This essay espouses a different and less celebratory view of BC Health. The result in that case, to the extent that it holds that our Charter guarantee of freedom of association entails constitutional protection of some notion of collective bargaining, is surely correct. However, this essay criticizes both the particular conception of collective bargaining the Court promoted and the reasons it deployed in support of its holding. In particular, this essay argues that the Court misread Canadian labour law history, misunderstood Canada's international labour law obligations, and misstated "Charter values"; that it very unhelpfully perpetuated discussions of labour rights as inherently "collective"; and that it ignored the distinction between "freedoms" and "rights" that is critical to understanding Charter freedoms in general and freedom of association in particular.

Following this critique of BC Health, this essay considers a very basic issue that this sort of internal critique cannot address: how to deal with abstract freedoms that are incorporated in detailed statutes passed by legislatures. The Charter declares that "[e]veryone" has a number of "fundamental freedoms", including "freedom of association". (3) Full stop. But what is the relationship between this sort of abstract statement of a basic freedom or human "right" (as found in the Charter and in international treaties) on the one hand, and the detailed statutes and regulations that articulate and instantiate that freedom at an enforceable level (such as Canadian labour relations statutes) on the other? And how should we respond to arbitrary exclusions from such detailed instantiations of the fundamental freedom? These are fundamental questions that the Court in BC Health neither asks nor answers directly in these terms.

This omission is unfortunate, since the Court's (albeit mostly implicit) approach to these issues is now the key to constitutional labour law in this country. The Court was not able to ask these larger questions because of its prior and unsatisfactory commitments on a series of other constitutional points concerning equality, state action, and positive obligations to legislate. Briefly, these commitments boxed the Court out of the best available approach to both the legal issues in BC Health and the more general questions at stake. Furthermore, these prior commitments boxed the Court into a very unattractive, alternative approach that involved, among other things, the Court constructing its own parallel labour code for Canadian workers. The idea of a judicially created labour code has never been a good one and it is not a good one now. This code is also objectionable because it is partial, in the sense that it is available to workers in an irrational set of subsectors of the economy.

Many more unfortunate stops on this jurisprudential line are already in view. BC Health has been taken by constitutional litigators as an invitation to "start your engines". (4) This is the freedom of association mess we are in. This essay suggests that we stop heading along this track and shift to another, existing line of thought that leads us to much more appropriate constitutional destinations via a better and more direct route.

At the time that BC Health was argued, and as a result of prior cases such as Dunmore v. Ontario (A.G.) (5) and Delisle v. Canada (A.G.), (6) the set of rules in place regarding whose freedom of association was protected and whose was not was at odds with basic Canadian and international values. I like to think that the Court agreed and that it was attempting to address this problem in BC Health. But the path that the Court set for itself is not the way forward: BC Health is an expansion of the problem, not the beginning of a solution. We will remain in the current mess as long as the Court's prior constitutional commitments, which forced its hand in BC Health, remain unaltered. The only way out of the freedom of association mess is to revisit these prior commitments. I believe that our legal reality post-BC Health is so unsatisfactory as to be unsustainable, and that this truth offers a realistic hope for a thoughtful reconsideration of those prior commitments which have brought us to our current state of affairs. This essay is written in that spirit.

Part I offers a four-part, internal critique of the decision in BC Health. Part II provides an overview of the Court's other constitutional positions and commitments, which at once underwrite and undermine the approach to freedom of association that the Court advanced in BC Health. From this broader perspective, external to the logic of BC Health, we can identify the real mess we are in, as well as the way out of it.

The key to understanding the mess we are in and the way out of it lies in three ideas. First, there are many ways in which domestic labour law systems can and do respect abstract international law and domestic constitutional guarantees of freedom of association while making these guarantees concrete and legally enforceable. A moment of reflection upon the very different labour relations systems of the Organisation for Economic Co-operation and Development's thirty member nations, let alone those of the other 160 or so members of the international Labour Organization (ILO), should make this variety very evident. Second, Canadian labour relations statutes are best conceived as our domestic version of a detailed and legally enforceable instantiation of the fundamental freedom of association. Third, arbitrary exclusion from these statutes is, as a result, simply arbitrary exclusion from the guarantee of freedom of association. We cannot, as decent Canadians, make this freedom meaningful and legally enforceable for most workers while leaving others out, unless we have a very good reason for doing so. Although our particular domestic system is not the only way of applying the abstract expression of...