The International Constitution

AuthorPatrick Macklem
The International Constitution
Patrick Macklem
So comrades, come rally,
And the last f‌ight let us face.
The Internationa le,
Unites the human race.
—Eugène Pottier, “L’Internationale” (1871)
A. Introduction
Twenty-f‌ive years ago, the Supreme Court of Canada embarked on
what has become a remarkable jurisprudential voyage on the nature
and scope of the constitutional guarantee of freedom of association.
In 1987, in a trilogy of cases (known collectively as the Labour Tril-
ogy) that cast cold water on the Canadian labour movement’s hopes
that the guarantee would extend robust constitutional protection
for the rights of workers, a majority of the Court held that freedom of
association enshrines neither a right to strike nor a right to bargain
collectively.1 At most, it held that the guarantee protects a right of
workers to establish, join, and belong to a trade union.
Obliquely acknowledging logical f‌laws and doctrinal inconsis-
tencies, subsequent cases began to chip away at the Labour Trilogy’s
1 Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 [Alberta Refer-
ence]; RWDSU v Saskatchewan, [1987] 1 SCR 460; and PSAC v Canada, [1987] 1 SCR 424.
Patrick Macklem262
holdings.2 In 2007, the dam f‌inally broke, and the Court explicitly
overruled the Trilogy’s reasoning and much of its result, holding that
freedom of association protects the right of workers to bargain col-
lectively with their employers.3 Recently, the Court explored some
of the implications of this dramatic reversal, holding that freedom of
association guarantees a meaningful process that enables employee
associations to make representations to empl oyers, which employers
must consider and discuss in good faith.4 On the horizon is litigation
over whether freedom of association now enshrines a right to strike.
As remarkable as these constitutional developments are, beneath
their collective surface lies a more fundamental transformation—
one that relates to Canada’s engagement with the international legal
order. Unlike the constitutions of some countries,5 the Constitution
of Canada is textually silent on the domestic legal status of inter-
national law. Traditionally understood, however, Canada is a dual-
ist jurisdiction, whereby an international treaty obligation does not
become domestic law unless it has been implemented in domestic
legislation.6 But this traditional view of the domestic implications
of international law has gradually but steadily been replaced by a
much more relational understanding of the boundary between the
international and national legal spheres.7
This contemporary approach ref‌lects an increased willingness on
the part of the judiciary in democratic societies to look to comparative,
regional, and international legal developments for guidance in con-
stitutional interpretation.8 The Supreme Court of Canada is a leader
among national courts in championing a more relational conception
of a domestic constitutional order. Nowhere is this more apparent
than in its constitutional jurisprudence on freedom of association.
2 See Dunmore v Ontario (AG), [2001] 3 SCR 1016 [Dunmore].
3 Health Services and Support—Facilities Subsector Bargaining Assn v British Columbia,
[2007] 2 SCR 391 [BC Health Services].
4 Ontario (AG) v Fraser, 2011 SCC 20 [Fraser].
5 South Africa’s constitution, for example, provides that “in interpreting the provi-
sions of this Chapter [dealing with fundamental rights], a court of law shall promote
the values which underlie an open and democratic society based on freedom and
equality and shall, where applicable, have regard to public international law ap-
plicable to the protection of the rights entrenched in this Chapter, and may have
regard to comparable foreign case law.”
6 AG Canada v AG Ontario, [1937] AC 326 (PC).
7 See Karen Knop, “Here and There: International Law in Domestic Cour ts” (2000) 32
NYU J Int’l Law & Pol 501.
8 See generally Sujit Choudhry, ed, The Migration of Constitutional Ideas (Cambridge:
Cambridge University Press, 2006).

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