The Trilogy strikes back: reconsidering constitutional protection for the freedom to strike.

• Author: Barrett, Steven
• Position: Canada, European Union - Symposium: The Labour Trilogy

Table of Contents I. INTRODUCTION II. VARIOUS METHODS OF REACHINGTHE FREEDOM TO STRIKE A. Chief Justice Dickson's "Universalist Approach": Protection for Strike Activity Inherent in Freedom of Association B. The "Derivate Approach": Strike Action as Necessary to BC Health &. fraser Right to Collectively Bargain C. Justice Rothstein's "Parallel Liberty Approach": The Freedom to Do With Others What One is Free to Do Alone D. Conclusion on Section 2(d) III. SECTION 1 CONSIDERATIONS A. Introduction B. Pressing and Substantial Objectives: Do Dollars Frump Freedoms? C. Rational Connection: Proximate & Ultimate Objectives D. Minimal Impairment: Essential Services & Substituted Arbitration E. Conclusion on Section 1 IV. CONCLUSION: AVOIDING A RETURNTOTHE"NO-GO"ZONE V. POST SCRIPT: SFL ATTHE COURT OF APPEAL I. INTRODUCTION

In a breakthrough decision in 2007, the Supreme Court of Canada held in BC Health that freedom of association must extend constitutional protection to a meaningful process of collective bargaining. (1) The Court found, in the context of that case, that overriding important terms in freely negotiated collective agreements and/or prohibiting employers and unions from collectively bargaining over important terms in future violated section 2(d). It did so on the basis that the legislative measures constituted a "substantial interference" with associational activities, in particular by interfering with the newly discovered right to meaningful collective bargaining. (2) That decision overruled 20 years of precedent (3) which, as applied, had effectively rendered labour relations "a judicial 'no go' zone" with respect to the application of the Charter. (4)

In the 2011 Fraser (5) decision, however, the majority appeared to restrict the scope of its decision in BC Health. (6) In Fraser, the majority reaffirmed that section 2(d) protects the "meaningful pursuit of workplace goals," (7) a "meaningful process of consultation and discussion" (8) and a "derivative right" to some form of good faith "collective bargaining." (9) Nevertheless, it ruled that the deliberate exclusion of agricultural workers from facilitative collective bargaining legislation applicable to most other employees in the province did not infringe section 2(d). There was not, as one reading of BC Health might suggest, a positive obligation on the state to afford vulnerable agricultural workers with the same degree of legislative protection for collective bargaining enjoyed by employees in other industries. (10) According to the majority, section 2(d) did not require governments to erect a system of majoritarian exclusivity, or to establish a dispute resolution mechanism to resolve bargaining impasses. (11) There does appear to remain, however, a constitutional obligation on governments to impose a duty on employers to at least engage "in a process of meaningful discussion," (12) which apparently entails at least listening to representations and considering them in some kind of good faith bargaining process. (13) Ultimately, in what has been described as "a triumph of imaginative statutory interpretation" (14)--the Court found that the applicable legislation did, in fact, guarantee a "process of meaningful discussion" in good faith, (15) which was sufficient legislative protection to fulfil the constitutional right to collective bargaining from BC Health. As such, the government's failure to provide further legislative protection did not impinge upon agricultural workers' freedom of association. (16)

Space does not permit a full discussion of the twists and turns in the recent Supreme Court jurisprudence under section 2(d). However, with respect to the protection for strike action, it must be acknowledged that while Fraser may not support the proposition that section 2(d) obligates legislatures to actively or affirmatively provide a 'right' to strike, (17) the Court does not deal with the question of whether core 2(d) protection includes the 'freedom' to strike. (18) That is, nothing in the judgment can be construed as providing judicial sanction to a legislature directly interfering with a worker's freedom to withdraw services (including by prohibiting that activity altogether), whatever the legislature's positive obligations may be. In this sense, Fraser is a 'protect' case: (19) it focuses on what affirmative obligation the state has under section 2(d) to promote or facilitate the meaningful exercise of a fundamental freedom. It simply does not address whether the freedom to strike falls within the ambit of 2(d), in the sense that the state must 'respect' the exercise of the freedom by refraining from acting to prohibit or restrict constitutionally recognized associational activities. In this paper, we argue that legislation which actively or directly prohibits, restricts or interferes with strike action (rather than merely fails to provide legislative support or protection for it) would violate any reasonable definition of the constitutional guarantee on offer, (20) and must be justified under section 1.

Fortunately, we are not entirely without precedent, and can turn to prior Supreme Court of Canada decisions, dating back to the 1987 Labour Trilogy itself, for useful guidance and cautionary tales. In Part II, we assess the continued vitality of the core, legal freedom protecting individuals against legislation that directly prohibits collective action, through (for instance) back to work orders, (21) prohibition on strikes in essential services, (22) and the imposition of collective agreements rendering strike activity illegal. (23) We review the three central interpretations of section 2(d) that have appeared throughout the Charter's history: Chief Justice Dickson's 'universalist' approach; the Supreme Court's most recent 'derivative rights' approach; and the parallel liberty approach, first endorsed by some members of the Court in the Trilogy, and most recently adopted by Justice Rothstein in Fraser. We aim to demonstrate that on any of these conceptions of freedom of association offered by the courts to date, some protection for strike action, and in particular from legislative or governmental interference with the freedom to strike, is required, so that the real debate should centre on what reasonable limitations may be placed on that freedom.

In Part III, we take up the latter question, and address the jurisprudential approaches to section 1 in the context of restrictions on strike action. In so doing, we attempt to draw out some pertinent considerations to guide governments and adjudicators in determining whether a restriction is demonstrably justified, drawing in particular on the reasons of the Chief Justice and Justice Wilson in the Trilogy. Finally, in the postscript, we briefly address the recent decision of the Saskatchewan Court of Appeal in Saskatchewan v Saskatchewan Federation of Labour, (24) and highlight what we see to be deficiencies in the Court's approach in that case. (25)

2. VARIOUS METHODS OF REACHING THE FREEDOM TO STRIKE

   1. Chief Justice Dickson's "Universalist Approach": Protection for Strike Activity Inherent in Freedom of Association

      A useful starting point is Chief Justice Dickson's influential dissent in the Alberta Reference, (26) and in particular his utilization of comparative law and international human rights norms in determining that strike action falls under the rubric of freedom of association. In that case, Chief Justice Dickson (writing for himself and Justice Wilson) endorsed a purposive approach to section 2(d), drawing from seminal cases like Big M Drug Mart the proposition that the scope and meaning of Charter guarantees is to be ascertained and understood "in the light of the interests it was meant to protect." (27) The Chief Justice argued that the overriding purpose of freedom of association is "to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends." (28) Given the critical importance of work to human dignity and self-respect, (29) he found that protection of the employees' interest in the collective bargaining context requires the "concomitant protection of their freedom to withdraw collectively their services." (30)

      The Chief Justice determined (rightly, in our view) that any reasonable definition of section 2(d) must go beyond the constitutive approach (31)--the mere freedom to be in an association--but he did not delimit how much further protection should extend beyond strike action. As Jamie Cameron and others have pointed out, the Chief Justice's approach did not reason from the purpose of the guarantee to a generally applicable definition of "freedom of association." (32) Instead, having regard to the overall purpose of freedom of association, he inferred directly from the critical importance of strike action to workers--particularly given the crucial role of associations in circumstances "where the individual is liable to be prejudiced by the actions of some larger and more powerful entity" (33)--that such activities fell within the intended scope of the guarantee. In effect, he concluded that whatever other activities 2(d) may protect, the freedom to strike is one of them. (34)

      Beyond what we can derive from general knowledge about the type of collective activity that is deemed important to employees, how do we know that this is the type of interest that is to be protected by "freedom of association"? Chief Justice Dickson leans heavily on international and comparative legal norms in coming to this conclusion, which may help to explain his confidence in asserting that protection should be afforded. (35)

      In coming to his conclusion, the Chief Justice noted that the UN International Covenant on Economic, Social and Cultural Rights, (36) the UN International Covenant on Civil and Political Rights'1 and Convention 87 of the International Labour Organization (38)--to all...