The Supreme Court of Canada has declared the right to strike to be fundamental and protected by the Constitution, thus handing organized labour its second stunning victory this month.
The 5-2 ruling has wide implications across Canada for governments that limit the right of public-sector workers and others to strike.
Following a ruling that said Mounties and other Canadian workers have the right to unionize to protect their interests, the court has revolutionized Canadian labour law.
Saskatchewan had warned the court that the right to strike would be a change of "seismic proportions," and several provinces had intervened to argue against that right, in support of laws that limit the right of public workers deemed essential to walk off the job.
Nearly 30 years ago, in the early period of the 1982 Charter of Rights and Freedoms, the Supreme Court set out broad protections for many rights, including freedom of speech and religion. But it took a narrow view of what the Charter's protection of freedom of association meant for workers – no right to collective bargaining and no right to strike. In the space of two weeks, the court has now insisted twice that government put only minimal limits on those rights.
Just like other Charter rights, the majority said, freedom of association protects the right to autonomy and dignity of vulnerable people. "This collective action [a strike] at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives," Justice Rosalie Abella wrote for the majority.
The court's turnaround provoked a strong backlash from two dissenting judges, Justice Marshall Rothstein and Justice Richard Wagner, who suggested that the majority was blind to the realpolitik of labour negotiations in which governments do not hold all the cards. They also said the majority's view of labour relations was stuck back in the early days of the Industrial Revolution, when workers were powerless.
"Under the rubric of 'workplace justice,' our colleagues, relying on a 19th-century conception of the relationship between employers and workers, enshrine a political understanding of this concept that favours the interests of employees over those of employers and even over those of the public," they wrote.
But in a blistering response, Justice Abella said the right to strike is essential in evening the playing field between workers and employers.
"In essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying."
She said the reasoning of the two dissenting judges "drives us inevitably to Anatole France's aphoristic fallacy: 'The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.' "
The ruling came in a Saskatchewan case in which public-sector unions challenged a 2008 provincial law passed by Premier Brad Wall's Saskatchewan Party that limited the right to strike by workers deemed by the government to be in essential services, such as jail guards. In the previous two decades, Saskatchewan had ordered striking public-sector workers back to the job on 10 separate occasions. But the law gave the government the unilateral right to decide which workers were essential, and it denied them access to effective alternatives for resolving labour disputes, Justice Abella said.
Justice Abella, a former head of the Ontario Labour Relations Board and the wife of labour historian Irving Abella, spelled out the history of the right to strike in some detail. In England in the 19th century, strikers were subject to arrest and prosecution as criminal conspirators. In Canada, going on strike was a crime for some trade unionists until 1892. Modern labour law, backed by international human rights agreements, was meant to protect workers from this difficult past, she said.
Justices Rothstein and Wagner fired back that the majority was making a policy choice that should be left to government.
Don Morgan, Saskatchewan's Labour Relations Minister, called the ruling "a marked change from the jurisprudence in Canada," and he said, "We do not feel that the safety and security of our citizens should be compromised by labour disruptions." Nurses went on strike in 1999, and snowplow operators, corrections officers and highway workers struck in 2006 and 2007.
Labour groups cheered the ruling. "Without the right to strike, employers have an unfair advantage," the Canadian Union of Public Employees said.
The ruling proved the truth of the aphorism that today's dissent is tomorrow's majority ruling. In 1987, the liberal-minded chief justice Brian Dickson wrote a strong defence of labour rights, cited by the court's majority in proclaiming a right to strike and, two weeks ago, a right to unionize.
University of British Columbia law professor Joel Bakan, a former law clerk of chief justice Dickson's, said the court's views have changed as governments have become more hostile to unions. "Since the 1980s, organized labour has lost ground as a result of unsympathetic government policies and laws, not to mention economic changes, such as globalization. The court recognizes that as workers' freedom of association is eroded by economic shifts and hostile governments, the judiciary becomes more essential for protecting this fundamental right. It's a classic case – like segregation in the U.S. South, or abortion or sexual orientation equality in Canada – where governments cannot be relied upon to respect constitutional rights and freedoms, so the courts step in."
Marni Soupcoff, executive director of the Canadian Constitution Foundation, an advocacy group, said the ruling is "a dangerous thing," explaining that it "will interfere with the government's ability to maintain essential services in a way that uses taxpayers money reasonably."
Jamie Cameron, a law professor at York University's Osgoode Hall Law School, said the ruling "sends the message that the court has an active role to play in shaping labour relations and labour policy in this country."