Amending constitutions is hard. They are designed that way, typically containing onerous amendment procedures that seek to shield constitutions from the fleeting passions of the electorate. Presumably, we make constitutions hard to amend on the conviction that the rights, freedoms, powers and duties enshrined therein are considered particularly immutable, such that they should only be modified where a sufficiently clear and stable democratic consensus can be mustered.  In fact, Canada’s constitution is among the most difficult to amend in the world, as Professor Richard Albert has recently written. We know this well, with our own special history of constitutional amendment debacles. Written constitutions are, in this sense anyway, a recipe for stasis instead of change.

In the Post earlier this week (longer version here), Professor Grégoire Webber added an important qualification to this broad sketch: while changing the meaning of the constitution by democratic means is incredibly difficult, it’s relatively easy – from a logistical standpoint, anyway – for the Supreme Court of Canada to do so. It only need render a single decision.

Among the examples Prof Webber cites is the Court’s recent decision on the right to strike, Saskatchewan Federation of Labour, which is the culmination of a sea change in what the term ‘freedom of association’ means in our constitution. In very brief, the Court has gone from an interpretation of section 2(d) that protected primarily the freedom to join in an association and participate collectively in its lawful activities, to a situation where there are now a range of labour rights, imposing a range of obligations on the government (and, ultimately, private parties), concerning collective bargaining, strike action, and unfair labour practice protections.  This is necessary, we are told, in order to make freedom of association ‘meaningful’ for workers (at least those in a certified union), and in particular, to rectify power imbalances in the labour relations context (see MPAO, at paras 58-59, 80).

I’ve written about this issue at length elsewhere and do not intend to do so here.  However I do want to highlight one of the consequences of expecting the Court to act as a “roving law reform commission”, in Prof Webber’s turn of phrase, exercising its power to make and remake the constitution on an evolving (and sometimes revolving) basis. In particular, while the Court is ostensibly deciding single cases, it is unquestionably making law – and constitutional law, at that.  Its decisions have ramifications beyond the case at hand.  And when the meaning of the constitution is constantly changing, in fits and starts, with different authors who have only a contingent regard for what their predecessors told us the constitution meant, we may end up with some tensions in the meaning of our fundamental legal document.

One of the surprising ramifications in the context of labour rights and section 2(d) is that the Court has arguably elevated the content of collective agreements – at least in certain cases – beyond the reach of legislative intervention.  The general rule in a Parliamentary democracy is that statutes trump contracts; legislatures are empowered to interfere with the content of contracts, both in prescribing their lawful limits before they are concluded, and in extinguishing existing contractual rights.  This general rule is of course subject to any contrary directions found in the constitution.  However, prior to recent section 2(d) decisions, the Court had been relatively consistent in finding that because the Charter conspicuously lacks any reference to the protection of economic and property rights (much to Mr. Sirota’s chagrin), the Court would not read them into other provisions, so as to abridge the legislative prerogative sought to be maintained.

For instance, the Court has resisted an interpretation of section 8 (‘unreasonable search and seizure’) that “would eventually transform a provision intended to protect individual privacy into a constitutional guarantee of property rights, which was deliberately not included in the Charter”. (Quebec (Attorney General) v. Laroche, at para 52).  And in the context of the section 7 right to life, liberty and security of person, the Court has found that ”œ(t)he intentional exclusion of property from s. 7, and the substitution therefor of ‘security of the person’ . . . leads to a general inference that economic rights as generally encompassed by the term ‘property’ are not within the perimeters of the s. 7 guarantee” (Irwin Toy, at 1003); that the Charter does not include protection for liberty of contract (Prostitution Reference, at 1171); and that a proper interpretation of section 7 requires “that those terms [liberty and security of the person] be interpreted as excluding economic liberty and economic security; otherwise, property, having been shut out of the front door, would enter by the back” (Blencoe, at para 53, citing Hogg). (I would be remiss if I failed to emphasize that, further to my post last week, the Court has drawn this conclusion, rightly or wrongly, on the basis that the framers deliberately excluded economic and property rights from the scope of the Charter).

Indeed, in the previous leading decision on freedom of association in the labour context – which was half-overturned in BC Health Services and fully-overturned in Saskatchewan Federation of Labour, by way of a “constitutional benediction” –  Mr. Justice McIntyre observed that the deliberate omission of specific labour rights in the Charter, ”œtaken with the fact that the overwhelming preoccupation of the Charter is with individual, political, and democratic rights with conspicuous inattention to economic and property rights”, speaks strongly against according broad protection to labour rights (Alberta Reference, para 180).

In BC Health Services, however, the Court determined that by inferring with the content of collective agreements (i.e. contracts) that have been previously agreed upon, and by foreclosing bargaining on certain topics in the future, the legislature had unduly interfered with the constitutional right to collective bargaining (which is either derivative of freedom of association, or not derivative of freedom of association, depending on whether you read Fraser (at paras 48, 54, 66, 99) or MPAO (at paras 77-78). I happen to think that it must be derivative of “freedom of association”, if only because that is the only one of the two phrases actually used in the constitution, but my views are quaint like that).

Professor Hogg describes the point of interests to me here as follows:

The majority in the Health Services Bargaining case repeatedly emphasized that what it was constitutionalizing was the ‘procedure’ or ‘process’ of collective bargaining, and they pointed out correctly that ‘it is entirely possible to protect the ‘procedure’ known as collective bargaining without mandating constitutional protection for the fruits of the bargaining process’.  But they immediately ignored this distinction, granting constitutional protection to the collective agreements precisely because they were the fruits of the bargaining process.  The Act breached s. 2(d), not merely by limiting future collective bargaining, but also ‘by invalidating existing collective agreements and consequently undermining the past bargaining processes that formed the basis for these agreements’… This ruling elevated collective agreements above statutes in the hierarchy of laws, and granted them virtually the same status as the provisions of the Charter itself.” [Hogg, Constitutional Law in Canada, 5th ed, looseleaf, at 44.3(c); underlining added]

Thus, if Professor Hogg is right, the Court’s new approach to section 2(d) seems to directly conflict with its previous line of jurisprudence finding that the Charter generally does not protect economic or property rights.  The new rule may now be that the Charter generally does not protect economic, contractual or property rights, as such, with the singular exception of contractual rights sought, bargained for and achieved by a union. As far as I am aware, collective agreements are the only types of contractual arrangements that receive this type of standalone protection under the Charter (see Richard Charney, “The Contract Clause Comes to Canada: The British Columbia “Health Services” Case and the Sanctity of Collective Agreements” (2007) NJCL 63).

It is on the basis of this newfound constitutional entitlement (which somehow remained hidden for decades) that twelve federal public service unions recently mounted a constitutional challenge to the federal budget bill, which seeks to impose a certain sick leave regime on federal public servants.  The bill has no impact on the ability of union members to associate, in the sense that no one’s decision to band together in a union is prohibited or limited directly.  What the impugned law impacts – and indeed forecloses – is the ability of members of that association to achieve a specifically desired (contractual) entitlement out of the bargaining process.

I won’t discuss the merits of the case. But it perhaps worth pointing out – in light of the Supreme Court’s direction that the meaning of rights and freedoms are to be informed by associated or related rights and freedoms (see Big M Drug Mart, at para 117) – that no other fundamental freedom guarantees the availability or permanence of particular outcomes that a person seeks to achieve through the exercise of their freedom.

My fundamental freedom to speak does not require anyone to listen or that my speech be considered in good faith to be ‘meaningful’.  There is no doubt that if no one listens to my speech – just as if no one agrees to bargain with my union – the exercise of my freedom will be, in some sense, meaningless.  People tune me out all the time when I start blathering on about this stuff, and I can assure you it makes it incredibly difficult to get my point across.  More to the point, a legislature does not abridge my freedom of expression by passing legislation with which I disagree, even if it renders my ongoing and vocal opposition to that legislation largely ‘meaningless’. Passing a law I campaigned against may surely undermine what I sought to achieve by exercising my freedom of expression, in the way that abridging collective agreements frustrates the associational activities that went in their conclusion, but that alone will not entitle me to a constitutional remedy. (I elaborate on this point here (at 67-70) and co-elaborate on the point here (at 266-268).)

Now, I do not want to be ungenerous to the Court: the fact that other sections may not protect contractual or property rights, does not necessarily mean a proper interpretation of freedom of association cannot.  Moreover, there’s no question that other provisions of the Charter, in a derivative sense, may end up lending protection to contractual rights (I suspect a law which sought to cancel all government contracts with, say, Jehovah’s Witnesses, would be struck down in seconds under section 15). I think a plausible argument can be made that by foreclosing options for future bargaining or even by negating the terms of previous agreements, legislatures may risk making associating in the labour context less attractive and appealing, having an indirect effect on freedom of association (on the other hand, it seems just as likely that such conduct will simply cement the conviction that collective action is required).

However, whether a broader reading of the Court’s 2(d) jurisprudence – to the effect that interference with collective agreement terms or by limiting the ends that could be achieved by collective bargaining is itself sufficient to establish a violation of freedom of association – is sustainable in the long run is an open question.  It is not going to go away.  Unless and until, I suppose, a majority of the Court decides that the constitution does not mean that, after all.

Photo by Derek Tsang / CC BY 2.0 / modified from original

Benjamin Oliphant
Benjamin Oliphant is a lawyer and writer, whose practice and scholarship focuses on constitutional, administrative, labour and employment law. He has authored or co-authored articles in various journals, including the McGill Law Journal, the Queen's Law Journal and the Canadian Labour and Employment Law Journal, and is an adjunct professor at the UBC Allard School of Law.

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