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naraburns  nihil supernum  1yr ago (text post)   32070 thread views

Culture War Roundup for the week of October 31, 2022

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The 2007 decision ruled that the right to collective bargaining existed because it existed before the Charter (according to what it doesn't say and in any case I don't see how that means the constitution enshrines that right), because of human rights obligations (why does that have any bearing on the constitution?), and because it "reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.

@johnfabian 's post raised the same question for me. Where did this right to strike come from? I wasn't able to get any farther than that line in Health Services. It's baffling. It seems less "found" than invented out of whole cloth.

Edit: actually, later in the document, they elaborate, going on for several pages detailing the history of labour relations up to the Charter, but IMO including nothing of relevance until:

Collective bargaining, despite early discouragement from the common law, has long been recognized in Canada. Indeed, historically, it emerges as the most significant collective activity through which freedom of association is expressed in the labour context. In our opinion, the concept of freedom of association under s. 2(d) of the Charter includes this notion of a procedural right to collective bargaining.

This established Canadian right to collective bargaining was recognized in the Parliamentary hearings that took place before the adoption of the Charter. The acting Minister of Justice, Mr. Robert Kaplan, explained why he did not find necessary a proposed amendment to have the freedom to organize and bargain collectively expressly included under s. 2(d). These rights, he stated, were already implicitly recognized in the words “freedom of association”:

"Our position on the suggestion that there be specific reference to freedom to organize and bargain collectively is that that is already covered in the freedom of association that is provided already in the Declaration or in the Charter; and that by singling out association for bargaining one might tend to d[i]minish all the other forms of association which are contemplated — church associations; associations of fraternal organizations or community organizations."

(Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Minutes of Proceedings and Evidence, Issue No. 43, January 22, 1981, at pp. 69-70)

Which I think settles it. I mean, I don't think that's what most people would interpret "freedom of association" to mean, but if that's what was originally intended, then the court's decision is reasonable.

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