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Wednesday, July 4, 2007

The Stupid Court of Canada - Health Services and Support v. B.C.

The Charter guarantees a right to collective bargaining. Who knew? The phrase does not occur in the Charter. The Supreme Court of Canada faced the issue several times from 1987 and could not find it. As the Court says "the Supreme Court's jurisprudence consistently and explicitly stated that the ability to bargain collectively was not a Charter-protected activity." The Court had to overrule four of its earlier decisions in proclaiming, unanimously, in Health Services that collective bargaining is included in the freedom of association guaranteed under paragraph 2(d) of the Charter.

The Court shows scant respect for its predecessors in the last 20 years in concluding that their reasons for not finding a right to collective bargaining in the Charter "do not withstand principled scrutiny and should be rejected." It accused them of adopting a "a decontextualized approach to defining the scope of freedom of association". "Contextual" has in recent years become the Court's favorite word, an abracadabra that transforms it into a Humpty Dumpty court where everything means what it chooses it to mean.

Formerly when courts have departed from precedents they have striven, however disingenuously, to distinguish the precedents they will not follow or have claimed that the world had changed making old law inapplicable in new circumstances. This Court will not play such games. The old court is simply condemned.

Whoever may be right about the particular issue, the readiness of the Court to overrule itself presents constitutional law in a slow flux. The Court in the next 20s may show no more respect for the McLachlin court than it shows for the Dickson court. There is an implication that constitutional law is a progressive science with new discoveries regularly made. But chiefly the Court's reasons show conceit. It thinks it has got smarter. In fact it is getting stupider.

Several pages of the Court's typically prolix, pompous, inconsequent and vague reasons are devoted to a history of collective bargaining. Workers banding together to deal with employers were initially held to be combinations in restraint of trade at common law and faced reactionary legislation as the industrial revolution took off in the years following the French Revolution. This law was gradually repealed and by the 1870s trade unions had received legislative protection.

The Court's lengthy history comes down to the facts that collective bargaining has been around for a long time and is considered to be a very good thing. From this they leap to the conclusion that it is a fundamental right. The only relevance of the history is the exact opposite of what the Court makes of it. When the Charter was being drafted in 1981 collective bargaining was a very well known institution considered by many to be a right. If the Charter was meant to guarantee it, it would have said so, in two words. But the Court has long since abandoned any pretence that is is trying to find the meaning of the Charter. It prefers itself as the source of meaning. It gives meaning to the Charter.

From the history argument it follows that all good things provided or legislated for by governments for a number of years are rights. Once they become rights the Court takes them within its supreme authority. Any changes to what governments do affect rights and must be approved by the Court. If what governments provide fails to meet the Court's exacting standards they will be ordered to shape up.

As it has done before, the Court places great reliance on international conventions signed by Canada. Negotiated in pleasant foreign climes by irresponsible public servants with the public quite unaware what they are supposedly being committed to, drawn in broad, grand language but often descending to detail, notoriously entered into and even promoted by regimes flagrantly breaching them, such conventions are an unsavoury and suspect source of law. The implication that the meaning of the Charter can be affected by conventions entered into before or after it was adopted, with the public unaware, and subject to change is odd. And there are enough of them and they say so much that the Court could support whatever it might want to do with reference to one or another of them.

The Court may say that it is just using the conventions as an aid to interpretation, not applying them. If the conventions count collective bargaining as a freedom of association, then it must be there in 2(d) of the Charter. As the Court says rather clumsily the conventions "extend protection to the functioning of trade unions in a manner suggesting that a right to collective bargaining is part of freedom of association." As with the argument from history, the argument from international conventions works best the other way round. The fact that collective bargaining was spelled out in the conventions raises the question why it was not spelled out in the Charter. To which the answer is, that it was not intended.

The Court's final argument is its grandest, vaguest and most ambitious. Stating, reasonably enough, that "Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter", the Court reasons that because "The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy [and equality] of workers" it must be in the Charter whether it is spelled out or not. The Court will find whatever it thinks enhances "Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy" in the Charter whether the drafters put it there or not.

The Court's strongest argument might seem to be that acting Minister of Justice Robert Kaplan told a Joint Senate and House of Commons Committee on January 22, 1981 that there was no need for a specific reference "to freedom to organize and bargain collectively" because it was covered already by freedom of association. But the Court has never felt bound by assurances given before the Charter was passed as to what it might mean. Jean Chr├ętien's specific assurance to the same committee that it would not affect the law on abortion counted for nothing in
Morgantaler. In the claims made about the Charter support could be found for any interpretation.

As the Court allows in its review of the history, collective bargaining in the public sector is relatively new, coming into its own in the 60s. Now it is where the action is for unions. It raises grave issues, nowhere graver than in health care, that set it apart from the centuries old engagement between capital and labour. The end of the legislation found by the Court to infringe the right to collective bargaining was the restructuring of health care in British Columbia, including contracting out of services. The Court allow that this was, in its
Oakes jargon, a "pressing and substantial" objective. Public sector unions, as much concerned with job security, classifications, contracting out, transfers and assignments as with wages and salaries, powerfully constrain the freedom of governments to decide what services they will provide and how and where. In the private sector unions are constrained by the same market forces that constrain their employers. They must be ready to adapt or they will drive their employers into bankruptcy. In the public sector there is no such constraint. Governments can only achieve it by legislation. The Court is oblivious to this. Caught between the unions and the Court public services risk becoming ossified.

At the beginning of its reasons the Court refers in passing to the speed with which the impugned legislation was passed and the absence of what it calls "meaningful consultation" with the affected unions. In considering at the conclusion of its reasons whether the infringement of the right it had just invented could be justified under Section 1 of the Charter, the Court states soundly "Legislators are not bound to consult with affected parties before passing legislation." and immediately effectively retracts the statement by saying "it may be useful to consider, in the course of the s. 1 justification analysis, whether the government…engaged consultation with the affected parties". Having seized for itself the power to review all future labour legislation to determine whether it meets what standards it fancies in years to come, the Court further takes on the supervision of all politics to determine whether there has been "meaningful consultation" wherever it sees rights affected, which is to say practically anywhere.

Unions were naturally cheered by the Court's decision. It would not be an unworthy suspicion to think that the Court, always eager for friends while exposing itself to well founded criticism, was reaching out to them in its decision. But unions would be wrong to count on the Court in all their battles with governments. As each piece of legislation affecting collective bargaining is brought before the courts, they will judge for themselves whether they like it or not and will often let it stand, if there has been enough "meaningful consultation" before the government tells the unions to take a hike.

What the Court understands by collective bargaining, though it talks about it at length, remains obscure. In
Dunmore, which paved the way for Health Services, the Court held that agricultural workers had a right to form unions while expressly stopping short of finding a right to collective bargaining though it might follow from forming a union. In Health Services it stops short of finding a right to strike. The health workers affected by the impugned legislation in many cases were not permitted to strike but could go to arbitration. The next step will be to find a right to strike but allow its curtailment when the Court sees fit. The next time a government tries to stop a transit strike commuters will have to wait for the Court to say whether back to work legislation passes the Oakes test before service is resumed.

All the Court's arguments point to the conclusion that all good things are rights. Why should this be so? Of course, once they are rights the come into the Court's power. But can we have no confidence that our democratic institutions will not provide good things without the Court's supervision and direction? It was obvious that the Charter would give the Court large new powers. But the Charter was based on the assumption that there were specific rights and freedoms, listed in it, that should set limits to the powers of governments. It was not intended to make the Court a supergovernment. That would be stupid.

In the first years after 1982 the Court stumbled about trying to make sense of its new powers. But the majorities showed understanding that they were limited by the language of the Charter and by its competence as an institution. In the 90s the Court grew progressively stupider, its judgments ever more far reaching and obscure.

At every opportunity for fifteen years or more the Court has striven to find a right in the Charter that would extend its free supervision of government action under Section 1. Once it finds a right it will tell governments what they must not or must do. A natural pursuit of power the trend is also profoundly stupid. The Court because of its institutional nature and procedures, as much as from the human frailty of its nine members and its irresponsibility, is incapable of governing the country. Yet still it tries.