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Supreme Court Labour's Friend?

Don't assume, says author of 'The Corporation.'

By Tom Sandborn, 19 Jul 2007, TheTyee.ca

Joel Bakan

UBC Law prof Joel Bakan.

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British Columbia's government has shown little concern and even less hurry to make changes after the Supreme Court ruled it violated the Charter of Rights by tearing up health worker contracts, which led to layoffs and tumult at care facilities.

Why the seeming nonchalance? The legal expert who wrote The Corporation film and book may have some insights.

University of British Columbia law professor Joel Bakan agrees with union spokespeople who hail the decision as a victory for workers, but cautions that Charter rulings can only address the narrow limits of the legal constitution. Meanwhile, shifting social and economic realities make it harder and harder for workers to organize and bargain, no matter what the law reads.

"I am not saying this isn't a victory. My hat is off to the unions, Joe Arvay and the other lawyers who won this case. It means a lot symbolically for the Supreme Court to say that collective bargaining is a fundamental right. But the symbolic impact is probably bigger than the material effect. There has been a radical fragmentation of the labour market, and with it a radical undermining of workers capacity to organize," he said.

"There is some irony in the Court giving a constitutional right to collective bargaining exactly at the point that social and economic forces such as outsourcing, globalization, free trade, part time work and technological change are dis-aggregating labour and diluting labour power, thus reducing workers real capacity to organize."

Bill 29 and bare minimum

B.C.'s Health Minister George Abbott has indicated that his government intends to read the Supreme Court decision in the narrowest possible manner. A month after the June 8 ruling, Abbott told Vancouver Sun columnist Vaughn Palmer there would be no compensation for the thousands of health care workers who lost their jobs or saw their wages and benefits reduced in the wake of Bill 29.

The minister further claimed that the recent, controversial layoffs across the health care sector in B.C. had nothing to do with Bill 29, despite claims to that effect by union spokespeople.

Bakan said the court ruling would protect the rights of workers who are already organized into unions and already involved in collective bargaining, who might now be less vulnerable to government attempts to restrain and abrogate their collective bargaining rights.

It will do little, he cautioned, for the growing majority of workers who are not part of collective bargaining regimes.

Bakan clerked at high court

The Canadian Charter of Rights had only been in force for three years when Chief Justice Brian Dickson hired Rhodes scholar Joel Bakan as a clerk in 1985. He came to the Court an enthusiast for the progressive implications of the Charter, Bakan said, and left his tenure there with a much more skeptical view of what court action under the new document could accomplish.

Bakan also sees the general impact of the Charter as much more conservative than most commentators. He develops the analysis in detail in his 1997 book Just Words: Constitutional Rights and Social Wrongs from the University of Toronto Press.

Bakan points to many Charter decisions that have favored the interests of business over labour, and to free speech decisions that have, he believes, privileged the rights of hate mongers and sexual predators over victims. He cites the victory of the business-backed National Citizens Coalition in their Charter challenge to third party advertising during elections as perhaps the single most significant Charter ruling to date, allowing as it did a multi-million dollar advertising campaign in favor of free trade agreements during the 1988 federal election.

No playing allowed

Bakan's views on law and society have been assailed by Alberta conservative Ted Morton, a critic of "left-wing activism" on the Supreme Court. But Bakan actually agrees with Morton that the judicial review under the Charter is essentially an elitist tactic, and he worries that progressives in Canada could be distracted by over-reliance on the Charter from more democratic, and in the end more effective political strategies.

In the early years of Charter litigation, Bakan told The Tyee, court judgments didn't often go in favor of arguments brought forward by unions. In a set of three crucial rulings in the late 1980s known at the Labour Trilogy, the court refused to protect collective bargaining under section 2d, which guarantees the right to freedom of association. The court ruled that the Charter language protected association as an individual right, but did not protect collective bargaining, picketing or any other collective activity by the union.

"It was like saying you have a right to form a team, but not to play baseball," said Bakan.

However, a dissenting opinion from Chief Justice Dickson (for whom Bakan was clerking at the time) in one of these cases foreshadowed this year's landmark ruling, arguing that the Charter guarantee of freedom of association should protect unions' right to collective bargaining.

In general, Bakan says, the Court under the leadership of current Chief Justice Beverly McLachlin has been "very bullish" on Charter rights, but sees many Charter rulings as expanding the rights of corporations (he cites decisions on tobacco advertising) and hate mongers (citing the Keegstra and Butler cases) rather than the disenfranchised who Charter fans predicted would be the Charter's main beneficiaries.

Bakan suggests the union win on collective bargaining rights in the recent case may have stemmed in part from a recognition on the Court's part that it needed to extend some of the Charter protection it had granted to corporations to unions as a matter of optics and balance.

Lawyer's advice

So, if Charter litigation will always be limited in its impact on wide ranging issues of equality and justice, what does Joel Bakan suggest as the alternative for Canadians who share his interest in a more just society?

"I favor neither a revolution against capitalism nor reformism that tinkers at the edges of things," he says. "We have to embrace and realize the radical potential of our existing political constitution. The ideas of representative democracy, free political parties and freedom of expression, and the right to organize, the rights that at a formal level we already have, the rights that legitimize us as a democracy need to be made real in practice.

"We have to re-invigorate and re-imagine the regulatory state as a necessary way for us to exert democratic control over the economy. We have to break the relation between corporations and government through laws relating to lobbying and campaign financing. We have to take democracy seriously and re-imagine ourselves as citizens."

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Tom Sandborn is a regular contributor to The Tyee with a focus on labour and health issues. Read his previous articles here.

10 Comments:

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  • gaulois

    4 years ago

    Chapeau to this Lawyer's advice!

    I wonder how popular will Bakan's advice be with charter litigation lawyers and special interest groups. How can I vote for this man???

  • Frank

    4 years ago

    Representative democracy

    Would be a really good thing. Bakan thinks we already have it and we just have to use it, he's wrong, the system doesn't work because we don't really have it. If we did people wouldn't get elected with less than the majority of votes.

    Once we get a democratic system where the majority rules I'm sure things will start working better.

  • Chris H

    4 years ago

    The court is telling workers to organize!

    "It will do little, he cautioned, for the growing majority of workers who are not part of collective bargaining regimes."

    Not part of a collective bargainning unit or union? I think it might be time to organize or get your rights trampled on. Your choice.

  • munroe

    4 years ago

    Bakan makes good points

    This is an excellent article and Bakan makes a series of good points. Bill 29 is a true step foward, but neither the decision nor the courts are primary vehicles in the work that must be done. There are factors which do inhibit organizing, as Bakan notes, but they only complicate the task at hand.

    Of greater concern should be bringing more focus on the institutions and statutes that actually granted and regulate colective bargaining rights. For example, the stated purpose of the B.C. Labour Relations Code is to encourage the practice of collective bargaining, yet the Code, as amended by the Liberals, has created significant bariers to accessing collective bargaining. Flowing from the amendments is how the current Board has interpreted those amendments and how it has drifted from past jurisprudence that balanced the interest of workers in joining a union with the interest of employers for stability within the workplace.

    The decline in union density in B.C. has been significant since 2001. This has been directly attributable to the imbalance in the law. Very little work and analysis has been done on any ongoing basis to shine light on this phenomenon. Labour Relations has ben replaced by legal relations and the "practioners" are now almost exclusively within the legal community.

    In my mind, this is the point of departure in understanding what has gone wrong if we hope to give life to the original intention of the current labour relations system. From experience, one thing I do know is that workers gnerally prefer to be unionized then facing the cold old world alone.

  • alive

    4 years ago

    Beware of going too far!

    One thing the capitalist do not realize is, that all revolutions start when the average citizens are being taken advantage of.
    We are a bit more sophisticated these days, lousy health service can set off a revolution, while in the old days people had to starve before they fought!
    Canadians have the US next door to demonstrate what will happen, so any more moves to go that way could well set off the powderkeg!

  • Jeffrey J.

    4 years ago

    Democracy: Use it or loose it

    Excellent piece. Bakan's point is very timely. Unlike some US backed police states, Canadians still have significant democratic freedoms. Its time we used them, or face their peril. These freedoms were fought for in the 1930's. To keep them, we must remain committed citizens. i.e. less TV and more civic involvement. Should we forget this, we have much to lose. Thanks SO MUCH to the Tyee.

  • snert

    4 years ago

    Master/Servant

    I think the problem lies in the master/servant relationship that exists in Canadian Labour Law. Until such time as that concept is removed there will be no such thing as equal rights in the courts.

  • dorothy

    4 years ago

    and it ain't just the law...

    "I think the problem lies in the master/servant relationship that exists in Canadian Labour Law"

    You are sooo right,and I do cringe every time I hear somebody uncritically use words such as 'insubordination' in labour context. What the&*^@?? First you have to be subordinate, and nobody is so in this fair land. I could accept 'failure to fulfill the terms of one's contract', as would describe the relationship between a pair of equal parties.

    I know there are other examples, I just can't think of them right now. But the thinking behind such terminology surely belongs in bygone century.

  • Larry Kowalchuk

    4 years ago

    Democracy Isn't About Electoral Politics

    As citizens, there are moments when we succeed in challenging the political morality and undemoractic actions of Governments who seek to use their power to abuse and repress us. The Bill 29 decision together with profound social justice decisions like PEPSI, DUNMORE, WALLACE, PARRY SOUND,VRIEND and many others are victories for democracy. Their impact has been very dramatic for hundreds of thousands of working people and citizens generally. Democracy thrives and asserts its principles into our lives through many means. Reliance on the existing political structure using the limited concept of the electoral process we now have has likely more inherent flaws as protecting the rigths of citizens than the use of the courts through the Charter. I celebrate every moment when the courts, politicians or social movements have the courage to take a stand and act to defend our collective social justice concepts. The Charter is a vehicle which provides we citizens with an opportunity to hold accountable state actions which are inherently oppressive, discriminatory or hurtful to us. It has become now, as unanimously decided in PEPSI, part of the essentail democratic concepts which inform all aspects our social, economic and political lives, whether as a law or a statement of principle.

    It is what some of us call a tool for democratic discourse accessible in ways generally unavailable to us before. I agree, reliance on any structure of power to take care of our values as citizens is dangerous and unlikely to work for long. However, when our values receive the support of the courts and when the harm caused to millions of our citizens by unconscionable state action is blunted and even alleviated to some extent, celebrate those moments!

    It is appropraite to say to the Supreme Court of Canada, to all courts, to all politicians, to all citizens and to oursleves...this is a moment, like many other legal decisions, when democracy has been given a helping hand. I like to view this as an opportunity to celebrate why unions exist and why the struggle for justice in any forum is worth every second of our energy.Let's take these vcitories and bring them to life in our every action and word.

  • ChrisB

    4 years ago

    A Better Understanding of Rights

    This is a good article to begin a debate but does not address what I feel may be more fundamental issues. The Supreme Court does not appear to have done anything significant. It has only suggested that there is some basis in the constitution (Charter) for the specific collective rights exercised during bargaining between trade unions and employers.

    The Supreme Court, like every other component of the Canadian establishment, has demonstrated a serious bias in favour of corporatist (not just "corporate") interests and continues to resist extending constitutional rights to individuals. Corporatist rights seem to be inherently discriminatory, whereas it is nearly impossible to define individual rights in a discriminatory manner (at least without saying so specifically).

    My hope is that the Supreme Court will see that the time has come to address the imbalance and reinforce individual rights through some of its future judgements.

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