The Right to Strike and the Charter's Notwithstanding Clause

What a busy few days in Saskatchewan politics.  On Friday, the Supreme Court of Canada ruled that the Saskatchewan government's essential services bill violated freedom of association rights in the Charter of Rights.  In coming to that conclusion, the Supreme Court ruled that there is a constitutional right to strike.  You can read my early thoughts here.

In response to the SCC's decision, today the premier of Saskatchewan floated the idea of using s. 33 of the Charter to override that decision and keep his unconstitutional bill.  This raises some interesting questions about the politics of human rights and justice in the Canadian context.  A few early thoughts.

Section 33 of the Charter of Rights and Freedoms

For those who have never heard of s. 33 of the Charter, you're probably in good company.  The reason for that is that it has hardly ever been used.  S. 33, or the Notwithstanding Clause, was inserted in the Charter during the negotiations of the constitution in 1981-1982.  The clause came to read as follows:

• 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter

In essence, the clause allows any government in Canada to override a judicial decision that strikes down legislation if it violates the fundamental freedoms in s. 2 (religion, expression, assembly or association) s. 7-14 (the legal rights) or s. 15 (equality rights).  By all accounts, Prime Minister Trudeau hated the notwithstanding clause but he compromised in order to entrench the Charter in the constitution. Those pushing for s. 33 included Saskatchewan NDP Premier Allan Blakeney and Manitoba Conservative Premier Sterling Lyon both of whom were concerned about the erosion of Parliamentary sovereignty by so-called "activist" judges.  The premiers won this struggle and s. 33 was entrenched in the constitution.

There were early signs that s. 33 might be used aggressively. Stung by its defeat in opposing the constitution in the first place, the Parti Quebecois government of Rene Levesque immediately returned to Quebec City and imposed s. 33 on every provincial law passed by the National Assembly. Quebec used it again in 1988 when the Supreme Court overturned Bill 101, the Charter of the French Language.  

Outside of Quebec, the Conservative government of Grant Devine also chose to use s. 33 in order to maintain back-to-work legislation against striking dairy workers.  Unlike in Quebec, however, Devine used s. 33 proactively before the case went to court.  In other words, Devine stacked the rules of the game in his favour by stating his legislation would stand no matter what the courts did.  In the end, Devine's draconian tactic proved unnecessary as the Supreme Court concluded in the 1987 "labour trilogy" that there was no constitutional right to strike.

Although there were a few minor examples of governments using s. 33, the Quebec and Saskatchewan examples remain the most prominent and both occurred in the early days of Charter jurisprudence.  By the early 1990s, few government's were willing to risk being seen as overriding the fundamental rights of Canadians.  To date, it has never been used by the federal government.

To Use or Not to Use s. 33

Premier's Wall's musing on using s. 33 to overturn the Supreme Court's decision on the constitutional right to strike has certainly set off stirring debate about his legitimacy to do so.  Yet, he certainly has the legal and constitutional authority to use the clause.  Whether one likes it or not, s. 33 remains as much a part of the Charter as any other section.  At its roots, s. 33 remains a tool to balance decisions of the Supreme Court against the democratic will of Legislature.  

That being the case, any objection to the premier's use of s. 33 is not legal or constitutional but political.  By floating the idea of using s. 33, the premier is also taking a political position in opposition to the collective rights of workers' to strike. He is doing so because he believes he is defending the safety of the public. In taking that position, he is very much following in the footsteps of Saskatchewan's last Conservative premier who took similar steps in opposing workers' right to strike.

The problem, as I see it, is that the premier is using an unpopular tool to sidestep what really was a moderate remedy from the Supreme Court. To be sure, the court did constitutionalize a right to strike. That has ramifications beyond Saskatchewan and will continue whether the premier uses s. 33 or not. But what the court also said in SFL v. Saskatchewan was that the province could maintain essential services legislation but not one as restrictive as the one passed in 2007.  If the government wishes to maintain an essential services bill, all it needs to do is sit down with the unions bargain a new one.  S. 33 is simply unnecessary.

Final thoughts

The right to strike is now a constitutional right beyond the reach of any one government in Canada. While he has the legal ability to do so, it is unclear why the premier continues to run roughshod over the rights of workers.  There are certainly better ways to achieve legislative objectives without reverting to an unpopular constitutional clause that will achieve little.