JUDY
FUDGE
On April 29, 2011, three days
before the federal election, the
Supreme Court of Canada
released its much-anticipated
decision in Attorney General of
Ontario v. Fraser.
It was the first case after Health
Services and Support — Facilities
Subsector Bargaining Association
v. British Columbia, in which the
court addressed the scope of constitutionally protected collective
bargaining rights.
The decision in Fraser
suggests that, 30 years after the
enactment of the Charter of
Rights and Freedoms, the
Supreme Court is badly divided
over the scope of protection that
freedom of association provides
to the traditional labour right to
bargain collectively.
Fraser dealt with a constitutional challenge to Ontario’s
Agricultural Employees Protection Act (AEPA). The United
Food and Commercial Workers
Union (UFCW) argued that the
AEPA failed to provide agricultural workers statutory support
for meaningful and effective
collective bargaining rights that
was comparable to that available to virtually all other private
sector workers.
The AEPA’s provenance was
unusual: It was enacted in
response to the UFCW’s successful challenge to the constitutionality of the exclusion of
agricultural workers from statutory protection of their right to
join trade unions and make collective representations to their
employer in Dunmore v. Ontario
(AG). That case was a tipping
point in the court’s freedom of
association jurisprudence away
from the individualistic and formal approach that had (by a
narrow majority) prevailed
since 1987.
For the UFCW, Fraser is a
defeat. Eight of the nine judges
agreed that the AEPA met the
constitutional standard regarding
freedom of association, although
they did so for three very different sets of reasons.
For the labour movement and
its advocates, Fraser is ambiguous. The majority affirmed that
“section 2(d), interpreted purposively and in light of Canada’s
values and commitments, protects associational collective
activity in furtherance of workplace goals. The right is not
merely a paper right, but a right
to a process that permits meaningful pursuit of those goals”
(para 38).
Yet, Fraser marks the end of
an emerging consensus among
members of the Supreme Court
that the types of collective activ-
ities by workers protected by the
constitutional guarantee of free-
dom of association should be
expanded incrementally.
the majority’s tortuous reasoning
to support the constitutionality of
the AEPA, was a response to Justice Marshall Rothstein’s concurring judgment, which sought,
without being asked by the parties
or interveners, to overturn Health
Services. The disagreement among
members of the court suggests a
brake on the development of constitutional protection for collective bargaining.
The jurisprudential legacy of
Fraser is difficult to predict. The
next big question is whether the
right to strike is constitutionally
protected. In a decision of the
Saskatchewan Court of Queen’s
Bench released in February, (
Saskatchewan Federation of Labour
v. Saskatchewan), Justice Dennis
Ball down played the decision in
Fraser and, instead, emphasized
the court’s decision in Health Services. He interpreted the right to
strike to be a fundamental component of the freedom of association as guaranteed by s 2(d) of
the Charter.
By contrast, the political
impact of Fraser is clear; it has
emboldened the federal government to use its legislative majority to interfere with workers’
rights to collective bargain and to
strike. Since Fraser there has
been a slew of back-to-work
legislation. Most remarkably, in
the recent Air Canada disputes,
the federal government has targeted private sector workers and
has not even bothered to wait for
the workers to go on strike.
Faced with draconian penalties for exercising their traditional rights, unions have been
forced once again to turn to the
courts and to hope that judicial
dispensation does not sacrifice
their rights to public convenience
and political calculations. n
Judy Fudge is a professor in the
faculty of law at the University of
Victoria.
Look to past for computer search future
GERALD
CHAN
The constitutionality of computer and smartphone searches has
become quite the rage lately in the
world of Charter litigation—and
rightly so.
We are storing more informa-
tion about ourselves in a manner
that is more accessible than ever
before. Our e-mails, text messages,
calendars, GPS history and Internet
browsing history can all be revealed
by a computer search. Through this,
the state can discover intimate
details about our communications,
daily activities and curiosities all in
one investigative swoop.
