The Right to Strike Under the United States Constitution: Theory, Practice, and Possible Implications for Canada

Abstract

Answering the critics of the Supreme Court of Canada’s judgment in B.C. Health Services, the author argues that the Court laid the foundation for a principled and durable doctrine protecting constitutional labour rights, one that goes directly to the heart of the matter – the inequality of workers’ power in the employment relation. In the author’s view, two paths could lead from B.C. Health Services to the recognition of Charter protection for a right to strike: one that treats the right as an accessory to collective bargaining, and one that upholds the right directly on the basis of the Charter values of equality and participation. The author supports the latter approach, contending that constitutional rights should be defined in relation to fundamental values, in a way that is not contingent on time-bound or fact-sensitive assessments about the role of strikes within a particular collective bargaining regime. Although a Charter right to strike may involve the courts in difficult choices about when to defer to legislative policy decisions, and courts may lack the institutional capacity to deal effectively with labour law issues, the author points out that judges can look to ILO standards for expert guidance. Noting that the U.S. experience in this area might be of considerable use to Canadians, the author concludes by providing an overview of American case law concerning a constitutional right to strike.