The Trilogy is a Foreign Country, They Do Things Differently There

Abstract

Canada’s constitutional labour law of “freedom of association” continues to unfold in conceptual disarray. This short paper travels back in time to 1987 to the initial set of Supreme Court of Canada decisions, in what is referred to as “The Trilogy,” when and where the Court famously adopted a very thin theory of freedom of association which did not include a “right” strike nor it seems a “right” to collective bargaining. The trilogy was overruled in 2007 and we now know that our constitutional guarantee of “freedom of association” does include a right to collective bargaining. The right to strike remains open as a constitutional question but one which will be answered by the court shortly. But our current legal state of play, as revealed in the 2011 Fraser decision, is deeply flawed and incoherent because it ignores some very basic legal ideas. The issues raised in the “right” to strike case will be obscured as a result. By travelling back to the “foreign country” of the past we can retrieve some good legal ideas we left behind there, and also see that we have kept as ‘souvenirs’ of our journey there some bad ideas we ought never to have acquired. This permits us, among other things, to specify the real legal structure of the issues which confront us. This structure is ultimately presented as a series of what are called legal dominoes, the final one of which is international law. The question posed in cases such as Fraser is in legal terms: “When does the Charter instruct the Court to tell the legislature that it must pass a statute to alter the otherwise applicable background set of common law rights and freedoms?” And the ultimate domino style question is: “When does international law instruct the Court to interpret the Charter to tell the legislature to pass a statute to alter the otherwise applicable background set of common law rights and freedoms?” First, we need to see that these are indeed our questions. Then we can coherently debate the answers to them and see that our current answers are not happy ones.

Keywords: Freedom of association, constitution, labour, international