The Trilogy Strikes Back: Reconsidering Constitutional Protection for the Freedom to Strike

38 Pages Posted: 26 Nov 2013

See all articles by Steven Barrett

Steven Barrett

Sack Goldblatt Mitchell LLP

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP; University of British Columbia (UBC), Faculty of Law

Date Written: November 24, 2013

Abstract

This paper* seeks to address the issue of constitutional protection for strike action under the Canadian Charter of Rights and Freedoms, particularly in light of the jurisprudential revolution in freedom of association jurisprudence that has taken place over the past decade. We outline the three prevailing views delineating the scope of freedom of association under the Charter -- raised in the original Labour Trilogy as well as more recent Supreme Court of Canada decisions such as B.C. Health Services -- and conclude that each requires some constitutional protection for the freedom to strike. Given the agreement on each of these views that state measures restricting the freedom to strike run afoul of section 2(d), we proceed to address the difficult question of when such restrictions are demonstrably justifiable in a free and democratic society under section 1 of the Charter. We draw on the Court's decisions in the Trilogy -- particularly those of Chief Justice Dickson and Justice Wilson, who found that the legislation in question violated 2(d) -- as well as a broader range of section 1 case law, in attempting to provide some guidance to courts in determining the constitutional permissibility of limits on strike action. While we do not doubt that limitations on strike action may at times be required, we believe that courts should rigorously apply the section 1 framework, to ensure that such restrictions are in fact directed at pressing and substantial objectives, are indeed rationally connected to those objectives, and are minimally impairing of the freedom.

* This is an unedited draft of a paper scheduled for publication in an upcoming volume of the Ottawa Law Review.

Suggested Citation

Barrett, Steven and Oliphant, Benjamin J. and Oliphant, Benjamin J., The Trilogy Strikes Back: Reconsidering Constitutional Protection for the Freedom to Strike (November 24, 2013). Ottawa Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2359269

Steven Barrett (Contact Author)

Sack Goldblatt Mitchell LLP ( email )

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Benjamin J. Oliphant

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

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