Unions in Court: Organized Labour and the Charter of Rights and Freedoms by Larry Savage and Charles W. Smith (review)

The constitutionalization of labour rights in Canada is one of the most remarkable and, perhaps, unexpected developments in the 36 year history of the Charter of Rights and Freedoms. Few observers in 1982 would have predicted that the Charter rights of freedom of expression and association would provide constitutional protection for picket-line activity, collective bargaining, and strikes. Indeed, for some critical observers, the advent of the Charter was viewed as an ominous development, advancing the neo-liberal project of degrading and bypassing democratic institutions to insure the maintenance of conditions favourable to capital accumulation and the power of economic elites. Who better, after all, than the judiciary, the guardians of individual market rights and freedoms, long hostile to collective action by workers, to entrust with this task? However, in recent years, the Supreme Court of Canada (scc) has provided workers with some cover against the assault of neo-liberal governments pursuing austerity measures that restrict collective bargaining and the freedom to strike. How did this happen and what are its implications for the future of the Canadian labour movement? These are some of the questions Savage and Smith set out to answer in this insightful account of the labour movement's engagement with the Charter and the scc's evolving jurisprudence.

Savage and Smith approach the subject of constitutional labour rights through the lens of critical institutionalism, which places law and judicial decisions in a broader social and political-economic context, which recognizes that institutions shape and are shaped by that context. More specifically, they are concerned to understand labour's strategic orientation toward the courts and the Charter in relation to the political-economic pressures they faced and by the opportunities available to protect their interests, including the statutory and jurisprudential space that legislatures and judges expand and restrict over time.

Historically, the labour movement viewed the judiciary as authors of a highly restrictive regime of industrial legality and their goal was to expand the zone of legal toleration through some combination of labour militancy and political action. The Wagner Act Model, enacted into Canadian law at the end of World War II, was that movement's ultimate achievement. It provided a regime of industrial legality that kept courts at bay (except in the realm of picketing and other strike-related activity, which the judiciary continues to tightly control) but that was premised on labour accepting severe restraints on collective action in exchange for an administrative recognition scheme that imposed a duty on employers to bargain in good faith. Statutory collective bargaining schemes were extended to the broader public sector in the 1960s, but were subject to important limitations, particularly in regard to essential service workers, whose freedom to strike was even more restricted than that of private sector workers. Unionization rates grew and unions were often able to obtain favourable legislative reforms through their support for the New Democratic Party. Keeping the judiciary's hands off labour law was a shared objective of the labour movement and the industrial pluralists who were the architects and administrators of this new regime of industrial legality. Not surprisingly, unions were wary of constitutional reforms that would enhance the power of the judiciary to override legislation. However, as Savage and Smith show, this was not the only reason the Canadian labour movement was largely absent from the Charter debates of the early 1980s. Crucially, their silence was also driven by need to keep the Quebec labour movement, which was opposed to Pierre Elliot Trudeau's constitutional project, in the Canadian house of labour.

Notwithstanding the labour movement's lack of interest in securing specific constitutional protection for labour rights in the Charter, unions were quick to go to court and claim that such rights were implicit in the right to freedom of association and expression and the right to equality. The reason, as Savage and Smith explain, was that...