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

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