Althea Raj (one of Canada’s best journalists) wrote in the Toronto Star of October 31 that “It’s time to admit our Charter rights are under attack.” This complaint is about Alberta legislating striking schoolteachers back to work, and declaring its legislation to operate notwithstanding the Charter. She shows a common misunderstanding of what the Charter’s categories of “fundamental freedoms” and “legal rights” are – and are not.
The Charter explicitly limits these two categories of rights (the only rights I will be discussing). It also permits governments to pre-empt the courts using section 33, the notwithstanding clause. Thus, Alberta isn’t attacking the union’s Charter rights, it is balancing them with the public’s rights to access schooling – an essential service – in accordance with the Charter.
These Rights Are Arguments
Fundamental freedoms and legal rights are not moral trumps over government. They are powerful political arguments. “Rights talk” serves as an assertion that one’s position is beyond negotiation. The claim that “I have a right” carries rhetorical force precisely because it implies a moral closure that demands deference.
As arguments, rights are constructed, and then asserted, within political and judicial settings. The right comes not from its assertion but from its acceptance by a given community or court. The language of rights becomes a strategic vocabulary through which individuals and community groups advance their interests under the guise of moral universality.
The Power of Rights Claims
Recognizing that rights are rhetorical claims does not make them meaningless. Rather, it explains why rights claims are so powerful even in polarized societies. Assertions of rights persist not because they are morally self-evident but because they are rhetorically indispensable. They permit appealing to a shared political vocabulary even in the absence of moral agreement. Rights talk maintains the possibility of moral conversation and agreement amid deep disagreement about other values.
Below I examine three key cases which demonstrate the rhetorical character of rights.
1. The Oakes Test: Proportionality Can Limit Your Rights
Section 1 of the Charter allows governments to limit your rights if the limits are “demonstrably justified in a free and democratic society.” Judges decide whether a limit is justified. In 1986 the Supreme Court of Canada created the Oakes Test, which treats rights not as absolute moral entitlements but as weighable policy factors. Thus, the strength of a right depends on how persuasively it is presented. Rights provide moral persuasion, dressed in legal vocabulary.
2. Balancing Conflicting Rights in Publication Bans
There are often several competing rights at stake. For example, publication bans limit freedom of the press, especially in criminal law trials. These cases require judges to weigh factors like the accused’s right to a “fair and public hearing” without trial by media, and allowing the public to monitor police effectiveness via the media. Judges “weigh” and “balance” rights against qualitative factors such as public confidence and societal harm, and then use rights talk to justify their decisions.
3. Rights Depend on the Context
In 2012 a Quebec judge, in his reasons for decision, brutally insulted Mr. Doré, the losing lawyer. Doré wrote a nasty letter to the judge, equally insulting him. The lawyers’ regulatory body, the Barreau du Québec, reprimanded and punished Doré, who complained that that this was an infringement of his Charter right to freedom of expression.
The Supreme Court used a weighing approach to balance the impact on Doré’s freedom of expression against the purpose of the Barreau’s regulatory scheme. Thus, the Court treated the lawyer’s rights as context-dependent rhetorical tools. Their influence depended on the persuasiveness of his claims weighed against professional regulatory objectives. Doré lost his appeal.
Conclusions
Our discussion above shows that rights are:
1. Conditional: always subject to limitation through balancing and proportionality.
2. Instrumental: used to persuade courts or legislatures rather than to assert moral absolutes.
3. Contextual: their effect depends on how judges balance individual rights against societal norms and institutional goals. and 4. Contingent: they can be overridden by elected legislatures.
There are no absolute Charter rights, there are only rights claims. Charter claims are often accepted by governments without litigation, but, if litigated, some 2/3 of claims fail. Realistically, our only certain right is procedural: the right to claim a right.
On the same day as Raj’s article Queen’s law professor Bruce Pardy wrote in the Epoch Times that “The [Charter] battle is not about whether Canadians will have their freedoms respected, but who gets the last word on how and when they will be put aside.” The notwithstanding clause gives the last word to elected governments.
After a 3 week strike, Alberta had to balance the employment interests of teachers with the education interests of students, the employment interests of their parents and their employers – all needing the essential public service that schools provide. Alberta’s use of section 33 is not an attack on “our” Charter rights, it is Alberta’s exercise of its Charter rights.
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May I add some additional observations – perhaps more historical and contextual, than strictly “legal”.
The asserted “right” in play here – the right to engage in a collective refusal to work, with a view to putting political and economic pressure on a public employer (and of course, on parents and children), is a relatively new “constitutional right”.
Indeed, the Supreme Court itself declared for more than two decades that there was no such “Charter right” at all.
In other words, the existence of this purported “right” was rejected, several times, by the Supreme Court, and for longer than it has existed.
And that is before one considers the express limitations on that right either in section 1 of the Charter (e.g. how long are teachers’ unions entitled to keep schools closed? who decides?), or via the Notwithstanding Clause.
It is important to appreciate, therefore, that the starting point was the Court effectively amending and extending the Charter, and not just “interpreting it”; and that exercise, in itself, suggests some elasticity and inconclusiveness with respect to the new rights asserted (created).
Yes that is what “living tree doctrine” or “metaphor” envisages. But must the “living tree” always grow in one direction? And can it be pruned?
Especially where, as here, the Court took the very generalized right to “freedom of association” (i.e. the right to join a trade union and participate in its lawful activities), and extended it to the tools, or the means, adopted by the union organization to advance the interests of its members – and in the result, in this case, suspending the education of children, contrary to what the elected political authority has decided is in the public interest.
Moreover, in collective bargaining legislation itself, there is typically no free standing right to strike, shorn of all restrictions with respect to timing and purpose. Nor is right to strike by any means universal. Because there are all kinds of public and private sector workers who have no right to strike all: police, hospital workers, nursing home employees (public of privately owned), large swaths of the public service in most provincial jurisdictions, and so on. Including, to repeat, private sector employees.
And of course, the federal government has routinely been doing just that, of late, (e.g. for dockworkers, railway workers); when all that was in play were “economic interests”. And not, as here, the well-being of children. Based there upon the opinion (i.e. the discretion) of a federal Minister.
Accordingly, what is novel here, is not that strike activity is prohibited, in whole, or in part, or is limited in various ways (like it is for the Ontario Pubic Service via legislation created first by the NDP); but rather that the State is also prescribing the terms and conditions of employment, for persons whose livelihood is derived from the public purse. As of course are big swaths of the work that teachers are expected to do, since that work (e.g. the restricted length of the school year) is heavily influenced by legislation.
It will be interesting therefore to see what the Courts will make of any constitutional challenge that arises from the situation in Alberta.
Similarly, it will be interesting to see whether other unions will be inclined to engage in “politically-motivated sympathy strikes” – which would typically be “illegal”, and could lead to damages claims against third party employers, whose workers heeded that call.
Because as the then Chair of the Ontario Labour Relation Boars put it in Ontario (Education) v Elementary Teachers’ Federation of Ontario, 2013 CanLII 481 (ON LRB) [which involved “strikes” described as “political protests”]:
The Minister points me to the well established jurisprudence of this Board that a “political strike” during the term of a collective agreement (what the parties in some of the cases referred to as a “mid-term strike”) is still an unlawful strike under the Act. See Ontario Hospital Association [2003] OLRB Rep. July/August 622; General Motors of Canada Limited [1996] OLRB Rep May/June 409 and British Columbia Teachers Federation v. British Columbia Public School Employers’ Assn. 2009 BCCA 39 (CanLII), [2009] 306 D.L.R (4th) 144.
In summary, then, the situation in Alberta bears watching from a number of perspectives – including public opinion as to who is best suited to protect the “public interest”: elected legislators or unelected judges. Although, courts being what they are, it will no doubt take years.
R.O. MacDowell MSc. LLB
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May I add some additional observations – perhaps more historical and contextual, than strictly “legal”.
The asserted “right” in play here – the right to engage in a collective refusal to work, with a view to putting political and economic pressure on a public employer (and of course, on parents and children), is a relatively new “constitutional right”.
Indeed, the Supreme Court itself declared for more than two decades that there was no such “Charter right” at all.
In other words, the existence of this purported “right” was rejected, several times, by the Supreme Court, and for longer than it has existed.
And that is before one considers the express limitations on that right either in section 1 of the Charter (e.g. how long are teachers’ unions entitled to keep schools closed? who decides?), or via the Notwithstanding Clause.
It is important to appreciate, therefore, that the starting point was the Court effectively amending and extending the Charter, and not just “interpreting it”; and that exercise, in itself, suggests some elasticity and inconclusiveness with respect to the new rights asserted (created).
Yes that is what “living tree doctrine” or “metaphor” envisages. But must the “living tree” always grow in one direction? And can it be pruned?
Especially where, as here, the Court took the very generalized right to “freedom of association” (i.e. the right to join a trade union and participate in its lawful activities), and extended it to the tools, or the means, adopted by the union organization to advance the interests of its members – and in the result, in this case, suspending the education of children, contrary to what the elected political authority has decided is in the public interest.
Moreover, in collective bargaining legislation itself, there is typically no free standing right to strike, shorn of all restrictions with respect to timing and purpose. Nor is right to strike by any means universal. Because there are all kinds of public and private sector workers who have no right to strike all: police, hospital workers, nursing home employees (public of privately owned), large swaths of the public service in most provincial jurisdictions, and so on. Including, to repeat, private sector employees.
And of course, the federal government has routinely been doing just that, of late, (e.g. for dockworkers, railway workers); when all that was in play were “economic interests”. And not, as here, the well-being of children. Based there upon the opinion (i.e. the discretion) of a federal Minister.
Accordingly, what is novel here, is not that strike activity is prohibited, in whole, or in part, or is limited in various ways (like it is for the Ontario Pubic Service via legislation created first by the NDP); but rather that the State is also prescribing the terms and conditions of employment, for persons whose livelihood is derived from the public purse. As of course are big swaths of the work that teachers are expected to do, since that work (e.g. the restricted length of the school year) is heavily influenced by legislation.
It will be interesting therefore to see what the Courts will make of any constitutional challenge that arises from the situation in Alberta.
Similarly, it will be interesting to see whether other unions will be inclined to engage in “politically-motivated sympathy strikes” – which would typically be “illegal”, and could lead to damages claims against third party employers, whose workers heeded that call.
Because as the then Chair of the Ontario Labour Relation Boars put it in Ontario (Education) v Elementary Teachers’ Federation of Ontario, 2013 CanLII 481 (ON LRB) [which involved “strikes” described as “political protests”]:
The Minister points me to the well established jurisprudence of this Board that a “political strike” during the term of a collective agreement (what the parties in some of the cases referred to as a “mid-term strike”) is still an unlawful strike under the Act. See Ontario Hospital Association [2003] OLRB Rep. July/August 622; General Motors of Canada Limited [1996] OLRB Rep May/June 409 and British Columbia Teachers Federation v. British Columbia Public School Employers’ Assn. 2009 BCCA 39 (CanLII), [2009] 306 D.L.R (4th) 144.
In summary, then, the situation in Alberta bears watching from a number of perspectives – including public opinion as to who is best suited to protect the “public interest”: elected legislators or unelected judges. Although, courts being what they are, it will no doubt take years.
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Thank you for your detailed response and the useful links. I am planning another post on Charter interpretation that compares US and Canadian constitution interpretation policies, including the living tree.
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