By Peter Russell

Social democracies are those marked by a concern for equality that goes beyond the equal right to vote to a concern for social and economic equality.

Since early in the twentieth century, the practice of democracy in Canada, including Ontario, has been significantly more social democratic than in the USA.

But the Ontario government’s assault on public sector unions now threatens to turn Ontario into Canada’s little America.

A core principle of a social democracy is the right of employees in both the public and private sector to belong to unions that a majority of them support. With that right goes the correlative duty of employers to set wages and working conditions through good faith bargaining with unions. Without that duty of employers, the right of workers to form unions is of little value.

The McGuinty government’s Putting Students First Act, imposing on all teachers a two-year wage freeze and changes in working conditions negotiated with one group of teachers, seriously undermines meaningful collective bargaining with teachers’ unions. The Protecting Public Services Bill, unveiled by Dwight Duncan last week, would extend this kind of legislation to other sectors of government employment in the province.

In both pieces of legislation, unions retain the right to bargain collectively – in a formal sense. But in both the government sets limits to what they can bargain about. Big daddy government will determine in advance the limits of what can come out of the bargaining process. The Protecting Public Service Bill goes further and insinuates government dictated outcomes into the arbitration process.

The Ontario government hopes that it has retained enough scope for collective bargaining to “Charter-proof” its legislation and prevent it from being found unconstitutional when it comes before the courts – as it surely will. But given the roller-coaster ride Canada’s Supreme Court has given labour rights under the Charter, going to court is truly a “crap shoot”.     

When labour unions first claimed Charter rights before the Supreme Court of Canada, they lost badly. In a trilogy of cases decided in 1987, the court ruled that freedom of association under the Canadian Charter of Rights and Freedoms meant only freedom to form and belong to unions. It did not protect union activities crucial for effective  collective bargaining, including the right to strike. In the 2001 Dunmore case, the Supreme Court, much changed in membership, hinted it might be changing its mind when it ruled that Ontario legislation excluding agricultural workers from the province's labour relations laws violated the Charter right to freedom of association.

Then came the bombshell. In 2007 Health Services case, the Supreme Court, for the first time, overturned one of its previous Charter decisions and ruled that the Court’s denial of Charter protection for collective bargaining “could no longer stand.” The Court found that BC legislation empowering employers in the health care sector to contract out of collective agreements violated their employees’ freedom of association under the Charter.

The roller coaster ride of collective bargaining as a Charter right isn’t over. Last year the Supreme Court in Fraser rejected a Charter challenge to Ontario’s Agricultural Employees Protection Act that gave agricultural workers the right to make submissions about remuneration and working condition to employers, but did not grant then full collective bargaining rights.

Is this a sign that the Supreme Court, with Harper government appointees beginning to show their colours, is poised to water down Charter protected collective bargaining rights?

Two of the six justices who formed the majority in the Health Services case, Michel Bastarache and Ian Binnie, have retired and been replaced by two Harper appointees, Marshall Rothstein and Thomas Cromwell. In the Fraser case, Rothstein, in dissent, said he wished to go further and repudiate the Health Services decision to the extent that it constitutionalizes collective bargaining. Last year the Harper government appointed two more Supreme Court judges, Andromache Karakatsanis and Michael Moldaver. Before her appointment to Ontario’s Court of Appeal, Justice Karakatsanis served as Deputy Attorney General and Clerk of the Executive Council in Mike Harris’s Conservative government.

The impending retirements of two Quebec justices, Louis LeBel and Morris Fish, means that Stephen Harper will soon fill two more Supreme Court vacancies. By the time, the Charter challenge to the McGuinty government’s anti-labour legislation reaches the Supreme Court, six of its nine members will be Harper appointees. I would not bet much on the unions’ chances before such a court.

But never mind. The question of whether Ontario should deal with its fiscal problems by curtailing collective bargaining should be decided by voters not by judges. 

The McGuinty Liberals must decide, well before the Supreme Court renders its decision, whether it wants to align itself with the anti-labour forces now on the rise in many US states and give Ontario voters a choice between their province becoming a “little America” or a province that continues to respect Canada’s social democratic tradition. 

Peter Russell is one of Canada's leading constitutional experts, advisor to Governors-General and Professor-Emeritus in Political Science at the University of Toronto.