For decades, Canadians have operated under the assumption that the right to strike was a fundamental freedom embedded in the nation's constitutional fabric. But what if this widely accepted truth was actually a judicial invention rather than a constitutional guarantee?
According to legal analyst Mark Mancini, the historical record reveals a startling reality: there was no constitutional right to strike in Canada until an activist Supreme Court created one through reinterpretation of existing laws.
The Constitutional Void
The original Canadian Constitution and the 1982 Charter of Rights and Freedoms contained no explicit protection for strike actions. For years, this absence was understood and accepted by legal scholars and practitioners alike. The framework was clear: while workers had certain protections, the nuclear option of striking existed within carefully defined legislative parameters, not as an inherent right.
The Judicial Transformation
Everything changed when the Supreme Court began reinterpreting Section 2(d) of the Charter, which guarantees freedom of association. Through a series of landmark decisions, the court progressively expanded this concept to include a constitutional right to strike—a dramatic departure from previous understandings.
This judicial evolution didn't merely interpret existing law; it effectively created new constitutional protections that the framers had deliberately omitted. The court transformed what had been a statutory privilege into a fundamental right, fundamentally altering the balance of power in Canadian labor relations.
The Consequences of Judicial Activism
The implications of this judicial innovation extend far beyond labor disputes. This case represents a broader pattern of judicial activism where courts, rather than elected legislatures, become the primary drivers of social policy.
When courts invent rights that don't explicitly exist in constitutional texts, they risk undermining democratic processes and shifting policy-making power from elected representatives to appointed judges. This raises fundamental questions about the proper role of the judiciary in a democratic society.
The Ongoing Debate
The manufactured right to strike continues to spark intense debate among legal experts, policymakers, and labor advocates. Supporters argue the court was correcting historical imbalances and protecting vulnerable workers. Critics maintain that the judiciary overstepped its bounds by creating rights rather than interpreting them.
This controversy touches on the very nature of Canada's constitutional order and whether the Supreme Court's role should be limited to interpreting existing law or expanded to include adapting the constitution to contemporary values.
As Canada continues to grapple with labor disputes and constitutional interpretation, the story of the invented right to strike serves as a powerful reminder of how judicial decisions can reshape society in ways the original constitutional designers never anticipated.
