Privacy and the Right to Strike in Canada

Published on The Bullet, Socialist Project’s E-Bulletin No. 902, by Charles Smith, November 28, 2013.

The neoliberal assault on labour has now entered its fourth decade. While Canada’s labour union density continues to hover around thirty percent, that number hides declining density rates in the private sector. Equally concerning for the labour movement has been the long assault on the post-war labour freedoms to organize, bargain, and strike. As Leo Panitch and Donald Swartz have shown in their book, governments routinely seek to limit labour’s core freedoms, especially the right to strike. When Stephen Harper’s government claimed that the fragility of the Canadian economy was justification to take away the right of thousands of federal workers to strike, it became clear that strikes themselves were in danger of being legislated away … //

… Privacy and the Capitalist State: … //

… Privacy on the Picket Line? … //

… Inherent Limits, but a Victory Nonetheless:

There are of course inherent limits to the court’s decision. The ruling is premised on the notion that the union was on a legal strike. If a union were to step outside of the law and strike illegally, there is no indication that Charter rights would apply. This suggests that Canada’s specific regime of industrial legality – often dubbed Wagnerism – is closely tied to any potential Charter right to strike.

The Wagner model sets specific rules surrounding the right to organize, bargain, and strike. In particular, it protects the sanctity of a contract, allows workers to grieve management decisions, and allows workers’ third party representation if disciplined. In exchange, workers concede the right to strike except in specific circumstances as the end of a contract. If workers sought to move beyond Wagnerism (by expanding the right to strike for instance) there is little chance that the Charter would assist in significantly challenging the existing economic paradigm.

Indeed, there is some irony about the court’s continued reliance on “legal” strikes as a protected form of expression. Throughout its jurisprudence on this issue, the court routinely defends the right to picket when those actions are legal. Yet, in almost all of its jurisprudence on labour rights, the court continuously states that it does not favour any particular form of labour relations regime. On the strike jurisprudence, that is not true. In all the cases before it, the SCC only defends legal strikes. And legal strikes in Canada can only be understood as an extension of Wagnerism. On this question, the court has backed itself into a corner. It can only defend the right to strike by protecting Canada’s specific Wagner model, something that it refused to do in the 2011 Fraser decision.

Of course, these were not the questions the court was asked. Given the narrow confines of the dispute, this is clearly a victory for the union. In an age when neoliberal models of individualism dominate public discourse, there is little question that collective organizations such as labour unions will be vulnerable to legislation like PIPA. This case shows that anti-union crusaders will use multiple means to weaken the collective capacity of workers to resist employers. The fact that the SCC has read some collective dimensions into its freedom of expression jurisprudence is important. Although it is unlikely that the Charter will offer substantial gains for workers, it remains an important defensive tool to preserve the existing paradigm. On that note, Alberta v. UFCW is a victory. The larger questions about how the working-class can move beyond Wagnerism or neoliberalism, however, will unlikely be answered in court. Rather, those political questions will likely be addressed on a picket line. Whether the SCC would agree that those types of expression were legal or constitutional is an entirely different question. Given past decisions, workers would be wise to approach the SCC with caution.
(full long text and hyper-links).

(Charles Smith teaches at St. Thomas More College in Saskatoon. He maintains a blog at where this article first appeared).


Honduras: Huge political crisis as right steals elections, on, by Elena Zeledon, November 28, 2013;

Solidarity Saved Me From The Nazis, That’s Why I Fight Israeli Apartheid, on The Electronic Intifada, by Suzanne Weiss, November 26, 2013;

The Super Rich Reinvent U.S. Capitalism, on Worker’s Action, by Shamus Cooke, Nov. 10, 2013;

World Finance – Marx’s Revenge: How Class Struggle Is Shaping the World, on Business Time, by Michael Schuman, March 25, 2013:
With workers around the world burdened by joblessness and stagnant incomes, Marx’s critique that capitalism is inherently unjust and self-destructive cannot be so easily dismissed;

Raya Dunayevskaya Archive 1910-1987, on Marxist’s Internet Archive: Ours is the age that can meet the challenge of the times when we work out so new a relationship of theory to practice that the proof of the unity is in the Subject’s own self-development. Philosophy and revolution will first then liberate the innate talents of men and women who will become whole. Whether or not we recognise that this is the task history has ‘assigned’, to our epoch, it is a task that remains to be done. New Passions, 1973.

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