To be honest, I was waiting to see if the federal government was going to use the notwithstanding clause in its return-to-work legislation regarding the CP Rail strike last month, but that legislation seems never to have hit the floor of the Commons. (Strangely enough, the government didn't seem as eager to intervene in a CN Rail lockout around the same time. While the CP Rail strike - called by a union - showed a "reckless disregard" for the economy and Canadians, said the Minister of Labour, I didn't see similar rhetoric from the Minister on the CN lockout - imposed by an employer. Why that is, I leave to the reader's speculation.)
Whatever you may think of the Premier's reasons for or the merits of using the notwithstanding clause, it does suggest that recognition of the right to strike may re-start a debate around s. 33 that started in Saskatchewan in 1986 and ended almost as soon as it began.
Section 33 reads as follows:
(1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).Section 33 only applies to (as you can see) sections 2 and 7 to 15 of the Charter. Because that list includes the fundamental freedoms under section 2 (conscience, religion, expression, assembly, association), and because The Public Service Essential Services Act violated s. 2(d) - freedom of association - the notwithstanding clause does have potential application.
It wouldn't be the first time the Saskatchewan government has used the notwithstanding clause. In 1986, the Conservative government of the day introduced The SGEU Dispute Settlement Act (S.S. 1984-85-86, c. 111)(the "SDSA") to end a four-month strike by the Saskatchewan Government Employees Union. The Saskatchewan Court of Appeal had recently ruled that return-to-work legislation regarding the province's dairy workers had infringed those workers' right to strike (though the Supreme Court subsequently reversed that decision as part of the infamous Labour Trilogy) so the SDSA invoked the notwithstanding clause in s. 9 - in fact, the government invoked two notwithstanding clauses:
9(1) pursuant to subsection 33(1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding the freedom of association in paragraph 2(d) of the Canadian Charter of Rights and Freedoms.
(2) This Act operates notwithstanding The Saskatchewan Human Rights Code, particularly section 6 of that Act.The first, obviously, is what most people think of when one mentions the "notwithstanding clause." But Saskatchewan also has fundamental freedoms within its Human Rights Code, including freedom of association:
6 Every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.
Section 44 of the Code is the provincial "notwithstanding clause" - allowing legislation to operate even if it violates the Code.
The legislation did much more than order an end to the strike. It imposed a collective agreement on government workers (s. 7), imposed fines on workers who refused to end the strike (s. 8), and even declared that employees refusing to end the strike could be dismissed for cause (s. 8(5)). But no constitutional review of the legislation was possible - which probably didn't change much, given the results in the Labour Trilogy, specifically the "Alberta Reference", where the majority stated with almost breath-taking brevity (the majority decision is a mere four paragraphs long, though admittedly it makes reference to and approves Justice McIntyre's much longer reasons) that the rights to collectively bargain and to strike were entirely unworthy of constitutional protection.
John Gormley, perhaps predictably, figures use of the "notwithstanding clause" is a sound strategy regarding The Public Service Essential Services Act. Professor Dwight Newman here at the College disparages SFL v. Saskatchewan as the court "gone astray" and suggests SFL may actually "trigger a process of reducing the role of the Supreme Court of Canada in constitutional interpretation", by encouraging governments to make use of s. 33 in back-to-work legislation.
As far as Prof. Newman's point, it seems to me that prior to SFL - or at least prior to 2007's B.C. Health Services decision, anyway, when unions started to press their luck in court more - there was no constitutional litigation regarding [EDIT:
But that's regarding return-to-work legislation, which by its very nature is temporary. Using it to insulate a permanent piece of legislation like the PSESA is a different matter - the notwithstanding clause has to be renewed in five years and a change in government means potentially that the s. 33 over-ride will lapse. And if the government had decided to add contractual or bargaining unit changes under such legislation, as Saskatchewan did in 1986, what happens then? Do those contractual terms or bargaining unit changes become void? Does it matter if there has been a subsequent successful contract negotiation? Those matters wouldn't offend the right to strike, but they may offend the right to collectively bargain and the right of a group of workers to choose which union will represent them, which were recognized in B.C. Health Services and in Mounted Police Association.
I'm not going to be surprised if governments decide to, as a matter of course, invoke s. 33 in return-to-work legislation. There may be some political backlash but probably (I would suggest) no more so than one already sees with back-to-work legislation in general.
I think governments must be cautious, however, if they wish to go beyond return-to-work and use s. 33 on labour relations legislation generally. First, as I've said before and no doubt will have to say again, governments can still draft essential services legislation. They just have to be balanced in so doing. Using the notwithstanding clause seems an over-reaction to what is almost a non-problem. (That's assuming a particular piece of essential services legislation genuinely is about preserving health and safety, and not just about reducing public sector unions' bargaining power. Again, whether this is the case or not regarding the PSESA, I leave to the reader.)
And second, use of s. 33 isn't permanent. It has to be renewed. Imposing potentially unconstitutional changes to collective bargaining relationships, or changes to bargaining units or union representation rights, and then sweeping those changes under the rug with s. 33 in hopes that it will fall on the next government to deal with them, seems politically unwise and contrary to both labour stability and meaningful collective bargaining - both of which are, at least ostensibly, foundations of Canadian labour law.
As a final note, I thought the Globe & Mail op-ed by Professor Eric Adams from U of Alberta on Mounted Police Association and SFL was really well-done and I find myself in complete agreement with it. I'll just reproduce the last paragraph here:
Certainly these decisions mean that courts will hear more cases involving the freedom to associate, and governments will be forced to more frequently justify prohibitions on the right to strike as a reasonable limit in a free and democratic society. But just as these decisions will not revolutionize labour relations, they will not overturn the proper role of judges in our constitutional order. Balancing rights and freedoms against broader public goals in a democratic society is never easy, but that is the role the Constitution has assigned governments in legislating and the judiciary in supervising that legislation against constitutional standards. Ignore the cries of distress about the constitutional right to strike, that is just the Charter going to work, as it must, as it should.