Supremes read-in a new Charter right (with thx to Mr J Mortimer)

Today's (Aug 5 07) FinPost Comments section had an exellent little morsel from John Mortimer, president of the non-profit Canadian LabourWatch Association Inventing union rights FP21, outlining how the good ol' Supreme Court read-in a new Charter right and showing the doubletalk they used to reverse 20 years of their own jurispudence.

Here's the best parts (red and underlining my added emphasis):

..."Had the government first attempted to negotiate with these unions, there almost certainly would have been a different court judgment. Regardless, the Supreme Court's Bill 29 decision reversed 20 years of its own constitutional jurisprudence that clearly stated there is no Charter right to collective bargaining. The court's June reversal means that unions have a "procedural right to collective bargaining" under the Charter's freedom of association provision.

How did the court reverse 20 years of its own decisions? First, the court clearly took umbrage with the government's failure to engage in any bargaining before legislating on such an important issues. Second, the justices criticized their prior decisions, saying they "do not withstand principled scrutiny." Third, the court asserted significance to collective bargaining in Canadian industrial labour relations past and present. Fourth, the court argued it was time for Canada to keep up with Canada's international obligations.

The court agreed that under "Canada's federal system of government, the incorporation of international agreements into domestic law is properly the role of legislatures." The court even noted that these international documents are "not binding" and then offered a large 'but': "However, Canada's international obligations can assist courts charged with interpreting the Charter's guarantees."

It 's important to note the court 's doubletalk. How do inanimate, non-binding, international obligations "assist" a court that already admits incorporating international agreements is properly up to Parliament and the provinces? Answer: This court strode in where previous Supreme Courts refused to tread, i.e., it invented a Charter right which Canadians were told did not previously exist -- largely because a government failed to try to bargain, reaching instead for the blunt instrument of legislation.

However, in other areas, the court has declined to apply international standards, where those standards promote the rights of employees over those of unions. Canada's unions can (and already do) negotiate collective agreements with employers where unionized employees are also forced to join and maintain union "membership" as a condition of employment -- or be fired. Such firings can and do happen. Most Canadian governments and courts also allow forced dues for political (and other) purposes from unionized employees.
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