Roy Adams. Labour Left Out: Canada’s Failure to Protect and Promote Collective Bargaining as a Human Right. Ottawa: Canadian Centre for Policy Alternatives, 2006, 152 pp.

Rory Leishman. Against Judicial Activism: The Decline of Freedom and Democracy in Canada. Montreal: McGill-Queen’s University Press, 2006, 310 pp.

It seemed so straight-forward in high school civics class. The executive branch of government runs the day-to-day machinery of government, the legislative branch makes laws, and the judicial branch interprets and applies laws. The task and division of responsibilities between the different levels of government is neatly outlined in the constitution. Citizens vote for the candidate that they most agree with. If no one is running who deserves your vote and you think the issues are important, you take on the challenge and run for office yourself. Convince the majority to agree with you and voila, democracy triumphs again.

Twenty-five years of public square involvement have relieved me of my civics class idealism. Still, I could not help but engage in this wistful nostalgia when my recent reading included two books which on the face of it, have very little to do with each other. Two thoughtful commentators each seeing a problem that they believe threatens the foundations of our democratic system. But in their analysis of the problem and potential solutions, each admits that public policy is significantly shaped by institutions beyond the reach of voters and politicians. Even while advocating grassroots awareness and mobilization, each admits how elite agendas complicate yet are essential components in the process of achieving change. Much like in hockey, the skill and finesse of public dialogue has regrettably disappeared from the game. Goon enforcers have muscled their way into influence, and through various institutions, are effectively debasing the very character of the Canadian democratic way of life.

To the best of my knowledge, Roy Adams and Rory Leishman don’t know each other. If they do, there would have plenty of disagreements. (In the interests of full disclosure, I am privileged to count both authors among my personal acquaintances. Although not close friends with either, I have engaged in regular friendly dialogue with each on topics of mutual interest for approximately the past decade.) Adams is an emeritus professor of labour relations at McMaster University in Hamilton, Ontario, whose research and involvement in promoting human rights in academic, political, and United Nations circles is well-known. Although his social democratic credentials are impeccable, Adams is innovative and willingly vacates safe territory to challenge sacred cows sometimes associated with the Canadian left. Leishman lives a few hours down the road in London, Ontario. A long-time newspaper national affairs columnist and university lecturer, Leishman plies his trade as a freelance writer and if pegged, would probably be described by most as a social conservative.

Leishman presents his book as a continuation in a series of books published since the early nineties critiquing the Supreme Court of Canada’s interpretation of the Charter of Rights and Freedoms. (For the benefit of non-Canadian readers, the current Canadian constitution was enacted in 1982 and incorporated provisions outlining fundamental rights for Canadians. Prior to this time, the 1867 British North America Act of the British Parliament functioned as the Canadian constitution, supplemented by the 1960 Bill of Rights which outlined the basic rights enjoyed by Canadians, however did not have constitutional status.) The debate has been often portrayed using a “living tree” analogy. Just like the mature oak looks very different than the sapling that was originally planted, so constitutional interpretation grows and expands in the context of particular cases. However, there is considerable argument about what constitutes “natural growth and expansion” and what constitutes the subjective pruning and shaping of the tree by judges who, critics charge, are too ready to impose their own social and moral values in deciding key cases. Leishman observes in his critique of Chief Justice Beverly McLachlan: “McLachlan subscribes to the authoritarian view that unelected judges are better qualified than elected legislators not only to interpret and uphold laws, but also to enact and amend laws affecting minority rights” (215).

For those who follow Canadian politics closely, Leishman’s book contains a familiar recitation of major court cases which have impacted the political discourse in Canada for the past few decades. As a result of the Askov decision in 1990, which ruled that an almost two-year delay in bringing a case to trial was a violation of the Charter right “to be tried within a reasonable time” (Section 11b), not only were “Askov and his associates (let) off scot-free on all charges,” something the court itself described as “most unfortunate and regrettable,” but in the next year, 43,460 charges were stayed, dismissed or withdrawn, including at least 1,000 “extreme assault” or sexual assault cases (245-246). Leishman notes the court’s willingness to entertain constitutional references in 1982 and 1997 regarding Quebec’s role in the federation has shaped the national political history on at least arguable, if not dubious, legal grounds. The court enumerated “four fundamental and organizing principles of the Constitution which are relevant to enumerating the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities.” The court conceded that this division is “not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act 1867” (quoted on 162).

This is not a recent invention. The courts have been active shapers of policy well before the charter and in all jurisdictions. The standard defense for those who believe the court’s role is appropriate has been the 1929 Edwards ruling which recognized “that women were indeed persons and qualified to be appointed to the Senate.” While defenders acknowledge that this decision “altered, indeed fundamentally reversed” the existing law, they justify it with the argument that achieving political support in order to see such a change affected through Parliament would have taken a long time. While debates regarding the “What ifs?” of history can never be authoritatively settled, Leishman counters Justice McLachlin’s defense of the Edwards case as providing a basis for judicial activism:

Even if McLachlan were right that an amendment allowing women to serve in the Senate would not have been quickly and overwhelmingly approved in the 1930s, she would still have no justification for drawing the undemocratic conclusion that the unelected law lords on the Privy Council were right in Edwards to take it upon themselves to amend the Constitution of Canada through judicial interpretation (204).

Citing other democratic jurisdictions where the similar changes were achieved through legislative means, Leishman approvingly quotes United States Chief Justice Morrison Waite: “We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us” (205).

Leishman goes out of his way to point out that his argument is against judges effectively making law, and not the particulars of specific decisions. He highlights certain decisions in which he is in agreement with the outcome, but nonetheless opposed to the process. The rule of law requires predictability in its application, and in the view of Osgoode Hall law professor Jamie Cameron, the courts are not even consistent in their willingness to be activist. “There is a lack of any principle to explain patterns of activism or defense in the past year. I can’t make heads nor tails of them from one case to the other” (236).

Leishman suggests the pattern is not entirely random. His book is filled with the chronology of cases which have effectively changed the law in the contentious fields of education and social policy. The absence of any abortion law in Canada, the militant secular agenda, and the redefinition of marriage to incorporate same-sex marriage have their roots in court decisions. In a chapter entitled, “Escalating Judicial Attack on Christians,” Leishman recounts how courts have interpreted “current notions of justice and fairness” to exclude expressions of religiously-inspired notions of justice and fairness in the public square. In the Surrey School Board case, a decision against including books favourably depicting same-sex parents in the kindergarten curriculum was overturned by the courts on the grounds that trustees were influenced by the religious convictions: “I conclude that the words ‘conducted on strictly secular principles’ (words that are included in the British Columbia School Act which the judge was interpreting) precludes a decision significantly influenced by religious considerations” notes the decision of the local judge, ultimately upheld by the Supreme Court (169-176).

In the Trinity Western case, this Christian university’s teaching degrees were denied certification and recognition in the public school system on the grounds of Trinity Western’s requiring students to sign a lifestyle statement including biblical references opposing homosexuality. The Supreme Court overturned the lower court ruling and supported the University. However, it did so by drawing a line “between belief and conduct,” and since teachers colleges do not “screen out applicants who hold sexist, racist, or homophobic beliefs,” that Trinity Western should be allowed to issue teachers certificates. While that sounds fair enough, the starkness of that line was demonstrated in the case of Chris Kempling, a British Columbia public school teacher who was suspended because of a letter to the editor expressing his opposition and concerns regarding homosexual behaviour. Leishman lines up the Kempling example with Diane Haskett, a former London, Ontario, mayor who was fined by a human rights tribunal for refusing to sign a Gay Pride Day proclamation; Scott Brockie, a printer fined by a human rights tribunal for refusing to print literature for a gay advocacy organization; and Hugh Owens, a citizen charged by the human rights tribunal in a case that has since the publication of Leishman’s book been overturned in Owens favour for sponsoring an advertisement containing a recitation of Bible references against homosexual behaviour; and Bill Whatcott, a former homosexual prostitute, now a registered nurse, charged by the human rights tribunal for distributing literature that graphically denounced homosexuality as sinful and harmful to one’s health.

In Leishman’s view, the evidence is clear. Not only are the courts misusing their authority creating legal chaos, they are advancing a specific agenda, one that is creating a climate in which religious freedom is being curtailed. With an approving quote from Professor Ian Hunter, Leishman concludes his chapter:

The Supreme Court has ruled there is a right to believe what you want as long as you never communicate those beliefs or put them into practice. You are free to be hearers of the The Word but not doers; You may render unto God when {in church} but only to Caesar {out of church}. By their deeds no one shall know them (194).

It’s quite a leap from religion and sexual politics to labour relations and industrial democracy. Adams’s starting point is, in part, the burr under Leishman’s saddle. “During the last half century there has been a human rights revolution in Canada….In more recent years the rights of gays and lesbians have also made progress” (11). While individual rights may be advancing, the collective rights of trade unions are not being appropriately recognized. While Canada dutifully signs on to international treaties and says the appropriate pious words about living up to those standards, in practice “Canadian governments continue to blatantly violate the rights of their employees and in the private sector collective bargaining, once enjoyed by over 30% of the labour force, has diminished to less than 18% with no end to the decline in sight” (15). Adams appeals to “the world’s great religions, the ethical theories of prominent philosophers, and the constitution of the United Nations” in arguing that workers should never be viewed as a commodity but “as a human being with an inalienable right to dignified treatment” (15). In practical terms, this means that economic arrangements in which employers have the right to unilaterally impose or change conditions of employment is a violation of this principle. Acknowledging that there are situations where these one-sided relationships may result in adequate and fair working conditions, Adams contends that “being compelled to subordinate oneself to the will of another in order to make a living robs one of the one’s human right to a dignified existence” (16).

Adams proceeds to outline in detail how unions over time have come to rely on government certification as the way collective bargaining is accomplished. Legal alternatives including voluntary recognition by employers, locals for workers who are not organized in formal collective bargaining relationships, or non-certified employee associations have not achieved cultural acceptance. The results of this include employers’ acceptance of a “union free” philosophy as a virtue, that the public may want representation but are “turned off by the adversarial dynamics surrounding the exclusive agent certification process” (23), and hesitation on the part of union officials to see anything other than certified unions as a strategy “to keep out genuine unions” (33). Adams proposes various strategies to deal with the challenge. First, the “demise of collective representation is a social problem in need of serious attention.” (36). Governments, in his view, have a primary responsibility to raise awareness and to encourage employers and workers to encourage the formation of workplace associations, whether or not certified. However, it is not any specific law that is needed but “to create and maintain a consensus similar to the one that now exists with respect to employment equity. There is strong agreement in Canada that no one should be disadvantaged because of their colour, religion, ethnic origin or sex” (39).

Both Leishman and Adams build their case arguing that there are fundamental democratic values, supported at a principled level by a broad social consensus, which in practice are being undermined in the public discourse. While both hold strongly to a sense of individual freedom and rights (albeit one from a politically right, the other from a politically left perspective), their case studies show that when we have a totally individualistic interpretation of human rights intermediary institutions end up suffering. Whether the example involves a trade union, church, or educational institution, what is made clear by both authors is that vibrant institutions between government and the individual are required for human rights to flourish. Both highlight how the problems which are their respective focus emerge as a result of elites’—not in the legislative branch of government—misusing their influence to achieve agenda that serve their own interest and not the fundamental principles which they claim have broad support.

Reflecting on these two books as “case studies” in the context of Work Research Foundation’s contention that societies prosper when the rich weave of social institutions to which individuals belong are flourishing, two observations come to mind. The first regards the process of social change. While our high school civics classes have inculcated a deep sense of the value of voting and participating in democratic processes, there is a need to cultivate a broader sense of democracy than currently exists. Democracy is not simply about certain processes that look like democracy. Some very undemocratic countries allow their people to vote. It is not just the ballot box, but decisions made by the leadership of various social institutions, many of them unelected, who set the climate for how democracy will flourish, or not. As unidealistic and undemocratic as it sounds, the reality is that social change is as much an elite as it is a grassroots endeavour, and without the acquisition of democratic values and tastes on the part of various elites, the achievement of desired objectives will prove difficult.

The second observation regards the task of government. While the authors undoubtedly view government’s task very differently, both acknowledge that the solutions they seek cannot be imposed by simple government action. The Dutch Prime Minister of a century ago, Abraham Kuyper, provides advice which would provide fodder for a valuable discussion between right and left as they seek a way to coexist with mutual democratic respect. Kuyper suggested government had three tasks: to define the boundary lines between the different institutions of society when they collide; to defend the weak from abuse by those who might be more powerful; and to take primary responsibility for those areas necessary for “the maintenance of the natural unity of the State.” (My Comment article “Kuyper’s Sphere Sovereignty and Modern Economic Institutions” (Winter 2003) deals with Kuyper’s views on these matters in much more depth.) The key underlying premise is an understanding of democracy as consisting much more than a contract between individual and state rights. Both authors would acknowledge that the state by itself has proven an unreliable protector of democracy—albeit undoubtedly using different examples to make their point. Both promote a more active and vibrant role for various institutions in creating a healthy society.