Guest Blog: Full Freedom of Association Wins Canadian Charter Protection

Guest Blog: Full Freedom of Association Wins Canadian Charter Protection

 

Note: The blog below is by my friend and colleague, Roy J. Adams, Sallows Human Rights Chair Emeritus, University of Saskatchewan and Professor Emeritus, McMaster University. Roy started working on human rights when he joined the now defunct Theme School on Human Rights and International Justice (which I directed from 1993 to 1999) at McMaster University to teach labour rights. Since then he has become a noted international expert in the field and is the author of the entry on Labor Rights in David P. Forsythe, ed. Encyclopedia of Human Rights (Oxford University Press, 2009), vol. 3, pp. 384-94. In its most recent decisions his work has been cited by the Supreme Court of Canada more frequently than that of any other author.

 

 

On January 31, 2015, the Supreme Court of Canada (SCC) “constitutionalized” the right to strike, providing protection under Canada’s 1982 Charter of Rights and Freedoms to the last of the three key elements of freedom of association at work.

 

Under international labour/human rights law, freedom of association at work has three major components: the right of working people to organize themselves into unions, the right of working people’s associations freely to negotiate conditions of work with relevant employers, and the right of employees to strike (without putting their jobs in jeopardy or otherwise being ‘punished’) if those negotiations fail.

 

Those general principles have been elaborated over the past century by the International Labour Organization (ILO), the UN agency primarily responsible for global labour standards. The ILO, of which Canada is a member, has evolved a rich jurisprudence regarding the three basic rights. Despite being bound by ILO standards, with increasing frequency and heedlessness over the past seven decades Canada has offended them. Indeed the bulk of the ILO’s jurisprudence regarding the strike rights of public sector workers has been developed in response to complaints by Canadian public sector unions. Shamefully, that body of decisions is known around the world as the Canadian Jurisprudence.

 

Acceding to the argument that effective labour relations require expertise that it does not possess, the SCC decided in the 1980s that, when it came to collective bargaining and striking, it would defer to legislatures. Until early in the 21^st century, Canadian courts tolerated the growing delinquency of legislative branch of government.

 

But beginning with a case regarding farmworkers (Dunmore) – to whom the government of the province of Ontario had refused to give any legal protection to organize, bargain or strike – the SCC in 2001 began to change its tune. It ordered Ontario to effectively protect agricultural workers’ rights. In its 2007 Health Services Decision regarding the bargaining rights of health care workers in British Columbia, Canada’s highest court found unconstitutional government interference with collective bargaining. It gave a ringing endorsement to collective bargaining as a critical pillar of “human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy.” (see Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, paragraph 81).

 

In both of those cases, the Supreme Court relied heavily on international labour/human rights law. But that law was out of sync with Canadian labour policy, and Canadian governments regarded those decisions as aberrations. In response to the Dunmore decision, the Ontario government came up with a clever scheme to deal with farmworkers that just barely conformed with international standards but proved to be of little value to unions in the agricultural industry that had grown used to bargaining in a familiar statutorily-imposed format that provided for a legally protected right to strike should bargaining reach impasse. The Ontario government’s response to Dunmore, known as the Agricultural Employees Protection Act, provided for neither a right to strike nor an effective alternative such as binding arbitration and so went unused.

 

Even though the SCC continued to rely on international law, governments went on willfully offending that jurisprudence and in the process pressured the court to abandon its new course and reinstate the status quo. In two recent decisions, the court met that challenge.

 

Under international law all workers are supposed to be able to associate to pursue their employment interests, but throughout the twentieth and into the twenty-first century the federal government refused to allow the Royal Canadian Mounted Police, Canada’s national police force, to do that. On Jan 16, the SCC said that the government must end that ban (see commentary, including mine, at lawofwork.ca ). International law permits governments to make an exception with regard to police, but in Canada nearly all police forces except for the Mounties are already organized, and the SCC found the Federal Government’s arguments against an exception to be unconvincing.

 

On January 31, 2015, in a case concerning a Saskatchewan statute that, contrary to international standards, forbade public sector workers from striking under specified circumstances, the SCC declared that the right to strike was protected under the Charter’s freedom of association clause (for more commentary, including mine, see lawofwork.ca).

 

The question now is: how much difference will these court decisions make? The SCC has strongly indicated that it will continue to rely on international law. It said in Health Service and repeated in its SFL (right to strike) decision: “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified” (Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 at paragraph 64). With regard to freedom of association, the ILO constitution is a human rights document and that organization’s jurisprudence is the roadmap to effective protection and promotion of that right. So, the germane and correct thing for Canadian governments to do is to begin the process of bringing their statutes and policies in line with international law. If they do that, the human rights of Canadian workers will be progressively and rightfully protected. If they continue to struggle against that standard we will likely have a series of constitutional crises and the neglect of workers’ rights will persist.

 

I have been promoting compliance with international freedom of association standards in Canada for more than two decades and have met with a generally lethargic response. The unstated view seems to be that freedom of association is not really that important because employment laws and policies insure that Canadians are well enough paid and otherwise treated by their employers. The Satanic mines and mills are gone; the less-well-off have a government and charitable safety net to fall back on.

 

That view fails to take into consideration that approximately 70% of Canadian working people have no union representation and are being daily indoctrinated to tolerate and  adjust to non-democratic governance. And since there is no generally available scheme for fairly settling individual disputes, workers have no option other than to accept decisions of their superiors, even those that they regard to be unfair and unjust. Their other option is to quit their job, putting their economic wellbeing in jeopardy.

 

Under such conditions worker dignity and freedom and autonomy are compromised. To survive, too many must kow-tow to the boss no matter how arbitrary that person may be. Nor is such a system good for those in charge who come to think that they have a right to command and that democratic values are unimportant.

 

Too few seem to realize that freedom of association is a fundamental building block on which rests our entire human rights superstructure.

 

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African Union Chooses Dictator Mugabe as New Chair

African Union chooses Dictator Mugabe as New Chair

At the end of January 2015 Robert Mugabe was appointed Chair of the African Union (AU). Mugabe has been President of Zimbabwe since its independence in 1980. Although the honorary position of AU Chair normally rotates among the heads of state of host countries of AU summits, there is a precedent not to abide by this rotation, as in 2005 when international concern over gross human rights violations in Darfur influenced the AU not to allocate the Chair to Sudan’s Omar al-Bashir.

Zimbabwe is one of the case studies in my current book project on State Food Crimes, so I have following politics there over the last few years. Mugabe is a brutal dictator who since 2000 has wreaked enormous havoc on his country. Zimbabwe does have elections and there is an opposition party, but Mugabe and his political party pretty much run the show. There’s been massive political violence, torture, rape and murder since 2000, the worst during the 2008 elections. 

Robert Mugabe, Wiki Commons

Mugabe has seriously undermined Zimbabwe’s food supply. White farmers—many Zimbabwean citizens—used to produce much of Zimbabwe’s food, but Mugabe decided in 2000 to forcibly evict them from their land. This caused a massive drop in food production, as well as a loss of export earnings, as Zimbabwe used to be the “breadbasket” for other countries in East Africa.  The forcible closings of these farms meant that about 150,000 to 200,000 farm workers lost their jobs; if you add their dependents, about 1.5 to 2 million people were without support. The purpose of redistributing the land was supposed to be to resettle landless peasants, but Mugabe gave many of the farms to his relatives and cronies. 

Also, in order to stop urban residents from voting for the opposition party, in 20

05 Mugabe authorized “operation drive out trash” in which about 700,000 urban residents were driven out of their homes. Some of these people then migrated to newly discovered diamond fields, but Mugabe and his cronies took over the diamonds, expelling some of the small, independent diamond diggers and enslaving others.

Mugabe’s fellow heads of state in the AU know all this, but most of them don’t care. Naming Mugabe its Chair is the latest is a series of AU acts defending Mugabe. In 2005, the AU resisted calls from the US and Britain to criticize Operation Drive Out Trash. In 2006, it refused to make public a report critical of Zimbabwe’s human rights record, which had been prepared two years earlier by the AU Commission on Human and Peoples’ Rights.

In May 2007, the African bloc at the UN successfully nominated Zimbabwe’s Environment Minister to chair the UN Commission on Sustainable Development, despite allegations that he had ruined a previously successful white-owned farm that had been given to him during land redistribution. In 2011 Zimbabwe assumed its turn as chair of the AU’s Peace and Security Council.

demonstartion  against Mugabe infront of the Zimbabwan embassy in London, 2006
Wiki Commons

The uncritical attitude of the AU to Mugabe reflected other African leaders’ respect for his leadership in the anti-colonial struggle in Zimbabwe from 1965 to 1980, along with his support for the anti-apartheid struggle in South Africa. He was considered one of the “grand old men” of the African liberation movement. In 2002, then President of South Africa Thabo Mbeki claimed that attempts in the British Commonwealth (an organization of English-speaking states, many of which are former British colonies) to ostracize Mugabe were “inspired by notions of white supremacy.” In 2005, South African Foreign Minister Nkosazana Dlamini-Zulu argued that there was an “element of racism” against Mugabe, and that “the hullaballoo is about black people taking land from white people.”

Mugabe himself regularly attributed attempts to force him to change his policies to “white,” “Western,” or “imperialist” interference. At the UN World Food Summit in Rome in November 2009, he accused “certain countries whose interests stand opposed to our quest for the equity and justice of our land reforms,” claiming that these countries were neo-colonial powers who had imposed unilateral sanctions in order to undermine Zimbabwe’s land reforms and make it dependent on food imports.

Article 3, g of the Constitutive Act of the AU states that its objectives include “democratic principles and institutions, popular participation and good governance.” This doesn’t seem to be what’s going on right now. Rather, African heads of state are rallying around Mugabe in a protective move. Many other heads of state in Africa are dictators who want to protect their own interests. Others are more concerned with scoring point against the West than protecting the human rights of ordinary Africans.

Many years ago I wrote a book about human rights in Africa.  In it, I referred to the then Organization of African Unity (OAU), which preceded the formation of the AU, as an “organization for the protection of rights of heads of state” in Africa (Rhoda E. Howard, Human Rights in Commonwealth Africa, Rowman and Littlefield, 1986, p. 4). The principal purpose of the OAU seemed to be to preserve the power, wealth and privileges of the “big men” who had made it to the top in then newly independent Africa.  Nearly 30 years later, it seems that is also the purpose of the AU.

Solitary Confinement: A Barbaric Canadian Practice

Solitary Confinement: A Barbaric Canadian Practice

On August 2, 2012 I posted a blog called, “Torture in American Prisons,” which you can find here. https://www.blogger.com/blogger.g?blogID=6700283514603333187#editor/target=post;postID=2920370963420447024;onPublishedMenu=posts;onClosedMenu=posts;postNum=63;src=postname. Among other things, this post discusses solitary confinement as a form of torture.  

Ashley Smith, wiki commons

Lately there’s been a lot of press in Canada about solitary confinement because of two cases.  The first was of Ashley Smith, who had originally been convicted at the age of 14 of throwing crabapples (a kind of fruit) at a mailman. Unable to control her behavior while she was in juvenile detention, as soon as she turned 18 (the age of adulthood in Canada) authorities transferred her from one prison to another, all over Canada, until finally she took her own life on October 19, 2007.  She was in solitary confinement and choked herself to death while guards watched from outside her cell. These guards had been ordered not to interfere unless they thought her life was in danger. Which it was.

The second case was of Edward Snowshoe, a young Aboriginal man also in solitary confinement. After 162 days, unable to bear it any longer, he killed himself (this was in 2010). Snowshoe had been convicted of shooting and injuring a taxi driver during a robbery in Inuvik, in Canada’s far north. This was a serious crime, but we are not supposed to sentence people to death in Canada.

Edward Snowshoe, top right. Wiki Commons

Snowshoe’s case is yet another travesty of Aboriginal life. Disproportionately high numbers of Aboriginal people in Canada are incarcerated (when they aren’t actually being murdered, as four times as many Aboriginal than non-Aboriginal women are, but that’s a topic for another blog). Corrections authorities and criminologists have tried for several decades to ameliorate Aboriginal prisoners’ conditions, but they haven’t succeeded yet.

At the same time as this discussion of solitary confinement has been going on, the Canadian Government has introduced new legislation called the Zero Tolerance for Barbaric Cultural Practices Act. This legally unnecessary act (legally unnecessary because the “barbaric” practices it prohibits are already covered by other laws) targets forced marriages. I agree that forced marriages should be banned, but so should other far more barbaric acts. The widespread use of solitary confinement in Canadian prisons is one of them.

I must admit that I sometimes have the name knee-jerk reaction to violent criminals that Canada’s ruling Conservative Party seems to have. I wrote about the Conservative Party’s crime creation agenda in my October 19, 2012 post “Canada’s Crime Creation Policy”, which you can access here http://rhodahassmann.blogspot.ca/2012_10_01_archive.html.

Wazim Ganesh and his mon. Wiki Commons 

This morning (January 23, 2014) as I was thinking about writing this post, I saw an article in my local paper, The Hamilton Spectator, (pp. A1 and A4) entitled “Beating victim’s mom says jails unsafe.” Wazim Ganesh was a 21-year old prisoner in Hamilton’s Barton Street jail, who had been convicted of assault, including sexual assault. Another prisoner, Jordan McPhee, allegedly beat him up, with the result that Ganesh is now seriously brain damaged, unable to speak or walk on his own. McPhee had already been charged for beating a cellmate at another penal institution. There is a very affecting picture of Ganesh and his mother in his hospital room. When I read the article and saw the picture, my reaction was “lock him (McPhee) up and throw away the key”.

But there are so many things wrong here that we ignore. I know there’s a jail a ten-minutes’ drive from where I live, but I’ve never seriously thought about what that means, even though I once had a private tour of part of it, when I served from 1991 to 1996 as a member of the (Hamilton) Mayor’s Committee against Racism and Discrimination.) But that jail, like probably every other one in Canada, is overcrowded and underfunded. Too many prisoners in one cell, too many violent prisoners, too many prisoners with mental illness, and too many Aboriginal prisoners. 

Juan Mendez, UN website

Mental illness is a special problem. Like many other Western jurisdictions, a few decades ago Canada stopped “warehousing” its mental patients in hospitals and released them “into the community.” But despite the best intentions of many Canadian volunteers, such as those who run the John Howard Society (for male prisoners) and the Elizabeth Fry Society (for female prisoners) there’s hardly any support for these mentally ill people. So now we warehouse the ones we convict of crimes in prisons instead of hospitals.  And when we really can’t control them, we throw them in solitary confinement.

Juan Méndez, the United Nations Rapporteur (reporter) on torture condemned solitary confinement in October 2011. He defined it as isolation for at least 22 hours a day without any human contact except for prison guards, and said solitary confinement for more than 15 days should be absolutely prohibited.  He says any more than 15 days of solitary could amount to torture.  And he says solitary confinement of juveniles and the mentally ill should be absolutely prohibited.

So it’s official: Canada has the distinction of being a torture state.

Book Note: Condoleezza Rice's Extraordinary, Ordinary People

Book Note: Condoleezza Rice’s Extraordinary, Ordinary People

People who read this blog will know that I don’t generally like U.S. Republicans, nor do I like people who support the American gun lobby. Nevertheless, I have just finished reading Condoleezza Rice’s 2010 memoir, Extraordinary, Ordinary People.  A cumbersome title, referring to her parents, whom she adored. I wanted to read this memoir because Rice was the first black woman ever to be a presidential National Security Advisor, and then to be Secretary of State (the equivalent of a Foreign Minister) under George W. Bush.

Condoleezza Rice was born in 1954 in Birmingham, Alabama, where she grew up. Birmingham, she tells us, was the most segregated city in the US South.  Her parents were educated professionals, her father a Presbyterian minister and her mother a teacher. At one point in her early childhood they tried to register to vote.  At that time, it was still permitted to “test” voters (usually black) to see if they were fit to vote; the Voting Rights Act was still to come in 1965. Her mother was light-skinned and the registrar gave her an easy “test”: who was the first American President. But there was a jar of beans on the registrar’s desk, and her darker-skinned father was asked how many beans were in the jar. Obviously, he couldn’t answer correctly, so he was denied the vote.

At the time, however, Alabama was dominated by segregationist Southern Democrats.  Republicans were trying to get more votes, and an acquaintance told Rice’s father that there was a Republican registrar who would let blacks register to vote. So her father went to that registrar, was registered as a voter, and always after than voted Republican. 

wiki commons

Rice also remembers the first time her family went out to dinner in a “white” restaurant, just after the 1964 Civil Rights Act. Years later in the White House, colleagues were suggesting that they not celebrate the 40^th anniversary of the Civil Rights Act and instead celebrate the 40^th anniversary of the Voting Rights Act the next year. She hit the roof, saying the Civil Rights Act was what had permitted her and her parents to eat in a newly desegregated restaurant.

But what hit me most in her memoir was her explanation of why she supports the Second Amendment to the US Constitution, the one that gives individual citizens the right to bear arms. She takes seriously the right of citizens to protect themselves against their government.

In 1963, at the height of the US Civil Rights Movement, Birmingham erupted in violence and fear. Rice remembers hearing bombs explode in her neighborhood. She remembers the deaths of four African-American girls at the Sixteenth Street Baptist Church, and attending their funerals.  She used to play dolls with one of the girls, and the others were all known to members of her tight-knit black middle-class community.

 In response to the violence, she remembers when her father sat on the porch the entire long night, a gun on his lap. The men of her neighborhood organized patrols to protect the two entrances to their community from the Ku Klux Klan (a powerful white racist organization formed in 1866 and supported by many powerful whites, including members of governments).  As she put it, if black men in Birmingham had had to register their guns, “Bull” Connor, the cruelly segregationist mayor who ran Birmingham, would have known who had guns and confiscated them.  

Rice tells us that she really admired President John F. Kennedy and his brother Robert, both assassinated, in 1963 and 1968 respectively. At one point she was a registered Democrat. But became a Soviet specialist after studying at the University of Denver with the former Czech diplomat Josef Korbel (father of her predecessor Madeleine Albright, the first woman Secretary of State). She was disappointed with the Democrat President Jimmy Carter’s lack of knowledge of Russia, and she particularly disapproved of his decision to boycott the 1980 Moscow Olympics because of the Soviet invasion of Afghanistan in 1979. By contrast, she thought that Ronald Reagan had a better understanding of the Soviets, so she became a Republican.

Condoleezza Rice had a strong sense of what it means to be African-American. She was raised on the principle that to get ahead, she had to be twice as good as any white person. Her parents also discouraged her from feeling like a victim, instead encouraging her to work very hard to make the best of the circumstances she was in. She is a supporter of affirmative action programs but believes they should be implemented by spotting talented people and giving them mentoring and financial assistance, not by lowering standards.

So I guess what this tells us is that you shouldn’t make assumptions about people based on their politics. I never thought I would encounter a reasonable argument on the right to bear arms, but Condoleezza Rice has given me something to think about, as has her account of growing up African-American.

Update: A friend of mine has complained to me about this blog. He considers Condoleezza Rice to be a war criminal because, he says, she signed off on the US use of torture during the G.W.Bush administration. “What’s next,” he asked me, “a favourable review of a book about Stalin’s childhood?”  I think he has a valid point, although I would have to check the facts about Rice’s exact role in authorizing torture.  So I want to make clear that if Rice publishes a second memoir about her role in the Bush II administration, I will be critical of it.  It is an interesting question though: should we be interested in the early lives of public figures and if so, should that interest only pertain to their later illegal or evil acts?

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