Canada’s Bill C-39 Sparks Debate Over Right to Strike and Charter Rights
The Canadian Liberal government introduced Bill C-39 to limit the minister's power to end strikes, but legal experts and unions argue the changes may still violate Charter rights.
The Canadian Liberal government introduced Bill C-39 on Monday, proposing significant changes to how Section 107 of the Labour Code is utilized. The legislation aims to establish a "guardrail" around the responsible minister's authority to intervene in labor disputes and order striking workers back to work.
Section 107 grants broad powers to maintain or secure industrial peace. Since 2024, it has been used to order striking workers back on the job for binding arbitration. Notably, Labour Minister Patty Hajdu invoked this section last summer to direct Air Canada flight attendants to return to work. However, the union defied the order and reached a tentative agreement with the airline just days later.
Prime Minister Mark Carney stated that Bill C-39 "absolutely reinforces the right to strike." Under the proposed changes, a minister would be required to declare that a strike adversely affects the "national interest" and must consider a report from a newly created special mediator before intervening.
Despite the government's assurances, the bill has faced sharp criticism from legal experts and union leaders. Mark Rowlinson, a lawyer with the Canadian Labour Congress (CLC), described the new bill as "the clearest possible violation" of the Charter. Andrea Talarico, a law professor at the University of Ottawa, predicted that the fundamental question of whether Section 107 overrides the right to strike will ultimately go to the Supreme Court.
The controversy stems from recent uses of Section 107, which have prompted court challenges from major unions including the Canadian Union of Public Employees (CUPE) and the Teamsters. CUPE has launched challenges against the government's use of the section, including one questioning its constitutionality.
Brian Gottheil, a human resource adviser and lawyer, suggested that while the government might argue ongoing court challenges are moot if the legislation passes, Charter-based cases will likely proceed regardless. This creates potential legal uncertainty regarding the future of these disputes.