STRIKING BACK: FIGHTING WORDS, SOCIAL PROTEST AND POLITICAL PARTICIPATION IN FREE AND DEMOCRATIC SOCIETIES
AbstractIn this article the authors analyse the "labour law trilogy" of cases in which the Supreme Court of Canada held, in each case by a plurality of 4 to 2, that workers' rights to strike and bargain collectively are not protected by section 2(d) of the Charter of Rights and Freedoms. Through their analysis of the judgments in those cases, they endeavour to draw insights about the larger debate between those who are supportive of the entrenchment of a Charter in the Constitution and those who are more sceptical and critical about the process of judicial review. It is argued that even though the cases can easily be shown to be wrongly decided, they ought not to be seen as evidence which supports the scepticism of those who are, by nature, critical of judicial review. The authors endeavour to show how these cases, corrected of a rather simple error, actually offer hope that the Charter can be used in socially progressive ways and for the general advantage of those who are among the less privileged in the community.
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