British union calls on former Supreme Court judge to respect picket line and cancel speech

OTTAWA—Striking academic staff at Cambridge University say former chief justice Beverley McLachlin, who recognized a constitutional right to strike in Canada, should respect their picket line and cancel her speech Friday at Cambridge University.

McLachlin is scheduled to give the Sir David Williams lecture at Cambridge University’s prestigious law school, an annual event which regularly draws a who’s who of the legal community from Cambridge, London and beyond.

McLachlin led the Supreme Court of Canada from 2000 until her Dec. 15, 2017 retirement. She is still writing judgments in cases she has heard until June, and notably was chief justice in 2015 when Canada’s top court enshrined the right to strike as “an essential part of a meaningful collective bargaining process.”

On Friday, she is to deliver a speech entitled “Where Are We Going? Reflections on the Rule of Law in a Dangerous World.”

However the British union representing university academic and research staff is now appealing directly to McLachlin to stand up for a principle she espoused while on the bench and not cross their picket line, physically or figuratively.

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Jenny Sherrard, a spokesperson for the University and College Union that represents professors on strike across the United Kingdom, said in an email to the Star that the union is taking strike action for 14 days over a four-week period.

“And tomorrow is bang in the middle of our first strikes. Sixty-four universities are affected by the action to defend staff pensions, including Cambridge,” said Sherrard. “We are writing to Justice McLachlin advising her of the action and the message of solidarity we have received from our sister union in Canada, and asking her not to cross the picket line.”

Picket lines are organized on campuses for key business hours. On Thursday, striking law professors were walking the lines in Cambridge.

It isn’t clear whether McLachlin would have to cross a physical or figurative picket line Friday evening. Either way, the British union and its Canadian counterpart, the Canadian Association of University Teachers, hopes she’ll change her mind about her appearance.

“We would encourage her to respect the picket line,” said David Robinson, executive director of the Canadian union. “The McLachlin court ruled on several important labour cases, including one in which the SCC (Supreme Court) ruled that the right to strike was protected by the Charter. I would hope that she now demonstrate this by not crossing the UCU picket line at Cambridge.”

The Canadian union earlier this week sent a message backing the British union’s strike action against proposed pension changes, calling it “a blatant attack on your members’ rights.”

Lawyer Paul Champ, who represented one of the intervenors in that seminal 2015 Canadian case that constitutionalized the right to strike in Canada, said in an interview McLachlin should take the request seriously; that while it “doesn’t necessarily mean that she’s picking sides, it certainly doesn’t send a great message to the Cambridge faculty.”

“Justice McLachlin is being asked to speak at an event in honour of a former eminent professor of Cambridge yet ironically Cambridge professors at are on strike and presumably won’t be able to attend to attend the lecture.”

“There’s no prohibition against anyone from crossing a picket line but it certainly sends a message when someone does,” he said. “I think when there are really important reasons why you have to cross a picket line, it may be appropriate to do so but a former chief justice of the Supreme Court of Canada who has ruled on so many landmark trade union rights cases in Canada? I think it would be sending a very questionable message, to cross a picket line in these circumstances.”

“I just don’t think it’s an appropriate time to deliver a speech like that, and all things considered I hope that (former) chief justice McLachlin reconsiders and asks Cambridge to reschedule their lecture.”

The Star began making enquiries about McLachlin’s planned speech Thursday. Requests for comment sent directly to McLachlin, who had already left for the U.K., and sent through the Canadian court had not yet been answered. Nor had Cambridge University administration responded to requests for comment.

The event notice says it will be followed by a drinks reception, and a source speaking for background only said a lavish dinner usually follows.

In January 2015, McLachlin was in the majority of judges who significantly bolstered labour rights in this country in a pair of rulings; the first upheld the right of RCMP members to form a union, and the second constitutionalized the right of Saskatchewan public sector workers to strike as part of “meaningful” collective bargaining.

That ruling, called Saskatchewan Federation of Labour vs Saskatchewan, cited the Charter’s guarantee of freedom of association. It said the right to strike is an “indispensable component” of collective bargaining.

“Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. This crucial role in collective bargaining is why the right to strike is constitutionally protected by (the Charter) s. 2 (d).”

Justices Marshall Rothstein, now retired, and Richard Wagner, McLachlin’s successor as chief justice, wrote a stinging dissent, saying courts should stay out of it.

“This court should not intrude into the policy development role of elected legislators by constitutionalizing the right to strike under the freedom of association guarantee,” they wrote.

“It is not the role of this court to transform all policy choices it deems worthy into constitutional imperatives. The exercise of judicial restraint is essential in ensuring that courts do not upset the balance by usurping the responsibilities of the legislative and executive branches.”


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