Section 2 of the Canadian Charter of Rights and Freedoms
Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation.[1] These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.
Section 1 of the Charter permits Parliament or the provincial legislatures to enact laws that place certain kinds of limited restrictions on the freedoms listed under section 2. Additionally, these freedoms can be temporarily invalidated by section 33, the "notwithstanding clause", of the Charter.
As a part of the Charter and of the larger Constitution Act, 1982, section 2 took legal effect on April 17, 1982. However, many of its rights have roots in Canada in the 1960 Canadian Bill of Rights (although this law was of limited effectiveness), and in traditions under a theorized Implied Bill of Rights. Many of these exemptions, such as freedom of expression, have also been at the centre of federalistic disputes.
Freedom of association[edit]
Freedom of association is guaranteed under section 2(d). This right provides individuals with the right to establish, belong to and maintain to any sort of organization unless that organization is otherwise illegal. Generally, this is used in the labour context where employees are given the right to associate with certain unions or another similar group to represent their interests in labour disputes or negotiations.
It is important to note that this right only protects the right of individuals to form associations and not associations themselves.[32] Consequently, government legislation affecting the powers of established labour associations do not necessarily invoke section 2(d). It is only where legislation restricts the associative nature of the activity will section 2 be invoked. However, in the landmark Health Services and Support – Facilities Subsector Bargaining Association v British Columbia,[33] the Supreme Court ruled that freedom of association guaranteed by section 2(d) includes a procedural right to collective bargaining. The Court ruled in this case that legislation that "substantially interferes" with the process of collective bargaining is a section 2(d) infringement. The test for "substantial interference" is twofold: (1) the importance of the matter affected to the process of collective bargaining, and more specifically, the capacity of union members to come together and pursue collective goals in concert; and (2) how the measure impacts on the collective right to good faith negotiation and consultation.[34] It is not certain whether the decision in Health Services overturns jurisprudence arising from the so-called "labour trilogy" cases of 1987 which found that section 2(d) did not include a right to collective bargaining.[35]
The Supreme Court has since found in Ontario (AG) v Fraser,[36] that the right to collective bargaining does not require the government to take an active role in promoting and fostering collective bargaining, but merely to refrain from excessive interference with the collective bargaining process. In effect, the right to collective bargaining "guarantees a process, not a result". Fraser was affirmed and expanded upon by the Court of Appeal for Ontario in 2012 in Association of Justice Counsel v Canada (AG).[37]
Typically, where a union is denied a right it does not preclude the employees from forming a separate association. In Delisle v Canada (Deputy AG),[38] members of the Royal Canadian Mounted Police were excluded from the public services legislation. The Supreme Court held that they were not precluded from forming their association outside of the impugned legislation. However, in contrast, the decision of Dunmore v Ontario (AG)[39] indicated that agricultural workers who were excluded from provincial labour relations legislation were entitled to be included because individually they were unable to form their associations, and consequently, this imposed a duty upon the government to include them. The Supreme Court overturned Delisle in Mounted Police Association of Ontario v Canada, concluding that the exclusion of RCMP members from collective bargaining was unconstitutional.
The freedom of association also includes the freedom not to associate.[40] In certain employment circumstances, employees are required to contribute to a union as conditions of their employment (see Rand formula). However, mandatory associations do not invoke section 2(d) in and of themselves. In Lavigne, the Court found that the right not to be associated extended only to where the association supported causes that went beyond what is necessary for employee representation. More generally, the Supreme Court had stated that the right is violated only when the mandatory association imposes "ideological conformity".[41] Such violations have also mostly been found by the Supreme Court to be justified under section 1, resulting in a right not to associate that has more theoretical than practical effects.
In Advance Cutting & Coring,[42] the Supreme Court was called to examine the constitutional validity of a Quebec law that required all persons working in the province's construction industry to join a designated union. Eight of nine judges (Justice Claire L'Heureux-Dubé dissenting) confirmed that section 2 includes, to at least some degree, the negative right to not associate. With a majority of five judges to four, the Court determined that the law at issue violated this right. But with the same majority (judge Frank Iacobucci "switching camps" on the two issues and citing a "unique and complex historical context" in Quebec), the Court deemed the law to be justified in a free and democratic society under section 1 and thus constitutional.