View cases - Stewart McKelvey

Indeed, the fact that Health Services relates to a constitutional Charter right may militate infavour of upholding this past decision. As Binnie J. stated on behalf of a unanimous Court in R.v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, “[t]he Court should be particularly careful beforereversing a precedent where the effect is to diminish Charter protection” (para. 44). JusticeRothstein’s proposed interpretation of s. 2(d) of the Charter would diminish the scope of the s.2(d) right.2011 SCC 20 (CanLII)[59] We note as well that, while the Court in this case was asked to clarify the ambit ofHealth Services, it was not asked to overrule it. British Columbia, the respondent in HealthServices, stated explicitly that it was “not here contesting this Court’s conclusion that s. 2(d)protects a process of collective bargaining” (Factum of the Attorney General of BritishColumbia, at para.18). Absent notice to the profession and interested persons, overruling HealthServices seems to us procedurally inappropriate.[60] In our view, the arguments advanced by our colleague against Health Services do notmeet the high threshold for reversing a precedent of this Court.(ii) The Arguments on Jurisprudence[61] Justice Rothstein argues that Health Services represents a marked departure fromprior jurisprudence. We do not agree.