View cases - Stewart McKelvey

LeBel J., written on behalf of a minority of the Court in finding no violation of s. 2(d),acknowledged the existence of a jurisprudential policy of non-intervention in labour relations.However, LeBel J. also stated that “the jurisprudence of this Court has never held that labourlaws are immune to Charter review” (para. 162).[81] Rothstein J. argues that courts should consider deference to Parliament indetermining the scope of s. 2(d). This approach is inconsistent with this Court’s decision in2011 SCC 20 (CanLII)Dunmore. While Rothstein J. adopts the approach of McIntyre J. in the Alberta Reference, thisCourt has since distanced itself from this view. In Dunmore, Bastarache J. referred to McIntyreJ.’s discussion of deference under s. 1, rather than in outlining the scope of s. 2(d): para. 57; seealso Delisle, per Cory and Iacobucci JJ., dissenting; KMart Canada Ltd., at paras. 62-63, inwhich Cory J. referred to this passage from McIntyre J.’s reasons under s. 1 in a freedom ofexpression case. Deference to legislatures properly plays a part, not in defining the nature andscope of a constitutional right, but within the margin of appreciation that the Oakes analyticalprocess acknowledges, particularly at the minimal impairment stage.(viii) The Argument of Unworkability[82] Rothstein J. argues that Health Services is unworkable and therefore must beoverturned (para. 256).[83] The short answer to this argument is that unworkability has not been established.Winkler C.J.O. speculates that more will be required to make Health Services work, and