View cases - Stewart McKelvey

academics have weighed in with great passion, some in favour of the decision, some against it.But there is no concrete evidence that the principles enunciated in Dunmore and Health Servicesare unworkable or have led to intolerable results. It is premature to argue that the holding inHealth Services, rendered four years ago, is unworkable in practice. In Henry, in holding thisCourt’s decision in R. v. Mannion, [1986] 2 S.C.R. 272, to be unworkable 19 years after it wasdelivered, Binnie J. noted that the unworkability of that decision “only emerged over time as the2011 SCC 20 (CanLII)courts have struggled to work with the distinction between impeachment of credibility andincrimination” (para. 45).[84] Rothstein J. argues that the distinction drawn in Health Services between substantiveand procedural rights is unworkable. Again, we must disagree. In our colleague’s view, theprocedural right to collective activity under s. 2(d) would impinge on the substantive right to aconcluded collective agreement rejected in Health Services. However, substantive impact doesnot invalidate a procedural right. All procedures affect outcomes, but that does not mean that allprocedural rights are unworkable. The Charter may protect collective bargaining and not thefruits of that process.[85] Rothstein J. also suggests that more is required to transform the principles in HealthServices into a full-blown labour relations scheme. This, however, does not establishunworkability. It is not the role of this Court to specify in advance precisely which model oflabour relations the legislature should adopt. Instead, its role is to outline the boundaries withinwhich the legislature must operate, and to assess if the scheme developed by legislators satisfiesthis test.