View cases - Stewart McKelvey

(ix) The Argument on Academic Criticism[86] Justice Rothstein argues that academic criticism supports the view that HealthServices should be overturned. While he agrees that criticism of a judgment is not sufficient tojustify overruling it, he asserts that it is reason for the Court to “take notice”.[87] The first point to note is that the decisions that Rothstein J. relies on, the Trilogy and2011 SCC 20 (CanLII)PIPSC, were themselves the subject of intense academic criticism (see e.g. Macklem, at p. 240:“the combined effect of the Labour Trilogy and P.I.P.S. is a national embarrassment”); see alsoD. Beatty and S. Kennett, “Striking Back: Fighting Words, Social Protest and PoliticalParticipation in Free and Democratic Societies” (1988), 67 Can. Bar Rev. 573; A.C. Hutchinsonand A. Petter, “Private Rights/Public Wrongs: The Liberal Lie of the Charter” (1988), 38U.T.L.J. 278; R. Elliot, “Developments in Constitutional Law: The 1989-90 Term” (1991), 2S.C.L.R. (2d) 83). The real question is whether the academic criticism raises concerns notidentified in Health Services that would justify overruling it.[88] Moreover, as our colleague acknowledges, there was a range of opinions expressedabout the decision in Health Services. As is often the case, some commentators agree, whileothers disagree in whole or in part. A number of comments approved of the shift away from thetrilogy in favour of a broader and more contextual understanding of freedom of association: seee.g. C. Brunelle, “La liberté d’association se porte mieux: un commentaire de l’arrêt HealthServices”, in Conférence des juristes de l’État 2009 : XVIII e Conférence (2009), 237; P. Verge,“L’affirmation constitutionnelle de la liberté d’association: une nouvelle vie pour l’autonomie