View cases - Stewart McKelvey

protection (para. 58, citing Henry, at para. 44). They say that this consideration “militate[s] infavour of upholding” Health Services (para. 58). However, the Court cannot be oblivious toerrors in prior decisions. When considering overruling, the Court must balance correctness andcertainty. If there is a potential diminishment arising from correcting prior error, that is a reasonto be cautious, not a reason to forego correcting prior error altogether. Arguably, as HealthServices itself strayed from prior precedent, returning to those prior precedents would promote2011 SCC 20 (CanLII)certainty. However, even if certainty would favour retaining Health Services, in this case theneed for a constitutionally correct answer is paramount.[144] Second, as I have indicated, Health Services strayed significantly from earlier soundprecedents with respect to the purpose of Charter protection for freedom of association. Theconstitutional guarantee of freedom of association is premised on the recognition that individualsmay be better able to secure their interests and achieve their goals if they may join with others intheir attempt to do so. From this, two propositions necessarily follow: (a) that s. 2(d) wasintended to secure the individual’s freedom to coordinate his or her actions with others and enjoythe benefits that flow naturally from that coordination; and (b) that s. 2(d) was not intended topromote or guarantee the outcomes for which the association was formed. The ruling in HealthServices contradicts both of these central tenets. By constitutionalizing collective bargaining,Health Services created a group right that vests in the employee association rather thanindividual workers, and confers substantive outcomes for which the association was formed. Ithas therefore moved away from the sound principles established by earlier precedents of thisCourt.