View cases - Stewart McKelvey

[161] These four propositions were later endorsed by majorities of the Court in CanadianEgg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, and Delisle v. Canada (DeputyAttorney General), [1999] 2 S.C.R. 989. In the latter case, a majority of the Court ruled that s.2(d) does not entitle workers to any particular set of statutory protections for their associativeactivities, such as those providing for a right to collective bargaining.[162] The proposition that s. 2(d) does not confer a right to collective bargaining was once2011 SCC 20 (CanLII)again endorsed by a majority of the Court in Dunmore. However, in that case the Courtrecognized that Sopinka J.’s four propositions, while valid, might not exhaust the entire scope ofprotection afforded by s. 2(d) (para. 16).[163] Bastarache J. explained that the core of s. 2(d) protection is to prohibit the state frominterfering with an activity because of its associational nature. Relying on comments made byDickson C.J. in the Alberta Reference, he noted that Sopinka J.’s fourth proposition, whichprotects “the exercise in association of the lawful rights of individuals”, suffers from a potentialweakness. That proposition will, in general, serve as a useful test in determining whether thestate has targeted the associational aspect of an activity rather than the activity itself. If the statehas outlawed an activity at both the individual and the group level, it is likely that this is becausethe activity itself is deemed to be harmful or problematic. By contrast, if the state permits anindividual to engage in an activity but has outlawed the performance of that activity in concertwith others, this will generally indicate that the state has targeted the activity solely because ofits associational nature. Thus, Sopinka J.’s fourth proposition assists in isolating the true intent