View cases - Stewart McKelvey

[181] The Chief Justice and LeBel J. say that Health Services was “consistent with theprevious cases on the issue of individual and collective rights” (para. 65). I must respectfullydisagree. McIntyre J. in the Alberta Reference made the point, which is the point that I make inmy reasons, that freedom of association protects the right of groups to engage in activities thatare lawful or constitutionally protected for individuals. The reliance on a purposive approach tointerpretation advanced by the majority in Health Services opens the door to s. 2(d) being2011 SCC 20 (CanLII)interpreted as a generalized group right as opposed to an individual right, which is aninterpretation that is not consistent with this Court’s prior jurisprudence. My colleagues’reference to the interpretation of s. 2(d) advanced by Dickson C.J. in the Alberta Reference, wasnot a position accepted by the majority and, as my reasons point out, by constitutionalizing theright to bargain collectively Health Services departed from the position of the majority in thatcase.[182] As I will now explain, although in Dunmore, s. 2(d) was found to protect groupactivity that was “qualitatively” different from individual activity, s. 2(d) cannot be used to givegroups greater constitutional protection than individuals.[183] The majority in Health Services, in rejecting the view that s. 2(d) only protects thoseactivities that may be lawfully pursued on the individual level, said that Dunmore had overtakenthe notion that freedom of association applies only to activities capable of performance byindividuals. Dunmore cannot be interpreted in such a manner. In Dunmore, Bastarache J.explained that to limit s. 2(d) to activities that are performable by individuals might render futilecertain fundamental initiatives, since some collective activities may, by their very nature, be