View cases - Stewart McKelvey

[193] The Chief Justice and LeBel J. suggest that my reasons seek to maintain the“consistently rejected . . . rigid distinction” between freedoms and positive rights (para. 69).Referring to Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC23, [2010] 1 S.C.R. 815 (“CLA”), by way of analogy, they say that in some circumstances aCharter freedom, such as freedom of expression under s. 2(b), “may require the government todisclose documents to the public in order to enable meaningful discourse” (para. 69). Therefore,2011 SCC 20 (CanLII)they say s. 2(d) of the Charter “may require the state to act positively to protect the ability ofindividuals to engage in fundamentally important collective activities” (para. 70). While I wouldagree that in “exceptional circumstances” (Dunmore, at para. 21; Delisle, at para. 33) a Charterfreedom may require positive state action, I do not agree that CLA is an apt analogy.[194] Creating positive rights in exceptional circumstances does not dilute the coherence ofthe distinction between freedoms and rights. This is because those positive rights will only begranted when they are genuinely derivative of a freedom. A derivative right is one that isnecessary to allow individuals to exercise a fundamental freedom. In CLA, the right to accessgovernment information was considered to be “a derivative right which may arise where it is anecessary precondition of meaningful expression on the functioning of government” (para. 30(emphasis added)). This Court has found that a derivative right must be “inextricably tied to”(Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480(“CBC”), at p. 496) a “necessary precondition” (Dunmore, at para. 42) and “clearly within theambit of the freedom” (CBC, at p. 496). However, the core of any derivative right is that withoutthat right individuals will not be able to exercise their Charter freedom.