View cases - Stewart McKelvey

[200] Accordingly, a right to collective bargaining is not derivative of a freedom asdescribed in CLA, CBC and Dunmore. It is a stand-alone right created by the Court, not by theCharter.[201] Thus, to grant a right to collective bargaining under s. 2(d) purportedly as derivativeof the freedom of association would not be consistent with the approach taken by this Court in itsderivative rights jurisprudence in relation to the Charter. Such a derivative right will arise only2011 SCC 20 (CanLII)where it is a “necessary precondition” to the exercise of the freedom (CLA, at para. 30). Thiscareful approach is necessary to adhere to the distinction between Charter rights and freedomsand prevents transforming freedoms into rights.[202] Viewed in this light, it is clear that s. 2(d) is intended to protect a sphere ofindividual autonomy or liberty, and not to enhance by state action the capacity of individuals todo a particular activity more effectively or to guarantee that any particular endeavour for whichassociation might take place will succeed.(3) Section 2(d) Does Not Privilege Some Associations Over Others[203] A third error in the approach to s. 2(d) in Health Services is that it conceives of s.2(d) as privileging some associations over others. I cannot agree with an approach to s. 2(d)which requires this Court to decide which associations and associational objectives are worthy ofconstitutional protection and which are not.