View cases - Stewart McKelvey

freedom, to the historical origins of the concepts enshrined, and where applicable, tothe meaning and purpose of the other specific rights and freedoms with which it isassociated within the text of the Charter. The interpretation should be, as thejudgment in [Hunter v. Southam Inc., [1984] 2 S.C.R. 145,] emphasizes, a generousrather than a legalistic one, aimed at fulfilling the purpose of the guarantee andsecuring for individuals the full benefit of the Charter’s protection. At the same timeit is important not to overshoot the actual purpose of the right or freedom inquestion, but to recall that the Charter was not enacted in a vacuum, and musttherefore, as this Court's decision in Law Society of Upper Canada v. Skainker, 1984CanLII 3 (S.C.C.), [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic,philosophic and historical contexts. [Emphasis in original.]2011 SCC 20 (CanLII)[207] The kind of “context” to which the reasons in Health Services refer is very differentfrom that being discussed here. Health Services suggested that a “generic” approach to definingfreedom of association is inappropriate because different groups must have different freedoms:the needs of a book club are not the same as those of a trade union, and assuming them to beentitled to precisely the same thing under s. 2(d) would be a mistake (para. 30). However, the“context” that is relevant to a purposive interpretation of Charter freedoms is not the context ofthe individuals who happen to be exercising that freedom in a given case. Rather, a purposiveinterpretation of s. 2(d) requires that one place freedom of association in its linguistic,philosophic and historical contexts. The origins of the concept, the words used to describe it,and the philosophical principles on which it relies will define the scope of s. 2(d) protection. Theextent of that protection should not change depending on the particular factual context orcircumstances in which s. 2(d) is being applied.[208] In the Alberta Reference, both Dickson C.J. and McIntyre J. did in fact adopt apurposive approach to interpreting the Charter’s guarantee of freedom of association. (pp. 363and 393-94) It was not their failure to apply such an approach that led to the conclusion that all