View cases - Stewart McKelvey

Christians” (p. 337). Dickson J.’s words in Big M expressly say that there is no constitutionalbasis to prefer one religion over others.[211] In an article critical of the Health Services decision, Professor Langille describes as“chilling” the suggestion that the Court should “weig[h] the harm of banning book clubs ascompared to banning collective bargaining and relegat[e] the former to a lower level of concern”:“Freedom of Association”, at p. 185. He goes on to state:2011 SCC 20 (CanLII)We should begin with a reminder that this is, after all, a constitution that is beinginterpreted. It is an entrenched bill of rights and freedoms. The Charter value offreedom of association is a basic one. It applies to all Canadians, and the role of theCourt is to interpret it in a principled way. There is, in my view, not one freedom ofassociation for Nova Scotia and another for Ontario, nor one for students and one fortenants, nor one for the service sector and another for the manufacturing sector. Ifthere were, this freedom would not be a matter of fundamental justice. It would be,to use the Court’s word, “contextual”. [p. 202][212] Like Professor Langille, I question whether the approach advocated in HealthServices accords with a purposive interpretation of Charter rights. In Health Services, themajority appeared to be inquiring into the purpose of an activity to see if it merits constitutionalprotection. This approach requires judges to select among a range of objects and activities on thebasis of their general “importance” to society rather than their connection to the freedom toassociate. It is inappropriate for the Court to engage in this sort of inquiry in defining the scopeof a constitutional right. It would be assessing whether, as a matter of policy, a given activitymerits constitutional protection. In my view, the purpose of s. 2(d) is to protect associationalactivity against precisely such value judgments. A “contextual” approach of the sort proposed in