View cases - Stewart McKelvey

Health Services would in fact be contrary to the purpose of s. 2(d) as it requires the judiciary toengage in these value judgments itself: see R. K. Basu, “Revolution and Aftermath: B.C. HealthServices and Its Implications” (2008), 42 S.C.L.R. (2d) 165, at pp. 186-87. In R. v. AdvanceCutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209, LeBel J. recognized that such a rolewould be inappropriate for the Court and would take the Court beyond the scope of s. 2(d):If this constitutional guarantee were to apply to the widest range of associations withthe most diverse objects and activities, extending constitutional protection to alegislative creation like collective bargaining might have unforeseeableconsequences and widen the sphere of constitutional protection to undefined andunknowable activities, well beyond the proper domain of s. 2(d). [para. 180]2011 SCC 20 (CanLII)[213] My colleagues say that the “consideration of goals [of a particular association]cannot be avoided” as Charter rights “must be interpreted in a purposive way — having regardfor the purposes, or goals, they serve. They say that a “content-neutral right is too often ameaningless right” (para. 75). Based on my colleagues’ approach, meaningful freedom ofassociation requires the state to coerce employers into negotiating in good faith with employeeassociations.[214] However, as I have just discussed, their approach would require the courts to focuson the purposes of a particular association rather than the purpose of freedom of associationfound in the Charter itself. Their approach diverges from the purposive approach to Charterinterpretation explained in Big M. Rather than focussing on the linguistic, philosophic andhistorical contexts of the right itself, their approach focusses on the particular aims and goals ofthe association in question. The inquiry shifts from a consideration of the purpose and context of