View cases - Stewart McKelvey

can, then we must seriously question whether collective bargaining is the kind ofactivity that warrants constitutional status. The Charter enshrines the fundamentalprinciples of individual liberty. The activities of man may change over time, butthese principles remain constant. Collective bargaining does not have this sametimeless quality, and, accordingly, we should be leery of giving constitutionalprotection under the concept of freedom of association.(“Freedom of Association and Trade Unions: A Double-Edged ConstitutionalSword”, in J. M. Weiler and R. M. Elliot, eds., Litigating the Values of a Nation: TheCanadian Charter of Rights and Freedoms (1986), 245, at p. 248)2011 SCC 20 (CanLII)[230] For these reasons, I am of the view that recognizing a constitutional right tocollective bargaining, as did Health Services, represents an imprudent departure from the courseof judicial deference.B. The Reasons Advanced in Health Services Do Not Support Constitutionalizing CollectiveBargaining Under Section 2(d) of the Charter[231] In the previous section, I pointed to five reasons why the approach to s. 2(d) adoptedin Health Services is inconsistent with both precedent and principle relating to the purpose of s.2(d). In this section, I address the reasons advanced by the majority in Health Services forproviding s. 2(d) protection to collective bargaining. As I understand Health Services, thesereasons were advanced to demonstrate that collective bargaining is a fundamental right thatjustifies it being constitutionalized. With respect, I do not think these reasons withstand scrutiny.[232] Health Services rests its conclusion that s. 2(d) of the Charter contains a right ofcollective bargaining on four propositions, which the majority outlines at para. 20: