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View cases - Stewart McKelvey

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[302] As the majority in the instant case note (at para. 80), in R. v. Advance Cutting &Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209, LeBel J. acknowledged the existence of ajudicial policy of non-intervention in labour relations. He made the following comment in thatcase (at para. 156):Looking back over nearly 20 years of the application of the Charter, it is clearthat this Court has been reluctant to accept that the whole field of labour relationsshould fall under the constitutional guarantee of s. 2(d). The law of collectivebargaining, as it has developed in Canada since the Depression beginning in 1929and the Second World War, as well as union and employer conflicts like strikes andlockouts, have been left largely to legislative control based on government policy.Laws restricting the choice of a bargaining agent or forbidding strikes and lockoutswere deemed not to engage the guarantee of freedom of association as such. Thesocial and economic balance between employers and their collective unionizedemployees was viewed as a question of policy making and management of sharplyconflicting interests. Thus, it was thought more appropriate to leave the resolution ofsuch conflicts and the policy choices they required to the political process.2011 SCC 20 (CanLII)Where the economic balance is concerned, I share the view expressed by LeBel J. in AdvanceCutting (at para. 257):Legislatures are entitled to a substantial, though not absolute, degree of latitudeand deference, to settle social and economic policy issues (RJR-MacDonald, at para.134, per McLachlin J.). Courts should be mindful to avoid second-guessinglegislatures on controversial and complex political choices (M. v. H., [1999] 2 S.C.R.3, at para. 79, per Cory and Iacobucci JJ.). As discussed above, the jurisprudenceacknowledges that legislative policy-making in the domain of labour relations isbetter left to the political process, as a general rule.[303] An approach to constitutional interpretation similar to the one I set out above wouldhave ensured a softer landing for Health Services. I readily acknowledge that the commentaryon that decision was not unanimous. The Chief Justice and LeBel J. refer to the authors whose

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