View cases - Stewart McKelvey

cases in which the vulnerability of a group justified resorting to government support. I agreewith B. Langille, “The Freedom of Association Mess: How We Got into It and How We Can Getout of It” (2009), 54 McGill L.J. 177, that this detour appears to have been an artifice designed tosidestep the limits placed on the recognition of analogous grounds for the purposes of s. 15.[319] To redress economic inequality, it would be more faithful to the design of theCharter to open the door to the recognition of more analogous grounds under s. 15, as2011 SCC 20 (CanLII)L’Heureux-Dubé J. proposed in Dunmore. Such an approach is preferable to relying on adistinction that does not rest on a solid foundation. This, of course, would entail a sea change inthe interpretation of s. 15 of the Charter. The majority in the instant case resist such a change,referring to “Canadian values” and to the need to take a “generous and purposive” approachwhen interpreting Charter rights (at paras. 32, 90, 92 and 97), but to ensure consistency with theapproach of the majority in Health Services (at paras. 81-96), they refer to equality in the s. 2(d)context without mentioning s. 15. My point here is not that each Charter protection should beinterpreted in a formalistic manner. Rather, it is that if the law needs to move away fromDunmore’s distinction between positive and negative rights, this should not be accomplished byconflating freedom of association with the right to equality or any other Charter right that maybe asserted by a litigant. An analysis based on principles grounding the protection of rights andfreedoms offers a better prospect of judicial consistency than one based on the more amorphousnotion of “Canadian values”.[320] For these reasons, I would allow the appeal and restore Farley J.’s judgment.