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The Right to Protest, Freedom of Expression, and Freedom of Association

Abstract and Keywords

Freedom of expression and freedom of association are guaranteed by section 2 of the Charter of Rights and Freedoms. These freedoms are closely related, conceptually and philosophically, but evolved in different directions under the Charter. Whereas section 2(b)’s guarantee of expressive freedom generated a rich jurisprudence across diverse issues, section 2(d)’s attention focused on associational freedom in the context of labour union activities. The authors draw on a pocket of section 2(b) case law on picketing and other labour-related expressive activities to bring these guarantees into comparison. In doing so, they comment on the Supreme Court of Canada’s interpretation of each guarantee, including the constitutionalization of key aspects of labour relations under section 2(d). In addition, the authors critique the Court’s jurisprudence, emphasizing the central importance of protecting protest and dissent activities under both guarantees.

Keywords: Canadian Charter, freedom of expression, freedom of association, picketing, labour-related activities, Charter section 2(b), collective bargaining, right to strike, protest and dissent, Charter section 2(d)

1. Introduction

******Long before their constitutionalization by the Charter, freedom of expression and association were core commitments with a strong pedigree in Canada’s legal and political tradition.1 These freedoms are guaranteed independently by section 2(b) and (d) of the Charter but are closely related, conceptually and philosophically.2 Despite sharing those bonds, each presents a distinctive journey in the first 30 years of Charter interpretation.

Whereas section 2(b) generated a deep jurisprudence, section 2(d) produced a discrete number of issue-specific decisions.3 From the outset, the Supreme Court of Canada treated the guarantees differently, granting freedom of expression a generous interpretation while constraining the scope of associational freedom. In recent years, (p. 738) the momentum has shifted and though section 2(b) is quiet at present, section 2(d) has livened and is now an active site of rights protection.

This chapter follows the rhythm of the jurisprudence, as it is unrealistic to canvas expressive freedom comprehensively in this setting. Furthermore, any discussion of freedom of association under the Charter must reflect section 2(d)’s focus on labour rights.4 Though section 2(d) has been dedicated, in the main, to the associational freedom of workers and labour unions, section 2(b) has addressed a variety of issues but, in doing so, has shown solicitude for labour expression. That cross-fertilization enables us to examine the two freedoms together and comment briefly on the status of protest and dissent under these guarantees.

The test of a constitution’s commitment to freedom is whether and how well it protects the voices of those who are discontent and marginalized. In an early section 2(b) landmark, the Court stated that the Charter’s definition of expressive freedom must “ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream”.5 Much later, it reflected in 2015 on section 2(d)’s purposes, observing that “[h]istorically, those most easily ignored and disempowered have staked so much on freedom of association precisely because association was the means by which they could gain a voice”.6 Bonding the two is a recognition that to be meaningful the Charter’s guarantees of freedom must protect those who provoke and challenge the status quo.

Despite endorsing freedom values, the Supreme Court’s section 2(b) and section 2(d) jurisprudence has been selective and uneven. Under section 2(b), the Court upheld limits on objectionable expression but adopted a different and more protective approach to labour picketing and related activities. In comparison, section 2(d) is unbalanced because the Charter’s general guarantee of associational freedom has been almost exclusively concerned with labour union issues. These dynamics prompt us to propose a more even-handed approach—one that protects expressive and associational freedom in and outside the labour domain, and especially when the right to protest or dissent from majoritarian views is at stake. Noting, as well, that section 2(d)’s standard of breach is strict, we also call for a generous and consistent interpretation to bring this guarantee into alignment with the other fundamental freedoms. More generally, our view is that for section 2’s promise to be fulfilled, expression and association must be guaranteed equally, and limits under section 1 must be subject to an evidentiary threshold that applies in a consistent way across guarantees and issues. We explore these themes briefly in sections discussing expressive and associational freedom under the Charter.

(p. 739) 2. Freedom and Limits under Section 2(b) of the Charter

The Charter’s framework contemplates a form of equilibrium between the protection of constitutional rights and the demands of democratic society. Calibrating that equilibrium engages the relationship between the scope of the guarantees and the standard of reasonable or justified limits under section 1.7

Under section 2(b) it was unknown, for instance, whether the Supreme Court would grant expressive freedom a generous interpretation or restrict the scope of entitlement. Some thought the guarantee should only protect expressive activity that was traditionally valued the most, such as political speech on matters of parliamentary government.8 That conception would have excluded much communicative activity from the Charter, including artistic and commercial expression. In Irwin Toy, the Supreme Court chose instead to extend prima facie protection to all expressive activities.9 In doing so, the Court embraced a principle of content neutrality, essentially in recognition that a restrictive definition would invite discrimination against unpopular ideas and lead to a blinkered conception of freedom. Under Irwin Toy’s definition of expression as “any attempt to convey meaning”, the content or value of expression was irrelevant to the threshold question under section 2.10

By the time Irwin Toy was decided, a stringent judge-made test (“the Oakes test”) was in place to determine whether a Charter violation could be saved or justified as a reasonable limit under section 1.11 A combination of section 2(b)’s broad scope and section 1’s strict test meant that most violations could not survive reasonable limits review. The Court’s decision to adjust section 1’s standard downward, and introduce a content- or value-based approach, marked an early turning point in section 2(b)’s development.12 This methodology, which was designed to uphold limits on “valueless” expression, (p. 740) created unavoidable tension between section 2(b)’s freedom-based definition, which was egalitarian and content-neutral, and section 1’s “contextual” approach, which was hierarchical and content-based in nature.

The contextual approach modified the Oakes test by providing a doctrinal mechanism for measuring expressive activities against section 2(b)’s abstract and aspirational values.13 The Court applied this approach in key decisions to conclude that controversial and undesirable expression does not serve section 2(b)’s values, and therefore should receive little or no Charter protection.14 The result was a doctrinal framework that entrenched overt conflict between section 2(b)’s content-neutral definition of expression and a section 1 standard of justification that relied on content distinctions to justify limits. Without the Charter’s textual separation of rights and limits, this about-face in the Court’s conception of expressive freedom—from section 2(b)’s definition of the right to section 1’s question of limits—would not have been plausible. Despite the structural rationale, the contextual approach lacked analytical credibility, and in practice transformed section 2(b)’s principle of content neutrality into a false promise.15

Moreover, section 1’s requirement of evidence-based limits was a casualty of the contextual approach, because the standard of proof was less pressing for low-value expression. Once the Court tempered the elements of the Oakes test, limits on expression could be based on a “reasoned apprehension of harm”, common sense and logic, and uncritical deference to the legislature.16 The attenuation of section 1 review in section 2(b) cases reached an apex when the Court combined these rationales to uphold proactive limits on core political expression; in Harper v Canada, it held that Parliament could regulate political expression, in the absence of evidence, to prevent the prospect of speculative (p. 741) and future harm.17 The decision to uphold limits on high-value expression without proof of harmful consequences represented a low point in section 2(b)’s evolution.

In brief, that is how the Court demonstrated superficial respect for expressive freedom under section 2(b) and invoked content discrimination to justify limits under section 1. It is a methodology that misconceives the guarantee’s objectives: section 2(b)’s purpose is not to monitor the content of expression and choose which views are valuable enough to protect; its central goal, instead, is to safeguard an inclusive process of freedom in which expressive activities are free, subject only to an evidentiary standard of harm and rigorous threshold of justification. Contrary to the Court’s section 1 methodology, freedom is not a matter of compromise, context, and common sense; it is a matter of principle which, to be meaningful, must protect all expressive activities, including and especially those that are considered objectionable and valueless.

A pocket of section 2(b) jurisprudence resists this pattern. After upholding limits on picketing in two early cases, the Court consistently granted labour expression significant protection under section 2(b).18 Less troubling than the outcome is the double standard that emerges from a comparison of the Court’s labour and non-labour decisions on expressive freedom.

3. Protest and Dissent under Section 2(b)

Juxtaposing protest activities by individuals and labour unions is instructive because it exposes the inconsistency of a content-based approach. A few examples are sufficient to show that individuals engaged in unpopular or protest activities have not fared well under section 2(b).

In R. v Lucas, two placard-carrying protestors went to jail for making defamatory statements about a police officer.19 Their goal was to expose and draw attention to a miscarriage of justice involving wrongful criminal charges against members of a foster family, and the sexual betrayal of young children in foster care.20 The protestors picketed (p. 742) outside a provincial courthouse and police headquarters wearing placards that were crude and potentially misleading.21 Their objective was to publicize a dereliction of duty on the officer’s part—failing to protect female siblings from their brother, a sexual predator. Though the protest was grounded in the Crown’s disclosure documents, the Lucases were unable or unwilling to conform their protest to standards of civility. The police halted the demonstration, arresting and charging the protestors with defamatory libel under the Criminal Code.22

The Supreme Court upheld the criminalization of libel, without dissent, and confirmed jail sentences for both Lucases.23 Its decision acknowledged the demonstration’s foundation in a plea for accountability, but held that the placards were without value and entitled to little or no protection under section 1.24 In endorsing the use of the criminal law as a substitute for tort law, the Court found that the police officer was vulnerable and that the criminal sanction was necessary because he might not be able to recover damages through a civil action in defamation.25

R. v Lucas represents a startling betrayal of section 2(b)’s freedom values, because the criminal law was used to silence the Lucases, who spoke for those who had been falsely accused, and to prevent them from speaking truth to power.26 Imprisoning them for exposing a profound miscarriage of justice constituted a serious setback for section 2(b)’s rationales of transparency and accountability.

A more recent example suggests that expressive freedom may have lost ground over the first 30 years of Charter interpretation. The issue in Whatcott v Saskatchewan was whether provincial human rights legislation prohibiting hate speech as a form of discrimination violated section 2(b) of the Charter. The appeal concerned a complaint arising from the distribution of anti-gay flyers near a school. Though closely divided in its earlier hate speech jurisprudence, the Supreme Court unanimously upheld the provision and found that Whatcott’s flyers were hateful.27 Although accepting that his ideas (p. 743) could not be banned, the Court maintained that the hate speech provision prohibited the manner and not the content of expression.28 In the Court’s view, Whatcott’s flyers were subject to regulation because they could lead to acts of discrimination by third parties at some date in the future.29

The Court’s methodology relied on a “double discount” to attenuate the standard of review under section 1. First, Whatcott declared that restrictions are easier to justify because hate expression “contributes little to the values underlying freedom of expression”.30 In this way, the low-value designation enabled the Court to discount section 1’s evidentiary requirements. Second, then, the Court stated that it was “entitled to use common sense and experience in recognizing that certain activities, hate speech among them, inflict societal harms”, and to take notice that the “discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians”.31 In other words, common knowledge was sufficient evidence of harm to ground “a reasonable apprehension of societal harm” and allow objectionable views to be regulated.32 Whatcott’s approach to content, harm, and evidence are worrying, especially when set against the Court’s earlier hate-speech landmarks, which engaged the justices in high-level debate about expressive freedom and led to strong dissenting opinions.

The same year—2013—R. v Khawaja unanimously upheld a Criminal Code provision that explicitly targeted section 2 activity. The question there was whether the definition of terrorist activity, which criminalized actions undertaken in part or whole for religious, political, or ideological objectives, violated section 2(a), (b), and (d) of the Charter.33

Most striking is the Court’s dismissive response to the chilling effects of a provision that singled religious, political, and ideological objectives out for criminalization.34 The Court departed from its position in other decisions, which took notice of such effects, stating in Khawaja that direct proof of a chill was required.35 The Court also discounted (p. 744) the argument of a chill, declaring that any adverse effects for the Charter’s fundamental freedoms should be attributed either to the events of 9/11 or to the targeted community’s misunderstanding of the clause.36 In other words, those potentially chilled from exercising their section 2 rights are at fault for not understanding that the motive clause only affects those engaged in criminal activities. Because the motive clause is neutral, it cannot deter the justifiable exercise of section 2 freedoms, and any adverse consequences are the result of “self-chilling”. Ironically, this analysis failed to appreciate that the purpose of this doctrine is to prevent self-censorship. Finally, the Court speculated that prejudicial consequences for the Muslim community were due to a general climate of suspicion or to profiling by the police, and did not arise from the provision’s criminalization of constitutionally protected motives.37 Khawaja’s unwillingness to engage the Charter and protect members of a community that were subject to prejudice and suspicion could not have been more pronounced.

The Court’s response to compelled expression is also indicative. Though individuals who seek freedom from the demands of conformity are by definition engaged in an act of protest or dissent, their claims have been considered trivial and unimportant. In Lavigne v OPSEU, the Court held that a non-union employee’s objection to the use of mandatory union dues to support non-workplace causes did not engage section 2(b).38 More recently, the Ontario Court of Appeal held in McAteer v Canada that principled objection to a mandatory oath to the Queen, which is a requirement for Canadian citizenship, did not violate section 2(b).39 Finally, Bernard v Canada held that a non-union employee can be compelled to provide private, personal information to a union that represents workplace employees.40 Only two claims have succeeded—once when the Court invalidated the compulsory use of the French language in outdoor signage, and a second time when the Court agreed that mandatory, unattributed warnings on cigarette packages violated section 2(b).41

In contrast, the Court’s decisions on labour expression under section 2(b) look very different. After conservative responses in two early cases, the Supreme Court set a highwater mark for expression in decisions on leafleting, picketing, and other picket line activity.42 This pocket of jurisprudence is small but important because of the way the Court shifted the key variables of value and harm. In place of the discount that governs in other section 2(b) cases, the Supreme Court applied a “double upgrade”: first, it (p. 745) assigned labour expression the highest value, paradoxically relying on its then-narrow section 2(d) jurisprudence to do so; and then it concluded, as a result, that limits on this activity are subject to a strict standard of justification.43

The Court’s treatment of harm in this context is revealing. Picketing and related activities are designed to cause serious consequences; a strike is “not a tea party” and can—indeed is intended to—cause serious disruption and economic harm to the employer and to other social actors.44 Collateral damage and harm to third parties, including members of the public, is not only commonplace but the direct and immediate object of the exercise. Picketing can become violent and unruly, and is aimed at intimidating workers and third parties from crossing union lines. The Court nonetheless accorded these activities a higher degree of protection than any other form of expression under section 2(b).45 Paradoxically, labour expression has received more favourable treatment than activities whose harmful consequences, as discussed above, are unknown or speculative.

4. Toward a Conception of Meaningful Freedom under Section 2

Though the Supreme Court’s conception of expressive freedom under section 2(b) is sound in principle, the relationship between value and harm under section 1 is problematic. When value serves as a proxy for harm, the Charter’s protection for expression depends less on evidence of the consequences of the legislation than on the Court’s perception of content. As our discussion demonstrates, this approach has consistently disadvantaged expression the Court deems to be low in value, and privileged expression it prefers—such as labour expression, which, for now, is treated more favourably than expressive activities around democratic elections.46

What is at stake in this methodology are competing visions, separated and represented by the Charter’s structural concepts of breach and justification. A freedom-based conception, which is reflected in the Court’s commitment to content neutrality under section 2(b), rests on an egalitarian approach which extends the Charter’s protection without discrimination, including to those who express crude, unpopular, and (p. 746) objectionable ideas. The alternative view features a content- or value-based approach, which prevails under section 1, where the contextual approach trumps section 2(b) egalitarianism and the requirements of Oakes, replacing both with an analysis which ensures that only valuable expression will be protected. Though content regulations are permissible, limits on expression should not depend on the low value of expression’s content, on appeals to common sense, or on deference to the legislature, but should instead be evidence-based. In our view, section 2(b)’s principle of content neutrality must be followed by a section 1 analysis that takes seriously the requirement that limits must be demonstrably justified. A constitutional guarantee of expressive freedom demands no less.

We acknowledge that it is not self evident why the Charter should provide a safe haven to those who espouse and promote reprehensible views. Instinct and common sense confirm that expressive activity has impact and can be injurious. Constraining expressive activity that risks discord or discomfort insulates the community from unsettling points of view and serves to promote or maintain social harmony. As laudable as those objectives may be, they lead to a conception that dismisses alternative voices, impoverishes critical discussion, and does not protect freedom in a meaningful way. Excluding alternative voices promotes a static social harmony where new views—critical harsh, or unsettling—are silenced and cannot threaten the comfort of the status quo.

Tolerating the intolerable requires democratic humility—a willingness to recognize those who speak in a different and even jarring voice, as equal participants in collective political and social decision-making. That humility, and its processes of speech and counter-speech, is the hallmark of a free society, mindful that today’s democratic values were forged in a crucible of freedom. That crucible allowed yesterday’s outsiders to advocate change and claim their place as self-governing members of the democratic community. Some of those outsiders include women, the gay community, minority groups, aboriginals, Communist sympathizers in the Cold War, and political and religious dissidents of all stripes. Just as their activities and movements shaped current mores, their successors should be free to forge new pathways in the ongoing process of social and democratic renewal.

Meanwhile, it is no exaggeration to say that the courts have struggled to define the scope and role of section 2(d). The Charter’s concept of associational freedom has evolved in a singular and anomalous direction, which has been almost exclusively identified and concerned with labour relations. To some extent, associational freedom’s central purposes have been sidelined because the guarantee’s concern with unions’ protection has dominated section 2(d)’s evolution. Normalizing this freedom within the framework of section 2 will depend, initially, on restoring a general conception of associational freedom. It follows that the guarantee’s methodology must also be re-considered, to bring section 2(d) doctrinally into alliance with the standards of breach and justification that define section 2’s other guarantees.

For these reasons, section 2(d) differs from and, in certain respects, has been a lesser guarantee than section 2(b) and section 2(a). Still, it shares common bonds with section 2(b): here, as well, the Court has adopted a conception of the guarantee that is selective, (p. 747) and based on a particular view of what is valuable enough to warrant the Charter’s protection. Under section 2(d), it is labour union activity and, whatever one’s view may be of labour and the Charter, section 2(d)’s broader objectives and aspirations have regrettably become invisible as a result.

Section 2(d)’s history is idiosyncratic, and can be divided into periods marked by two landmark developments: the Labour Trilogy and Dunmore v Ontario.47 Between 1987 and 2001, the Trilogy governed, compromising section 2(d) through a narrow interpretation of the guarantee, with the result that a claim based on associational freedom succeeded just once in this period, and then only as a supplement to section 2(b).48 Beginning with Dunmore v Ontario in 2001, the Supreme Court began to retreat from the Trilogy, and by 2015 would overrule section 2(d)’s threshold precedents. Our brief consideration of this unusual jurisprudence focuses on the impact and significance of section 2(d)’s evolution, essentially, as a labour guarantee.

5. Labour Unions and Associational Freedom

In 1987, the Supreme Court issued a series of decisions on freedom of association which became known as the Labour Trilogy. The key landmark, the Alberta Reference, tested the constitutionality of a mandatory labour arbitration scheme, as well as a prohibition on public sector strikes. The majority result, that neither collective bargaining nor the right to strike is protected by the Charter, was resisted by a strong dissent which supported a generous conception of the guarantee and of labour union objectives under section 2(d).

Though the Court considered in abstract terms how freedom of association should be defined, its conception of section 2(d) was dominated by the labour context. The Alberta Reference’s plurality and concurring opinions revealed deep skepticism about the wisdom of constitutionalizing collective endeavours, in general, and labour union activities, in particular. No view of the guarantee attracted majority support, and Justice McIntyre’s sole concurrence, which provided an extended discussion of section 2(d), became the leading opinion. His view of associational freedom as an individual, and not a collective, entitlement, was challenged by Chief Justice Dickson’s forceful dissent, as well as by a host of academic commentators.49 In addition, the prevailing but contested (p. 748) view then and, for many years afterward, was that the courts should show almost complete deference to the legislatures on labour relations matters.50

The foundation for an alternative view of collective associational action and labour union activities is found in the Chief Justice’s Alberta Reference dissent. There, he spoke in emphatic terms of the valuable role trade unions have played as instruments of the public good: “while trade unions also fulfill other important social, political and charitable functions, collective bargaining remains vital to the capacity of individual employees to participate in ensuring fair wages, health and safety protections, and equitable and humane working conditions”.51 The Chief Justice’s approach to associational freedom endorsed collective purposes and the labour union imperative to empower workers and democratize the workplace; in the result he would have constitutionalized collective bargaining and the right to strike.52

In the years after the Labour Trilogy, a Court that was divided and apprehensive of section 2(d)’s implications for labour relations proved unable to agree on the meaning of associational freedom. Subsequent decisions went no further than to acknowledge a minimal definition protecting the right to form and maintain an association, and to undertake activities in association that are independently protected by other Charter guarantees.53 Albeit for different reasons, a majority of justices was reluctant to endorse a definition that would protect activity in association that can lawfully be undertaken by individuals. Under these conditions of doctrinal hardship, section 2(d) generated a modest jurisprudence in which few claims proceeded and those that did predictably failed.54

(p. 749) Starting in 2001, section 2(d) began to experience a reversal of jurisprudential fortune. In Dunmore v Ontario, the Court took a dramatic step away from its diffidence toward the guarantee by endorsing the Dickson dissent and its collective conception of the guarantee.55 Specifically, the Court held that excluding agricultural workers from the statutory framework for labour relations was unconstitutional because it violated the workers’ fundamental right to engage in meaningful associational activities. Though it stopped short of overruling the Trilogy and constitutionalizing collective bargaining, the Court stated that “certain union activities, such as making collective representations to the employers, adopting a majority political platform or federating with other unions, were central to freedom of association.”56 Not only did Dunmore validate a collective conception of section 2(d), it re-energized the relationship between labour and the Charter, and intimated that the Court might be prepared to reconsider the Trilogy.

In 2007, in Facilities Subsector Bargaining Association v British Columbia (“Health Services”), the Court dramatically overruled a core ruling of the Trilogy by declaring that collective bargaining is constitutionally protected.57 Health Services was a monumental decision, but one that tied section 2(d) more explicitly to the circumstances of labour activities, and although the outcome was applauded in many quarters, the resulting doctrine was anomalous. First, the Court failed to address section 2(d)’s status as a general guarantee, treating associational freedom and its requirements primarily as a function of labour relations. Second, to minimize the consequences for public sector bargaining, the Court stated that the content of section 2(d) is procedural rather than substantive in nature. Third, to further deter the constitutionalization of bargaining in this sector, Health Services qualified the entitlement by setting a substantial interference test to determine the question of breach under section 2(d).58 This standard is strict, and bears little resemblance to the analogous tests for expressive and religious freedom under section 2(b) and (a).59

The impact of Health Services was initially unclear but, after taking one step backward, the Court overruled precedent again in 2015, holding that the right to strike is protected by section 2(d).60 It is also significant, in our view, that Mounted Police (p. 750) Association of Ontario proposed a definition of associational freedom that applies outside the labour context. In doing so, the Court confirmed that section 2(d) extends to the right to join with others and form associations, the right to join with others in the pursuit of other constitutional rights, and the right to join with others to meet on more equal terms the power and strength of other groups or entities.61 We highlight the latter addition, which has the potential to expand the freedom of peaceful assembly and protect the right to protest and dissent in a meaningful way. The ability to join to make one’s message heard resonates in the labour context to support a right to real and meaningful collective bargaining and the right to strike as a tool of action. Though it has not yet been articulated or applied outside the labour context, this element of associational freedom can ground a right to engage in collective action such as boycott or peaceful demonstration.62 Still, and despite the promise of this definition, our lingering concern is that the focus on labour issues has distorted section 2(d); a standard of breach that is issue-specific and customized to the context of labour relations separates this guarantee from its analogues under section 2(b) and (a).

On the labour side, recognizing the right to strike as an element of freedom of association has changed the landscape of collective bargaining rights in Canada, and lower courts are moving on controversial labour issues to protect the rights of workers and unions.63 It is too early to predict how Charter supervision of labour relations in the public sector will evolve, whether the Supreme Court will maintain its pro-union stance, (p. 751) and how legislatures might respond. In explaining section 2(d)’s trajectory, we suggest that the lack of options for social and economic rights under other guarantees, such as section 15’s equality rights and section 7’s liberty and security entitlements, may have influenced the Court’s interpretation of associational freedom. It serves as a proxy or substitute for positive socio-economic rights, in part because labour unions historically have acted as agents of socio-economic change and equality. The Court’s support of the institutional capacity and actions of unions is consistent with an instrumental, or communitarian-based conception of freedom, and a focus on collective rather than individual objectives. It is also consistent, in broad terms, with the value section 2(b) assigns labour expression, the Court’s response to the question of compelled expression and association, and section 1’s reliance on a general conception of societal harm to uphold limits on expression.

On its face, section 2(d)’s guarantee of associational freedom is broad in scope. Whether the guarantee will play a more generous role in protecting associational freedom in other contexts is unknown at present. What matters at the level of methodology is a principled conception of freedom: one that protects the associational activities of labour unions, but other associations as well, and does so according to standards of breach and justification that are supported by sound and rigorous analysis.

6. Conclusion

This brief account of sections 2(b) and (d) has shown that the Charter’s concept of freedom under these guarantees is grounded in instrumental virtues, where the communitarian values identified by the Court predominate and define the scope of Charter protection. Under section 2(b), expression that threatens community values, including ideological, racist, homophobic, or discriminatory speech, is discounted under section 1. Meanwhile, and despite the gains for labour union activities, associational freedom is subject to unstable and ad hoc standards; in addition, the guarantee remains divisive within the Court and the jurisprudence has been characterized, from its inception, by a strong pattern of dissenting opinions. These dynamics make it difficult to predict section 2(d)’s pathway in the future.

The Charter’s protection of freedoms will always be subject to contextual considerations. Even so, the section 1 analysis is applied erratically to limit expression that is incompatible with community values. At the same time, the section 2(d) jurisprudence has identified labour unions and their activities as the main beneficiary of this guarantee, and up to now, has glossed over opportunities to deepen its concept of associational freedom, protect those who may be associating for undesirable purposes, or recognize freedom from forms of compelled association.64 To summarize, the Court’s section 2(b) (p. 752) and (d) jurisprudence is not governed by coherent and analytical standards applied in an even-handed way across issues and guarantees, but it is primarily a matter of balancing that is based on the Court’s assessment of expressive and associational values. To its credit, the Court took the unusual step of overruling the Trilogy and other section 2(d) precedents. That said, we do not expect the Court to undertake a reconceptualization of either guarantee. Despite the drawbacks we have discussed, the current concepts of expressive and associational freedom are likely to remain entrenched for the foreseeable future.

Looking ahead, it is also hard to predict the short term prospects for expressive and associational freedom. Section 2(b) has lost vitality, and has not generated a strong or positive precedent in some time. Despite regular and ongoing news headlines which confirm the visibility of expressive freedom issues, the section 2(b) jurisprudence is stalled. Section 2(d) is on a different trajectory, which will generate case law as courts and governments work through the implications of a constitutionalized labour relations scheme in public sector employment. We see room for cautious optimism that section 2(d) might offer a generous interpretation of associational freedom, in labour and other settings. As for section 2(b) and, quite apart from the jurisprudence, we observe that the Charter and its fundamental freedoms have had a clear and strong impact on public debate and discussion; moreover, these guarantees condition the work of legislatures and agencies at all levels of government and state action. In closing, we emphasize that the role of academic commentary in this process of evolution is to keep the principles at stake in protecting these fundamental freedoms at the forefront of discussion and debate.

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                                        Lavigne v OPSEU [1991] 2 SCR 211, 81 DLR (4th) 545.Find this resource:

                                          McAteer v. Canada (Attorney General) 2014 ONCA 578, 121 OR (3d) 1.Find this resource:

                                            Mounted Police Association of Ontario v Canada (Attorney General) 2015 SCC 1, [2015] 1 SCR.Find this resource:

                                              Najafi v Canada (Minister of Public Safety and Emergency Preparedness), [2013] FC 876.Find this resource:

                                                Pepsi-Cola Canada Beverages (West) Ltd v RWDSU Local 558 2002 SCC 8, [2002] 1 SCR 156.Find this resource:

                                                  OPSEU v Ontario (Ministry of Education), 2016 ONSC 2197.Find this resource:

                                                    R v Butler [1992] 1 SCR 452, 89 DLR (4th) 449.Find this resource:

                                                      R v Keegstra [1990] 3 SCR 697, 114 AR 81.Find this resource:

                                                        R v Lucas [1998] 1 SCR 439, 157 DLR (4th) 423.Find this resource:

                                                          R v Oakes [1986] 1 SCR 103, 53 OR (2d) 719.Find this resource:

                                                            R v Sharpe 2002 SCC 2, [2001] 1 SCR 45.Find this resource:

                                                              R v Zundel [1992] 2 SCR 731, 95 DLR (4th) 202.Find this resource:

                                                                Re Klein and Law Society of Upper Canada (1985) 50 OR (2d) 118, 16 DLR (4th) 498 (Div Ct).Find this resource:

                                                                  RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199, 127 DLR (4th) 1.Find this resource:

                                                                    RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573, 33 DLR (4th) 174.Find this resource:

                                                                      Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245.Find this resource:

                                                                        Stables v Canada (Minister of Citizenship & Immigration), [2011] FC 1319.Find this resource:

                                                                          UFCW, Local 401 v Alberta (Information and Privacy Commissioner) 2013 SCC 62, [2013] 3 SCR 733.Find this resource:

                                                                            Whatcott v Saskatchewan (Human Rights Tribunal) 2013 SCC 11, [2013] 1 SCR 467. (p. 754) Find this resource:

                                                                              Notes:

                                                                              (*) Professor, Osgoode Hall Law School, York University.

                                                                              (**) Full Professor, Common Law, Faculty of Law, University of Ottawa.

                                                                              (1) Canadian Charter of Rights and Freedoms, Pt 1 of the Constitution Act 1982, being Sch B to the Canada Act 1982 (UK), 1982, c 11 [hereinafter “Charter”].

                                                                              (2) Ibid, s 2 states: “Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; … and (d) freedom of association”.

                                                                              (3) The Supreme Court of Canada has decided more than 80 cases under s 2(b) and less than a third as many under s 2(d).

                                                                              (4) For a more comprehensive assessment of s 2(b) see Jamie Cameron, “A Reflection on Section 2(b)’s Quixotic Journey, 1982–2013” in Jamie Cameron & Sonia Lawrence (eds) Constitutional Cases 2011 (2012) 58 SCLR (2d) 163 http://sclr.journals.yorku.ca/index.php/sclr/article/view/36529/33194 28 April 2016.

                                                                              (5) Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927, 58 DLR (4th) 577, 968.

                                                                              (6) Mounted Police Association of Ontario v Canada (Attorney General) 2015 SCC 1, [2015] 1 SCR 3 [57].

                                                                              (7) Charter s 1 states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

                                                                              (8) See e.g. Re Klein and Law Society of Upper Canada (1985) 50 OR (2d) 118, 16 DLR (4th) 498 (Div Ct).

                                                                              (9) Irwin Toy above (n 5) 969 (stating that “[w]e cannot exclude human activity from the scope of guaranteed expressive activity on the basis of the content or meaning being conveyed”).

                                                                              (10) Ibid 978–979. But note that Irwin Toy excludes “violent forms of expression” from s 2(b) and added a purpose-effect step to the test for determining breaches of s 2(b). Both are problematic; on violent expression see infra note 34.

                                                                              (11) R v Oakes [1986] 1 SCR 103, 53 OR (2d) 719 (prescribing a complex two-step test, with three elements of proportionality, to determine the justifiability of reasonable limits under s 1). See the chapter by Charles-Maxime Panaccio in this Handbook.

                                                                              (12) Initially, the Court proposed different standards under s 1, depending on whether the state acted as the singular antagonist of the individual, which would attract strict review, or mediated competing interests or protected the vulnerable, which would invite a more deferential application of Oakes: Irwin Toy above (n 5) 993–995.

                                                                              (13) See Edmonton Journal v Alberta (Attorney General) [1989] 2 SCR 1326, 64 DLR (4th) 577 (introducing the contextual approach), and R v Keegstra [1990] 3 SCR 697, 114 AR 81 (developing a core-values test for expressive activity under s.1, which asks whether expression advances the pursuit of truth; participation in social and political decision-making; or individual self-fulfillment and human flourishing; Irwin Toy above (n 5) 976).

                                                                              (14) A partial list includes R v Keegstra, ibid (upholding hate propaganda provisions); Canada (Human Rights Commission) v Taylor [1990] 3 SCR 892, 75 DLR (4th) 577 (upholding human rights limits on expressive freedom); R v Butler [1992] 1 SCR 452, 89 DLR (4th) 449 and R v Sharpe 2002 SCC 2, [2001] 1 SCR 45 (upholding the criminalization of obscenity, pornography, and child pornography); and Hill v Church of Scientology [1995] 2 SCR 1130, 24 OR (3d) 865 and R v Lucas [1998] 1 SCR 439, 157 DLR (4th) 423 (refusing to protect defamatory statements). But see R v Zundel [1992] 2 SCR 731, 95 DLR (4th) 202 (invalidating a criminal prohibition against spreading false news).

                                                                              (15) For further comment see Cameron, “Quixotic Journey” above (n 4) 167–173; see also Jamie Cameron, “The Past, Present and Future of Expressive Freedom under the Charter” (1997) 35 OHLJ 1 (explaining and critiquing the introduction and establishment of the contextual approach).

                                                                              (16) See R v Butler above (n 14) (introducing the “reasoned apprehension of harm” standard); RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199, 127 DLR (4th) 1 [137] (stating that the “balance of probabilities may be established by the application of common sense to what is known”); and Harper v Canada 2004 SCC 33, [2004] 1 SCR 827 [88] (applying a deferential approach to Parliament’s legislation restricting political expression).

                                                                              (17) Harper v Canada, ibid [98] (stating, per the majority opinion, that “[s]urely, Parliament does not have to wait for the feared harm to occur before it can enact measures to prevent the possibility of the harm occurring”; emphasis added); see also R. v Bryan, [2007] 1 SCR 527 (upholding a temporary ban on publication of federal election results).

                                                                              (18) Compare RWDSU v Dolphin Delivery Ltd [1986] 2 SCR 573, 33 DLR (4th) 174; BCGEU v British Columbia (Attorney General) [1988] 2 SCR 214, 53 DLR (4th) 1 (upholding limits on picketing) and KMart Canada Ltd v UFCW Local 1518 [1999] 2 SCR 1083, 176 DLR (4th) 607; Pepsi-Cola Canada Beverages (West) Ltd v RWDSU Local 558 2002 SCC 8, [2002] 1 SCR 156; and UFCW, Local 401 v Alberta (Information and Privacy Commissioner) 2013 SCC 62, [2013] 3 SCR 733 (protecting labour activities under s. 2(b)).

                                                                              (19) R v Lucas above (n 14).

                                                                              (20) Ibid [2]–[6] (outlining the background to the demonstration).

                                                                              (21) Ibid [7]–[8] (providing the text on the placards).

                                                                              (22) RSC 1985 c C-46, ss 300, 301.

                                                                              (23) R v Lucas above (n 14); McLachlin and Major JJ dissenting in part (to acquit Mrs. Lucas).

                                                                              (24) Cory J described defamatory libel as “inimical to the core values” of s 2(b); as “so far removed” from those values as to merit “but scant protection”; and as having “negligible value” which “significantly reduces the burden of justification under s 1. Ibid [93], [94], [57].

                                                                              (25) Ibid [74].

                                                                              (26) Dozens of sex offence charges against members of the foster family were baseless, and it emerged that the officer and others were aware throughout that the problem was one of intra-familial sexual violence, not abuse by members of the foster family. See Kvellv Miazga 2009 SCC 51, [2009] 3 SCR 339 (action in malicious prosecution by the foster family against public officials, including the police officer who did not appeal an award against him at trial).

                                                                              (27) Whatcott v Saskatchewan (Human Rights Tribunal) 2013 SCC 11, [2013] 1 SCR 467 (upholding s 14(1)(b) of the Saskatchewan Human Rights Code but severing unconstitutional language, and concluding that although two flyers were discriminatory, two others were not). See Canada (Human Rights Commission) v Taylor above (n 14) upholding a human rights provision limiting expressive freedom by a 4-3 margin; R. v Keegstra above (n 13). More generally, the Court has recognized and enforced rights of access to public property for s. 2(b) purposes. See Ramsden v Peterborough (City) [1993] 2 SCR 1084 (recognizing that posters have historically been an effective and relatively inexpensive means of communicating political, cultural, and social information). ‘ See also Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139 (protecting section 2(b) leafleting at a public airport); and Greater Vancouver Transportation Authority v Canadian Federation of Students, [2009] SCR 295 (invalidating restrictions on political advertising on municipal buses).

                                                                              (28) Ibid [51] (stating that “[h]ate speech legislation is not aimed at discouraging repugnant or offensive ideas”).

                                                                              (29) Ibid [52], [11], [191] (discussing the potential to lead to discrimination).

                                                                              (30) Ibid [120], [114].

                                                                              (31) Ibid [132], [135].

                                                                              (32) Ibid.

                                                                              (33) R. v Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555. Section 83.01 (1) of the Criminal Code defines “terrorist activity” as … an act or omission, in or outside Canada, that is committed in whole or in part for a “political, religious or ideological purpose, objective or cause”.

                                                                              (34) Note also that the Supreme Court has excluded violence and threats of violence from the Charter, without defining the exclusions or providing a rationale. The vagueness, overbreadth, and potential chill of this approach is another worrying aspect of the s. 2(b) jurisprudence and of the decision in Khawaja.

                                                                              (35) Ibid. [79–80] (accepting generally that a chilling effect can be inferred from known facts and experience and concluding that such an inference is impossible in the case of the motive clause; emphasis added).

                                                                              (36) Ibid [81] [82] (stating, in particular, that there would only be a chilling effect on those having “cursory or incomplete” knowledge of the clause).

                                                                              (37) Ibid [83] (stating that the provision is clearly drafted in a manner “respectful of diversity” and does not encourage or allow targeting or stereotyping).

                                                                              (38) Lavigne v OPSEU [1991] 2 SCR 211, 81 DLR (4th) 545; all members of the panel rejected the s 2(b) claim and proposed a narrow test for freedom from compelled expression.

                                                                              (39) McAteer v Canada (Attorney General) 2014 ONCA 578, 121 OR (3d) 1; leave to appeal denied, 26 February 2015.

                                                                              (40) Bernard v Canada [2014] 1 S.C.R. 227.

                                                                              (41) Devine v. Quebec (Attorney General) [1988] 2 SCR 790; RJR-MacDonald v Canada above (n 16).

                                                                              (42) See Kmart, Pepsi-Cola, and Information and Privacy Commissioner above (n 19).

                                                                              (43) See e.g. Pepsi-Cola above (n 19) [33], [32], [67], [68] (stating that free expression is “particularly critical” in the labour context and declaring that picketing engages “one of the highest constitutional values”), and [37] (indicating that freedom of expression is the starting point and presumption, and warning that limits are only permitted where reasonable and demonstrably necessary).

                                                                              (44) A.L. Patchett & Sons Ltd. v Pacific Great Eastern Railway Co. [1959] SCR 271, 17 DLR (2d) 449 [276].

                                                                              (45) See Pepsi-Cola above (n 19) [106]. Otherwise under s. 2(b) see Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835; Canadian Broadcasting Corp., [1996] 3 SCR 480 (setting strong doctrinal standards on publication bans and open courtrooms to protect the open justice principle).

                                                                              (46) Harper, Bryan above (n 17).

                                                                              (47) Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313 [hereinafter the “Alberta Reference”]; PSAC v Canada, [1987] 1 SCR 424, 38 DLR (4th) 249; RWDSU v Saskatchewan, [1987] 1 SCR 460, 38 DLR (4th) 277 [hereinafter “the Labour Trilogy”]. Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016, 2001 SCC 94.

                                                                              (48) Libman v. Quebec, [1997] 3 SCR 569.

                                                                              (49) See Judy Fudge, “Labour Rights as Human Rights: Turning Slogans into Legal Claims” (2014) 37 Dalhousie Law Journal 601; Dianne Pothier, “Twenty Years of Labour Law and the Charter” (2002) 40 Osgoode Hal L.J. 369; Ravi Malhotra, “Karl Klare’s Vision of Democratization in the Workplace and the Contradictory Evolution of Labour Law Jurisprudence in the Supreme Court of Canada” (2014) 45 Ottawa Law Review 303; Brian Langille, “The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It” (2009) 54 McGill L.J. 177; Nitya Iyer “Disadvantaged Unions: The Merging ss. 2(d) and 15(1) of the Charter” (2005) 12 CLELJ 1; Patrick Macklem, “Developments in Employment Law: The 1990–91 Term” 3 Sup Ct L Rev (2d Ser) 227; Judy Fudge, “Labour, the New Constitution and Old Style Liberalism” (1988) 13 Queen’s L.J. 61; David Beatty & Steven Kennett, “Striking Back: Fighting Words, Social Protest and Political Participation in Free and Democratic Societies” (1988) 67 Can Bar Rev 573.

                                                                              (50) This view was shared by many commentators and governed the work of labour arbitrators and specialized tribunals. Under this view, courts are structurally more sympathetic to employers and to the protection of property rights than they are to workers’ rights. See Harry Arthurs, “Constitutionalizing the Right of Workers to Organize, Bargain and Strike: The Sight of One Shoulder Shrugging” (2010) 19 Social & Legal Studies 403–422 and Harry Arthurs, “Labour Law without the State” (1996) 46 University of Toronto Law Journal 1–45; Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto, Wall & Thompson, 1989).

                                                                              (51) Alberta Reference, above (n 47) [92].

                                                                              (52) Note that a collective approach to associational freedom is consistent with the Court’s interpretation of the Charter’s minority language rights and the Constitution’s entrenchment of Aboriginal rights.

                                                                              (53) See Professional Institute of the Public Service of Canada v Northwest Territories (Commissioner), [1990] 2 SCR 367, [1990] SCJ No 75 (per Sopinka J., proposing a four-point framework for s. 2(d) which was unable to attract majority support).

                                                                              (54) See, e.g., Black v Law Society of Alberta, [1989] 1 SCR 591 (invalidating restrictions on interprovincial law firm partnerships under s. 6, not s. 2(d)); R. v Skinner, [1990] 1 SCR 1235 (rejecting a s. 2(d) challenge to the Criminal Code’s solicitation provision); Professional Institute, above (n 53); Canadian Egg Marketing Agency v Richardson, [1998] 3 SCR 157 (rejecting a s. 2(d) challenge to the exclusion of some from an egg producers marketing scheme); Delisle v Canada, [1999] 2 SCR 989 (rejecting the claim that excluding the RCMP from the federal government’s labour relations scheme violated s. 2(d)); and Suresh v Canada, [2002] 1 SCR 1 (rejecting a s. 2(d) challenge to deportation provisions).

                                                                              (55) Dunmore above (n 47).

                                                                              (56) Ibid [17].

                                                                              (57) Health Services and Support—Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 (stating, [2], that s. 2(d) “protects the capacity of members of labour unions to engage in collective bargaining on workplace issues”).

                                                                              (58) For a comment see J. Cameron, “Due Process, Collective Bargaining, and s. 2(d) of the Charter: A Comment on BC Health Services”, 13 CLELJ 233.

                                                                              (59) For s. 2(a), see, e.g., Hutterian Brethren of Wilson Colony v Alberta, 2009 SCC 37, [2009] 2 SCR 567 [32], 310 DLR (4th) 193.

                                                                              (60) The step backward was Fraser v Ontario (Attorney General), 2011 SCC 20, [2011] 2 SCR 3 (applying an impossibility test to reject the s. 2(d) claim in the next collective bargaining case after BC Health Services). See Steven Barrett, “The Supreme Court of Canada’s Decision in Fraser: Stepping Forward, Backward or Sideways” (2012) 16 Canadian Lab & Emp LJ 331 at 338.] See also the essays collected in Fay Faraday, Judy Fudge & Eric Tucker (eds), Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (Toronto: Irwin Law, 2012). The 2015 decisions are Mounted Police Association of Ontario v Canada (A.G.), 2015 SCC 1 (overruling Delisle, above (n 6), and declaring the exclusion of RCMP officers from the federal labour relations scheme unconstitutional); and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245 (constitutionally protecting the right to strike).

                                                                              (61) [66] and [47–66] [emphasis added].

                                                                              (62) See Daishowa Inc. v Friends of the Lubicon, (1998) 39 O.R. (3d) 620, where the court denied a permanent injunction to stop picketing designed to educate the public about a dispute between a commercial enterprise and the Lubicon Cree and to induce consumers to boycott the products from this commercial enterprise. The court considered that s. 2(b) protects consumer boycotts.

                                                                              (63) See Canadian Union of Postal Workers v Her Majesty in Right of Canada, (2016) ONSC 418 (CanLII), http://canlii.ca/t/gpq4z, (2016) 130 OR (3d) 175 where the Ontario Superior Court issued a retroactive declaration striking down the Restoring Mail Delivery for Canadians Act which sought to oblige postal workers to go back to work. The Court considered that the legislative abrogation of the right to strike interfered with the collective bargaining process in a substantial way and violated s. 2(d). The violation could not be saved under s. 1 since the Act did not provide for a fair, independent, and impartial process to resolve the labour relations impasse and determine unilaterally the issue of wage increases. Similarly, in OPSEU v Ontario (Ministry of Education), 2016 ONSC 2197, the Ontario Superior Court concluded that the process followed by the Ontario government with the teachers’ unions represented a substantial violation of the right to collective bargaining and of s. 2(d)), which could not be saved under section 1 because it was unfair and arbitrary. It concluded that the legislative enactment which established a process to potentially remove the right to strike was also a substantial interference with s. 2(d).

                                                                              (64) Najafi v Canada (Minister of Public Safety and Emergency Preparedness), [2013] FC 876 where the court finds that membership in a protest party in Iran (the Kurdish Democratic Party of Iran) is not protected under the freedom of association and can lead to deportation. See also Stables v Canada (Minister of Citizenship & Immigration), [2011] FC 1319 where the court refused to recognize membership in Hell’s Angels as a protected form of association and proceeded to deport a man who had lived in Canada for 40 years.