A Moral Reconstruction of Freedom of Association in Canada

In 1987, the Supreme Court of Canada rejected arguments that the freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms (hereafter, the Charter) protected a positive right to bargain collectively over working conditions. Between 1987 and 2007, the Supreme Court's jurisprudence on freedom of association was marked by certain tensions. In particular, the Court rejected arguments that freedom of association could have a collective dimension. In addition, the Court adopted a so-called negative approach to freedom of association, stating that section 2(d) of the Charter could not be used to create obligations for the state. The idea that freedom of association conferred negative (as opposed to positive) individual protection against state interference is typical of a liberal view of rights and freedoms. However, in 2007, in Health Services, the Supreme Court relied on underlying Charter values (specifically autonomy, liberty, equality, democracy and dignity) to extend constitutional protection to the right to collective bargaining. In 2015, this constitutional protection was extended to the right to strike. The use of moral values in constitutional adjudication is widespread. In Canada, Charter values are used both to interpret Charter provisions and to weigh competing rights, notably in the proportionality exercise under section 1 of the Charter. Using moral reconstruction as a methodological approach, this thesis examines the use of the values identified in Health Services throughout the Supreme Court's body of case law. From these values, the thesis develops a so-called republican reconstruction of freedom of association. While liberalism emphasises the freedom of the individual from the state, republicanism aims to ensure non-domination in both the private and public spheres. Equality, when considered from a republican perspective, becomes relational equality. Republicanism is particularly relevant to labour law, which is based on a relationship of subordination identified by republican theorists as a relationship of domination. The final chapter of the thesis explores alternative models for protecting republican freedom in the workplace.

Grantor dc:publisher

Université d'Ottawa / University of Ottawa

Year dc:date

2023

Author dc:creator

• Talarico, Andrea

Contributors dc:contributor

• Panaccio, Charles-Maxime
• MacDonnell, Vanessa

• freedom of association
• collective bargaining
• right to strike
• liberalism
• republicanism
• moral reconstruction
• Charter values

Statement dc:rights

• Attribution-NoDerivatives 4.0 International

Licence

• http://creativecommons.org/licenses/by-nd/4.0/

Language dc:language

en

Identifier

http://dx.doi.org/10.20381/ruor-29401

OAI identifier oai:identifier

oai:ruor.uottawa.ca:10393/45195