gp court opts for narrow view on freedom

By PETER CALAMAI
Suutham News

OTTAWA — Trade unionists lost something
Thursday they never had — a constitutionally
entrenched right to collective bargaining and a
right to strike.

But that same ruling by the Supreme Court
Whittled away a new fundamental freedom that
Canadians didn't yet even appreciate — the
right to tuke active part in something mure pow-
erful than just a collection of individuais,

That something is an association, The Charter
of Kights and Freedoms specifically guarantees
that “everyone” has the fundamental freedom
vl ussuciulion.

Churilics, pressure groups, social clubs, politi-

cal parties — all these are assoviations. One
view of freedom of association says it guaran-
tees only the freedom to join such groups. An-
uther view says the freedom guaranteed is both
joining and undertaking collective activities.

By a 4-2 split. the Supreme Court has opted for
the first, niggardly, formalist approach over the
second. more sweeping interpretation.

And three judues of the majority did so be-
cause of fears only hinted at.

The concept of freedom of association, wrote
Mr. Justice Gerald LeDain for the fearful trio,
applies not only to trade unions but to a wide
range of organizations with a wide range of pur-
puse und activities. “Il is in this larger perspec-
tive... that one must consider the implications

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ing for the mid-point on the
range.

- Freedom of association means
people may legally do together the
same things they may legally do in-
dividually. If it is legal to golf as an
individual, says McIntyre, then the
state can't pass laws saying pairs
we rmitted but not foursomes.

S$ more important to McIn-
tyremassociations give a collective
existence to other fundamental

‘freedoms — freedom of religion for
individuals becomes collectively a
congregation. Freedom of speech,
a political party. Freedom of ex-
pression, a picket line.

Chief Justice Brian Dickson, sup-
ported by Madam Justice Bertha
Wilson, agreed with this two-
pronged definition of freedom of
association. But the comparison
between groups and individuals
doesn't always work, he warns,
breaking from the McIntyre view.

. “There is no individual equiva-
lent to a strike. The refusal to work
by one individual does not parallel
a collective refusal to work. The
latter is qualitatively rather than
quantitatively different.”

If legislation or state action tries
to ban group conduct simply be-
cause it is group conduct, then that
very thrust violates the guarantee
of freedom of association. Laws
banning collective bargaining or
strikes automatically infringe free-
dom of association and must be jus-

tified as reasonable limits by the
state.

In Dickson's view, Alberta went
overboard in banning strikes by all
government employees und every
hospital worker, including garden-
ers, since not all were essential.
And while police and firefighters
are essential, the province didn’t
ae a fair arbitration proce-

ure.

The court's majority doesn’t
apply this balancing test because
they never get beyond the dry, for-
mailistic definition of freedom of
association as protecting status as
a group member but not actions.

The trio’s definition, says Dick-
son, would mean that legislatures
couldn't prohibit marriage for cer-
tain classes of people but could ban
the same people from cohabiiing or
raising children together.

“If freedom of association only
protects the joining together of per-
sons for common purposes, but not
the pursuit of the very activities for
which the association is formed,
then the freedom is indeed legalis-
tic, ungenerous, indeed vapid,”
wrote the dissenting chief justice.

Historically, principled dissents
have roused governments and citi-
zens to amend inadequate laws.
Here, two justices are warning
Canadians that a fundamental free-
dom has just been whittled away by
the Supreme Court of Canada.

oO the Vancouver Sun, April 11, 1987, Page Bl.

of extending a constitutional guarantee, under
the concept of freedom of association, to the
right to engage in particular activity on the
ground that the activity is essential to give an
associution meaningful existence."

What implications? What frightful activities
might claim constitutional protection? The
three justices don't say. After 22 months of delib-
eralion, the largest faction on the court deli-
vered its total wisdom in only four long para-
graphs.

The trio sided with a fourth judge, William
McIntyre, who reviewed in detail six possible
definitions of freedom of association before upt-

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