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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