B.C. Health Services represents a revolution in the Supreme Court’s thinking about section 2(d). The Court has done more than reject the conclusion in its earlier cases that collective bargaining does not enjoy Charter protection. Rather, the jurisprudential underpinning for the Court’s approach to section 2(d) has been dismantled on the ground that it was too “decontextualized”. This represents a departure from a “neutral” approach to section 2(d) that refrains from privileging some associations over others. Contrary to the Court’s assertions in B.C. Health Services, the neutral approach was grounded in the purposes and values underlying the guarantee of freedom of association. The writer submits that the new “contextualized” approach — under which the Court recites a variety of contingent factors that, it claims, favour the constitutional protection of collective bargaining —appears to be no more than a licence to the judiciary, under the rubric of protecting freedom of association, to grant constitutional protection to particular activities or objects pursued in concert by particular groups. The result is an approach to section 2(d) that looks not to the values underlying the constitutional protection of associating itself, but instead to the judiciary’s value judgments about the particular activities, objects or groups for which Charter protection is sought. Quite apart from raising issues of legitimacy, the substitution of a context-driven analysis in place of a principled the ory of section 2(d) leads to considerable legal uncertainty. The practical implications of B.C. Health Services are no less troubling. of particular concern is the elevation of actual and potential collective agreements to constitutional status, with the result that privately negotiated deals, and even unexpressed negotiating intentions, can trump the expression of public policy through legislation. Neither the Court’s reliance on a process/substance distinction in articulating the collective bargaining right, nor its approach to section 1, adequately addresses this concern.
Basu, Robin K..
"Revolution and Aftermath: B.C. Health Services and Its Implications."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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