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Supreme Court Law Review (Forthcoming)


Part of a collection of papers on section 2’s “forgotten freedoms” (forthcoming (2020), 100 S.C.L.R.(2d)), “Big M’s Forgotten Legacy of Freedom” returns to the Supreme Court of Canada’s foundational concept of freedom as the absence of coercion or constraint. That early and important legacy of freedom under the Charter failed to inspire and influence the evolution of section 2, especially section 2(b)’s guarantee of expressive freedom and section 2(d)’s guarantee of associational freedom. This paper both claims and demonstrates that section 2’s fundamental freedoms have been less meaningful as a result. In doing so, it places emphasis on section 2(b) and its legacy of limits, rather than freedom, and section 2(d) and its legacy of relative failure, except – and only recently – for labour union claims. After more than thirty-five years, the section 2 jurisprudence lacks a fundamental conception of freedom and theory of section 2 constitutionalism. Big M provides a starting point in working toward those goals.

Jamie.BigM.forgotten.legacy.pdf (450 kB)
pre-print version.