Section 2(d) – Freedom of association
2. Everyone has the following fundamental freedoms:
- freedom of association.
Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: section 1(e) of the Canadian Bill of Rights; article 22 of the International Covenant on Civil and Political Rights; Article 8 of the International Covenant on Economic Social and Cultural Rights; articles 1-11 of the International Labour Organization Convention No. 87 – Freedom of Association and Protection of the Right to Organize; article 22 of the American Declaration of the Rights and Duties of Man; and Article 45(c) of the Charter of the Organization of American States.
See also the following international, regional and comparative law instruments that are not legally binding on Canada but include Similar provisions: article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and article 16 of the American Convention on Human Rights. While freedom of association is not explicitly set out in the Constitution of the United States of America, it has long been held to be implicit in the First Amendment’s protection of freedom of speech, assembly and petition. With respect to collective bargaining, see International Labour Organization Convention No. 98 concerning the application of the principles of the right to organise and to bargain collectively.
Freedom of association is intended to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of their ends (Mounted Police Association of Ontario v. Canada, 2015 SCC 1 (“ MPAO”) at paragraph 54). It protects the collective action of individuals in pursuit of their common goals (Lavigne v. Ontario Public Service Employees Union,  2 S.C.R. 211 at 253). It functions to protect individuals against more powerful entities, thus empowering vulnerable groups and helping them work to right imbalances in society (MPAO, supra, at paragraph 58). It allows the achievement of individual potential through interpersonal relationships and collective action (Dunmore v. Ontario (Attorney General),  3 S.C.R. 1016 at paragraph 17).
1. Scope of freedom of association
The Supreme Court of Canada’s approach to freedom of association has undergone significant revision, starting with Dunmore v. Ontario,  3 S.C.R. 1016 and Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia,  2 S.C.R. 391 (“ Health Services”). Caution should therefore be exercised in relying on case law which predates this jurisprudence. This applies particularly to pre-2001 decisions in the labour relations context on the “freedom to associate” (as opposed to the freedom from compelled association) – most of which have been overturned (e.g., the so-called “Labour Trilogy” (Reference Re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313; P.S.A.C. v. Canada,  1 S.C.R. 424; R.W.D.S.U. v. Saskatchewan,  1 S.C.R. 460) as well as Professional Institute of the Public Service of Canada v. Northwest Territories,  2 S.C.R. 367 and Delisle v. Canada,  2 S.C.R. 989). However, it also applies to decisions outside the labour relations context, such as Canadian Egg Marketing Agency v. Richardson,  3 S.C.R. 157 (“ C.E.M.A.”), at paragraphs 105, 111, where the Court had held that only the “associational aspect” of an activity and not the activity itself are protected under section 2(d). In MPAO, supra, at paragraph 41, the Court described C.E.M.A. as applying a “narrow” view of freedom of association.
Freedom of association protects three classes of activities: (1) the “constitutive” right to join with others and form associations; (2) the “derivative” right to join with others in the pursuit of other constitutional rights; and (3) the “purposive” right to join with others to meet on more equal terms the power and strength of other groups or entities. Under the constitutive right, the state is prohibited from interfering with individuals meeting or forming associations, but is permitted to interfere with the activities pursued by an association. The derivative right protects associations’ activities that specifically relate to other constitutional freedoms, but does not protect other activities of the association. The purposive right protects associations’ activities, including collective bargaining and striking, that enable individuals who are vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact or conflict (MPAO, supra, paragraphs 52-54, 66).
Freedom of association is not merely a bundle of individual rights but collective rights which inhere in associations (MPAO, paragraph 62). Section 2(d) does not just protect activities which are capable of performance by individuals, as there are certain collective activities (e.g., singing in harmony) which are inconceivable at the individual level (Dunmore, supra at paragraphs 16-17; Health Services, supra at paragraphs 27-28).
Section 2(d) does not protect an association’s activities that are aimed at enhancing social imbalances. Associational activity that constitutes violence is also not protected by section 2(d) (MPAO, supra, at paragraph 59).
(ii) Freedom from compelled association
Section 2(d) encompasses what has been called a “negative aspect”, a “freedom not to associate” or a “freedom from compelled (or ‘forced’) association”. However, section 2(d) is not a constitutional right to isolation. It does not protect against all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of membership in a modern democratic community (Bernard v. Canada,  1 SCR 227 at paragraph 38). Some forms of association are an unavoidable aspect of life (e.g., family, work, association with the government and its programs and policies). Compelled association in the form of legal obligations arising from these unavoidable types of associations does not in and of itself offend section 2(d) (Lavigne, supra at 320-21; R. v. Advance Cutting & Coring Ltd.,  3 S.C.R. 209 (“ Advance Cutting”), at paragraphs 19, 194, 223, 232).
The Court has thus determined that there is a threshold issue in determining whether there is an infringement of the freedom from compelled association. Courts must consider whether it is appropriate for the legislature to require persons with similar interests in a particular area to become part of a single group to foster those interests (for example, to require employees in a particular workplace to pay dues to a union). In other words, one must first be satisfied that the compelled combining of efforts towards a common end is required to further the collective social welfare. Where such a combining of efforts is required, and where the government is acting with respect to individuals whose association is already “compelled by the facts of life”, the individual’s freedom of association will not be limited unless there is a danger to a specific liberty interest (described below). This approach only applies, however, so long as the association is acting in furtherance of the cause which justified its creation (Lavigne, supra at 328-29; Advance Cutting, supra at paragraphs 196, 285).
Forced association threatens an identified liberty interest when there is: imposition of a form of ideological conformity on the claimant; (Advance Cutting, supra at paragraphs 19, 195, 196, 220; Lavigne, supra at pages 328-29); government establishment of, or support for, particular political causes; impairment of individual freedom to join or associate with causes of his or her choosing; and personal identification of an individual with causes which he or she does not support (Lavigne, supra at pages 328-29).
(iii) Underinclusive government action / positive government obligation
As the Charter applies only to governmental actors and actions (section 32), legislatures are normally not required to legislate in respect of private interference with freedom of association. However, in exceptional circumstances, legislation designed to foster freedom of association may exclude categories of individuals — for example, as in Dunmore, the exclusion of agricultural workers from a labour relations statute. Such “underinclusive” legislation may thus affirmatively permit private actors (e.g., agricultural employers) to interfere with associational activity and thereby substantially orchestrate, encourage or sustain this private violation of freedom of association. In considering whether underinclusion limits freedom of association, the Court in Dunmore set out three considerations: (1) the claim of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime; (2) claimants must establish, based on a proper evidentiary foundation, that exclusion from a statutory regime permits a substantial interference with the exercise of protected associational activity (the claimant must be seeking more than a particular channel for exercising his or her fundamental freedoms); and (3) there must be a minimum degree of state action (in other words, it must be shown that the state can truly be held accountable for any inability to exercise a fundamental freedom) (Dunmore, supra at paragraphs 22-26). This does not mean that there is a constitutional right to protective legislation per se. On their own, the above principles do not oblige the state to act where it has not already legislated in respect of a certain area. (Dunmore, supra at paragraphs 22-26, 29; Health Services, supra at paragraph 34).
It is unclear whether the three-part Dunmore test remains good law. It has not been applied by the Court since Baier v. Alberta,  2 SCR 673 (a freedom of expression case). The Court explicitly declined to apply it in Ontario v. Criminal Lawyers' Association,  1 SCR 815 at paragraph 31, another freedom of expression case. Despite the apparently exceptional nature of section 2(d) being used to impose positive obligations on government, the Supreme Court in Ontario v. Fraser,  2 SCR 3, found that workers who are “incapable of exercising their right to collective bargaining” have a “right against the state” when it fails “to impose statutory obligations on employers” (paragraph 73). The Court does not even mention the Dunmore test.
2. Trade unions
(i) Protection for trade union activities, including collective bargaining and striking
The freedom to organize an employee association lies at the heart of the protection of freedom of association (Dunmore, supra at paragraph 37).
Freedom of association guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals, which includes a right to collective bargaining. That right is one that guarantees a process but does not guarantee an outcome or access to a particular model of labour relations (MPAO, supra, at paragraph 67; Health Services, supra at paragraphs 19, 91; Fraser, supra at paragraphs 33, 41-42). The right to a process of collective bargaining means that employees have the right to unite, to present demands to the employer collectively and to engage in discussions in an attempt to achieve workplace-related goals. It imposes duties on government employers (and, perhaps, on the state with respect to employers generally (see discussion of positive obligations after Fraser, above)) to agree to meet and discuss with employees who have presented demands collectively to the employer. It also places constraints on the exercise of legislative powers in respect of the right to collective bargaining (Health Services, supra, at paragraphs 19, 88, 89, 91).
A meaningful process of collective bargaining also requires the ability of employees to participate in the collective withdrawal of services (i.e., to strike) where good-faith negotiations break down (Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“ SFL”) at paragraph 75).
In concluding that freedom of association includes the right to a meaningful collective bargaining process, which in turn includes the right to strike, the Court has explicitly overturned the “Labour Trilogy”, supra, as well as PlPSC, supra, Delisle, supra, and the conclusion in Dunmore, supra, that section 2(d) does not protect collective bargaining.
In determining whether the right to a process of collective bargaining has been infringed, the courts assess whether the measure disrupts the balance of power between employees and employer necessary to ensure the meaningful pursuit of workplace goals so as to “substantially interfere” with meaningful collective bargaining. Such disruption can occur in many ways: restriction on the subjects that may be discussed, the imposition of arbitrary outcomes, banning recourse to collective action without countervailing protection, making employee workplace goals impossible to achieve or establishing a process which employees cannot effectively control or influence. Substantial interference with collective bargaining negates the employees’ right to meaningful freedom of association by rendering their collective efforts pointless, which encourages the view that future associational activity would be similarly futile. The analysis is contextual and varies with the industry culture and workplace in question (MPAO, supra, at paragraphs 71, 72, 93; Health Services, supra at paragraphs 90, 92; British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49, allowing the appeal from 2015 BCCA 184 “substantially for the reasons” of the dissent (“ BCTF”). See paragraphs 284-85, 311, 385 (these and subsequent references to BCTF are to the dissenting judgment in the BCCA)).
In Fraser, the Court articulated the test as whether a measure makes it “effectively impossible” to meaningfully associate to achieve workplace goals, thus rendering the association effectively useless by negating its very purpose (Fraser, supra at paragraphs 33, 45-47, 54). In MPAO, the Court retreated from this articulation, finding instead that the “substantial interference” test is the one that governs (MPAO, supra, at paragraphs 74-77).
In MPAO, the Court found that the specific exclusion of RCMP members from collective bargaining legislation in the federal public service had an unconstitutional purpose. This exclusion derived from a lengthy history of efforts to prevent RCMP members from engaging in collective bargaining.
Collective bargaining is more than the mere right to make representations; instead, a “meaningful” process of collective bargaining under section 2(d) requires employers to consider and discuss those representations in good faith (Fraser, supra at paragraphs 2, 40, 51, 54, 90, 92, 106; BCTF, paragraph 286).
While section 2(d) does not guarantee access to a particular labour relations model, it would seem to provide access to a mechanism to resolve bargaining impasses — either strikes or a meaningful substitute under section 1 such as arbitration (SFL, paragraph 93, which seems to implicitly reverse the contrary holding in Fraser, supra at paragraph 47). It also guarantees a collective bargaining process with a sufficient degree of choice and independence from management to permit employees to determine their collective interests and meaningfully pursue them. Choice and independence are not absolute, however. The degree of choice is one which enables employees to have effective input into the selection of the collective goals to be advanced by their association. The degree of independence is one which ensures that the activities of the association are aligned with the interests of its members (MPAO, paragraphs 81, 83).
Section 2(d) can also protect against a legislative alteration of a collective agreement. The overall question is whether there is a sufficient “disruption” of the balance of power between employees and employer necessary to ensure the meaningful pursuit of workplace goals so as to “substantially interfere” with meaningful collective bargaining. In making this assessment, the courts may consider:
- the importance of the matter affected to the process of collective bargaining and, more specifically, to the capacity of union members to come together and pursue collective goals in concert (Health Services, supra at paragraphs 93-97);
- the nature of restrictions on the subjects that may be discussed (MPAO, paragraph 72);
- whether “arbitrary” outcomes or “radical changes” have been imposed (MPAO, paragraph 72; Meredith v. Canada, 2015 SCC 2 at paragraph 28);
- the degree to which measures are consistent with agreements reached between the employer and other bargaining agents (Meredith, supra, at paragraph 28);
- the manner in which the measure impacts on the collective right to good faith negotiation and consultation and whether the law or government action has respected the duty to consult and negotiate in good faith, including good-faith consultation with the union prior to introduction of the measure where the union has had the opportunity to meaningfully influence the changes, on bargaining terms of approximate equality (Health Services, supra at paragraphs 93-97, 129; BCTF, paragraphs 287-91);
- whether any legislative alteration of a collective agreement followed an impasse after good-faith consultation or whether the consultation was treated as merely a “formality” (BCTF, paragraph 311); and
- the degree to which the measure precludes or limits collective bargaining or consultation in the future (Fraser, supra, at paragraphs 34, 37, 76; Meredith, supra, at paragraphs 28-29).
The Charter prohibits abuse of any power imbalance by the government and thus requires the court to engage in a sufficiently probing analysis of the government’s actions and positions to determine whether there has been good-faith consultation. Good-faith requires the parties to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other party. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground. Parties are permitted, however, to engage in hard bargaining, where they adopt a tough position hoping to force the other side to agree to their terms. (BCTF, paragraphs 292, 348; Health Services, paragraph 103).
Fraser explicitly acknowledges that there are circumstances under which labour contracts can be interfered with by legislation (paragraph 76).
Freedom of association directly protects government employees against any interference by management in the establishment of an employee association, independent of any legislative framework (Delisle, supra at paragraphs 10, 32, Dunmore, supra, at paragraph 41).
In Dunmore, the Supreme Court found that the failure to provide agricultural workers with legislative protections for the right to organize and to present submissions to employers offended section 2(d) because it substantially interfered with these workers’ fundamental freedom to organize an employee association. The decision was based on a strong evidentiary record that agricultural workers were unable to form employee associations and that their exclusion from legislative protection reinforced this inability (Dunmore, supra at paragraphs 35-48). In Fraser, the Court examined the legislature’s response to Dunmore and found that the replacement legislation by implication required employers in the agricultural sector to consider employee representations in good faith. The statute therefore provided for meaningful exercise of free association in the workplace and did not limit section 2(d). The evidence established that the union had not made significant attempts to make the process under the statute work. The process had not been “fully explored and tested”. The Tribunal established under the legislation — which had not been engaged by the union – would be expected to interpret its powers in an effective and meaningful way to address alleged failures by employers to bargain in good faith (Fraser, supra at paragraphs 101, 106, 109, 112).
The Supreme Court found a violation of the right to collective bargaining where certain provisions of a British Columbia statute (dealing with contracting out, layoffs and bumping rights) invalidated existing collective agreement provisions and prohibited future collective bargaining on specific issues. These matters were of sufficient importance to union members and the interference was a substantial one, as the statute denied any possibility of consultation with the union on these issues (Health Services, supra at paragraphs 151-60).
A violation was also found in BCTF, where the trial judge had found as a fact that the Province began the consultation process intending to re-enact provisions already found to be unconstitutional, hoping that the consultation would cure the unconstitutionality. Its mind was made up. For a substantial portion of the consultation period, the Province refused to answer the union’s requests to explain its position. It did not even read the substance of the union’s proposal. The Province was therefore not consulting in good faith (BCTF, paragraphs 372-73).
(ii) Freedom from compelled association and union security provisions
Compelling the employer to disclose an employee’s home contact information to a union so as to permit the union to carry out its representational obligations does not engage the employee’s freedom from compelled association (Bernard, supra, at paragraph 37).
Compelling an employee who is not a member of the trade union to pay union dues for the purpose of collective bargaining does not limit section 2(d) (Bernard, supra, at paragraphs 38-39; Lavigne, supra, at page 329). However, where those dues are used by the union to contribute to social or political causes beyond the immediate concerns of collective bargaining, a plurality of the Court has found a violation of section 2(d), albeit one that was saved under section 1. When forced association extends into areas outside the realm of common interest that justified the creation of the group, it interferes with the individual's right to refrain from association (Lavigne, supra at pages 332-33).
A legislative requirement that employees in the Québec construction industry be a member of one of five unions has been found constitutional. A plurality of a divided Court found that the law did not impose much more than the bare obligation to belong to a union and did not impose a form of ideological conformity or otherwise threaten a liberty interest protected by the Charter (Advance Cutting, supra at paragraphs 218, 232).
3. Other types of association
A provision in the Canada Elections Act which prohibited a third party (e.g., an interest group) from circumventing election spending limits by splitting itself into two or more third parties did not limit section 2(d). The provision did not prevent individuals from joining to form an association in the pursuit of a collective goal. Rather, it merely precluded an individual or group from undertaking an activity, namely circumventing the third party election advertising limits (Harper v. Canada (Attorney General),  1 S.C.R. 827, at paragraphs 126-27).
Provisions in Québec’s Referendum Act which significantly restricted the ability of an individual or group to promote or oppose a referendum option were found to unjustifiably limit section 2(d). In particular, the Act required an individual or group to affiliate with a national committee supporting the same referendum option in order to be able to incur most types of expenses to support that option. Freedom of association includes the exercise in association of the constitutional rights and freedoms of individuals. The legislation restricted the freedom of expression of both individuals and groups and, accordingly, unjustifiably limited freedom of association (Libman v. Quebec (Attorney General),  3 S.C.R. 569, at paragraphs 36, 37).
The requirement to participate in an egg marketing scheme does not offend the freedom of association of egg producers. To decide otherwise has the potential to constitutionalize all commercial relationships under the rubric of freedom of association, as there is no trade or profession that can be exercised entirely by oneself. It would arguably mean that all forms of government regulation of the economy affecting the ability of individuals to trade would, at least prima facie, infringe section 2(d) and require justification under section 1 (C.E.M.A., supra, at paragraph 109; query whether this analysis might change in light of the Court’s subsequent characterization of C.E.M.A. as applying a “narrow view of freedom of association” (MPAO, paragraph 41)).
The Criminal Code prohibition against communication for the purposes of engaging in prostitution does not offend freedom of association. The target of the legislation is expressive conduct, not association. Most limitations on expression have the effect of limiting the possibilities for human association. All limitations on commercial expression will have the effect of limiting the possibilities for commercial transactions. The mere fact that legislation limits the possibility of commercial activities or agreements is not sufficient to show an interference with freedom of association (R. v. Skinner,  1 S.C.R. 1235 at pages 1244-45).
(iii) Intimate relationships
The Criminal Code prohibition against communication for the purposes of engaging in prostitution does not offend freedom of association. The legislation is directed at communicating in a public place for the purposes of engaging in prostitution. It is true that such communication or solicitation is aimed at either a prostitute or a potential customer and that the expressive activity is meant to lead to an exchange of sex for money. That exchange or sale requires the involvement of another party, and contemplates as the final objective the “association” of the individuals in some form of sexual activity. The target of the impugned legislation, however, is expressive activity of a commercial nature. It does not attack conduct of an associational nature (Skinner, supra, at pages 1243-44).
(iv) Family relationships
Several cases have found that freedom of association does not apply to associations between family members. The desire of one family member to associate with another is not so much for the purpose of pursuing goals in common, nor even pursuing activities in common, as it is merely because they are members of a family. For example, a parent and child may associate for an economic goal, but the motivation comes from their relationship, rather than a relationship being created because of the economic motivation. The desire of a parent to be with a child has no goal or purpose like that of associations for economic, political, religious, social, charitable or even entertainment purposes (Catholic Children's Aid Society of Metropolitan Toronto v. S.(T.) (1989), 69 O.R. (2d) 189 (C.A.)).
(v) Associations involving violence
Freedom of association is not infringed by the Minister’s discretion under the Immigration Act to deport an individual who has been engaged in terrorism or who is a member of a terrorist organization. Such conduct, interpreted properly by the Minister, would not attract constitutional protection because it would be conduct associated with violent activity. Persons associated with terrorism or terrorist organizations are or have been associated with things directed at violence, if not violence itself. So long as the Minister exercises his or her discretion in accordance with the Act, there will be no sections 2(b) or (d) Charter violation. (Suresh v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3 at paragraphs 105, 108; see also MPAO, supra, at paragraph 59 (“associational activity that constitutes violence is not protected by section 2(d)”))
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