The Legal Structure of Freedom of Association

52 Pages Posted: 20 Nov 2013 Last revised: 3 Apr 2015

See all articles by Brian A. Langille

Brian A. Langille

University of Toronto - Faculty of Law

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP

Date Written: November 17, 2013

Abstract

This essay seeks to set out a clear view of the legal structure of freedom of association in Canada. It takes the ideas of legality and legal grammar seriously and argues that current Canadian constitutional labour law is in a state of legal disarray because our leading cases fail to do so. In a series of very important decisions, the most recent of which is Fraser v Ontario, the Supreme Court of Canada has set about articulating a new interpretation of s 2(d) – the constitutional guarantee of freedom of association. But its effort to create a new and richer narrative of s 2(d) has been undermined by its failure to attend to the legal grammar necessary to articulate it in legal terms. As a result, our account of freedom of association is now incoherent and fails to live up to our constitutional commitments. Clearer thinking about legal grammar will not construct our new interpretation of s 2(d) for us – but it will remove one very real and present barrier to our progress toward that goal. This essay tries to clear that now obstructed path.

Keywords: freedom of association, labor, constitutional law, legality, Canada, charter of rights and freedoms

Suggested Citation

Langille, Brian A. and Oliphant, Benjamin J., The Legal Structure of Freedom of Association (November 17, 2013). (2014) 40:1 Queen's LJ 249, Available at SSRN: https://ssrn.com/abstract=2355976 or http://dx.doi.org/10.2139/ssrn.2355976

Brian A. Langille (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Benjamin J. Oliphant

Gall Legge Grant & Munroe LLP ( email )

Vancouver, British Columbia
Canada

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