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Eric Adams
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Gareth: Contrast how exercised Rothstein J. appears about overturning precedent in SFL, RCMP, and Fraser with the Court's approach (his included in concurrence) in Bedford and Carter. It is not clear to me how the overturning of precedent in s. 2(d) cases can be deemed outrageous, while overturning precedent in dealing with s. 7 passes with barely a comment. At root, the dissent's approach to freedom of association diverges sharply from the Court's preferred approach to every other fundamental freedom. In freedom of speech and freedom of religion cases, in particular, the Court stresses the importance of giving a large, liberal, and purposive interpretation to the freedom. As a result, the Court has extended the ambit of the right to include protections for actions taken central to the freedom's core purpose. Limits on such freedoms in the name of the public good are to be determined in proportionality analysis rather than as an internal limit to the right itself. The right to withdraw labour is a central purpose of the association of labour. The "deal" of the Charter, it seems to me, is best reflected in the text. Freedom of association is among the fundamental freedoms, even if some might wish it otherwise. And, if not to protect the rights of labour, what is the point of freedom of association? It certainly wasn't because of a long history of state interference in Rotary Clubs and community groups. And so grant labour the rights take their place within the Charter's fundamental structure, and those rights put the government to the same task of justification it carries in limiting other fundamental freedoms. There is a broad public interest in limiting strike activity among public sector workers. Freedom of expression did not spell the end of defamation and freedom of association will not put an end to all government limits on the right to strike. And that is good. Finally, if judges start to limit themselves not by the law, but by fear of the ideologies of future appointments then it seems to me that we really have lost our way. For now, at least, I don't think we have.
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Aug 29, 2014