L'INCLUSION DE LA LIBERTE SYNDICALE DANS LA LIBERTE GENERALE D'ASSOCIATION: UN PARI CONSTITUTIONEL PERDU?

Abstract

Section 2(d) of the Canadian Charter of Rights and Freedoms gives expression to the constitutional protection of the freedom of association. Does it encompass all of the essential dimensions of the freedom of association in the labour relations context? It seems that the original expectations of parliamentarians were that it would encompass all of these dimensions. Indeed, various manifestations of concerted action, in particular the strike, collective bargaining and the practice of union shops, are deeply rooted in the Canadian tradition of industrial relations . Various instruments of international law also support such a broad interpretation of the freedom of association. Yet, the right to strike and the right to bargain collectively are excluded from the protection of the Canadian Charter and the debate over the practice of union shops remains unresolved. Recent jurisprudence would appear favourable to the recognition of a truly collective dimension of the freedom of association. Given their different objects and the distinct nature of the types of instruments that ensure their protection, is there an inevitable discrepancy between the specific expression of the freedom of association in a labour relations context and the general concept of freedom of association? It is argued here that this is not necessarily the case, but that the courts will have to adopt an interpretation of freedom of association that is more contextualized and inclusive of the overall Canadian industrial relations tradition with respect to freedom of association.