FREEDOM OF ASSOCIATION



FREEDOM OF ASSOCIATION

FREEDOM OF ASSOCIATION 1

Australia 1

FREEDOM OF ASSOCIATION 1

International Standards 2

National Labor Law 2

Bibliography 3

Germany 3

GBL Article 9.1. 3

GBL Article 9.2. 3

80 BVerfGE 244 (1989) 3

GBL Article 9 6

84 BVerfGE 212 (1991) 7

EUROPEAN COMMUNITY 10

Sigurdur A. Sigurjonsson v Iceland 16 EHRR 462 1993. 10

Ian Maclean Young, Henry James and Ronald Roger Webster v United Kingdom [1980] ECC 332. 10

SIDIROPOULOS AND OTHERS v. GREECE (57/1997/841/1047) 10 July 1998: refusal of courts to register an association suspected of undermining the country’s territorial integrity 10

Canada 11

Libman v. Quebec (Attorney General) [1997] 3 S.C.R. 569: Freedom of association -- Provincial referendum legislation -- Spending -- Referendum legislation placing restrictions on spending permitted during referendum campaign -- Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation -- Whether legislation infringes freedoms of expression and association 11

International Longshoremen's and Warehousemen's Union -- Canada Area Local 500 v. Canada [1994] 1 S.C.R. 150: Freedom of association -- Right to strike -- Back-to-work -- Life, liberty and security of the person 14

R. v. Skinner [1990] 1 S.C.R. 1235: Freedom of association -- Criminal Code prohibiting communications in public for the purpose of prostitution -- Freedom of expression 15

The Professional Institute of the Public Service of Canada v The Commissioner of the Northwest Territories [1990] 2 S.C.R. 367: Freedom of 17

association -- Collective bargaining -- Territorial legislation requiring employee association to be incorporated by statute in order to bargain collectively 17

REFERENCE RE PUBLIC SERVICE EMPLOYEE RELATIONS ACT (ALTA.) [1987] 1 S.C.R. 313: Freedom of association -- Scope of protection in labour relations context -- Provincial legislation prohibiting strikes and lockouts -- Legislation providing for arbitration 19

Australia

FREEDOM OF ASSOCIATION

1

There is no express right to freedom of association guaranteed by the Australian Constitution. In the past decade the High Court has expressed the view that the Constitution contains an implied freedom of communication with respect to political matters or public affairs.[1] There is a possibility that this implied right could be extended to cover freedom of association (as a corollary of freedom of communication) given that the two are so closely linked.[2] At present, however, such an implied right has not been extended to freedom of association. That said, statutory provisions for freedom of association in Australia do exist, although until recently, only at the state level. The Commonwealth Industrial Relations Reform Act 1993 (Cth) has, however, >internationalized’ Australian labor law, bringing it more into line with international labor standards generally. This legislation provides a degree of protection with regards to the right to strike (which may be regarded as an aspect of the right to freedom of association). This Act will be discussed below.

International Standards

2

Another possible way in which freedom of association could be protected in Australia would be through national application of international law (this would be in reliance on Australia’s external affairs power).[3] To some degree this has been done in the Industrial Relations Reform Act 1993 (Cth) which is discussed in below. Australia has ratified international covenants and ILO Conventions concerning freedom of association. The documents ratified include the International Covenant on Civil and Political Rights,[4] the International Covenant on Economic, Social and Cultural Rights,[5] and ILO Convention 87 (Freedom of Association and Protection of the Right to Organise).

National Labor Law

3

Recent national legislation enacted has >internationalized’ Australian labor law. The Industrial Relations Reform Act 1993 (Cth), made radical changes to various areas of national labor law (the Industrial Relations Act 1988 (Cth)) by using the external affairs power of the Constitution to circumvent some of the restrictions contained in the traditional use of the labor power contained in the Constitution.[6] The drafters drew on North American, European and international laws for inspiration and much of the new legislation reflects international thinking in these areas.[7] One area where reform has taken place is in the area of enterprise bargaining. Prior to the enactment of the Reform Act almost all strikes were regarded as unlawful in common law and industrial legislation. The Reform Act changes this by giving trade unions a limited right to strike when negotiating an enterprise agreement for a single business or place of work. This right is based on the ILO convention and on the provisions in the ICESCR. There is debate regarding whether the right to strike is incorporated as part of the right to freedom of association. However, a strong argument can be made that this is the case. ILO Convention 87 has been interpreted by the ILO’s Committee of Experts as being incompatible with a denial of the right to strike. To this extent Australian workers have a right to >freedom of association’.

Bibliography

4

Doyle, The Industrial/Political Dichotomy: The Impact of the Freedom of Communication Cases on Industrial Law 8 AJLL 1 (1995).

McCallum, The Internationalisation of Australian Labour Law: The Industrial Relations Reform Act 1993 15 SydLR 122 (1994).

McEvoy & Owens, The Flight of Icarus: Legal Aspects of the Pilots’ Dispute 3 AJLL 87 (1990).

McEvoy & Owens, On a Wing and a Prayer: The Pilots Dispute in the International Context 6 AJLL 1 (1993).

Pittard, International Labour Standards in Australia: Wages, Equal Pay, Leave and Termination of Employment 7 AJLL 1 (1994).

Vranken, Demise of the Australian Model of Labour Law in the 1990s CLLJ 1 (1994).

Vranken, Book Review 9 AJLL 1 (1996) (Reviewing Blanpain & Engles, European Labour Law (3d ed. 1995)).

Germany

GBL Article 9.1.

All Germans shall have the right to form associations and societies.

GBL Article 9.2.

Associations, the purpose or activities of which conflict with criminal laws or which are directed against the constitutional order or the concept of international understanding, are prohibited.

80 BVerfGE 244 (1989)

[Facts:

The German Association Law (Vereinsgesetz, hereinafter AL) features the following provisions:

“Section 3.

1. An association may only then be treated as prohibited (Article 9.2. of the German Basic Law) if by decree of the administrative agency entitled to issue prohibitions it is determined that its purposes or its activities violate the criminal laws or that it is aimed against the constitutional order or the concept of international understanding; in the decree the dissolution of the association has to be ordered (prohibition). The prohibition is to be combined regularly with the confiscation of the wealth of the association...

4. The prohibition is to be in writing [and] justified and [shall] be served to the association [and its subgroups]... The prohibition is effective and executible upon service [or] upon publication [of the decree] in the federal legal gazette...

Setion 20.1.1.

1. Anyone who, within the area for which this law is binding by an act within that area,

(1) maintains the organizational cohesion [or is active as a member] of an association [or a declared substitute association of such an association] contrary to an executible prohibition, ...

will be punished with a prison sentence of up to a year or a fine...”

This decision is the result of a referral of a question of constitutional law from the District Court of Hamburg to the Federal Constitutional Court. The District Court found the following facts before the referral: The defendant in the District Court trial is one of the leading figures of an association which was aimed at the revival of national-socialist thought. On November 24, 1983 the Federal Minister for the Interior issued a decree prohibiting the association and ordering immediate dissolution thereof with the justification that it is aimed against the constitutional order. The defendant in the District Court trial filed a complaint against the decree of the Federal Minister with the Federal Court of Administration. Without waiting for the outcome of the complaint, the defendant in the District Court trial decided to maintain the coheson between the members of the association and to improve its organization with the aim to use it to actively pursue his political goals. He wrote and distributed papers and attempted to secure funding for the association. In March 1984 the association was in fact stronger in its organization than in November 1983. The defendant in the District Court trial continued his activities until he left the Federal Republic of Germany on March 19, 1984. The decree of the Federal Minister became final on April 1, 1986 when the complaint with the Federal Court of Administration was taken back.

This fact-finding convinced the District Court that the defendant had violated an executible prohibition of an association. However the District Court did not sentence the defendant because it deemed Section 20.1.1. of the AL in violation with the constitution. Accordingly, the court referred to this court the question whether Section 20.1.1. of the AL violates Articles 9. and 19.4. of the Basic Law as far as it threatens to punish acts which violate decrees that are not yet final.

The District Court argues that Article 19.4. of the Basic Law guarantees the association the right to challenge the decree of prohibition in the courts. Such a guarantee, however, presupposes that the prohibited association is permitted to maintain at least some organizational cohesion in order to be able to actively challenge the prohibition in the courts. Moreover the District Court maintains that Section 20.1.1. of the AL limits the freedom of association more than the Basic Law mandates. The District Court sees in the immediate and absolute prohibition and dissolution of an association as mandated by Section 20.1.1. of the AL a violation of Article 9 of the Basic Law in relation with the principle of proportionality. The District Court believes that the state must limit itself so that it only prohibits those activities of the association that have external effects but refrain from interfering with its organizational structure and existence.

The Federal Minister for the Interior, the Federal Supreme Court, and the Federal Attorney General filed briefs with the Federal Constitutional Court arguing for the constitutionality of Section 20.1.1. of the AL...

Issue:

Is

Discussion:]

C.

Section 20.1.1. of the AL is in agreement with the Basic Law.

I.

[The Federal Constitutional Court first rejected the District Court’s interpretation of the AL. In particular, the Federal Constitutional Court spelled out that Section 20.1.1. of the AL does not prohibit measurements of a banned association which are related to activities to challege a decree of prohibition. The court offered as examples of permitted activities meetings of the members with the purpose of discussing the legal situation, the election of a new board to assure adequate representation in legal proceedings, and the collection of membership fees to finance legal proceedings.]

II.

In the outlined interpretation, Section 20.1.1. of the AL fulfils the demands of the the Basic Law. It violates neither the constitutionally guaranteed freedom of association (Article 9 the the Basic Law), nor the principles of proportionality and seperation of power or the command to specificity of statutes (Gesetzesbestimmtheit).

1. a) The basic right of Article 9.1. of the Basic Law guarantees the freedom [of people] to join toghether in associations of private law (*). With the right to form associations and societies, Article 9.1. of the Basic Law guarantees the principle of free social forming into groups (*). The protection of the basic right includes for the members as well as for the association [itself the right] to self-determination with respect to organization, the process of finding an opinion (Willensbildung), and the conducting of its business (*), as well as--not regarding the question of [legality]--the right of formation and existence (*). Article 9.1. of the Basic Law protects in particular from interferences into the core area of the existence and the activity of the association; the statutory regulation shall permit such an effective protection of the basic right (*).

According to Article 9.2 of the Basic Law associations are prohibited the purposes or activities of which conflict with criminal laws or which are directed against the constitutional order or the concept of international understanding. With this complete definition of reasons to prohibit, Article 9.2. of the Basic Law sets a constitutionally independant limit to the collective right to continued existence of an association. Article 9 of the Basic Law shall be interpreted that Article 9.1.merely guarantees the freedom of association with the limitations of Article 9.2 (*). The prohibition of Article 9.2. of the Basic Law goes further than the limitations that were provided for in the constitution of the German Reich from August 11. 1919. Whereas Article 124.1. of the Weimar Constitution permitted the formation of associations and societies for any purposes which do not conflict with criminal laws, the Basic Law draws narrower limitations in order to protect the legal values named in Article 9.2. of the Basic Law, a position which is to be understood in the background of the experiences... with a totalitarian regime (*). As far as the concern is the protection [of the legal values named in Article 9.2. of the Basic Law, that Article] includes an instrument of “preventive protection of the constitution” (Praeventiver Verfassungsschutz) (*).

b) The implementation of the prohibition of association as provided for in Section 3 of the AL... withstands a review under the constitutional standard [outlined above].

Article 9.2. of the Basic Law includes the only limitation of the freedom of association in the constitution. The legislator is limited to organizing the constitutional prohibition more narrowly, it may not widen its boundaries. The regulation in Section 3 of the AL according to which the finding of the prerequisites of Article 9.2. of the Basic Law always has to be combined with a decree to disssolve the association is within the [legislator’s] authority to regulate. It is not commanded by the constitution to order and effect the dissolution of an association which is charged with an activity that is prohibited by the constitution itself only [at that point in time] when the findings on which the dissolution order is based beome incontestable. [One] has to start out from the aim and object of the constitutional regulation of Article 9.2. of the Basic Law. The regulation demands to timely and effectively counter looming dangers to the state, its existence and basic order which might emerge from collective criminal or anti-constitutional endeavors (*). With regard to this decision in the constitution [it does not seem problematic]... that an association is to be dissolved and thereby its influence ended already before the prohibition decree becomes incontestable. The contrary opinion (*) does not sufficiently weigh the founding fathers’ [underlying] intent for Article 9.2. of the Basic Law. [The founding fathers’ objective] to exclude basic right protection for associations the activities of which counter elementary principles of the legal order and international understanding also rests upon the recognition that such activities can trigger particularly dangerous developments in cases where [the associations] have a basis in society. The immediate dissolution of such associations will regularly be the necessary measurement to fight off endangerment of the constitutionally protected legal values named in Article 9.2. of the Basic Law.

GBL Article 9

1. All Germans shall have the right to form associations and societies.

2. Associations, the purpose of which conflict with criminal laws or which are directed against the constitutional order or the concept of international understanding, are prohibited.

3. The right to form associations to safeguard and improve working and economic conditions is guaranteed to everyone and to all trades, occupations and professions. Agreements which restrict or seek to impair this right shall be null and void: measures directed to this end shall be illegal. Measures taken pursuant to Article 12a, to paragraphs 2. and 3. of Article 35., to paragraph 4. of Article 87a, or to Article 91, may not be directed against any industrial conflicts engaged in by associations within the meaning of the first sentence of this paragraph in order to safeguard and improve working and economic conditions.

84 BVerfGE 212 (1991)

[Facts:

The origin of this case is a collective bargaining process in the printing industry in 1977-1978. The national union for the printing industry aimed at getting concessions from the employers with respect to the introduction of computerized newspaper printing and the resulting endangerment of thousands of jobs. After several stages of negotiation and a failed arbitration attempt, short-term strikes and refusals to work overtime occurred from November 25, 1977 onwards. On February 28, 1978 the union declared unlimited strikes in four corporations. Initially the employers responded with lock-outs that were limited in time and location. By mid-March six corporations were affected by the strikes and according to the fact-finding of the court below 4,300 workers were on strike. In response, on March 12, the centralized strike management of the three involved employer associations demanded in a declaration from its members to lock-out all employees in technical areas everywhere in Germany and for an unlimited time. Not every employers complied with the centralized strategy. The lock-out finally ended on March 20, 1978. The decision does not mention the outcome of the collective bargaining.

The union for the printing industry then sued the corporation which later brought this case before the Federal Constitutional Court. That corporation was not a member of any of the three employer associations which organized the lock-out. The union sued for some disputed compensation during the lock-out. At the trial level and on the first appeal the union lost. However, the appeal to the Federal Labor Court was successful. As part of that decision, the Federal Labor Court declared the lock-out illegal. The court noted that generally lock-outs are a permissible strategy for employers in a collective bargaining process. However, the court continued, the right to lock-out is limited by the principle of proportionality which encompasses issues of necessity, suitability and numerical proportionality.

The Federal Labor Court used the principle of proportionality and found that the lock-out had violated it. The court found that from February 28, 1978 onward about 52,000 working days were lost due to strikes of about 4,300 workers. It then noted that the declaration of the of the centralized strike management of the employers called for a lock-out of 130,000 workers. The court contrasted the 52,000 working days which were lost due to the strikes with 130,000 working days would have been lost each day had every employer complied with the centralized strike management of the employers. The Federal Labor Court concluded that the lock-out was clearly out of proportion and declared it illegal.

The corporation which lost in the Federal Labor Court then filed a constitutional complaint with the Federal Constitutional Court. Among other things, the corporation contended that the decision of the Federal Labor Court violated its rights as protected by Article 9.3. of the Basic Law.

Issue:

Does the decision by the Federal Labor Court that the nation-wide lock-out was illegal violate Article 9.3. of the Basic Law?

Holding by the First Senate:

No, it does not.

Discussion:

First the Federal Constitutional Court found the complaint permissible.]

C.

The constitutional complaint is unjustified. The petitioner is not being violated by the challenged decision [of the Federal Labor Court] in its basic rights.

I.

Article 9.3. of the Basic Law is not being violated. The challenged decision indeed does interfere with the freedom of coalition of the petitioner. The interference, however, is reconcilable with the Basic Law.

1. a) Article 9.3. of the Basic Law grants the right to form association to safeguard and improve working and economic conditions. From the general freedom of association of Article 9.1. of the Basic Law the freedom of coalition [of Article 9.3. of the Basic Law] differs in that it includes in the basic right protection a certain purpose of [the right to freedom of] association. The formation of associations with the purpose to safeguard and improve working and economic conditions has been fought against by the state especially strongly at times in the past. This explains the particular basic right protection going beyond Article 9.1. of the Basic Law which [applies] to the formation of such association in the social order of the state.

The freedom of coalition applies according to Article 9.3. of the Basic Law to everyone and to all trades, occupations and professions. [The freedom of coalition] is therefore, despite the fact that it historically applied only to employees and was fought for and won by them, not designed as a basic right [solely] for employees but also applies to employers. Insofar the Basic Law follows the regulation of the Weimar Constitution (Article 165). The basic right is also not limited to the freedom of the individual to form, join, not join or leave such an association. [The right] moreover protects the coalition itself in its existence, its organizational scheme and activity... This is, in contrast to the Weimar Constitution, not explicitly expressed but nevertheless results from the inclusion in the basic right protection of a purpose of the right to freedom of association (*).

An essential purpose of the coalitions protected by Article 9.3. of the Basic Law is the achievement of wage agreements. In that [activity] the association shall be free according to the will of the Basic Law (*). The choice of means which [the coalitions] deem useful in achieving [such wage agreements] is principally being left to the coalitions by Article 9.3. of the Basic Law (*). As far as the pursuit of the purpose of the association is dependent on the utilization of certain means, [such means] are also protected by the basic right.

To the protected means also belong tools of collective bargaining which are aimed at the achievement of wage agreements. Such means are at least covered by the freedom of coalition as far as they are necessary to ensure a functioning of free collective bargaining. This is also supported by Article 9.3. of the Basic Law. Whether a lock-out is part of the protected tools of collective bargaining has been left open by the Federal Constitutional Court and the Federal Labor Court including the challenged decision (*). However, the Federal Labor Court [in the challenged decision] deems the suspensory defensive lock-out (suspendierende Abwehraussperrung) as a reaction to limited partial strikes under the given economic circumstances a prohibited means for the maintenance of a functioning free collective bargaining. This is not objectionable from a perspective of constitutional law.

[The Federal Constitutional Court] need not decide comprehensively to what extend lock-outs are generally protected by the constitution. The protection includes in any case lock-outs of the kind at issue here, [lock-outs] which as a defense and with suspensory effect are used against partial or focused strikes to establish a parity of bargaining. Such lock-outs do not generally have the result to interfere with the parity of bargaining... Under which circumstances and to what extend a coalition may employ the constitutionally protected means is, as in the case of strikes, not a question of the protected sphere, but [a question] of the organization of the basic right by the legal order.

b) In the stated extend the petitioner is protected by Article 9.3. of the Basic Law. Even a corporation which as an outsider joins a lock-out of an [employer association is acting within the meaning of coalition. Such joining of an outsider with an employer association entitled to negotiate wage agreements ] can be within the meaning of Article 9.3. of the Basic Law, if [such joining] is aimed at influencing an achievement of a wage agreement in the interest of the outsider. [The court next finds that the wage agreement sought in the present case would also be binding on the outsider petitioner because its wages are keyed to the wages negotiated in the agreement. Therefore the court finds an coalition within the meaning of Article 9.3. of the Basic Law.]

c) The challenged decision limits the authority of the petitioner to join a defensive lock-out with suspensory effect as a reaction to a partial strike of the unions. In this lies a limitation of the freedom guaranteed in Article 9.3. of the Basic Law to [participate in coalitions]. This limitation, however, is not objectionable from a perspective of constitutional law.

[Next the Federal Constitutional Court finds that the Federal Labor Court had the necessary authority to decide the challenged decision.]

3. The challenged decision also does not violate Article 9.3. of the Basic Law in regard to content.

a) It is true that the basic right to freedom of coalition is granted unconditionally. This however does not preclude every limitation from the outset. [Such limitations] can be justified by basic rights of third persons and by other rights of constitutional rank (*). In addition, the freedom of coalition requires an organization by the legal order so far as the relation of the parties to the collective bargaining who both enjoy the protection of Article 9.3. of the Basic Law is being touched upon. Whether the legislator has additional authority to regulate for the protection of other legal values need not be explored (*). The limitations to the right to lock-out provided for in the challenged decision can already be explained with the protection of contrary basic rights of employees and their organizations from Article 9.3. of the Basic Law.

The case does not provide an occasion to define more closely the boundary of core sphere of the freedom of coalition (*). Surely to this [core sphere] belongs the ability to negotiate of both social counterparts, that is also of the employers, in the battle of collective bargaining. [However, neither this ability to negotiate, nor the ability to collectively bargain effectively of the employer] is being endangered by the challenged decision. The limitations imposed upon the petitioner of their right to lock-out neither violate the essential content of the freedom of coalition (Article 19.2. of the Basic Law) nor interfere with the basic right in a manner which is out of proportion (*).

[Next the Federal Constitutional Court reviews and approves the mode of analysis of the Federal Labor Court.]

c) The Federal Labor Court also did not... fundamentally [misapply] the freedom of coalition of the petitioner. The declaration of the employer associations demanding lock-out covered about 130,000 employees [in a situation] with about 4,300 striking employees. The numerical relation is therefore about thirty to one. For each day of the battle of collective bargaining two-and-a-half times more working days were supposed to be lost due to the lock-out than had already been lost due to the strikes called for by the union over two weeks. The Federal Labor Court [was entitled to use this numerical relation] to find the declaration of the employer associations illegal without such a finding constituting a limitation which is out of proportion of the petitioner’s [freedom of coalition]...

[Signed by all eight Judges]

EUROPEAN COMMUNITY

Sigurdur A. Sigurjonsson v Iceland 16 EHRR 462 1993.

Freedom not to join or withdraw from an association. Freedom of association − legitimate aims, necessary in a democratic society. Freedom of thought; freedom of expression; effective remedy. Just satisfaction.

Ian Maclean Young, Henry James and Ronald Roger Webster v United Kingdom [1980] ECC 332.

Trade Unions. Freedom of Association. Closed shop. Human rights − procedure, remedies.

The above 2 cases require elaboration.

SIDIROPOULOS AND OTHERS v. GREECE (57/1997/841/1047) 10 July 1998: refusal of courts to register an association suspected of undermining the country’s territorial integrity

Greece – refusal of courts to register an association suspected of undermining the country’s territorial integrity

II. ARTICLE 11 OF THE CONVENTION

A. Whether there had been an interference

Interference with exercise of right to freedom of association: Greek courts’ refusal to register applicants’ association had deprived applicants of any possibility of jointly or individually pursuing the aims they had laid down in the memorandum of association and thus of exercising the right in question.

B. Justification for the interference

1. "Prescribed by law"

Articles 79 to 81 of the Civil Code allowed courts to refuse an application to register an association where they found that the validity of its memorandum of association was open to question.

2. Legitimate aim

Protection of national security and prevention of disorder.

3. "Necessary in a democratic society"

That citizens should be able to form a legal entity in order to act collectively in a field of mutual interest was one of the most important aspects of the right to freedom of association – way in which national legislation enshrined that freedom and its practical application by the authorities revealed state of democracy in the country concerned.

Aims of association set out in its memorandum of association had been exclusively to preserve and develop traditions and folk culture of Florina region – perfectly clear and legitimate.

Relevant press articles had reported matters some of which were unconnected with applicants and drawn inferences derived from a subjective assessment by authors of the articles – courts had taken those articles into consideration and also the political dispute that then dominated relations between Greece and the Former Yugoslav Republic of Macedonia and had held that the applicants and their association represented a danger to Greece’s territorial integrity – statement based on a mere suspicion as to true intentions of association’s founders.

Greek law did not lay down a system of preventive review for setting up non-profit-making associations – Article 105 of the Civil Code empowered courts to order that the association should be dissolved if after its registration it pursued an aim different from the one laid down in its memorandum of association.

Refusal to register association disproportionate to objectives pursued.

Conclusion: violation (unanimously).

Canada

Libman v. Quebec (Attorney General) [1997] 3 S.C.R. 569: Freedom of association -- Provincial referendum legislation -- Spending -- Referendum legislation placing restrictions on spending permitted during referendum campaign -- Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation -- Whether legislation infringes freedoms of expression and association

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law -- Charter of Rights -- Freedom of expression -- Freedom of association -- Provincial referendum legislation -- Spending -- Referendum legislation placing restrictions on spending permitted during referendum campaign -- Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation -- Whether legislation infringes freedoms of expression and association -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d) -- Referendum Act, R.S.Q., c. C-64.1, ss. 402, 403, 404, 406 para. 3, 413, 414, 416, 417 of Appendix 2.

Elections -- Referendum -- Spending -- Freedoms of expression and association -- Provincial referendum legislation placing restrictions on spending permitted during referendum campaign -- Spending by individuals or groups not wishing to or unable to join or affiliate themselves with one of national committees limited to unregulated expenses provided for in legislation -- Whether legislation infringes freedoms of expression and association -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d) -- Referendum Act, R.S.Q., c. C-64.1, ss. 402, 403, 404, 406 para. 3, 413, 414, 416, 417 of Appendix 2.

The appellant challenges the constitutional validity of ss. 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 of Appendix 2 of the Referendum Act. That Act, which governs referendums in Quebec, provides that groups wishing to participate in a referendum campaign for a given option can either directly join the national committee supporting the same option or affiliate themselves with it. It also provides for the financing of the national committees and limits their expenses and those of the affiliated groups. The impugned provisions deal with the expenses that may be incurred during a referendum campaign. Sections 402 and 403 establish the principle of "regulated expenses". These expenses include the cost of any goods or services that promote or oppose, directly or indirectly, an option submitted to a referendum. Under ss. 406 para. 3 and 413, only an official agent of a national committee, or one of his or her representatives, may incur or authorize regulated expenses. Section 414 provides that such expenses may be paid only out of the referendum fund, which is available only to the national committees. Under s. 416, no person may accept or execute an order for regulated expenses unless they are incurred or authorized by the official agent of a national committee or by one of his or her representatives. Under s. 417, no person may receive a price different from the regular price for goods or services representing a regulated expense. Finally, s. 404 lists exceptions to regulated expenses. These exceptions, or unregulated expenses, comprise primarily forms of expression that do not require the disbursement of money or financial consideration. The only disbursement of money permitted is the maximum amount of $600 for organizing and holding a meeting. The appellant maintains that the impugned provisions infringe the freedoms of expression and association guaranteed by ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms. He argues that if he wishes to conduct a referendum campaign independently of the national committees, his freedom of political expression will be limited to unregulated expenses. Conversely, if he wishes to be able to incur regulated expenses, he will have to join or affiliate himself with one of the national committees. In the courts below, the Superior Court and the Court of Appeal held that the impugned provisions infringed freedom of expression but that this infringement was justifiable under s. 1 of the Charter.

Held: The appeal should be allowed.

The freedom of expression protected by s. 2(b) of the Charter must be interpreted broadly. Unless the expression is communicated in a manner that excludes the protection, such as violence, any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b). The impugned provisions at issue here infringe freedom of expression. The appellant wishes to express his opinions on the referendum question and convey meaning independently of the national committees by means of "regulated expenses". This is a form of political expression that is clearly protected by s. 2(b) -- political expression is at the very heart of the values sought to be protected by freedom of expression -- and the impugned provisions restrict that freedom. The expenses of persons who, either individually or as a group, do not wish to or cannot join or affiliate themselves with one of the national committees are limited to the unregulated expenses set out in s. 404. The Act accordingly places restrictions on such persons who, unlike the national committees, cannot incur regulated expenses during the referendum period in order to express their points of view. Since freedom of expression includes the right to employ any methods, other than violence, necessary for communication, this clearly infringes their freedom of political expression.

For similar reasons, the impugned provisions also infringe freedom of association. The protection provided for in s. 2(d) of the Charter includes the exercise in association of the constitutional rights and freedoms of individuals. In the present case, there are both individuals and groups whose freedom of expression is restricted by the impugned provisions. These groups therefore cannot freely exercise one of the rights protected by the Charter. Their freedom of association is accordingly infringed.

From the point of view of justification under s. 1 of the Charter, the basic objective of the Act at issue is to guarantee the democratic nature of referendums by promoting equality between the options submitted by the government and seeking to promote free and informed voting. In its egalitarian aspect, the Act is intended to prevent the referendum debate being dominated by the most affluent members of society. At the same time, the Act promotes an informed vote by ensuring that some points of view are not buried by others. This highly laudable objective, intended to ensure the fairness of a referendum on a question of public interest, is of pressing and substantial importance in a democratic society.

To attain its objective, the Act limits spending not only by the national committees, but also by independent individuals and groups, during the referendum period. There is clearly a rational connection between limits on independent spending and the legislature's objective. Limits on such spending are essential to maintain an equilibrium in financial resources and to guarantee the fairness of the referendum. The evidence shows that without such controls, any system for limiting the spending of the national committees would become futile. The limit on independent spending must also be stricter than that granted to the national committees, since it cannot be assumed that independent spending will be divided equally to support the various options.

With respect to the minimal impairment test, while the impugned provisions do in a way restrict one of the most basic forms of expression, namely political expression, the legislature must be accorded a certain deference to enable it to reconcile the democratic values of freedom of expression and referendum fairness. To attain this objective, the legislature had to try to strike a balance between absolute freedom of individual expression and equality among the different expressions for the benefit of all. The impugned provisions are therefore not purely restrictive of freedom of expression. Their primary purpose is to promote political expression by ensuring an equal dissemination of points of view purely out of respect for democratic traditions. The structure set up by the legislature enables the vast majority of the people or groups favouring one of the options to participate actively in the referendum campaign by joining or affiliating themselves with the national committee overseeing the option. The affiliation system therefore significantly relaxes the restriction imposed by the impugned provisions on the freedoms of expression and association of groups that wish to support one of the options submitted to a referendum but disagree with the strategy of the national committee representing the option they support. This relaxation is sufficient to conclude that the impairment of the freedoms of such groups is minimal. Affiliation makes it possible for such groups to conduct campaigns parallel to that of the national committee representing the option they wish to support and to incur regulated expenses out of the referendum fund. Individuals may also associate to form an affiliated group in order to conduct a parallel campaign.

However, the limits imposed under s. 404 cannot meet the minimal impairment test in the case of individuals and groups who can neither join nor affiliate themselves with the national committees and can therefore express their views only by means of unregulated expenses. The forms of expression provided for in that section are so restrictive that they come close to being a total ban. There are alternative solutions consistent with the Act's objective that are far better than the exceptions set out in s. 404. An exception to regulated expenses permitting citizens, either individually or in groups, to spend a certain amount on an entirely discretionary basis while prohibiting the pooling of such amounts would be far less intrusive than the s. 404 exceptions. By virtue of this exception, individuals and groups who can neither join nor affiliate themselves with the national committees would be entitled to a minimum amount that they would be able to spend as they saw fit in order to communicate their points of view. Since it is difficult to sever s. 404 from the rest of the impugned provisions, it must also be concluded that all the impugned provisions constitute an unjustified infringement of the freedoms of expression and association. Sections 402, 403, 404, 406 para. 3, 413, 414, 416 and 417 are accordingly declared to be of no force or effect. In view of this declaration, the other provisions of the Referendum Act relating to control of referendum spending become pointless since practically all these provisions are based on the concept of "regulated expenses". It will be up to the legislature to make the appropriate amendments.

The result of the case would have been the same had it been resolved on the basis of the Quebec Charter of Human Rights and Freedoms.

International Longshoremen's and Warehousemen's Union -- Canada Area Local 500 v. Canada [1994] 1 S.C.R. 150: Freedom of association -- Right to strike -- Back-to-work -- Life, liberty and security of the person

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Constitutional law -- Charter of Rights -- Freedom of association -- Right to strike -- Back-to-work legislation not violating s. 2(d) of Canadian Charter of Rights and Freedoms -- Maintenance of Ports Operations Act, 1986, S.C. 1986, c. 46.

Constitutional law -- Charter of Rights -- Life, liberty and security of the person -- Right to strike -- Back-to-work legislation not violating s. 7 of Canadian Charter of Rights and Freedoms -- Maintenance of Ports Operations Act, 1986, S.C. 1986, c. 46.

LA FOREST J. -- We are all of the view that the thrust of the reasoning applicable to s. 2(d) of the Canadian Charter of Rights and Freedoms adopted in earlier decisions of this Court to determine the scope of freedom of association as it related to the right of union members to strike applies as well to the determination of the right to liberty under s. 7 for the same purpose. This approach completely defeats the general argument of the appellants for holding the Act as a whole invalid under s. 7.

So far as the specific argument that the penalty attached to the refusal to return to work is concerned, that prohibition is intended to enforce the regulatory scheme, and must be read in that context. It is not an absolute offence, but a strict liability offence. The appeal is, therefore, dismissed with costs throughout

R. v. Skinner [1990] 1 S.C.R. 1235: Freedom of association -- Criminal Code prohibiting communications in public for the purpose of prostitution -- Freedom of expression

Present: Dickson C.J. and McIntyre , Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ.

ON APPEAL FROM THE NOVA SCOTIA SUPREME COURT, APPEAL DIVISION

Constitutional law -- Charter of Rights -- Freedom of expression -- Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution -- Whether s. 195.1(1)(c) of the Code infringes s. 2(b) of the Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by s. 195.1(1)(c) upon s. 2(b) justifiable under s. 1 of the Charter.

Constitutional law -- Charter of Rights -- Freedom of association -- Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution -- Whether s. 195.1(1)(c) of the Code infringes s. 2(d) of the Canadian Charter of Rights and Freedoms.

Criminal law -- Prostitution -- Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution -- Whether s. 195.1(1)(c) of the Code infringes the freedoms of expression and of association guaranteed by ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms.

The respondent was charged with "communicating in a public place for the purpose of obtaining the sexual services of a prostitute" contrary to s. 195.1(1)(c) of the Criminal Code. The trial judge convicted the respondent but the Court of Appeal set aside the conviction holding that s. 195.1(1)(c) infringed the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms, and that s. 195.1(1)(c) was not justifiable under s. 1 of the Charter. The court also suggested that s. 195.1(1)(c) violated the guarantee of freedom of association in s. 2(d) of the Charter. This appeal is to determine whether s. 195.1(1)(c) of the Code infringes s. 2(b) or (d) of the Charter; and, if so, whether s. 195.1(1)(c) is justifiable under s. 1 of the Charter.

Held (Wilson and L'Heureux-Dubé JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and La Forest and Sopinka JJ.: Section 195.1(1)(c) of the Code does not infringe s. 2(d) of the Charter. In proscribing street solicitation for the purposes of prostitution, s. 195.1(1)(c) attacks expressive activity of a commercial nature. It focuses on the prostitute or customer who stops or communicates with another person in a public place for the purposes of engaging in prostitution. The target of s. 195.1(1)(c), therefore, is expressive conduct and not conduct of an associational nature. The section does not directly proscribe an agreement between two individuals for the exchange of sex for money, nor sexual relations between consenting individuals. The mere fact that an impugned legislative provision limits the possibility of commercial activities or agreements is not sufficient to show a prima facie interference with s. 2(d).

For the reasons given by the Chief Justice in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter.

Per Lamer J.: For the reasons given by the Chief Justice, s. 195.1(1)(c) of the Criminal Code does not infringe s. 2(d) of the Charter. For the reasons I gave in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Code infringes s. 2(b) of the Charter but is justifiable under s. 1 of the Charter.

Per Wilson and L'Heureux-Dubé JJ. (dissenting): For the reasons given by the minority in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), s. 195.1(1)(c) of the Criminal Code infringes the right to freedom of expression guaranteed by s. 2(b) of the Charter and is not saved by s. 1 of the Charter.

Section 195.1(1)(c) of the Code also infringes the right to freedom of association guaranteed by s. 2(d) of the Charter. A provision which prohibits parties from associating with a view to pursuing a lawful common objective infringes s. 2(d), whether that objective is entry into a commercial transaction or some other lawful objective. In considering whether or not a given activity is protected under s. 2(d), the Court must have regard to how that activity is pursued rather than to the nature of the activity. In the present context, prostitutes and potential customers associate when they meet to discuss the sale of sex. That meeting is the form their association takes and this is what s. 2(d) protects, not the activity in which they intend to engage thereafter. So long as it remains lawful to sell sex for money, there is a right to associate with others in order to reach an agreement for this purpose. Section 195.1(1)(c) of the Code, which seeks to prohibit both the meetings and the communications between prostitutes and potential customers, infringes freedom of association as well as freedom of expression. Even if the legislature's purpose in enacting s. 195.1(1)(c) was not to restrict freedom of association, that is clearly the effect of the legislation. Section 195.1(1)(c) interferes directly with a prostitute's ability to associate with potential customers.

Section 195.1(1)(c) is not justifiable under s. 1 of the Charter. While the nuisance caused by street solicitation, at least in the major population centres in Canada, is a pressing and substantial concern warranting a limitation on freedom of association, s. 195.1(1)(c) fails to meet the proportionality test. The measures are rationally connected to the prevention of the nuisance, but s. 195.1(1)(c) is too broad and not sufficiently tailored to the objective. In view of the expansive meaning given to the expression "public place" in s. 195.1(2) of the Code, s. 195.1(1)(c) prevents a prostitute and potential customer from associating in a wide range of circumstances in which no nuisance will result from their meeting together. It is not reasonable to prohibit associational activity that harms no one on the basis that in some circumstances and in some areas a high concentration of that activity may give rise to a public or social nuisance. If such activity is to be prohibited, there must be a much closer nexus between the associational activity that is prohibited and the nuisance to which it is alleged to give rise.

The Professional Institute of the Public Service of Canada v The Commissioner of the Northwest Territories [1990] 2 S.C.R. 367: Freedom of association -- Collective bargaining -- Territorial legislation requiring employee association to be incorporated by statute in order to bargain collectively

Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES

Constitutional law -- Charter of Rights -- Freedom of association -- Collective bargaining -- Territorial legislation requiring employee association to be incorporated by statute in order to bargain collectively -- Whether territorial legislation infringes freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms -- If so, whether limitation on freedom of association justifiable under s. 1 of Charter -- Public Service Act, R.S.N.W.T. 1974, c. P-13, s. 42(1)(b).

The appellant Institute was the bargaining agent for a number of nurses employed by the federal government in the Northwest Territories until the nurses became employees of the territorial government. As a result of their change of employment the nurses ceased to belong to the bargaining unit on behalf of which the Institute had been certified to bargain collectively and became eligible for membership in the respondent Association, which had been incorporated to bargain collectively on behalf of all non-excluded territorial employees. The Institute sought incorporation as required by s. 42(1)(b) of the Public Service Act for the purposes of representing its former members. Under that section an employees' association must be incorporated by an Act if it is to bargain collectively on behalf of its members. The territorial government declined to enact the required legislation. The Institute applied to the territorial Supreme Court for a declaration that s. 42(1) of the Act was inconsistent with freedom of association guaranteed in s. 2(d) of the Canadian Charter of Rights and Freedoms. The trial judge found that s. 42(1) violated s. 2(d) of the Charter and was not a reasonable limit within the meaning of s. 1. The Court of Appeal allowed the respondent Commissioner's appeal.

Held (Wilson, Gonthier and Cory JJ. dissenting): The appeal should be dismissed. Section 42(1)(b) of the Public Service Act does not infringe s. 2(d) of the Charter.

Per Sopinka J.: The absence in s. 42(1)(b) of a set of objective conditions for the certification of a union is not a violation of freedom of association. While the statutory monopoly created by the section prevents a rival union from bargaining for its members, such legislative frustration of an association's objects is not a violation of s. 2(d) if the restriction is not aimed at and does not affect the establishment or existence of the association --unless the association's activity is another Charter-protected right or an activity that may lawfully be performed by an individual. The statutory monopoly has no effect on the existence of the Institute or the ability of any individual to be a member of it, and the activity of collective bargaining for working conditions is not constitutionally protected. Since the activity of bargaining is not itself constitutionally protected, neither is a legislative choice of the bargainer. Given that a government has no common law obligation to bargain at all and can suspend a statutory obligation to bargain altogether, there can be no constitutional impediment to its choosing to bargain with a particular employees' representative.

Further, the requirement in s. 42(1)(b) that a union be incorporated for it to bargain collectively does not constitute a violation of s. 2(d) of the Charter. The section does not prohibit the establishment of or membership in other unions, or prevent any such union from seeking incorporation under the Act. Nor does it require that an employees' association incorporated under the Act be constituted in a particular way or that it submit the scope of its objects, terms of membership or rules of internal governance to legislative control. The requirement of incorporation in s. 42(1)(b) is the means by which the territorial government has chosen to recognize the union or unions with which it will bargain collectively. A grant of collective bargaining rights must account for the associational rights of affected individuals, but this means nothing more than permitting rival associations to exist and vie for recognition.

Per L'Heureux-Dubé J.: Sopinka J.'s reasons and result were agreed with subject to brief comments. The impugned legislative provision in this case does not burden the appellant's freedom of association. The objects, purposes and activities of an association are irrelevant for Charter purposes. While one of the primary goals of employee associations is to attain the status of bargaining agent and to bargain collectively, the attaining of this status, its retention and the association's subsequent activity are not protected under s. 2(d). Interpreting s. 2(d) as embracing any object of an association whose fulfillment is fundamental to the existence of the association has serious consequences which militate strongly against adopting such an approach, since the concept of freedom of association must be applied to a wide range of political, religious, social or economic associations with a wide variety of objects. Further, adopting the line of reasoning of the majority in the trilogy, which is determinative of the issue in the present case, does not leave unions powerless to achieve their objectives, since a broad range of union activity is still protected and since unions have access to the political process.

Per La Forest J.: Sopinka J.'s judgment was generally agreed with, but it is unnecessary to say anything about whether the right of association must include the freedom of persons to join together in pursuit of objects they could lawfully pursue as individuals.

Per Dickson C.J.: The constitutional guarantee of freedom of association in s. 2(d) of the Charter does not include a guarantee of the right to bargain collectively, and the s. 2(d) right adheres only to individuals. The determination of how bargaining agents are chosen is the first stage of the right to bargain collectively. Further, in the context of an inter-union struggle for the status of exclusive bargaining agent, the right claimed by the appellant must be characterized as a group right adhering to the trade union. The legislative choice of how bargaining agents are chosen is thus beyond constitutional scrutiny under s. 2(d) of the Charter both because it is an element of the collective bargaining process and because of the individual nature of the s. 2(d) right. Finally, since the Northwest Territories government was under no duty to enact a scheme of collective bargaining, the limitations placed upon a purely statutory entitlement do not attract the protection of s. 2(d) of the Charter. If s. 2(d) does not guarantee the right to bargain collectively, it cannot guarantee a right to any particular bargaining agent.

Per Wilson, Gonthier and Cory JJ. (dissenting): By restricting the freedom of employees to form and to change their association, s. 42(1)(b) of the Public Service Act infringes an individual's right to associate protected by s. 2(d) of the Charter. Section 42(1)(b) allows the government to totally monopolize the decision as to which associations are to be incorporated and thereby become "employees' associations". Only those associations which in the government's discretion have been incorporated can then participate in the collective bargaining process. There are neither bars to curb nor guidelines to direct the exercise of this absolute discretion. The section thus provides the means by which the government can, for all collective bargaining purposes, deny the very existence of an association selected by the employees to bargain on their behalf. Such untrammelled government discretion prima facie violates an individual's freedom of association. The fact that those who form the association may still meet together without interference from the state has no meaning if this association cannot be recognized under the relevant labour legislation. Once a government has enacted a statutory definition of a group, as a legal entity, then any individual should be able to attempt to get his group recognized as such an entity, or to change the existing group entitled to exercise the rights granted under that legislative scheme. The right of employees to join the association of their choice, and their right to change their collective bargaining association, are of fundamental importance, yet these rights are frustrated by s. 42(1)(b).

Section 42(1)(b) of the Public Service Act is not justifiable under s. 1 of the Charter. The objective of the Act is to provide the means of selecting a collective bargaining agent for the employees. While the necessity of having some structure to the process is of sufficient importance to warrant overriding a constitutionally protected right, the legislation is out of proportion to the objective sought and restricts the employees' freedom of association far more than is reasonably necessary. Unlike most of the collective bargaining statutes in the other Canadian jurisdictions, the legislation fails to achieve a reasonable balance between the rights of the individual, the union and the employer. It does not provide for any process by which the employees' choice of bargaining agent may be determined, and incorporation of the employees' association can only be attained by the exercise of an untrammelled government discretion when the government is itself an interested party to the ensuing collective bargaining. In order to create a structured collective bargaining process it is not necessary to give the government complete control over designation of the employees' bargaining agent. This denial of the employees' right to select their own bargaining agent in the manner contemplated in other jurisdictions cannot be justified as a reasonable limit under s. 1 of the Charter.

REFERENCE RE PUBLIC SERVICE EMPLOYEE RELATIONS ACT (ALTA.) [1987] 1 S.C.R. 313: Freedom of association -- Scope of protection in labour relations context -- Provincial legislation prohibiting strikes and lockouts -- Legislation providing for arbitration

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law -- Charter of -- Freedom of association -- Scope of protection in labour relations context -- Provincial legislation prohibiting strikes and lockouts -- Legislation providing for arbitration -- Whether provincial legislation violated s. 2(d) of the Charter -- If so, whether such violation justifiable under s. 1 of the Charter -- Public Service Employee Relations Act, R.S.A. 1980, c. P-33, ss. 48, 49, 50, 55, 93, 94 -- Labour Relations Act, R.S.A. 1980 (Supp.), c. L-1.1, ss. 117.1, 117.2, 117.3, 117.8 -- Police Officers Collective Bargaining Act, S.A. 1983, c. P-12.05, ss. 2(2), 3, 9, 10, 15.

The Lieutenant Governor in Council of Alberta, in accordance with s. 27(1) of the Judicature Act of that province, referred to the Alberta Court of Appeal several constitutional questions which raised two main issues: (1) whether the provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve impasses in collective bargaining, were inconsistent with the Canadian Charter of Rights and Freedoms; and (2) whether the provisions of the Acts relating to the conduct of the arbitration and which limit the arbitrability of certain items and require the arbitration board to consider certain factors in making the arbitration award were inconsistent with the Charter. The first Act applied to public service employees, the second to firefighters and hospital employees and the third to police officers. The majority of the Court of Appeal of Alberta answered the first issue in the negative and declined to answer the second issue. This appeal is to determine whether the Alberta legislation violates the guarantee of freedom of association in s. 2(d) of the Charter and, if so, whether such violation can be justified under s. 1.

Held (Dickson C.J. and Wilson J. dissenting): The appeal should be dismissed.

Per Beetz, Le Dain and La Forest JJ.: The challenged provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act were not inconsistent with the Charter. The constitutional guarantee of freedom of association in s. 2(d) of the Charter does not include, in

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the case of a trade union, a guarantee of the right to bargain collectively and the right to strike. In considering the meaning that must be given to freedom of association in s. 2(d) of the Charter, it is essential to keep in mind that this concept must be applied to a wide range of associations or organizations of rights, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued. It is in this larger perspective, and not simply with regard to the perceived requirements of a trade union, however important they may be, that one must consider the implications of extending a constitutional guarantee, under the concept of freedom of association, to the rights to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

In considering whether it is reasonable to ascribe such a sweeping intention to the Charter, the premise that without such additional constitutional protection the guarantee of freedom of association would be a meaningless and empty one must be rejected. Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion. These afford a wide scope for protected activity in association. Moreover, the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted. That is indicated by its express recognition and protection in labour relations legislation. It is a freedom that has been suppressed in varying degrees from time to time by totalitarian regimes.

What is in issue here is not the importance of freedom of association in this sense but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection are sought--the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer--are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise. It is surprising that, in an area in which this Court has affirmed a principle of judicial restraint in the review of administrative action, this Court should be considering the substitution of its judgment for that of the Legislature by constitutionalizing in general and abstract terms rights which the Legislature

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has found it necessary to define and qualify in various ways according to the particular field of labour relations involved. The resulting necessity of applying s. 1 of the Charter to a review of particular legislation in this field demonstrates the extent to which the Court becomes involved in a review of legislative policy for which it is really not fitted.

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[1] Nationwide News v. Wills (1992) 177 CLR 1; Australian Capital Television v. Commonwealth (1992) 177 CLR 106; Theophanous v. Herald and Weekly Times (1994) 124 ALR 1; Stephens v WA Newspapers (1994) 124 ALR 80; Cunliffe v. Commonwealth (1994) 124 ALR 120.

[2] Doyle, The Industrial/Political Dichotomy: The Impact of the Freedom of Communication Cases on Industrial Law, (1995) 8 AJLL 1, 22.

[3] Doyle, The Industrial/Political Dichotomy: The Impact of the Freedom of Communication Cases on Industrial Law, (1995) 8 AJLL 1, 22.

[4] Article 22 of the ICCPR guarantees the right to freedom of association, which includes right to form and join trade unions.

[5] Article 8 of the ICESCR expressly protects right to strike.

[6] Pittard, International Labour Standards in Australia: Wages, Equal Pay, Leave and Termination of Employment (1994) 7 AJLL 1, 1-2.

[7] McCallum, The Internationalisation of Australian Industrial Law: The Industrial Relations Reform Act 1993 (1994) Syd. LR 122, 134.

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