Brian A. Langille

Confusion has its Costs

April 24, 2015

Brian A. Langille

1. GRAMMAR

Here is what the SCC says Dickson says: “Dickson C.J. states that the purpose of the freedom of association

encompasses the protection of (1) individuals joining with others to form associations (the constitutive approach); (2) collective activity in support of other constitutional rights (the derivative approach); and (3) collective activity that enables “those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict: Alberta Reference, at p. 366.” MPAO para 54 and 66

Here is what Dickson actually says: “I am unable to accept that freedom of association would be interpreted

so restrictively”. “I think Bayda CJS was right in holding that s.2(d) normally embraces the liberty to do collectively that which one is permitted to do as an individual”.

Brian A. Langille

2. NARRATIVESCC says: “In a phrase, in order to determine whether a restriction on the right to associate violates s. 2

(d) by offending its purpose, we must look at the associational activity in question in its full context and history.” MPAO 47

“An activity-based contextual approach is … essential for freedom of association.” MPAO 48– a purposive analysis also requires courts to consider the most concrete purpose or set of purposes

that underlies the right or freedom in question, based on its history and full context. MPAO 50– The guarantee functions to protect individuals against more powerful entities. By banding

together in the pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society. MPAO 58

– The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. SFL 54

DICKSON says: “What freedom of association seeks to protect is not association activities qua particular

activities but the freedom of individuals to interact with, support, and be supported by, their fellow human beings in the varied activities in which they choose to engage.” (p. 366)

Brian A. Langille

PG Wodehouse on “interpretation”:

Bertie Wooster has received a communication from a friend which he reads to Jeeves:

Wooster: “When you come tomorrow, bring my football boots. Also, if humanly possible, an Irish water spaniel. Urgent. Regards. Tuppy.”

“What do you make of that, Jeeves?”

Jeeves: “As I interpret the document sir, Mr. Glossup wishes you, when you come tomorrow, to bring his football boots. Also, if humanly possible, an Irish water spaniel. He hints that the matter is urgent, and send his regards.

Wooster: “Yes, that’s how I read it too.”1

1 Woodhouse 1930. ”The Ordeal of the Young Tuppy” in PG Woodhouse, Very Good, Jeeves London WW Norton and Company, 234-59.