What does Section 2(d) of the Charter protect?
Answer
Freedom of association, including the right to form and join unions and to engage in meaningful collective bargaining.
Explanation
Section 2(d) of the Canadian Charter of Rights and Freedoms protects freedom of association, the fourth of the four fundamental freedoms in section 2. The full text reads: 'Everyone has the following fundamental freedoms: (d) freedom of association'. Section 2(d) protects the right to join with others for shared purposes, including the right to form and join trade unions, professional associations, religious organisations, political parties, and other membership-based bodies.
Early section 2(d) jurisprudence narrowly defined the right. The Supreme Court of Canada in the labour trilogy of 1987 (Reference re Public Service Employee Relations Act, RWDSU v. Saskatchewan, and PSAC v. Canada) held that section 2(d) protected the right to form a union but not the right to bargain collectively or to strike. This narrow reading was reversed beginning with Dunmore v. Ontario (Attorney General) (2001), which protected the right of agricultural workers to form associations.
Section 2(d) was significantly expanded in Health Services and Support v. British Columbia (2007), which recognised a constitutional right to a process of meaningful collective bargaining; in Mounted Police Association of Ontario v. Canada (2015), which struck down the federal RCMP's exclusion from collective bargaining; and in Saskatchewan Federation of Labour v. Saskatchewan (2015), which recognised a constitutional right to strike for the first time. The court held that essential services may be designated to limit the right to strike, but only where alternative dispute resolution is provided.
Section 2(d) does not protect every form of association. Criminal organisations (such as those defined under section 467.1 of the Criminal Code) and unlawful assemblies are not protected. Workplace associations excluded from collective-bargaining frameworks (such as managers, military members, judges, and certain law-enforcement personnel) face section 2(d) challenges with mixed results. Mandatory-membership cases including R. v. Advance Cutting and Coring Ltd. (2001, Quebec construction industry) and Lavigne v. Ontario Public Service Employees Union (1991, agency-shop dues) have addressed forced association as well as forced non-association. The Supreme Court has held that section 2(d) encompasses a right not to be compelled to associate.
Why this matters for your test
Freedom of association is the constitutional foundation of Canadian labour law. Recognising section 2(d) and the 2015 Saskatchewan Federation of Labour decision recognising a constitutional right to strike anchors the answer to the leading modern case.
Source: Canadian Charter of Rights and Freedoms, s. 2(d); Supreme Court of Canada Saskatchewan Federation of Labour v. Saskatchewan [2015] 1 S.C.R. 245
