R.+v.+Advance+Cutting

Sorry this summary is so long... the case is about 80+ pp... I will try to cut back when I figure out what we're supposed to focus on...


 * R. v. Advance Cutting Ltd (2001) SCC**


 * Facts:** Advance Cutting (contractors) ask to be acquitted of charges that they hired employees who did not have the required certificates of competency to work on a construction project – contrary to the provisions of the //Construction Act// (s.119.1) (QC). They asserted that workers could not obtain competency certificates without becoming members of one of the 5 unions listed in s.28 of the //Construction Act// and claimed that this requirement is unconstitutional, that it breaches the **right not to associate** which they feel is included under 2d.

The respondent, mis en cause and some interveners strongly disagree with this cause of action and even dispute the standing of the appellants to raise the constitutional arguments. (Technicality: As they were charged with breach of the Act, they could not be acquitted, even if the constitutional questions were decided in their favour).

---Can a right not to associate be read into the guarantee of freedom of association and if yes, what is the nature and limits of this right...
 * Issues:**
 * 1) Do the Construction Act and Regulations restrict guarantees on freedom of association under s. 2d of the Charter? No
 * 1) If so, is the restriction justified under s.1? Yes

Lebel J. History of violence of labour relations in the Quebec construction industry: - conflict arose within unions (homegrown/Catholic unions and Canada-wide/international unions) and employer groups. -negotiations between unions and employer associations led to the adoption of a provincial-wide decree for the whole construction industry - Preferential hiring of construction workers within each region of the province to ensure a degree of employment stability. __The Construction Act__ -Proper construction of this ambiguous legislation: the limits re: residency and 300hr previous experience in s.30 are merely the criteria governing participation in union activities (such as assessing the representativeness of the construction industry unions) and not determinative of whether workers can join a union. -There is an obligation to join a union but no bar to joining __The Charter as a Negative Factor__ -The present case involves an attack on some forms of union security clauses (ie obligation to maintain union membership to be employed) -The impugned provision amounts to a form of union shop, requiring all construction workers form a union and remain members of it, check off union dues to representative association. -Lebel draws attention to the fact that finding the union security arrangement in question is unconstitutional might weaken union membership and “in the long run, it could affect the balance of power within the economy of political arena, because of the ability of unions to use effectively the mechanism of collective agreements and to participate in a meaningful way in the debates on the direction of Canadian society” __Freedom of Association – Its Sources__ -One approach to constitutional protection : Charter as protecting individual right v Charter as communitarian instrument (see s.15 -Freedom of association guarantee has a special place in constitution by being concerned not only with the relationship between the state and the citizens but between those persons themselves. -Wilson J in //Lavigne// re: the purpose of s.2d: freedom of association is meant to protect the collective pursuit of common goals” -Not all forms of associations arise from the pure exercise of human freedom – some are not voluntary (ie family) -In previous jurisprudence, the Court has adopted the view that the right of association belongs first to the individual – fosters self-fulfillment by allowing one to develop one’s qualities as a social being. – constitutional guarantee does not extend to traditional labour practices like the right to strike or collective bargaining
 * Reasoning:**

__Lavigne Judgment__
-A teacher challenged the constitutional validity of the Rand formula in the collective agreement between the union and his employer (subtraction of union dues) when he was not part of the union. -He argued that the right of association included a mirror right of non-association. -Although the case was lost, majority found that there was a negative right not to associate. __Democratic values and association__ -La Forest, in Lavigne – some forms of forced association, whose existence flows from sharing the life and values of democratic society, cannot be dispensed with, and will not breach the Charter. Furthermore, democracy is about participation in democratic institutions like unions. -McLachlin J, in Lavigne - Some environments, like the work environment, require some element of forced association. These are ok, as long as they respect democratic values. //__Freedom of Association and the Employment Relationship__// -The challenged law legislates a form of union shop as all construction workers must elect one of five union groups as their collective bargaining representative. -Freedom of association does not express a right to isolation, as observed by La Forest in //Lavigne//. -Unique character of this right: gives associates a common strength that allows for furtherance of individual goals -The employment relationship is based on an imbalance of power between workers and employers – subordination and inequality are at its core. - refusal of some to join a union weakens the efforts to achieve the goals of the majority. -While the Construction Act imposes an obligation to join a union group, it is a very limited obligation – boiling down to the obligation to designate a collective bargaining representative, belong to it for a certain period of time and to pay union dues. -**In order to trigger the negative guarantee, a freedom not to associate, a requirement for ideological conformity by the union or breach of another liberty interest would have to be found. The mere fact of compelled association will not trigger a breach of s.2d.** (RATIO) -Finding ideological conformity would involve finding the adoption of various social and political causes within the union movement – not the case. -Democracy underlies the form of union security provided in the Construction Act. -A choice was left to workers among the various groups active in the constructive industry, which held wideely different views on the role of labour unions in society. //__Justification of the Limitation__// -Not necessary to apply s.1 as the appellants did not show the Act establishes a form of ideological conformity that would trigger the application of s.2d. Lebel does goes through the process regardless though. -Purpose of the Act is pressing and substantial – maintain industrial peace in the aftermath of a history of industrial conflict in the province. -Act passes rational connection, minimal impairment test, proportionality– compulsory membership merely facilitates an assessment of union representativeness which was key for the operation of the construction industry.


 * Holding:** Appellants have standing but the appeal is dismissed.

Bastarache (dissenting) -Agrees that there is a negative right to be free from compelled association. -Disagrees with Lebel regarding content of freedom of association, specifically regarding the scope of the negative right and s.1 analysis. -disagrees with the test of ideological conformity for finding violation of negative right protected by s.2d proposed by Lebel, finding the test to be too narrow -There should be balancing of union security with individual choice -The infringement in the present case is more important than that created by the Rand formula and thus it merits a more extensive justification -Takes up La Forest J’s argument in //Lavine//, where he prescribed a broad and liberal interpretation of s.2d : “It is clear that a conception of freedom of association that did not include freedom from forced association would not truly be “freedom” within the meaning of the Charter.” - two sides of a bilateral freedom. -The negative right was infringed: -trade unions have traditionally lent support to political parties – ie PQ in Quebec -disagrees with Lebel’s view that there is a distinction between the requirement to get a competency certificate and a requirement to join a union (one requires the other other) --- also treads on freedom of expression and mobility rights -“This is a clear situation of government coercion, the result of which mandates that workers in the construction industry in Quebec group together in a few unions which are specified and approved by government” -“If Parliament provided that a person must belong to a specific political party to work in the public service of Canada, the situation would be analogous” (para 34) -S.1 analysis to determine whether the infringement was justified: -Court must take into consideration Charter values including liberty, freedom of expression, the right to work and mobility rights -Bastarache does not believe the purpose of the Act is to have structured collective bargaining and to provide for competency requirements but rather aims at creating restrictions. . -Fails minimal impairment test – collective bargaining need not result in government controlling admission to the work force and therein denying a democratic principle -At least, does not feel there is a logical connection between the stated objectives and these restrictions – the requirements of s.39 and the regional quotas have little to do with the competence of workers in the construction industry. -Would allow the appeal, strike down impugned provisions and suspend invalidity for 18 months to permit legislature to consider amendments

L’Heureux-Dubé – -Does not find //Lavigne// authoritative or convincing regarding a protection under s.2d of a right not to associate. – no where is the negative right articulated in the Charter. -Freedom of expression will come into play if and when one is forced to associate, as well as possibly s.7 of the Charter. No need to have negative right. -The “mirror view” of s.2d would cause an undesirable face-off between the positive rights of association of some v. the negative association rights of others. -Note that the purpose of s.2d is to protect the collective pursuit of common goals. -It was //Lavigne// where the idea of “individual aspirations” was added...l’H-Dubé views these as a subset of common goals. -“Society is more than the sum of its part...An arithmetic approach to Charter rights fails to encompass the aspirations imbedded in it” (para 66) -The impetus for efforts to establish the negative right to association has historically originated from those opposed to the establishment of unions -She would dismiss the appeal

Iacuobucci -Like Bastarache J, agrees that s.2d encompasses a negative right to be free from compelled association and agrees with him that this negative right is infringed by the Act – however, unlike Bastarache, Iacuobucci finds that this constitutional breach CAN be justified under s. 1. Hence, reaches the disposition of L’Heureux-Dubé and would dismiss the appeal. -Refuses to basis the analysis of the negative right within s.2d on ideological conformity criteria, finding it too ambiguous. -Prefers broader construction of the negative freedom within s.2d – liberty under s.2d will not be violated unless the forced association imposes a danger to a specific liberty interest. -Here the Act infringes workers’ liberty interests by forcing workers to unionize in order to carry out their work and join one of five unions.