The legal landscape of freedom of association in Canada: The complex path to half of a constitutional freedom

Newman, Dwight

The legal landscape of freedom of association in Canada: The complex path to half of a constitutional freedom

Files

SWP 18 Final - Newman.pdf(1.29 MB)

Published Version

Date

2024-03-01

Authors

Newman, Dwight

Publisher

School of Law, University College Cork

Abstract

This paper examines freedom of association in Canada. In particular, it traces why Canada’s constitutional protection of freedom of association has developed only slowly and principally in the union context so far, reaching in a struggling way toward what I call “half a constitutional freedom”. Freedom of association appears in section 2(d) of the Canadian Charter of Rights and Freedoms, with that section protecting simply ‘freedom of association’. That Charter was adopted as part of major constitutional amendments in 1982. Canada did not previously have a written bill of rights within its Constitution, but the Charter became a constitutional bill of rights, with constitutional supremacy pursuant to section 52(1) of the Constitution Act, 1982, which states that ‘[t]he Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect’. Judicial interpretation of the clauses in the Charter thus matters immensely, and this paper principally traces the judicial interpretation of the freedom of association clause, considering why it has developed in the usual way that it has, which is as what I call a “forgotten freedom”. This is a concept pertinent to a number of freedoms of Canada’s Charter that have not received extensive scholarly or jurisprudential development.

Keywords

Freedom of association , Canada

Citation

Newman, D. (2024) 'The legal landscape of freedom of association in Canada: The complex path to half of a constitutional freedom', Societās Working Paper 18/2024 (13pp). Cork: School of Law, University College Cork.