Brian A. Langille and Benjamin J. Oliphant (University of Toronto - Faculty of Law and University of Toronto) have posted The Legal Structure of Freedom of Association on SSRN. Here is the abstract:
This essay seeks to set out a clear view of the legal structure of freedom of association in Canada. It takes the ideas of legality and legal grammar seriously and argues that current Canadian constitutional labour law is in a state of legal disarray because our leading cases fail to do so. In a series of very important decisions, the most recent of which is Fraser v Ontario, the Supreme Court of Canada has set about articulating a new interpretation of s. 2(d) – the constitutional guarantee of freedom of association. But its effort to create a new and richer narrative of s 2 (d) has been undermined by its failure to attend to the legal grammar necessary to articulate it in legal terms. As a result, our account of freedom of association is now incoherent and fails to live up to our constitutional commitments. Clearer thinking about legal grammar will not construct our new interpretation of s. 2 (d) for us – but it will remove one very real and present barrier to our progress toward that goal. This essay tries to clear that now obstructed path.