Freedom of association is one of the fundamental freedoms protected under section 2 of the Charter.[1]Its purpose is to recognize the social nature of human activities and allow individuals to work together to achieve common goals.[2]
Freedom of association protects three types of activities:
Freedom of association is different from other fundamental rights because it does not merely protect an individual’s activities. Rather, it protects group activities that an individual cannot perform by themselves. This recognizes that when people form a group, that group can take on “a life of its own” and develop needs that are bigger than those of its individual members.[4] Freedom of association, therefore, is both a collective right and an individual right.
Freedom of association often comes up in the context of trade unions and employee associations. Courts have held that employees have a right to associate to pursue common workplace goals, which includes a right to collective bargaining.[5] It is important to note, however, that this right only protects the process of bargaining, and not a particular outcome. Employees have the right to gather together, to present demands to their employer, to engage in discussions to achieve their goals, and to strike if they do not reach an agreement.[6] Government employers have a corresponding duty to meet and engage with employees when they present their demands. Employees do not have a right, however, to a specific method of bargaining. Essentially, bargaining has to happen but how it happens is not protected. Similarly, employers have a duty to negotiate, but not duty to come to a certain agreement or agree to any particular terms or conditions.[7]
Like other Charter rights, freedom of association has limits. For example, it does not protect a group’s violent activities.[8] This means that someone who joins a terrorist organization is not protected by freedom of association from, for example, being deported because of their membership in that organization.[9] Freedom of association also does not apply to some special types of relationships, such as intimate relationships[10] and family relationships.[11]
Freedom of association is also subject to reasonable limits that the government may place on it and justify under section 1 of the Charter. For example, governments can limit employees’ right to strike if the employees perform services that are essential to society, such as medical or other emergency services.[12]
[1] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[2] Mounted Police Association of Ontario v Canada, 2015 SCC 1 at para 54.
[3] Ibid at paras 52-54.
[4] Dunmore v. Ontario, [2001] 3 SCR 1016 at para 17.
[5] Ibid.
[6] Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 at para 75.
[7] Ontario (Attorney General) v Fraser, 2011 SCC 20 at paras 41-42, [2011] 2 SCR 3.
[8] Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 107, [2002] 1 SCR 3.
[9] Ibid.
[10] R v Skinner, [1990] 1 SCR 1235: the Court held that freedom of association did not protect street solicitation for the purposes of prostitution.
[11] Catholic Children's Aid Society of Metropolitan Toronto v S(T) (1989), 69 OR (2d) 189 (CA): the Court held that freedom of association did not invalidate provincial child welfare legislation which precluded access by birth parents to children adopted by foster parents.
[12] Saskatchewan Federation of Labour v Saskatchewan, supra note 6 at para 79.
