This note discusses the nature and scope of protection which is and ought to be afforded to individual activity under s. 2(d) of the Charter through an analysis of two doctrinal models. Since the s. 2(d) jurisprudence is dominated by labour relations cases, which tend to deal squarely with the collective aspect of the right, there is very little case law and commentary on which to structure this debate. By analogizing from the Charter’s other fundamental freedoms, however, it is possible to craft a subjective model for s. 2(d) protection. As this note demonstrates, this model finds little support in the current jurisprudence, and its breadth is probably unworkable. By way of contrast, there is an objective model of association, which can be extrapolated from the core purpose of s. 2(d) as defined by the Supreme Court of Canada. Although principled and restrained, however, the objective model rejects any notion of a personal or subjective understanding of what constitutes association and in this sense it too restrictive. A possible blend of the two models, and the embrace of a qualified principle of content neutrality, may best deal with the concerns raised by each. It seems only inevitable that, at some point, an appellate court in this country will be confronted with a s. 2(d) claim which asserts, in a novel fashion, an individually or subjectively defined scope of protected association. The law as it currently stands is too modest in its protection of individual associational activity. Hopefully, a balance can be struck between the unworkable breadth of the subjective model and the harsh and stubborn restrictiveness of the current law. A qualified form of content neutrality may provide the right balance.
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Adam Ship, "Individual Activity & Content Neutrality Under Section 2(d) of the Charter" (2007) 16 Dal J Leg Stud 135.