1.阅读材料
1.1 Chapter 10 Freedom of Association, Hon. Robert J. Sharpe/Kent Roach: The Charter of Rights and Freedoms, 3th Edition (Toronto: Irwin Law,2005), pp.168-176
1.2 3) Freedom of Association, Patrick Monahan /Byron Shraw/Padraic Ryan: Constitutional Law,5tb Edition ((Toronto: Irwin Law,2017), pp.453-457
相关的案例，我都没有读原文，全部是这两本书上的引文和归纳。
2、宪法权利：Sec.2（d）, CONSTITUTION ACT, 1982
2.1该条原文是这样的：Everyone has the following fundamental freedoms:
(d) freedom of association.
每个人都有以下基本自由：（d）结社的自由。
2.2 The difficult threshold issue for courts has been whether the guarantee not only recognizes the right of individuals to come together in an organization but also confers constitutional protection on the activities essential to ensure the association’s meaningful existence.
法院面临的最麻烦，也是一开始就要解决的问题是，是否对单个公民结社的权利进行保障即可，还是还需要对于结社所必须要开展的活动也需要给与宪法保障。
2.3具体到劳方与资方进行集体协商的权利（practices of collective bargaining）而言，该问题就转化为如下两个问题：
（1）the right to come together and form an association，
（2）protect the essential activities of the group (for example strike, lock out).
3.The Right to Strike罢工的权利
3.1 Reference Re Public Service Employee Relation Act (Alberta), [1987]1 S.C.R
The legislation at issue removed the right to strike from public sector workers and, in the absence of agreement, prescribed mandatory arbitration to determination the contents of the collective agreement. 涉及的阿尔伯塔省立法剥夺了公共部门工人罢工的权利，并在未能自愿谈判达成集体协议的情况下，规定了强制仲裁以确定集体协议的内容。
A majority of the Court held that the guarantee of freedom of association did not encompass the right to bargain collective or the right to strike. 法院的多数意见认为，对工人结社自由的保障并不包括集体谈判的权利或罢工的权利。
LeDain J.（代表多数意见） held that the rights to bargain collectively and to strike are not fundamental right or freedoms. Rather, they are the creatures of legislation that balances a number of competing interests. 工人进行集体谈判和罢工的权利并非天赋权利或自由。相反，它们是立法在平衡多个相互冲突的权利之后，通过立法予以确定的产物。
他注意到，劳工关系是一个非常专业的领域，而且这一领域的法律问题，目前都不是由法院来处理，而是由劳工法庭（labor relations tribunals）。
他对sec.2（d）的保护范围进行了限制，指出：…the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted.组织工会、加入工会的自由，不受惩罚、打击的参加工会的合法活动的权利，不是理所当然的。
注意，LeDain J.在这里，只是说组织工会、加入工会的自由，不受惩罚、打击的参加工会的合法活动的权利不是宪法权利，而是立法赋予的权利，并不是否认这些权利。关于集体谈判，我们后面再讲。关于罢工、停工的权利，可以参考如下立法：
（1）联邦层面
Canada Labour Code (R.S.C., 1985, c. L-2)
Employee freedoms
8 (1) Every employee is free to join the trade union of their choice and to participate in its lawful activities.
DIVISION V.1 - Obligations Relating to Strikes and Lockouts（既保护合法罢工和停工，又禁止非法罢工和停工）
（2）以安省为例：
Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A
Membership in employers’ organization
6 Every person is free to join an employers’ organization of the person’s own choice and to participate in its lawful activities. 1995, c. 1, Sched. A, s. 6.
No discharge or discipline following strike or lock-out
80.1 (1) An employer shall not discharge or discipline an employee in a bargaining unit without just cause during the period that begins on the date on which a strike or lock-out in respect of that bargaining unit became lawful and that ends on the earlier of the date on which a new collective agreement is entered into and the date on which the trade union no longer represents the employees in the bargaining unit. 2017, c. 22, Sched. 2, s. 9.
Same, enforcement
(2) The requirement in subsection (1) may be enforced through the grievance procedure and arbitration procedure established in the new collective agreement or deemed to be included in the collective agreement under section 48. 2017, c. 22, Sched. 2, s. 9.
Burden of proof
(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person’s employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers’ organization did not act contrary to this Act lies upon the employer or employers’ organization. 1995, c. 1, Sched. A, s. 96 (5).
4.The right to engage in collective bargaining集体协商的权利宪法权利
4.1 Sec.2(d)是否赋予工人集体协商的宪法权利
4.1．1判例1：集体协商不是宪法权利
Professional Institutional of the Pubic Service of Canada v. Northwest Territories (Commissioner), [199]2 S.C.R.367,72 D.L.R.(4th)
Sopinka J.发表了如下多数意见：
…First, the s.2(d) protects the freedom to establish, belong to and maintain an association; second, that s.2(d) does not protect an activity on the ground that the activity is a foundational or essential purposes of an association; third, that sec.2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s.2(d) protects the exercise in association of the lawful rights of individuals.
但是，又总结到：Restrictions on the activity of collective bargaining do not normally affect the ability individuals to form or join unions.
4.1．2判例二，在特定群体不能自行组成工会以保护其权利的时候，政府有义务立法进行保护
Dunmore v. Ontario (Attorney General), (2001)3 S.C.R.1016,207 D.L.R.(4TH), 联邦最高法院要求安大略省对农业工人组织工会的权利，基于相应的立法保护（该省其他的排除了农业工会组织工会的权利）。
Bastarache J.发表的多数意见认为，保护单个工人团结起来为保护其利益进行集体谈判的自由，属于2（d）所保护的权利，上述Reference Re Public Service Employee Relation Act (Alberta), [1987]1 S.C.R案的意见，应做如下补充：
[T]here will be occasions where a given activity does not fall within the third fourth rules but where the state has nevertheless prohibited that activity solely because of its associational nature. These occasions will involve activities which 1) are not protected under any other constitutional freedom, and 2) cannot, for one reason or another, be understood as the lawful activities of individuals.
4.1.3后续判例：
Health Services and support – Facilities Subsector Bargaining Assn. British Columbia, [2007] 2 S.C.R.391
The court held that section 2(d)“ protects the capacity of members of labour unions to engage, in association, in collective bargaining on fundamental workplace issues”.
Ontario ( Attorney General) v. Fraser, [2011] 2 S.C.R.3
That section 2(d) does not impose a particular process, a particular model of labour relations, or a specific bargaining method. All that is required is a “meaningful process” for employer and employees to meet and bargain in good faith in the pursuit of peaceful and productive accommodation.
Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 S.C.R.245
A 5:2 majority of the Court expanded again the scope of section 2(d) to include the right to strike, or to a binding dispute resolution process in the absence of such ability.
Mounted Police Association of Ontario v. Canada ( Attorney General), [2015] 1 S.C.R.3
A 6:2 majority held that the ability of Royal Canadian Mounted Police officers to form a union and collectively bargaining infringed section 2(d).
4.2 注意，上述判例，只是在讨论集体协商是不是宪法权利，并不是否定工人可以依照立法享有集体协商的权利
· 联邦层面Canada Labour Code (R.S.C., 1985, c. L-2)
· DIVISION IV - Collective Bargaining and Collective Agreements
· 安省Labour Relations Act, 1995，第三部分，Negotiation of Collective Agreements
5. The right not to associate不参加工会的权利
· 5.1不管是不是工会会员，都要适用工会所谈的集体合同，享受了相应的权利，都要支付会费。因为，工会是代表相应谈判单元（bargaining unit）的所有工人（不管是不是会员），而不只是代表会员。
· Canada Labour Code (R.S.C., 1985, c. L-2)
Union dues to be deducted
· 70 (1) Where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union forthwith.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A
Deduction and remittance of union dues
47 (1) Except in the construction industry and subject to section 52, where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union, forthwith.
Definition
(2) In subsection (1),
“regular union dues” means,
(a) in the case of an employee who is a member of the trade union, the dues uniformly and regularly paid by a member of the trade union in accordance with the constitution and by-laws of the trade union, and
(b) in the case of an employee who is not a member of the trade union, the dues referred to in clause (a), excluding any amount in respect of pension, superannuation, sickness insurance or any other benefit available only to members of the trade union. 1995, c. 1, Sched. A, s. 47.
5.2和宪法所保障的宗教信仰自由的冲突
2 Everyone has the following fundamental freedoms:
· (a) freedom of conscience and religion;
工会的会费，可能会使用到与不是会员的工人所信仰的宗教所反对的用途，这个时候，就可能发生冲突。
判例1：Lavigne v. Ontario Public Service Employees Union, [1991]2 S.C.R.,211,81 D.L.R.(4th) 545
本案原告，Lavigne，是一个社区学院（community college）的老师，他不是工会会员（也没有要求他必须加入），反对集体合同中要求他必须要交会费的条款。因为会费的用途包括用于反对巡航导弹试验（cruise missile testing）、支持堕胎等。因为他的雇主由政府控制，所以必须要适用权利法案所规定的宗教信仰自由。
7名最高法院法官中的4名法官形成多数意见，认为集体合同中关于会费的这一条款，并没有违反2（d）。
Wilson J.and two others conclude that section 2(d) did not include a right not to associate (sometimes called a “negative right”). In her view, however, this did not leave an individual unprotected from the harms that might come from forced association. The section 2(b) guarantee of freedom of expression would be available on an individual who was compelled to be associated with views he or she did not hold.
McLachlin J. concluded that some instance of compelled association might violate section 2(d), but not the requirement to pay union dues. In her view, section 2(d) protected only against “coerced ideological conformity”. She did not think that Lavigne’s payment of dues in fact associated him with the union’s causes.
La Forest J. found there was a Charter violation, since Lavigne was required to contribute to causes beyond the immediate concerns of the bargaining unit. Compelling him to contribute funds to the union for bargaining purposes, including collective agreement administration, served to protect the common good and was consistent with section 2(d), but forced contribution to non-union purposes was not. However, La Forest J. concluded that the compelled payment of dues was justified under section 1.He rejected the idea that individual objectors could be given an opportunity to opt out of paying for matters that were not purely “collective bargaining.” Permitting such opting our would seriously undermine the union’s financial security and invite paternalistic scrutiny of union activities by government.
对这个问题的立法解决：
Canada Labour Code (R.S.C., 1985, c. L-2)
• Marginal note:Religious objections
(2) Where the Board is satisfied that an employee, because of their religious conviction or beliefs, objects to joining a trade union or to paying regular union dues to a trade union, the Board may order that the provision in a collective agreement requiring, as a condition of employment, membership in a trade union or requiring the payment of regular union dues to a trade union does not apply to that employee so long as an amount equal to the amount of the regular union dues is paid by the employee, either directly or by way of deduction from their wages, to a registered charity mutually agreed on by the employee and the trade union.
• Marginal note:Designation by Board
(3) Where an employee and the trade union are unable to agree on a registered charity for the purposes of subsection (2), the Board may designate any such charity as the charity to which payment should be made.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A
Religious objections
52 (1) Where the Board is satisfied that an employee because of his or her religious conviction or belief,
(a) objects to joining a trade union; or
(b) objects to the paying of dues or other assessments to a trade union,
the Board may order that the provisions of a collective agreement of the type mentioned in clause 51 (1) (a) do not apply to the employee and that the employee is not required to join the trade union, to be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization mutually agreed upon by the employee and the trade union, but if the employee and the trade union fail to so agree then to a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada) that may be designated by the Board. 1995, c. 1, Sched. A, s. 52 (1); 2004, c. 16, Sched. D, Table.
判例2：Advance Cutting and Coring v. Quebec, [2001]3 S.C.R.209,205 D.L.R.(4th)
魁北克省的一项立法要求，建筑行业的工人都必须要加入某一个工会。
支持该项立法的主张认为，为了避免有些人不加入工会、不交会费，但是却又窃取了工会进行集体协商所谈来的好处，避免搭便车（free riders）.
联邦最高法院9名大法官，4名支持，4名反对。关键的一票是lacobucci J.认为该法违反了2（d）规定的结社自由，但是可以根据sec.1得到正当化。
Rights and freedoms in Canada
1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.