The Freedom of Disassociation

The freedom to associate – that is, the liberty of association protected under Section 2 of the Canadian Charter of Rights and Freedoms–is the individual right to participate, and, by extension, abstain, from any group of choice. This right is a central tenet of democracy, as it protects citizens’ rights to form political parties, interest groups, labour unions, etc., which represent their members’ interests.

Contemporarily, the right of organization is primarily a labour issue and union rights, collective bargaining, and other labour-related issues are at the forefront of this discussion. For example, the Supreme Court used Section 2 to uphold collective bargaining as a constitutional right in the 2007 British Columbia Health Services case. However, while the Supreme Court upholds the freedom to associate with unions, there have been serious Section 2 infringements in Canada regarding the ability to disassociate with unions. Most collective agreements require all workers to join the union at their respective workplace. The Supreme Court upheld this feature on several occasions, such as the aforementioned British Columbia Health Services case and the Quebec Advance Cutting and Coring case in 2001, where the Court upheld the requirement in that province’s construction industry.

Another barrier to the freedom of association comes via the Rand Formula, which the Supreme Court posited in the 1940s. Following its suggestion, several provinces enshrined this formula into law. It requires that all workers in a unionized workplace pay dues to the union, regardless of their relationship with it. In other words, workers must pay for the labour union, regardless of whether they agree with its actions or principles.

These rulings are disturbing insofar as they infringe on the ability of workers to leave their union without leaving their occupation. Although protecting the freedom of individuals to associate with certain groups is important, the other side of it must be the ability to disassociate from them–and unions should be no exception. Correcting this problem requires implementing right-to-work legislation, which would allow workers to leave their union if they are unhappy, while also keeping their job.

Critics of right-to-work legislation often suggest that it will weaken unions. Where this argument falls short, however, is that several developed democracies do not have mandatory union membership. Australia, for example, does not require union membership, yet the labour union density remains nearly 18 per cent and retains a strong presence in many industries, such as education, healthcare, utility services, transportation, etc.

Ultimately, protecting the freedom of association is important for a properly functioning democracy. However, it must go both ways, which entails the right to both join and leave any group. Unions ought not to be exempt from this principle. The provinces should introduce right-to-work legislation as a means of protecting the freedom of association, not because it will weaken unions.

Randy Kaye is a 2013-2014 Atlantic Institute for Market Studies’ Student Fellow. The views expressed are the opinion of the author and not necessarily the Institute

Aligning Canada’s Prostitution Laws

The Supreme Court of Canada ruled recently that Canadian prostitution laws are unconstitutional and I support its decision, not because I condone prostitution, but because I believe that if individuals can sell their bodies legally, they should be able to do so safely.

Canada’s highest court voted unanimously in December to overrule three laws prohibiting various aspects of prostitution, which collectively banned brothels, forbade individuals from living on the avails of prostitution, and inhibited “customers” from communicating for sexual services. Parliament now has twelve months to reconsider the existing legislation before these rulings take effect and, unless the government tables legislation prohibiting prostitution itself, the Court’s decision should stand. It makes sex work safer for all parties involved, whereas prohibitive laws preclude this option altogether.

Abolishing these laws is a promising development. Similar to harsh drug laws, anti-prostitution laws have not ended prostitution or the violence it creates. In addition, these laws prohibit sex workers from exercising basic rights. Open communication about sex work, for instance, could lead to proper screening and negotiations between prostitutes and their clients, which could reduce the likelihood of violence and disease transmission and help both parties identify their expectations. Declaring legal income earned from prostitution could also allow sex workers to hire security, thereby reducing the probability of assault or harassment. Likewise, brothels are a safer alternative for both workers and clients.

Canada’s most profitable brothels were once located in the Atlantic Canada’s port cities and included opportunities to also drink and gamble. Despite banning these establishments, however, the Canadian sex trade continues to grow. The extent to which anti-prostitution laws have attempted to keep this fact hidden, though, has caused the industry to become more dangerous.

It is suspected that legalizing prostitution leads to lower rape rates, as well as lower rates of sexually transmitted disease and infection, in most cases. In fact, Canada’s anti-prostitution laws have caused many prostitutes to put themselves at risk and avoid reporting anything to the authorities because of the likelihood of arrest.

If prostitution were illegal, it would make sense for the associated practises to be as well. Yet, if the Canadian government permits prostitution, as it currently does, it is only right that it takes steps to ensure the safety of prostitutes (or, at the very least, their right to safety). This, in turn, will undoubtedly raise future questions about prostitutes, their employment status, labour protections, and various other issues related to prostitution.

Nevertheless, the Supreme Court’s ruling aligns Canada’s prostitution laws with current realities and it reveals the consequences of pursuing legislation that marginalizes activities deemed socially unacceptable by the public and, subsequently, penalizes those who participate in them.

Rachel Lowe is a 2013-2014 Atlantic Institute for Market Studies’ Student Fellow. The views expressed are the opinion of the author and not necessarily the Institute