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Not To Associate – a Charter Guaranteed Freedom?
May 18, 2000

The issue of whether there is a Charter guaranteed freedom not to associate is currently before the Supreme Court of Canada in a case heard in late March. The case, R. v. Advance Cutting & Coring, challenges the constitutional validity of a Québec law requiring mandatory union membership in the construction industry. In February 1998, the Québec Superior Court upheld the 1995 conviction of certain employees for doing construction work without being a member of one of the five Québec construction unions, and also upheld the conviction of their employers for using their services. The court ruled that this was not an infringement on freedom of association because the employees had a choice of unions to join. The court also held that if the Charter did protect the right not to associate, the law in question was a reasonable limitation that was demonstrably justified for the purposes of section 1 of the Charter . In March of 1998, the Québec Court of Appeal refused leave to appeal the lower court decision. A number of parties have intervened in the case before the Supreme Court of Canada, including the Canadian Coalition of Open Shop Contractors and the Canadian office of the Building and Construction Trades Department of the AFL-CIO. We are monitoring the progress of this case and will advise our clients when the Supreme Court of Canada issues its decision.