IV. RESURRECTING THE TRILOGY'S PARALLEL LIBERTY STANDARD
The 'parallel liberty' standard--the freedom to do with others what one may do alone--has a long pedigree. (124) While no panacea in itself, by asking whether a certain activity is prohibited generally, or prohibited only if exercised in combination with others, the standard strikes at the heart of the protected freedom. This is because it directly focuses the analysis on whether an activity is being unduly limited, in purpose or effect, because of its associational nature. It would in this way realign the default standard of breach with the purpose of section 2(d), as opposed to the purpose or deemed importance of the activity for which protection is sought. (125)
Moreover, it should be noted that the Supreme Court has never expressly rejected this approach; it has only supplemented it. Recall that the parallel liberty approach was endorsed by both McIntyre J and Dickson CJ in the Alberta Reference, and was adopted explicitly by majorities in CEMA and Delisle, both of which remain good law. (126) While the Supreme Court may have overturned the Trilogy's conclusion on collective bargaining, it did not invalidate the parallel liberty approach derived from that case as a method of demonstrating a constitutional violation. (127) According to Bastarache J in Dunmore--in a ruling endorsed in both BC Health and Fraser--a purposive approach to section 2(d) should start with the parallel liberty approach established in the Alberta Reference, "which enables a claimant to show that a group activity is permitted for individuals in order to establish that its regulation targets the association per se." (128) The standard or standards criticized above would then serve as an additional method for establishing a 2(d) violation. Thus, although the 'parallel liberty' standard has fallen into disuse, it is still available to judges and I will argue below that it is the best way out of the quagmire. For this argument to stick, it is important to address the arguments that have been levied against it, which I believe fail to provide sufficient grounds for its rejection as a principled bedrock doctrine for section 2(d).
i. Arguments Against the Parallel Liberty Standard
A number of reasons have been offered for rejecting the parallel liberty standard holus bolus, none of which withstands close scrutiny. One criticism that requires attention is that the standard leaves collective--in particular union--activities entirely unprotected. (129) An appropriate rendering of the parallel liberty definition shows these claims to be misplaced: the standard protects all collective activities that an individual is free to do alone and all collective entitlements an individual possesses. Although McIntyre J's 'freedom to golf' analogy has been much maligned, (130) it aptly illustrates that collective activities are very much protected as long as individuals are legally free or entitled to partake in those activities alone. Thus, because individuals have no independent constitutional right to golf, a government could conceivably prohibit the activity entirely, for groups and individuals alike; however, "the Legislature could not constitutionally provide that golf could be played in pairs but in no greater number, for this would infringe the Charter guarantee of freedom of association." (131) In the labour context, as described in more detail below, the parallel liberty definition would protect the freedom of individuals acting collectively to refuse to work without a contract, simply because individuals are presently afforded this freedom. Thus, Dickson CJ was correct in stating that a standard providing no protection for collective activities is "legalistic, ungenerous, indeed vapid." (132) However, with respect, I think he is wrong to assume that the parallel liberty approach, properly applied, fails to provide sufficient protection to collective activities. It simply does not extend to collectivities, constitutional rights or immunities not afforded to individuals. …