The 'freedom of association' transformation?

Lastly, I would be remiss not to mention on the major goings on lately in relation to the scope of Section 2(d) of the Charter of Rights and Freedoms.  That section is very simple.  Here it is. The issue has always been what does ‘freedom of association’ mean?
It could be interpreted narrowly, to mean the right to form and join a club, like a union, for example.  Or, it could be interpreted broadly, to include in addition, the right to engage in the activities that the club engages in.  For example, it might mean not only the right to form and join a union, but also to engage in collective bargaining or to go on strike.
Why does it matter so much how we define the freedom?  Because the Charter regulates government activities.  This means that the government cannot pass a law that is inconsistent with rights protected in the Charter.  So, you begin to see the implications.  If the Charter protects a right to collective bargaining, then the government cannot pass a law that prevents people from access to collective bargaining.  And we have lots of laws that do that right now.  For example, most of you cannot join a union and engage in collective bargaining because you are ‘managers’, and ‘managers’ are excluded from collective bargaining laws in Canada.  There is a pretty strong argument that your Charter rights are being violated by those laws.
And if the Charter protects a right to strike, then the government cannot ban strikes. Can you see the significance of that?  It would mean, for example, that the law the Liberals used to end the York strike might not be legal.
Now, even when a law violates a Charter right, it might still be allowed to stand, because of Section 1 of the Charter. The Court has developed a complicated test for deciding whether a Charter violation is justified in furtherance of the greater good of society.
Here’s what’s happened in the past few years in a nutshell.  In 1987, the Supreme Court ruled that freedom of association protects the right to form and join a union, but not to engage in collective bargaining or strikes.  This meant that governments could prevent large groups of workers from engaging in collective bargaining, and it could ban strikes whenever it feels like it.  But in a couple of recent decisions called Dunmore and B.C. Health Services, the Supreme Court reversed part of that ruling.  It decided it was wrong before, and that in fact freedom of association does include a right to collective bargaining.
We are still sorting out what that means, but it does seem to mean so far, for example, that the Ontario government cannot exclude agricultural workers from collective bargaining legislation.  The Ontario Court of Appeal ruled this in a case called Fraser v. Ontario, which is now on its way to the Supreme Court.  There is a good argument that various other categories of workers who are excluded from collective bargaining legislation must now also be included access to the legislative protections afforded most workers.
And the giant in the closet is the ‘right to strike’ issue.  I have summarized the argument before.  In a nutshell, the Court’s revisiting of Section 2(d) has raised the issue of whether the Court will soon recognize a constitutional right to strike.  The right ‘test’ case has not come along yet to launch this challenge, but it will come (unless the Supreme Court elects to quash the argument preemptively when it decides the Fraser appeal).  CUPE threatened to challenge the Liberals back to work legislation, which would have started this argument, but it backed off.  You might recall that McGuinty argued that he had waited to impose the back to work legislation because of legal advice that the legislation might violate the Charter.  
So these are interesting times for labour lawyers, as I noted at the outset.