The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

freedom of expression protects the right to receive as well as to print and publish materials. 159 The Court relied on Charter § 7, which purports to protect life, liberty and security of the person, to invalidate three provisions of the Criminal Code that prohibits various activities relating to prostitution, namely public communication for the purposes of prostitution, operating a bawdy house and living off of the avails of prostitution. 160 The Court decided these provisions violated the right to security because they increased the serious risks faced by sex workers without any evidence that the social harms confronting them would be addressed, i.e. the very serious impact of some of the prohibitions on sex workers’ safety was “totally out of sync” with the objective of the law. 161 In the U.S., collective bargaining rights for workers have been under siege since the 1970s and today only 9.9 percent of wage and salary workers in the U.S. are union members. 162 This low rate of unionization, which is one of the reasons explaining high income inequality, has been facilitated by Congress’s consistent underfunding of the National Labor Relations Board and the Supreme Court’s failure to protect the integrity of collective bargaining by allowing non-union members who benefit from higher union wages to opt-out of union dues on First Amendment speech grounds. 163 In Canada, by contrast, the Court has acted to protect collective bargaining. For example, after the government of British Columbia passed legislation to respond to challenges facing the province’s health care system by removing key collective agreement protections for employees in the health care sector, the Supreme Court of Canada found that freedom of association under the Charter protects the collective bargaining process. 164 According

159 Id. 160 Canada (Attorney General) v. Bedford, 2013 SCC 72 161 Id.

162 U.S. Bureau of Labor Statistics, Union Membership (Annual) News Release (Jan. 28, 2025), https://www.bls.gov/news.release/union2.htm (last visited Dec. 26, 2025). 163 Janus v. American Federation of State, County, and Municipal Employees, Council 31 , 585 U.S. 878 (2018). 164 Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia,

130