McLachlin CJ and LeBel J
(with whom Abella, Cromwell, Karakatsanis & Wagner JJ, joined, delivered the judgment of the court)
this appeal, we must decide whether excluding members of the Royal Canadian
Mounted Police (“RCMP”) from collective bargaining under the Public
Service Labour Relations Act, enacted by the Public
Service Modernization Act, S.C.
2003, c. 22, s. 2 (“PSLRA”),
and imposing a non-unionized labour relations regime violates the guarantee of
freedom of association in s.
RCMP members are not permitted to unionize or engage in collective bargaining. They have been excluded from the PSLRA and its predecessor statute since collective bargaining was first introduced in the federal public service in the late 1960s. Instead, there exists a non-unionized labour relations regime with three core components.
First, members can advance their workplace concerns through the Staff Relations Representative Program (“SRRP”).
Second, members’ concerns regarding pay and benefits are communicated to management through the RCMP Pay Council process.
Third, RCMP members have created the Mounted Police Members’ Legal Fund, a not-for-profit corporation funded through membership dues, which provides legal assistance to RCMP members for employment-related issues.
little over fifteen years ago, this Court held that exclusion of RCMP members
from collective bargaining under the PSLRA’s
predecessor legislation did not infringe s.
case was heard together with a related appeal, brought by two Staff Relations
Representatives (“SRRs”) on behalf of all members of the RCMP, challenging the
constitutionality of federal wage restraint legislation: Meredith v Canada (Attorney General), 2015
SCC 2 (CanLII). While the factual background of both appeals
overlap, they raise different legal issues. Meredith addresses
the question of whether a piece of legislation and its implementation
unconstitutionally interfered with the existing RCMP labour relations scheme,
but does not challenge that scheme as a whole as constitutionally deficient
under s. 2
conclude that the s.
II. The Parties
The appellants are voluntary, private associations of RCMP members organized at the initiative of members. The Mounted Police Association of Ontario (“MPAO”) is a non-profit corporation registered in Ontario, formed in 1998 from an amalgamation of two predecessor groups. It represents RCMP members in the National Division (the National Capital Region), Headquarters (RCMP national office in Ottawa) and “O” Division (Ontario, outside the National Capital Region). The British Columbia Mounted Police Professional Association (“BCMPPA”) is a non‑profit society incorporated in British Columbia in 1994. Its members are principally drawn from “E” Division (British Columbia). A similar organization, the Association des membres de la Police Montée du Québec Inc., intervenes in this appeal. It represents the majority of members of “C” Division (Quebec) as well as French-speaking members across Canada.
The goal of all three associations is to represent RCMP members on work-related issues. The associations engage in political lobbying, educational efforts, and social activities. They provide advice and assistance to their members in discipline and grievance matters. Their operations are funded through membership dues, and the associations have no full-time staff. None of the associations has ever been recognized for the purpose of collective bargaining or consultation on workplace issues by RCMP management or the federal government.
respondent, the Attorney General of Canada, joined by a number of provincial
Attorneys General, opposes the appellants’ contention that the current labour
relations scheme violates the guarantee of freedom of association under s.
III. The Current Process
The labour relations system currently in place at the RCMP is composed of three bodies: the SRRP, the Pay Council and the Legal Fund. The core component of the scheme is the SRRP.
The SRRP is the primary mechanism through which RCMP members can raise labour relations issues (excluding wages), and the only form of employee representation recognized by management. The program is the result of consultations that took place as early as 1974. It was formalized in s. 96 of the RCMP Regulations:
The SRRP process is amplified by the RCMP Staff Relations Representative Program Constitution (“SRRP Constitution”), unilaterally adopted by the SRRP, and by an agreement between the National Executive Committee of the SRRP and the RCMP Commissioner addressing matters such as the composition of the program (the “Agreement”). The SRRP Constitution states the purpose of the program is to “promote mutually beneficial relations between Force management and the wider membership” (s. 2). To this end, the SRRP seeks to provide RCMP members “with fair and equitable representation in staff relations matters and to facilitate their participation in the development and implementation of Force policies and programs” (ibid).
The SRRP was designed to resolve issues at the lowest possible level within the RCMP hierarchy. The aim is that at each level (divisional, regional and national), members’ representatives and management consult on human resources initiatives and policies, with the understanding that the final word always rests with management.
Both the current and former RCMP regulations (s. 96, RCMP Regulations; s. 56, RCMP Regulations, 2014) provide for SRRP staffing by elected representatives known as the Staff Relations Representatives or SRRs. Thirty-four SRRs are elected by both regular and civilian members of the RCMP for a two‑year term and serve in this capacity full-time. Additionally, 150 part-time sub‑representatives are elected but continue to perform their regular duties while acting as representatives.
The SRRP is organized regionally and divisionally (generally corresponding to a province or territory) to align with the RCMP’s nation-wide structure. The National Caucus is the collective body of elected SRRs. Regional Caucuses comprise all SRRs in a region, while Divisional Caucuses comprise all SRRs and sub-representatives in a province or territory. Regional and Divisional Caucuses provide the formal point of contact between membership and regional and divisional management.
The National Executive Committee (“NEC”) is the governing body of the SRRP, as well as the presiding body of the National Caucus. The National Caucus elects two SRRs to fulfill a three-year term as full-time members of the NEC. In addition, one SRR is elected to the NEC by each of the five Regional Caucuses for a one-year term. The two full-time members of the NEC are the formal point of contact for the National Caucus with the national management of the RCMP (Commissioner, senior management, and the Minister of Public Safety and Emergency Preparedness). As such, they attend meetings of the RCMP’s Senior Executive Committee, where strategic decisions are made.
To fully understand the SRRP’s role and function, it is necessary, as the application judge and the Court of Appeal did, to take a step back and review the history of labour relations at the RCMP and the origins of the SRRP. As we shall see, the SRRP has undergone a number of changes since its inception. None of them, however, has substantially altered its purpose, place or function within the RCMP chain of command.
A. Origins of the Staff Relations Representative Program
RCMP members were forbidden from unionizing for much of the last century. From 1918 to 1974, all associational activities were prohibited on pain of instant dismissal, by virtue of Orders in Council P.C. 1918-2213 and later P.C. 174/1981 (1945). This policy was believed to be necessary to preserve the loyalty of RCMP members and their obedience to superior orders, which could have been disturbed by allegiance to fellow workers: Delisle, at paras. 92-96, per Cory and Iacobucci JJ., dissenting.
Collective bargaining in the federal public service in Canada was implemented in 1967, with the adoption of the Public Service Staff Relations Act, S.C. 1966-67, c. 72 (“PSSRA”). Members of the RCMP were excluded from bargaining under that Act, as they continue to be excluded under thePSLRA. Prior to the enactment of the PSSRA in 1967, a committee struck by the government to examine whether and how to implement collective bargaining in the federal public service had expressed concerns related to loyalty and obedience within the Force. The concerns were of the same nature as the ones which had led to Orders in Council prohibiting all associational activities by RCMP members. In what is known as the Heeney Report, the committee recommended excluding RCMP members from the labour relations regime proposed by it: Report of the Preparatory Committee on Collective Bargaining in the Public Service (1965), at p. 27; Delisle, at paras. 97-98, per Cory and Iacobucci JJ., dissenting. The Woods Report of 1968, however, recommended that federal law enforcement officials have the right to organize and engage in collective bargaining, subject to certain limitations (Canadian Industrial Relations: The Report of the Task Force on Labour Relations, (1969), at para. 440).
Later, in the early 1970s, dissatisfaction within the RCMP led members to take steps towards the formation of a members’ association to advance their interests ((J. F. Hardy and A. Ponak, “Staff Relations in the Royal Canadian Mounted Police” (1983), 12 J. Collective Negotiations 87, at pp. 89-90). An exploratory committee was established in 1972 in the hopes of establishing an association, and, by early 1974, well-attended meetings to consider forming an association were being held in Montréal, Toronto, Ottawa, Vancouver, and smaller centres (SRR Challenge 2000 Review: Final Report (January 2003) at pp. 10-11). In or around the same time, RCMP management began to show greater openness to members’ concerns. The then-Commissioner began a series of annual meetings with members’ representatives from each division. It is worth noting that those “representatives” were in some cases elected by the members, but in most cases, were simply appointed by their commanding officers and mandated to attend meetings in addition to their other full-time duties. Consultation occurred, but no agreement was reached on the issues that were raised.
In May 1974, newly appointed RCMP Commissioner Maurice Jean Nadon met with representatives of RCMP members and proposed a plan to formalize labour relations within the RCMP. A referendum was held on the plan, and it was approved by members in all divisions except “C” Division (Quebec), where it was rejected. The Division Staff Relations Representative Program (“DSRRP”) was, accordingly, implemented by Commissioner’s Standing Order, which formed the program’s legal basis from 1974 to 2003 (Commissioner’s Standing Orders (Division Staff Relations Representative Program) (repealed by Commissioner’s Standing Orders Repealing the Commissioner’s Standing Orders (Division Staff Relations Representatives Program), SOR/2003-325). It featured full‑time, elected representatives and it was to be funded by Divisional Commanding Officers from within divisional budgets. The DSRRP was led by a program director appointed by the RCMP Commissioner.
The program was progressively implemented within the RCMP. In 1987, a joint committee composed of management representatives and Division Staff Relations Representatives (“DSRRs”) was formed to review the program. It concluded that many features of the labour relations plan proposed by the Commissioner in 1974 had never been formally implemented, and were in fact unknown to many RCMP members. At the recommendation of the committee, a chapter dedicated to the DSRRP was then inserted in the RCMP administration manual as a first step towards the program’s formal recognition.
B. The SRR Challenge 2000 Review
In 1999, a review of the inadequacies and shortcomings of the DSRRP was undertaken, partly in response to the constitutional challenge in Delisle. The SRR Challenge 2000 Review was the first review of the program to be undertaken at the initiative of the DSRRs. The Caucus of the DSRRP approached the Commissioner to discuss three key principles: independence and accountability; consultation and efficiency; and exclusive agency and caucus discipline (SRR Challenge 2000 Review: Final Report, at pp. 29-32).
The SRR Challenge 2000 Review triggered two changes to the functioning of the program (whose name was changed to the SRRP and whose members are known as SRRs). The first change was the adoption by the SRRs of the SRRP Constitution as a governance scheme to replace Commissioner’s Standing Orders that had until that time governed the program. The Constitution formalized matters such as the purpose of the program, its composition and its organization. The second change was the execution of the Agreement by the RCMP Commissioner and the NEC of the SRRP. Both changes were implemented in 2002.
As a result of these changes, the Government of Canada repealed the redundant Commissioner’s Standing Orders (Division Staff Relations Representative Program). However, some Commissioner’s Standing Orders and provisions of the RCMP administrative manual remained in place, to cover matters not addressed by the SRRP Constitution. For instance, s. 3 of the Commissioner’s Standing Orders (Representation), 1997, SOR/97-399, still limits the member representatives’ rights to represent members in grievances, proceedings, preparations or appeals under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, where that representation “could impair the efficiency, administration or good government of the Force”.
Undoubtedly, the SRR Challenge 2000 Review increased the independence afforded to the SRRP. Pursuant to the Agreement, the NEC now names the SRR Program Director. It also administers its annual budget. However, the reform left the SRRP largely unchanged with respect to its role within the RCMP chain of command.
IV. The Present Constitutional Challenge
The current challenge to the SRRP and PSLRA was commenced in May 2006. The appellants’ application was heard in the Ontario Superior Court of Justice by MacDonnell J., who rendered his decision before this Court’s judgment in Fraser: (2009), 2009 CanLII 15149 (ON SC), 96 O.R. (3d) 20. Applying the then-existing framework, he concluded that s. 96 of the RCMP Regulations substantially interfered with freedom of association because
the SRRP is not an independent association formed or chosen by members of the RCMP, and
the interaction between the SRRP and management could not reasonably be described as a process of collective bargaining.
The Court of Appeal for Ontario (Doherty, Rosenberg and Juriansz JJ.A.), in a decision rendered after this Court’s decision in Fraser, reversed MacDonnell J.’s decision: 2012 ONCA 363 (CanLII), 111 O.R. (3d) 268. The court, per Juriansz J.A., focused on Fraser’s description of collective bargaining as a “derivative right” (para. 109, citing Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 (CanLII),  1 S.C.R. 815) and concluded that “a positive obligation to engage in good faith collective bargaining will only be imposed on an employer when it is effectively impossible for the workers to act collectively to achieve workplace goals” (para. 111).
Court of Appeal held that it is not “effectively impossible” for RCMP members to
meaningfully exercise their s.
2 the existence of voluntary
associations such as the appellants; the Mounted Police Members’ Legal Fund,
which assists members; and the SRRP. The Court of Appeal recognized that
the SRRP was “created by regulation”, was “not institutionally independent”, and
did not allow members of the RCMP to choose “a bargaining agent in a Wagner
labour regime” (at para. 128). It nevertheless concluded that RCMP members
could act collectively through the SRRP to pursue workplace issues in a
meaningful way. Accordingly, it held that the current labour relations scheme
does not breach s. 2
the existence of voluntary associations such as the appellants;
the Mounted Police Members’ Legal Fund, which assists members; and
The Court of Appeal recognized that
the SRRP was “created by regulation”, was “not institutionally independent”, and
did not allow members of the RCMP to choose “a bargaining agent in a Wagner
labour regime” (at para. 128). It nevertheless concluded that RCMP members
could act collectively through the SRRP to pursue workplace issues in a
meaningful way. Accordingly, it held that the current labour relations scheme
does not breach s. 2
On February 20, 2013, the Chief Justice stated the following constitutional questions:
96 of the Royal
Canadian Mounted Police Regulations, 1988, SOR/88-361, infringe s.
If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1of the Canadian Charter of Rights and Freedoms?
If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1of the Canadian Charter of Rights and Freedoms?
A. Evolution of Section 2(d) Jurisprudence Toward a Purposive and Contextual Approach
jurisprudence on freedom of association under s.
has come to be known as the Labour Trilogy, a
majority of this Court held that s.
Reference re Public Service Employee Relations Act (Alta.),1987 CanLII 88 (SCC),  1 S.C.R. 313 (the “Alberta Reference”);
PSAC v Canada, 1987 CanLII 89 (SCC),  1 S.C.R. 424; and
RWDSU v Saskatchewan,  1 S.C.R. 460.
reasoning is set out most fully in the three opinions issued in the Alberta
Reference. There Le Dain J., in brief reasons supported by Beetz and
La Forest JJ., endorsed an interpretation of s.
McIntyre J. reached the same conclusion, but for somewhat different reasons. In his view, freedom of association rested on the following proposition: “.... the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others” (p. 395). Accordingly, McIntyre J. held that freedom of association protected a right to engage collectively in those activities which are constitutionally protected for each individual [pp. 398‑99]:
The only basis on which it is contended that the Charter enshrines a right to strike is that of freedom of association. Collective bargaining is a group concern, a group activity, but the group can exercise only the constitutional rights of its individual members on behalf of those members. If the right asserted is not found in the Charter for the individual, it cannot be implied for the group merely by the fact of association. It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association.
reviewing six possible approaches to the scope of s.
C.J., dissenting (Wilson J. concurring), would have allowed the appeal. He
identified three possible approaches to s.
The purpose of the constitutional guarantee of freedom of association is, I believe, to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends .... As social beings, our freedom to act with others is a primary condition of community life, human progress and civilized society. Through association, individuals have been able to participate in determining and controlling the immediate circumstances of their lives, and the rules, mores and principles which govern the communities in which they live ....
Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association has always been the means through which political, cultural and racial minorities, religious groups and workers have sought to attain their purposes and fulfil their aspirations; it has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict ....
What freedom of association seeks to protect is not association activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage.
C.J. recognized as a starting point that s.
The approach to freedom of association endorsed by the majority in the Labour Trilogy was affirmed three years later in Professional Institute of the Public Service of Canada v Northwest Territories (Commissioner), 1990 CanLII 72 (SCC),  2 S.C.R. 367 (“PIPSC”). In that case, the Public Service Act, R.S.N.W.T. 1974, c. P-13, subjected the employees’ choice of bargaining agent to approval by the legislature of the Northwest Territories. Like the present appeal, PIPSC involved a challenge to a labour relations scheme that imposed a framework for collective bargaining on a group of public service employees, limiting their ability to represent themselves through a freely chosen association. But the association itself remained entirely independent from management (p. 408).
seven judges who heard the case wrote five separate opinions. The majority
agreed with Sopinka J. who concluded that s.
.... first, that s.
J.’s disposition of the case was supported by Dickson C.J., La Forest J. and
L’Heureux-Dubé J., but only L’Heureux-Dubé J. endorsed the third and fourth
propositions as limiting principles under s.
Cory J. (Wilson and Gonthier JJ. concurring), dissented on the scope of freedom of association. In his view, freedom of association permits individuals to work together for the purpose of achieving common goals. This freedom is fundamental to a free and democratic society and extends into the workplace. He succinctly stated one aspect of freedom of association in the workplace [p. 380]:
Whenever people labour to earn their daily bread, the right to associate will be of tremendous significance. Wages and working conditions will always be of vital importance to an employee. It follows that for an employee the right to choose the group or association that will negotiate on his or her behalf with regard to those wages and working conditions is of fundamental importance. The association will play a very significant role in almost every aspect of the employee’s life at work, acting as advisor, as spokesperson in negotiations, and as a shield against wrongful acts of the employer. If collective bargaining is to function properly, employees must have confidence in their representative. That confidence will be lost if the individual employee is unable to choose the association.
recap, and notwithstanding noteworthy dissents, the majority of this Court in
this early period maintained a narrow view of freedom of association, which
protected only the bare formation of the association and the collective exercise
of individual freedoms. This view prevailed for some time. Outside the labour
relations context, the same approach was applied in Canadian
Egg Marketing Agency v Richardson, 1997
CanLII 17020 (SCC),  3 S.C.R. 157. And in the labour relations
context, this approach resulted in the majority of this Court holding that the
exclusion of RCMP members from the PSSRA did
not violate s.
to these cases, the Court considered the “negative” aspect of freedom of
association – the freedom not to associate: Lavigne v Ontario Public Service Employees Union, 1991
CanLII 68 (SCC),  2 S.C.R. 211; R. v Advance Cutting & Coring Ltd., 2001
SCC 70 (CanLII),  3 S.C.R. 209; affirmed in Bernard v Canada (Attorney General), 2014
SCC 13 (CanLII),  1 S.C.R. 227. But, Lavigne and Advance
Cutting are significant because they applied a purposive approach to s.
cases marked the beginning of a more generous, purposive approach to s.
In my view, while the four-part test for freedom of association sheds light on
this concept, it does not capture the full range of activities protected by s.
2 (1) are not protected under any other constitutional
freedom, and (2)
are not protected under any other constitutional freedom, and
renewed focus on the collective aspect of freedom of association and on its
purposive interpretation led to the express recognition of a s.
Based on the principles developed in Dunmore and in this historical and international perspective, the constitutional right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment.
(Para. 89, per McLachlin C.J. and LeBel J.; see also para. 174, per Deschamps J.)
in Fraser, this Court
reaffirmed that s.
summary, after an initial period of reluctance to embrace the full import of the
freedom of association guarantee in the field of labour relations, the
jurisprudence has evolved to affirm a generous approach to that guarantee. This
approach is centred on the purpose of encouraging the individual’s
self-fulfillment and the collective realization of human goals, consistent with
democratic values, as informed by “the historical origins of the concepts
enshrined” in s. 2
B. Defining the Scope of the Section 2(d) Guarantee
(1) A Purposive, Generous and Contextual Approach
the case with other Charter rights,
the jurisprudence establishes that s.
This interpretative approach to freedom of association is consistent with the approach to other basic rights connected with human activities and needs. The scope of freedom of religion, for example, is derived from its history and the range of activities to which it applies – holding, proclaiming and transmitting beliefs in the bosom of a secular state (R. Moon, “Freedom of Conscience and Religion”, in Mendes and Beaulac, 339). Similarly, the scope of freedom of expression is defined by the different forms it takes and the different interests it protects – including, notably, “the quest for truth, self-fulfillment, and an embracing marketplace of ideas”: Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (CanLII),  1 S.C.R. 467, at para. 171, per Rothstein J. for the Court; see also R. v Keegstra, 1990 CanLII 24 (SCC),  3 S.C.R. 697, at p. 766; P. B. Schabas, “The Ups and Downs of Freedom of Expression - Section 2(b)”, in R. Gilliland, ed., The Charter at Thirty (2012), 1; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (5th ed. 2008), at p. 1060. An activity-based contextual approach is equally essential for freedom of association. Freedom of association, like the other s. 2 freedoms – freedom of expression, conscience and religion, and peaceful assembly – protects rights fundamental to Canada’s liberal democratic society.
Freedom of association is not derivative of these other rights. It stands as an independent right with independent content, essential to the development and maintenance of the vibrant civil society upon which our democracy rests.
purposes underlying Charter rights
and freedoms may be framed at varying levels of abstraction. At the broadest
level, a purposive interpretation must be consistent with the “larger objects of
including “basic beliefs about human worth and dignity” and the maintenance of
“a free and democratic political system”: Big
M Drug Mart, at pp. 344 and 346; see also Health
Services, at para. 81. At the same time, however, while Charter rights
and freedoms should be given a broad and liberal interpretation, a purposive
analysis also requires courts to consider the most concrete purpose or set of
purposes that underlies the right or freedom in question, based on its history
and full context. That is the task to which we now turn with respect to s.
(2) The Content of Section
dissenting reasons in the Alberta
Reference, Dickson C.J. identified three possible approaches to the
interpretation of s.
The narrowest approach, the “constitutive”, would protect only the bare right to belong to or form an association. The state would thus be prohibited from interfering with individuals meeting or forming associations, but would be permitted to interfere with the activities pursued by the associations people form. This protection, while narrow, is not trivial; history is replete with examples of states that have banned associations or prevented people from associating, either absolutely or in terms of restrictions on the number of people who can associate for a particular purpose.
The “derivative” approach would protect not only the right to associate, but also the right to associational activity that specifically relates to other constitutional freedoms. This approach prevails in the United States, where freedom of association is recognized insofar as it supports other constitutional rights, like freedom of religion and the political rights. Beyond this, however, associational activities would not be constitutionally protected.
purposive approach, adopted by Dickson C.J. in the Alberta
Reference, defines the content of s.
individuals joining with others to form associations (the constitutive approach);
collective activity in support of other constitutional rights (the derivative approach); and
collective activity that enables “those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”: Alberta Reference, at p. 366.
purposive approach thus recognizes that freedom of association is empowering,
and that we value the guarantee enshrined in s.
The historical emergence of association as a fundamental freedom – one which permits the growth of a sphere of civil society largely free from state interference – has its roots in the protection of religious minority groups: M. Walzer, “The Concept of Civil Society”, in M. Walzer, ed., Toward a Global Civil Society (1995), 7, at p. 20. More recent history also illustrates how the freedom to associate has contributed to the women’s suffrage and gay rights movements: J. D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly (2012), at p. 45; and D. Carpenter, “Expressive Association and Anti-Discrimination Law After Dale: A Tripartite Approach” (2001), 85 Minn. L. Rev. 1515.
Historically, those most easily ignored and disempowered as individuals have staked so much on freedom of association precisely because association was the means by which they could gain a voice in society. As Dickson C.J. put it in the Alberta Reference (pp. 365-66):
Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association has always been the means through which political, cultural and racial minorities, religious groups and workers have sought to attain their purposes and fulfil their aspirations; it has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.
then is a fundamental purpose of s.
flip side of the purposive approach to freedom of association under s. 2
there are other categories of activity in addition to violence that are by their
very nature entirely excluded from s. 2
nature of a given associational activity and its relation to the underlying
purpose of s. 2
Violent expression and expression that threatens violence does not fall within the protected sphere of s. 2 of the Charter: R. v Khawaja, 2012 SCC 69 (CanLII),  3 S.C.R. 555, at para. 70. However, apart from that, not all expression will be treated equally in determining an appropriate balancing of competing values under a s. 1 analysis. That is because different types of expression will be relatively closer to or further from the core values behind the freedom, depending on the nature of the expression. This will, in turn, affect its value relative to otherCharter rights, the exercise or protection of which may infringe freedom of expression.
Hate speech is at some distance from the spirit of s. 2 because it does little to promote, and can in fact impede, the values underlying freedom of expression. As noted by Dickson C.J. in Keegstra, expression can be used to the detriment of the search for truth (p. 763). As earlier discussed, hate speech can also distort or limit the robust and free exchange of ideas by its tendency to silence the voice of its target group. It can achieve the self-fulfillment of the publisher, but often at the expense of that of the victim. These are important considerations in balancing hate speech with competing Charter rights ....
In society, there is an element of synergy when individuals interact. The mere addition of individual goals will not suffice. Society is more than the sum of its parts. Put another way, a row of taxis do not a bus make. An arithmetic approach to Charter rights fails to encompass the aspirations imbedded in it.
It has been suggested that collective rights should not be recognized because they are inconsistent with the Charter’s emphasis on individual rights, and because this would give groups greater rights than individuals. In our view, neither criticism is well founded.
First, the Charter does not exclude collective rights. While it generally speaks of individuals as rights holders, its s. 2 guarantees extend to groups. The right of peaceful assembly is, by definition, a group activity incapable of individual performance. Freedom of expression protects both listeners and speakers: R. v National Post, 2010 SCC 16 (CanLII),  1 S.C.R. 477, at para. 28. The right to vote is meaningless in the absence of a social context in which voting can advance self-government: Sauvé v Canada (Chief Electoral Officer), 2002 SCC 68 (CanLII),  3 S.C.R. 519, at para. 31. The Court has also found that freedom of religion is not merely a right to hold religious opinions but also an individual right to establish communities of faith (see Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (CanLII),  2 S.C.R. 567). And while this Court has not dealt with the issue, there is support for the view that “the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection” of freedom of religion (Hutterian Brethren, at para. 131, per Abella J., dissenting, citing Metropolitan Church of Bessarabia v Moldova, No. 45701/99, ECHR 2001-XII (First Section), at para. 118). See also Serbian Eastern Orthodox Diocese v Milivojevich, 426 U.S. 696 (1976).
also been suggested that recognition of a collective aspect to s.
2 the right to join with others and form associations; the right to join with
others in the pursuit of other constitutional rights; and the right to join
with others to meet on more equal terms the power and strength of other groups
the right to join with others and form associations;
the right to join with others in the pursuit of other constitutional rights; and
the right to join with others to meet on more equal terms the power and strength of other groups or entities.
C. The Right to a Meaningful Collective Bargaining Process
the purposive approach just discussed to the domain of labour relations, we
conclude that s.
Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters. Without the right to pursue workplace goals collectively, workers may be left essentially powerless in dealing with their employer or influencing their employment conditions. This idea is not new. As the United States Supreme Court stated in National Labor Relations Board v Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at p. 33:
Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment ....
Similarly, this Court recently affirmed the importance of freedom of expression in redressing the imbalance inherent in the employer-employee relationship in Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 (CanLII),  3 S.C.R. 733, at paras. 31-32:
A person’s employment and the conditions of their workplace can inform their identity, emotional health, and sense of self-worth ....
Free expression in the labour context can also play a significant role in redressing or alleviating the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker .... It is through their expressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attempt to persuade the employer.
same reasoning applies to freedom of association. As we have seen, s.
right to a meaningful process of collective bargaining is therefore a necessary
element of the right to collectively pursue workplace goals in a meaningful way
(Health Services; Fraser).
Yet a process of collective bargaining will not be meaningful if it denies
employees the power to pursue their goals. As this Court stated in Health
Services: “One of the fundamental achievements of collective bargaining is
to palliate the historical inequality between employers and employees .... ”
(para. 84). A process that substantially interferes with a meaningful process
of collective bargaining by reducing employees’ negotiating power is therefore
inconsistent with the guarantee of freedom of association enshrined in s.
balance necessary to ensure the meaningful pursuit of workplace goals can be
disrupted in many ways. Laws and regulations may restrict the subjects that can
be discussed, or impose arbitrary outcomes. They may ban recourse to collective
action by employees without adequate countervailing protections, thus
undermining their bargaining power. They may make the employees’ workplace
goals impossible to achieve. Or they may set up a process that the employees
cannot effectively control or influence. Whatever the nature of the
restriction, the ultimate question to be determined is whether the measures
disrupt the balance between employees and employer that s.
Against this conception, the Attorney General of Canada, relying on Fraser, argues that collective bargaining is at best a “derivative right” from the basic or “core” right to associate (the constitutive approach). It follows, according to the Attorney General, that collective bargaining is protected only if state action makes it effectively impossible to associate for workplace matters. Here that impossibility is lacking, the Attorney General asserts, because the SRRP process is a means by which RCMP members can associate for workplace purposes. The Court of Appeal accepted this position. We disagree. We will address the terms “effectively impossible” and “derivative right” in turn.
reference in Fraser to
the effective impossibility of achieving workplace goals must be understood with
reference to the legislative schemes at issue. For instance, in discussing Dunmore,
the majority in Fraser explained
that Bastarache J. had “concluded that the absence of legislative protection for
farm workers to organize in order to achieve workplace goals made meaningful
association to achieve workplace goals impossible and
therefore constituted a substantial interference with
the right to associate guaranteed by s.
passages from Fraser and Health
Services use terms like
“impossible” and “effectively nullified” to describe the effect of legislative
schemes (including legislative exclusions), not the legal test for infringement
in the case at bar, Rothstein J. highlights the fact that the majority reasons
in Fraser “referred
to the test of impossibility – either effective or substantial impossibility –
less than 12 times, tracing its origins in the decisions of Dunmore and
Services .... see Fraser,
at paras. 31-34, 38, 42, 46-48, 62 and 98” (para. 213 (emphasis in original)).
In virtually every case (see paras. 31-33, 38, 42, 46-48, 62 and 98), the
“impossibility” in question refers explicitly to the effect of
legislation or the absence of a legislative framework. A test of substantial
interference or substantial impairment is also explicitly stated as the standard
for finding a s.
said, we agree that some of the passages in Fraser seem
to unnecessarily complicate the analysis by referring to both effective
impossibility (as the effect of certain state action) and substantial
interference or impairment (as the test for infringement of s.
We turn now to use of the term “derivative right” in Fraser. On the Court of Appeal’s interpretation of Fraser, the right to a meaningful process of collective bargaining is “derivative” in the sense that it exists only where employees establish that it is effectively impossible for them to act collectively to achieve workplace goals (paras. 110-11 and 135). However, in Fraser, the majority explained that “collective bargaining is a derivative right” in the sense that it is “a ‘necessary precondition’ to the meaningful exercise of the constitutional guarantee of freedom of association”: para. 66. The majority cited Criminal Lawyers’ Association where the Court stated, at para. 30: “Access [to information in government hands] is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government” (emphasis added). The Court of Appeal understood this to mean that the right to collective bargaining similarly may arise as a necessary precondition to meaningful association in the workplace only where some other condition is first met. The Court of Appeal took that condition to be the effective impossibility of acting collectively to achieve workplace goals.
the majority in Fraser did
not qualify the right to collective bargaining in this way. It held that
collective bargaining is “a ‘necessary precondition’ to the meaningful exercise
of the constitutional guarantee of freedom of association”: para. 66.
Similarly, at para. 99, “the right of an employees’ association to make
representations to the employer and have its views considered in good faith” is
described as “a derivative right unders.
D. Essential Features of a Meaningful Process of Collective Bargaining Under Section 2(d)
concluded that s. 2
Collective bargaining constitutes a fundamental aspect of Canadian society which “enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work” (Health Services, at para. 82). Put simply, its purpose is to preserve collective employee autonomy against the superior power of management and to maintain equilibrium between the parties. This equilibrium is embodied in the degree of choice and independence afforded to the employees in the labour relations process.
But choice and independence are not absolute: they are limited by the context of collective bargaining. In our view, the degree of choice required by the Charter for collective bargaining purposes is one that enables employees to have effective input into the selection of the collective goals to be advanced by their association. In the same vein, the degree of independence required by the Charter for collective bargaining purposes is one that ensures that the activities of the association are aligned with the interests of its members.
In the following subsections, we lay out the theoretical underpinnings of choice and independence and we explain how they are inherent to the nature and purpose of collective bargaining. We then explain how the requirements of choice and independence can be respected by a variety of labour relations models, as long as such models allow collective bargaining to be pursued in a meaningful way.
(1) Choice and Independence Are Inherent to the Nature and Purpose of Collective Bargaining
(a) Employee Choice
The function of collective bargaining is not served by a process which undermines employees’ rights to choose what is in their interest and how they should pursue those interests. The degree of choice required by the Charter is one that enables employees to have effective input into the selection of their collective goals. This right to participate in the collective is crucial to preserve employees’ ability to advance their own interests, particularly in schemes which involve trade-offs of individual rights to gain collective strength (J.E. Dorsey, “Individuals and Internal Union Affairs: The Right to Participate”, in K.P. Swan and K.E. Swinton, eds., Studies in Labour Law (1983), 193).
Hallmarks of employee choice in this context include the ability to form and join new associations, to change representatives, to set and change collective workplace goals, and to dissolve existing associations. Employee choice may lead to a diversity of associational structures and to competition between associations, but it is a form of exercise of freedom of association that is essential to the existence of employee organizations and to the maintenance of the confidence of members in them (PIPSC, at p. 380, per Cory J., in dissent; P. Davies and M. Freedland, Kahn‑Freund’s Labour and the Law (3rd. ed. 1983) at p. 200).
Accountability to the members of the association plays an important role in assessing whether employee choice is present to a sufficient degree in any given labour relations scheme. Employees choose representatives on the assumption that their voice will be conveyed to the employer by the people they choose (A. Bogg and K. Ewing, “A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada” (2012), 33 Comp. Lab. L. & Pol’y J. 379, at p. 405). A scheme that holds representatives accountable to the employees who chose them ensures that the association works towards the purposes for which the employees joined together. Accountability allows employees to gain control over the selection of the issues that are put forward to the employer, and the agreements concluded on their behalf as a result of the process of collective bargaining.
(b) Independence From Management
The function of collective bargaining is not served by a process which is dominated by or under the influence of management. This is why a meaningful process of collective bargaining protects the right of employees to form and join associations that are independent of management (Delisle, at paras. 32 and 37). Like choice, independence in the collective bargaining context is not absolute. The degree of independence required by the Charter for collective bargaining purposes is one that permits the activities of the association to be aligned with the interests of its members.
Just as with choice, independence from management ensures that the activities of the association reflect the interests of the employees, thus respecting the nature and purpose of the collective bargaining process and allowing it to function properly. Conversely, a lack of independence means that employees may not be able to advance their own interests, but are limited to picking and choosing from among the interests management permits them to advance. Relevant considerations in assessing independence include the freedom to amend the association’s constitution and rules, the freedom to elect the association’s representatives, control over financial administration and control over the activities the association chooses to pursue.
Independence and choice are complementary principles in assessing the constitutional compliance of a labour relations scheme. Charter compliance is evaluated based on the degrees of independence and choice guaranteed by the labour relations scheme, considered with careful attention to the entire context of the scheme. The degrees of choice and independence afforded should not be considered in isolation, but must be assessed globally always with the goal of determining whether the employees are able to associate for the purposes of meaningfully pursuing collective workplace goals.
We now turn to the practical implications of choice and independence for labour relations models.
(2) Labour Relations Models Must Permit Collective Bargaining to Be Pursued in a Meaningful Way
A variety of labour relations models may provide sufficient employee choice and independence from management to permit meaningful collective bargaining. As discussed, choice and independence are not absolute in the context of collective bargaining. By necessity, a collective framework not only serves employees’ interests, but imposes limits on individual entitlements in order to permit the pursuit of collective goals. Collective bargaining is “an exercise in solidarity in which individual interests are not simply aggregated but transformed in the process of democratic deliberation” (J. Fudge, “Introduction: Farm Workers, Collective Bargaining Rights, and the Meaning of Constitutional Protection”, in F. Faraday, J. Fudge and E. Tucker, eds., Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (2012), 1, at p. 17; see also G. Murray and P. Verge, La représentation syndicale: Visage juridique actuel et future (1999), at pp. 2-3; Dorsey, at pp. 195 and 219). As Professor Wellington states: “Accommodating the interests of the dissenter and those of the majority is always difficult. The hallmark of a truly democratic society is its unwillingness to give up easily either majority rule or individual freedom” (Labor and the Legal Process (1968), at p. 129).
Court has consistently held that freedom of association does not guarantee a
particular model of labour relations (Delisle, at para. 33; Health
Services, at para. 91; Fraser,
at para. 42). What is required is not a particular model, but a regime that
does not substantially interfere with meaningful collective bargaining and thus
complies with s.
The Wagner Act model of labour relations in force in most private sector and many public sector workplaces offers one example of how the requirements of choice and independence ensure meaningful collective bargaining. That model permits a sufficiently large sector of employees to choose to associate themselves with a particular trade union and, if necessary, to decertify a union that fails to serve their needs. The principles of majoritarianism and exclusivity, the mechanism of “bargaining units” and the processes of certification and decertification – all under the supervision of an independent labour relations board – ensure that an employer deals with the association most representative of its employees: G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at paras. 2.3800 to 2.4030; D. D. Carter et al., Labour Law in Canada (5th ed., 2002), at pp. 286-87; P. Verge, G. Trudeau and G. Vallée, Le droit du travail par ses sources (2006) at pp. 41-42.
The Wagner Act model, however, is not the only model capable of accommodating choice and independence in a way that ensures meaningful collective bargaining. The designated bargaining model (see, e.g., School Boards Collective Bargaining Act, 2014, S.O. 2014, c. 5) offers another example of a model that may be acceptable. Although the employees’ bargaining agent under such a model is designated rather than chosen by the employees, the employees appear to retain sufficient choice over workplace goals and sufficient independence from management to ensure meaningful collective bargaining. This is but one example; other collective bargaining regimes may be similarly capable of preserving an acceptable measure of employee choice and independence to ensure meaningful collective bargaining.
Labour schemes are responsive to the interests of the parties involved and the particular workplace context. Different models have emerged to meet the specific needs of diverse industries and workplaces. The result has been ongoing debate on the desirability of various forms of workplace representation and cooperation and on their coexistence: D. J. Doorey, “Graduated Freedom of Association: Worker Voice Beyond the Wagner Model” (2013), 38 Queen’s L.J. 511; B. W. Burkett, “The Future of the Wagner Act: A Canadian-American Comparison” (2013), 38 Queen’s L.J. 363; D. Taras, “Reconciling Differences Differently: Employee Voice in Public Policymaking and Workplace Governance” (2007), 28 Comp. Lab. L. & Pol’y J. 167; Adams, at paras. 1.290 to 1.340.
search is not for an “ideal” model of collective bargaining, but rather for a
model which provides sufficient employee choice and independence to permit the
formulation and pursuit of employee interests in the particular workplace
context at issue. Choice and independence do not require adversarial
labour relations; nothing in the Charter prevents
an employee association from engaging willingly with an employer in different,
less adversarial and more cooperative ways. This said, genuine collective
bargaining cannot be based on the suppression of employees’ interests, where
these diverge from those of their employer, in the name of a “non‑adversarial”
process. Whatever the model, the Charter does
not permit choice and independence to be eroded such that there is substantial
interference with a meaningful process of collective bargaining. Designation of
collective bargaining agents and determination of collective bargaining
frameworks would therefore not breach s.
respondent argues that this view of s.
summary, a meaningful process of collective bargaining is a process that gives
employees meaningful input into the selection of their collective goals, and a
degree of independence from management sufficient to allow members to control
the activities of the association, having regard to the industry and workplace
in question. A labour relations scheme that complies with these requirements
and thus allows collective bargaining to be pursued in a meaningful way
turning to the application of these principles to the constitutional questions
raised in this case, we address Rothstein J.’s dissenting reasons. In Rothstein
J.’s view, “[t]he essential feature of a labour relations regime that allows
employees to exercise their constitutional right to make meaningful collective
representations on their workplace goals is representativeness: the voice that
speaks on behalf of employees must represent their interests and be ultimately
accountable to them. Representativeness is the constitutional imperative
required in order to ensure that s.
So stated, the notions of choice and independence, on the one hand, and representativeness, on the other, overlap considerably. However, we consider choice and independence best suited for the constitutional analysis at issue. If employees cannot choose the voice that speaks on their behalf, that voice is unlikely to speak up for their interests. It is precisely employee choice of representative that guarantees a representative voice. Similarly, if employees must “have confidence in their spokespersons” (Rothstein J.’s reasons, at para. 219), the way to ensure such confidence is through a sufficient degree of employee choice in the selection of representatives.
Justice Rothstein argues that “the touchstone is representativeness” (para. 195). He acknowledges, however, that employees must be able to hold their representatives “to account” (paras. 193 and 222). Yet employees will be unable to hold representatives accountable if those employees lack sufficient choice in selecting their representatives or if their representatives are dependent on management (for instance, in determining the acceptable subject matter of employee grievances, or the relative priority of employee concerns).
and accountability rest on choice and independence. We conclude that the latter
two principles are the most appropriate in assessing s.
background, we therefore turn to the constitutional questions raised in the case
at bar, that is whether the imposition of the SRRP and the exclusion of RCMP
members from the application of the PSLRA violate s.
E. Whether the Imposition of the SRRP Infringes Section 2(d) of the Charter
This is not
a case of a complete denial of the constitutional right to associate and of its
related constitutional guarantees. It is rather a case of substantial
interference with the right to associate for the purpose of addressing workplace
goals through a meaningful process of collective bargaining, free from employer
control, as understood by Dickson C.J. in the Alberta
Reference. We conclude that the flaws in the SRRP process do not permit
meaningful collective bargaining, and are inconsistent with s.
Section 96 of the RCMP Regulations imposed the SRRP on RCMP members as the sole means of presenting their concerns to management. Section 56 of the current-day RCMP Regulations, 2014 continues to impose the SRRP under nearly identical terms. RCMP members are represented by an organization they did not choose and do not control. They must work within a structure that lacks independence from management. Indeed, this structure and process are part of the management organization of the RCMP. The process fails to achieve the balance between employees and employer that is essential to meaningful collective bargaining, and leaves members in a disadvantaged, vulnerable position.
(1) The Purpose of the
Imposition of the SRRP Infringes Section
We earlier described the history of RCMP labour relations. This history evidences a long-standing hostility on the part of RCMP management and successive Canadian governments to unionization in the Force. In the early 20th century, the federal government deployed one of the RCMP’s predecessor bodies – the Royal Northwest Mounted Police – to confront labour unrest, most famously in breaking the Winnipeg General Strike of 1919. At a time when municipal police forces in Canada were beginning to unionize, the Canadian government issued Order in Council P.C. 1918-2213, which prohibited members of the Dominion Police and the Royal Northwest Mounted Police from becoming “a member of or in any wise associated with any Trades Union Organization .... or with any Union, Society or Association .... connected or affiliated therewith” on penalty of immediate dismissal.
This stance was softened in the early 1970s, with the repeal of P.C. 1918-2213 (P.C. 1974-1339), but the federal government continued to resist the formation of independent RCMP members’ associations. The DSRRP, precursor to the present SRRP, was openly presented as an alternative to unionization. The year it was created, RCMP Commissioner Nadon commissioned a report on the effects of police associations and the advantages and disadvantages of implementing such an association in the RCMP: J. P. Middleton, A Study Report on Police Associations (1974). The Middleton report was largely supportive of the formation of an RCMP members’ association or union. In circulating the report, however, Commissioner Nadon included a brief foreword, in which he stated [p. i]:
|At the outset I wish to make the Force’s position very clear; the Force is opposed to the formation of an association or union of members and this position has been made known to our Minister.|
Section 3(2) of the Commissioner’s Standing Orders (Division Staff Relations Representative Program), which formed the legal basis of the DSRRP from 1974 to 2003, prohibited DSRRs from promoting “alternate programs in conflict with the non-union status of the Division Staff Relations Representative Program”.
this Court, the Attorney General of Canada does not contend that the current-day
SRRP provides RCMP members with an independent association. Indeed, the
Attorney General appears to concede that the SRRP continues to be imposed on
members of the RCMP for the purpose of preventing collective bargaining through
an independent association. Its position is rather that s. 2
(2) The Effects of the
Imposition of the SRRP Infringe Section
would be sufficient to find a violation of s.
The organizational structure of the SRRP has evolved significantly since its predecessor was first established in 1974. These changes are detailed above. While these changes have expanded the SRRs’ freedom to direct the program, they nonetheless fall short of respecting RCMP members’ right to join associations that are of their choosing and independent of management, to advance their interests.
At the level of institutional structure, the SRRP is plainly not independent of RCMP management. Rather, it is squarely under its control. It is a part of the labour-management structure of the RCMP. In 1989, the Government of Canada formalized the SRRP (then known as the DSRRP) by addings. 96 to the RCMP Regulations: SOR/89-581. The Regulatory Impact Analysis Statement that accompanied the amendment to the RCMP Regulations expressly stated that the DSRRP was “co-ordinated and monitored at R.C.M.P. Headquarters” and “subject to biannual reviews at R.C.M.P. Divisions with reports to the Commissioner from the Internal Communications Officer”. Although not determinative nor exhaustive of a regulation’s purpose or interpretation, regulatory impact analysis statements are a useful tool to understand how regulations are intended to work: see Mining Watch Canada v Canada (Fisheries and Oceans), 2010 SCC 2 (CanLII),  1 S.C.R. 6, at para. 33; RJR – MacDonald Inc. v Canada (Attorney General), 1994 CanLII 117 (SCC),  1 S.C.R. 311, at pp. 352-53.
The lack of independence of the current-day SRRP is further emphasized by the 2007 Brown Report: Rebuilding the Trust: Report of the Task Force on Governance and Cultural Change in the RCMP (2007). In June 2007, an independent investigator raised issues regarding the RCMP’s handling of reports of mismanagement or irregularities in the administration of the RCMP’s pension and insurance plans in a report that was submitted to the Minister of Public Safety and the President of the Treasury Board: A Matter of Trust: Report of the Independent Investigator into Matters Relating to RCMP Pension and Insurance Plans (2007). The investigator recommended that the Government of Canada establish a task force to examine issues pertaining to the RCMP’s governance and culture. This led to the Brown Report. While the Task Force did not focus exclusively on labour relations at the RCMP, it did consider comments from members and employees about the SRRP.
In the Brown Report, the Task Force reported the comments of some officers who said they were not sure what happens to their concerns after they give them to SRRs: “.... it is not clear whether they have been passed on by the SRRs at all, or whether management has decided not to act on them” (Brown Report, at p. 33). The Task Force also noted that the SRRs had become “part of the chain of command of the RCMP organization” (ibid.), specifically that the presence of SRRs as observers at meetings of the Senior Executive Committee, composed of the Commissioner and Deputy Commissioners, gave the impression of their concurrence with the decisions of RCMP management. The authors of the report expressed the view that “more distance from management [was] appropriate” (ibid.). They ultimately recommended that the SRRs “focus entirely on labour relations and thus be independent from management” (p. 34).
We note the following additional areas of concern. First, pursuant to the Agreement between the Commissioner and the NEC of the SRRP, significant aspects of the program structure are determined by RCMP management, including the number of SRRs and the program budget. Members of the SRRP are prohibited from communicating with anyone outside the RCMP concerning RCMP programs and activities without permission of the Commissioner. An exception relating to conditions of work and employment exists, but the conditions for its exercise are narrowly restricted and obviously slanted toward management. The NEC must submit an annual report to management on its activities. The operation of the SRRP is to be regularly reviewed jointly by the SRRP and RCMP management, and the consent of both the SRRP and management is required to amend the program.
Second, the SRRP deliberately restricts members’ freedom to advocate for the ability to be represented by an independent association. As a matter of policy and practice, RCMP members who are active in such associations are excluded from full participation in the SRRP, and SRRs are prohibited from promoting alternative modes of representation for RCMP members. Yet members have no option outside of the SRRP to meet with management to promote their interests in other forms of representation.
Simply put, in our view, the SRRP is not an association in any meaningful sense, nor a form of exercise of the right to freedom of association. It is simply an internal human relations scheme imposed on RCMP members by management. Accordingly, the element of employee choice is almost entirely missing under the present scheme.
While the Attorney General of Canada observes that adoption of the SRRP was endorsed by members in all divisions outside Quebec in a referendum in 1974, we do not consider this fact determinative, for two reasons. First, the referendum in question evidently offered the SRRP a “take it or leave it” proposition. It does not reflect whether members would have preferred representation through an independent association. Second, the referendum took place 40 years ago. Today, there is no opportunity for RCMP members to indicate their support for an alternative form of association. Members have no ability to opt out of participation in the SRRP, and there is no other means for them to communicate their workplace concerns to management. As we have seen, the structure has no independence from management; it is but a part of management itself.
These constitutional defects in the SRRP are not cured by the election of SRRs. On this point we agree with the conclusion of the application judge, that “agreeing to populate a structure created by management for the purpose of labour relations cannot reasonably be construed as a choice not to conduct labour relations through an association of the members’ own making” (para. 63).
conclusion, s. 96 of the RCMP
Regulations, which imposed the SRRP as the sole recognized vehicle for
engagement between RCMP membership and senior management, constituted a
substantial interference with freedom of association in both its purpose and
effects. Before considering whether that infringement could be justified under s.
1 of the Charter,
we consider the related challenge to para.
F. Whether Paragraph (d) of the Definition of “Employee” in Section 2(1) of the PSLRA Infringes Section 2(d) of the Charter
appellants challenge the exclusion of RCMP members from the application of the PSLRA and
ask that para.
For employees in the federal public service, the PSLRA provides the general framework through which they can join and participate in employee associations; these associations can be certified as bargaining agents, and good faith collective bargaining can occur. The PSLRA provides for mediation, conciliation and arbitration when problems arise during collective bargaining and provides remedies for unfair labour practices. While being significantly different from private-sector labour relations models in many ways, the PSLRA and its predecessor, the PSSRA, are generally referred to as a Wagner Act model of labour relations (C. Rootham, Labour and Employment Law in the Federal Public Service (2007), at pp. 19-20).
decided before this Court’s decisions in Health
Services and Fraser,
which marked a shift to a purposive and generous approach to labour relations.
At the time Delisle was
decided, the right to a meaningful process of collective bargaining was not
recognized as part of thes. 2
only part of the scheme governing the labour relations of RCMP members – their
exclusion from the PSSRA – was before this Court. In the present appeal, the challenge targets the entire
labour relations scheme – the exclusion from the application of the PSLRA and
the imposition of the labour relations regime that we have found is intended to
deny RCMP members the right to form an independent association capable of
engaging in a meaningful process of collective bargaining. In other words, the
majority in Delisle found
that the legislative exclusion, viewed in isolation, did not prevent the
creation of an independent association, but the Court now considers the complete
scheme which is clearly intended to prevent associational activity protected
under s. 2
Overturning precedents of this Court is not a step to be lightly taken (Canada v Craig, 2012 SCC 43 (CanLII),  2 S.C.R. 489, at para. 24; Fraser, at para. 56; Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII),  3 S.C.R. 1101, at para. 47). However, as explained, Delislewas decided before this Court’s shift to a purposive and generous approach to the exercise of freedom of association and Delisle considered a different question and narrower aspects of the labour relations regime than those at issue here. It follows that the result in Delisle must be revisited.
propose to examine whether para.
(1) The Purpose of the PSLRA Exclusion
statutory exclusion of RCMP members must be read and its constitutionality
assessed in relation to P.C. 1918-2213, the Order in Council that constituted
the labour relations regime that applied to members of the RCMP at the time of
enactment of the PSSRA.
The blanket prohibition of associational activity in pursuit of workplace goals
imposed by P.C. 1918-2213 unquestionably violates s. 2
they originated from different legal sources, the PSSRA exclusion
and P.C. 1918-2213, working together, constituted a labour relations regime that
was designed to interfere with the right to freedom of association of RCMP
members. The PSSRA exclusion
cannot be viewed in the abstract, independently from the Order in Council.
These two prongs of the predecessor labour relations regime shared a common
purpose. They were both intended to deny to RCMP members the constitutional
exercise of their freedom of association. Like P.C. 1918-2213, para.
Before 1967, the concept of collective bargaining was unknown to the federal public service generally and, of course, to the RCMP specifically. Parliament adopted the PSSRA to implement a process of collective bargaining in the federal public service (Rootham, at p. 37; R. Caron, Employment in the Federal Public Service (loose-leaf), at para. 1:200; J. C. Anderson and T. A. Kochan, “Collective Bargaining in the Public Service of Canada” (1977), 32 I.R. 234, at p. 234). The PSSRA’s successor, the PSLRA, reflected a similar commitment to collective bargaining (see the preamble of the PSLRA and Advisory Committee on Labour Management Relations in the Federal Public Service, Working Together in the Public Interest (2001), at p. 14).
The exclusion of RCMP members from the PSSRA in 1967 – the only vehicle available for meaningful collective bargaining in the federal public service – was intended to prevent them from engaging in collective bargaining. The then‑Commissioner of the RCMP acknowledged this in correspondence to the Solicitor General of Canada in 1980, stating: “There is no enabling legislation which allows members to collectively bargain and we must infer that Parliament has not intended that members of the Force have that right” (see A.F., at para. 106).
successor, the PSLRA,
reduced the categories of excluded public servants. RCMP members, however,
continued to be excluded in identical terms as under the PSSRA,
and no other statute permitted RCMP members to engage in a process of collective
bargaining (Delisle, at para. 85,per Cory
and Iacobucci JJ., dissenting; R. MacKay, “The Royal Canadian Mounted Police and
Unionization”, Parliamentary Research Branch, September 3, 2003, at p. 20).
Nothing indicated that the purpose of the initial exclusion of RCMP members from
collective bargaining had changed: Interpretation
Act, R.S.C. 1985, c. I-21, at s.
44(f); see also R. v Big M
Drug Mart, at p. 335.
Indeed, the PSLRA exclusion
makes possible the current imposition of the SRRP, which we have found to
substantially interfere in both purpose and effect with RCMP members’ rights to
a meaningful process of collective bargaining. Working in tandem with P.C.
1918-2213, the PSSRA exclusion
had similarly sought to deny the members of the RCMP the exercise of their right
to freedom of association. The simple re-enactment of this exclusion in the PSLRA did
not cure this constitutionally impermissible purpose. The PSLRA exclusion
is but a part of a constitutionally defective regime of labour relations,
designed to prevent the exercise of the s.
We conclude that the purpose of the exclusion in s. 2(1) of the PSLRA substantially interferes with freedom of association. At this point, we need not consider the effects of the PSLRA exclusion independently from those of the imposition of the SRRP as a labour relations regime.
conclusion does not mean that Parliament must include the RCMP in the PSLRA scheme.
As discussed above, s. 2
We now turn
to whether the infringements of s. 2
G. Are the Limits Imposed on the RCMP Members’ Section 2(d) Rights Justified Under Section 1 of the Charter?
1 of the Charter permits
Parliament to enact laws that limit Charter rights
if it establishes that the limits are reasonable and demonstrably justified in a
free and democratic society. This requires that the objective of the measure be
pressing and substantial, and that the means by which the objective is furthered
be proportionate, i.e. that the means are rationally connected to the law’s
objective, minimally impair the s. 2
already seen that s.
written submissions on s.
1, the parties addressed the limits imposed by s. 96 of the RCMP
Regulations and para.
(1) Is the Objective of Imposing the SRRP Pressing and Substantial?
The question at this stage is whether the objective of the infringing measure is sufficiently important to be capable in principle of justifying a limitation on the rights and freedoms guaranteed by the constitution (RJR-MacDonald (1995), at para. 143). The Attorney General of Canada says the objective of excluding RCMP members from the PSLRA and the objective of the RCMP Regulations is to maintain and enhance public confidence in the neutrality, stability and reliability of the RCMP by providing a police force that is independent and objective. We conclude that the need for an independent and objective police force constitutes a pressing and substantial objective under s. 1 of the Charter.
(2) Are the Means by Which the Objective Is Furthered Proportionate?
(a) Rational Connection
The government must demonstrate that the infringing measure is rationally connected to its objective. This test is “not particularly onerous” (Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 (CanLII),  2 S.C.R. 1120, at para. 228; Health Services, at para. 148). It is not necessary to establish that the measure will inevitably achieve the government’s objective. A reasonable inference that the means adopted by the government will help bring about the objective suffices (Canada (Attorney General) v JTI-Macdonald Corp., 2007 SCC 30 (CanLII),  2 S.C.R. 610, at para. 40; Health Services, at para. 149). The assessment is a matter of causal relationship.
Philosophical, political and social claims are not always amenable to proof by empirical evidence: Harper v Canada (Attorney General),2004 SCC 33 (CanLII),  1 S.C.R. 827, at para. 104; Sauvé, at para. 18. For this reason, courts have not always insisted on direct proof of a relationship between the infringing measure and the legislative objective, accepting conclusions supported by logic and reason (RJR-MacDonald (1995), at para. 154; Ross v New Brunswick School District No. 15, 1996 CanLII 237 (SCC),  1 S.C.R. 825, at para. 101). However, this does not relieve the government from establishing that it was at least reasonable to conclude that a causal relationship existed between the PSLRA exclusion and the imposition of the SRRP and the preservation of neutrality, stability and reliability in the RCMP. As McLachlin J. (as she then was) wrote in RJR-MacDonald (1995), at para. 129:
While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement. It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning.
The position of the Attorney General of Canada is that the creation of a separate labour relations regime, free from collective bargaining and unionism, is rationally connected to the goal of ensuring a stable, reliable and neutral police force. In our view, the Attorney General has not established that this is a reasonable inference.
First, it is not apparent how an exclusion from a statutorily protected collective bargaining process ensures neutrality, stability or even reliability. The exclusion of RCMP members from the federal public service collective bargaining regime when it was first enacted in 1967 fostered, rather than inhibited, dissatisfaction and unrest within the RCMP. This unrest was what ultimately led to the creation of the SRRP, which was introduced “after R.C.M.P. members began bringing employment-related grievances to the attention of the media and began to complain in public about the absence of mechanisms through which their grievances could be addressed” (Hardy and Ponak, at p. 89).
Second, it is not established that permitting meaningful collective bargaining for RCMP members will disrupt the stability of the police force or affect the public’s perception of its neutrality. The government offered no persuasive evidence to that effect. Empirical research tends to show the opposite, as does provincial experience with unionized police forces (see, e.g., D. Forcese, “Police Unionism: Employee-Management Relations in Canadian Police Forces” (1980), 4 Canadian Police College Journal 79: “There is nothing inherently disruptive about police unions” (p. 120)). Indeed, the evidence suggests that respecting associational rights has the potential to ensure, rather than undermine a positive working relationship and therefore enhance labour stability.
that the government has failed to establish a rational connection between
denying RCMP members’ their s. 2
(b) Minimal Impairment
stage, the question is whether the measure impairs the s.
The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement .... On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.
(RJR-MacDonald (1995), at para. 160; see also Hutterian Brethren, at paras. 53-55; Health Services, at para. 150.)
The appellants argue that (1) other police forces throughout Canada have access to meaningful collective bargaining regimes without disruption of their neutrality, stability or reliability; and (2) the government has not shown that the RCMP is different in any way that would make collective bargaining more disruptive to their neutrality, stability or reliability. It follows, they argue, that denying RCMP members any meaningful process of collective bargaining is therefore more restrictive than necessary to maintain the Force’s neutrality, stability and reliability.
The RCMP “is the only police force in Canada without a collective agreement to regulate the working conditions of its officers” (application judge’s reasons, at para. 96). In the rest of the country, the police have the benefit of collective bargaining regimes that provide basic bargaining protections. In Ontario, Quebec, and Newfoundland and Labrador, provincial forces are regulated under their own statutes which provide for, among other things, the establishment of employee associations, the negotiation of collective agreements between management and employee associations, grievance procedures, conciliation and arbitration: Ontario Provincial Police Collective Bargaining Act, 2006, S.O. 2006, c. 35, Sch. B; An Act respecting the Syndical Plan of the Sûreté du Québec, CQLR, c R-14; Royal Newfoundland Constabulary Act, 1992, S.N.L. 1992, c. R-17. In other provinces, the police are covered by general labour relations statutes, with specific provisions applicable to them. For example, in Saskatchewan, conciliation and arbitration are provided as a means of resolving labour disputes, and restrictions are placed on strikes and lock‑outs, pursuant to The Police Act, 1990, S.S. 1990-91, c. P-15.01, ss. 83 to 86.
Unless it is established that the RCMP is materially different from the provincial police forces, it is clear that total exclusion from meaningful collective bargaining cannot be minimally impairing. A material difference has not been shown. Moreover, concerns about the independence of the members of the Force could easily be considered in determining the scope of the police bargaining unit under schemes like the PSLRA, without requiring total exclusion from bargaining in the present regime. For example, s. 4 of the Labour Code, CQLR, c. C-27, restricts the membership and affiliations of municipal police associations.
The only argument advanced by the Attorney General of Canada in order to support the view that the RCMP’s particularities warrant the exclusion of members from the PSLRA and the imposition of the SRRP is that in the event of an unlawful strike or other debilitating job action by other police forces, or other security-related workers such as prisons guards, it could ultimately be left to the RCMP to provide policing services to the public affected by those events. While the RCMP’s mandate differs from that of other police forces, there is no evidence that providing the RCMP a labour relations scheme similar to that enjoyed by other police forces would prevent it from fulfilling its mandate. Again, no material difference in RCMP labour relations has been shown.
impugned legislative scheme, the imposition of the SRRP and the exclusion in s.
2(1) of the PLSRA deny
members of the RCMP the right to any meaningful process of collective
bargaining. And, while s.
General of Canada argues that this conclusion would go against the proposition,
which we accept, that s.
argument misconstrues our conclusion. We do not conclude that the PSLRA process
is constitutionalized, but rather that the existing labour relations scheme and
the purpose motivating the PSLRA exclusion
are inconsistent with the Charter and
fail under s.
52 of the Constitution
Act, 1982. This conclusion does not mandate a particular labour
relations regime or bar the federal government from pursuing an avenue other
than the PSLRAto
govern labour relations within the RCMP. Should it see fit to do so, Parliament
remains free to enact any labour relations model it considers appropriate to the
RCMP workforce, within the constitutional limits imposed by the guarantee
enshrined in s. 2
We would allow the appeal, with costs to the appellants throughout, and answer the constitutional questions as follows:
96 of the Royal
Canadian Mounted Police Regulations, 1988,
SOR/88-361, infringe s.
If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of theCanadian Charter of Rights and Freedoms?
If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
Had s. 96 of
the RCMP Regulations not
been repealed, it would have been declared to be of no force or effect.
In a constitutional democracy, the judicial branch of government is entrusted to rule on whether laws enacted by the legislature pass constitutional muster. But this Court’s rulings are not subject to review. Its rulings are binding on the legislative branch, unless that branch invokes the rarely resorted-to s. 33 of the Canadian Charter of Rights and Freedoms to provide that its legislation will operate notwithstanding breaches of certain constitutional rights. This means that constitutional decisions of this Court have the power to freeze matters in time and restrict Parliament’s ability to change course in the future, where facts and policy imperatives may suggest or require a different approach.
It is fundamental, therefore, that the judicial and legislative branches of government have respect for the role and responsibility of the other. The legislative branch must respect the decisions of the courts and comply with them. Courts must equally respect the role of the democratically elected legislature and its policy choices. The judicial branch must not exercise its great constitutional power to make rulings that are not firmly rooted in the text, context, and purpose of Canadian constitutional law. While a purposive approach to Charter interpretation has long been accepted, in the words of Dickson J. (as he then was) in R. v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC),  1 S.C.R. 295, at p. 344, “it is important not to overshoot the actual purpose of the right or freedom in question”. See also Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47 (CanLII),  3 S.C.R. 157, at para. 19, per Abella J.
Courts must be especially cautious when dealing with questions of socio-economic policy. Just as the government and legislature must respect the courts’ expertise as judicial bodies, so too must courts appreciate that they are not best placed to make determinations as to which specific social or economic policy choice is most appropriate. The evaluation and implementation of social and economic policy require flexibility and fine-tuning. Courts should not expand Charter rights in such a way as to prevent governments from responding to new information or changing social and economic conditions.
In my respectful opinion, the majority has departed from these core principles of constitutional law in this case. I am compelled to dissent. The courts must respect that concerns such as maintaining “the balance between employees and employer” and attaining “equilibrium” in labour relations (see majority reasons, at paras. 72 and 82) fall within the proper role and expertise of governments and legislatures, not the judiciary.
Parliament enacted legislation creating a non-adversarial labour relations scheme for the Royal Canadian Mounted Police (“RCMP”) – the Staff Relations Representative Program (“SRRP”) – that balances the competing policy interests arising in the context of a national police force. RCMP members democratically elect Staff Relations Representatives (“SRRs”) to represent their interests directly to management. Members can also communicate their workplace concerns to SRRs through independent employee associations, such as the appellant associations. The evidence is that, as the constitutional protection of freedom of association now guarantees, SRRs make collective representations on behalf of RCMP members and management considers those representations in good faith.
relations model permits RCMP members to exercise their freedom of association
now reverses this Court’s recent interpretation of s.
.... it is impossible to predict with certainty that the present model of labour relations will necessarily prevail in 50 or even 20 years ([P. A. Gall,] “Freedom of Association and Trade Unions: A Double-Edged Constitutional Sword”, in J. M. Weiler and R. M. Elliot, eds., Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms (1986), 245, at p. 248).
the majority in Fraser articulated
the test for constitutionality under s. 2
I respectfully disagree with this constitutional reversal. As this Court has indicated, once rendered, constitutional decisions should only be subject to change or reversal under limited and rigorous conditions: Fraser, at para. 57. In Fraser, this Court issued a stern warning: “The seriousness of overturning .... recent precedents of this Court, representing the considered views of firm majorities, cannot be overstated” (para. 57). The majority in this case does precisely that.
II. Facts and Judicial History
I accept, in general terms, the majority’s summary of the facts and lower court decisions in this case. Where I disagree, it is noted in the analysis below.
A. Freedom of Association
has frequently been called upon to determine the ambit of freedom of association
decisions in Health Services and Fraser,
employees have had a constitutional right to make collective representations,
which their employer must consider in good faith. The test to find an
infringement of s.
than four years after Fraser was
decided, the majority in this case expands freedom of association, requiring
much more than good faith negotiations. It finds that the only way to have
meaningful collective bargaining is through a process which “provides employees
with a degree of choice and independence sufficient to enable them to determine
and pursue their collective interests” (para. 5). The majority also retreats
from the effective impossibility test. Instead, it finds that s. 2
the standard required to find a s. 2
the type of right described in s.
interpretation of a Charter right
must be principled and must not be so divorced from the text of the provision as
to depart from the foundation of the right. When, in Health
Services and Fraser,
this Court recognized a derivative right to collective bargaining stemming from
the purpose of s.
used by the majority in this case creates greater rights, and imposes greater
restrictions on the government, than either a plain or generous reading of s.
B. A Meaningful Process of Collective Bargaining
majority proposes as a meaningful process of collective bargaining under s.
I would not
dispute that individuals may generally form or join associations of their
choosing and may have those organizations be independent from other entities.
However, Health Services and Fraser construed s. 2
Choice and independence are central to Wagner-style labour relations. As will be explained, by selecting choice and independence as constitutional requirements for meaningful collective bargaining, the majority mandates an adversarial model of labour relations and precludes others which may be just as or more effective in contributing to meaningful collective bargaining.
Individuals have the constitutional right to form or belong to lawful associations of their choosing and there is nothing in the record before us to suggest that such a right has been infringed. RCMP members are free to join the appellants or other employee associations to seek fulfillment, autonomy, and self-actualization. Through those organizations they can participate in lobbying, educational, social, and other incidental activities. Those associations can also seek to advance the workplace interests of RCMP members by communicating with SRRs on their members’ behalf.
However, the appellants and the majority in this appeal propose that freedom of association extends beyond the right of employees to form and belong to an association of their choosing and includes the right to choose the association to represent employee interests for bargaining purposes and with which the employer must bargain. However, recognizing that the Wagner model in place in workplaces across Canada imposes limits on choice, the majority does not suggest that freedom of association protects an individual’s right to choose the association to which he or she wishes to belong. Instead, the majority limits the constitutional right to the ability of employees, en masse, “to form and bargain through an association of their own choosing” (majority reasons, at para. 110).
The majority also acknowledges that even the collective right to bargain through an association of the group’s choosing will not always be protected. For example, designated bargaining models such as the one established under Ontario’s School Boards Collective Bargaining Act, 2014, S.O. 2014, c. 5, “may be acceptable” (majority reasons, at para. 95), even though they provide the employee group with no choice of association. The bargaining agent for the group is designated. In order to legitimize its restriction on choice, the majority restates its requirement as a vague constitutional right to the “degree of choice .... that enables employees to have effective input into the selection of [their] collective goals” (para. 83).
However, logically, effective input into the selection of collective workplace goals is not a matter of the choice of representative; it is a matter of having the right to choose the priorities that should be advanced on behalf of employees. The majority states that employees’ ability “to set and change collective workplace goals” is one hallmark of employee choice (para. 86). But the ability to have one’s views represented in shaping workplace goals is more than a hallmark: it is the key element in meaningful collective bargaining. What the majority’s restatement describes is a right to fair representation by a spokesperson, not a right to choose that representative.
In the labour relations context, “choice” is ill suited as a criterion upon which to base the constitutional protection afforded to collective bargaining. There are schemes in place throughout the country, based on the Wagner model, that provide a mechanism by which a single employee representative association is designated for the purposes of bargaining with the employer, under the principle of majoritarian exclusivity. This principle mandates that the employer recognize an exclusive bargaining agent selected by a majority of employees to represent their interests within a given industry, sector, or business. However, there may be a large minority of employees whose preferred representative is not selected. Under such a model, their freedom of association will be constrained not only as to their choice of representative association, but also as to their ability to establish or join a rival association to bargain with management. Choice is similarly circumscribed for so-called Rand employees, who are denied the choice of paying union dues and refusing representation by the bargaining agent. Such a limit on choice has been recognized as a valid limit on employees’ freedom of association, since permitting unbounded choice of association would undermine the collective bargaining strength of employees and render the process of good faith bargaining unworkable for employers: see Lavigne v Ontario Public Service Employees Union, 1991 CanLII 68 (SCC),  2 S.C.R 211; R. v Advance Cutting & Coring Ltd., 2001 SCC 70 (CanLII),  3 S.C.R. 209.
defines “choice” in terms of four hallmarks: “the ability to form and join new
associations, to change [employee] representatives, to set and change collective
workplace goals, and to dissolve existing associations” (para. 86). The majority
asserts that a designated bargaining model, such as Ontario’s School
Boards Collective Bargaining Act, where
specific bargaining agents are legislatively imposed, allows employees to
“retain sufficient choice over workplace goals and sufficient independence from
management to ensure meaningful collective bargaining” (para. 95). However, this
model lacks three of the so-called hallmarks of choice: Ontario teachers cannot
form and join new associations to bargain with employers, they cannot change the
legislatively imposed bargaining agents that represent them, and they cannot
dissolve those bargaining agents. The hallmark that this model does possess is
what I have termed “representativeness”: the ability to set and change
collective workplace goals (that is, the ability of teachers to have their
interests represented). This suggests that the constitutional standard of s.
Even the Wagner model does not rely exclusively on choice and independence to protect employee interests. The statutory provisions and associated case law recognize the central importance of representativeness by providing a number of protections for employee interests unrelated to choice or independence per se.
Under the Wagner model of labour relations, the association designated as an exclusive bargaining agent cannot discriminate in carrying out its duties towards the employees it represents or go off in pursuit of its own agenda. Legislation and jurisprudence have evolved to guard against abuses of power by single bargaining agents, by imposing upon those agents a duty to represent all employees, even those who choose not to become “members” of that association: see the discussions in Canadian Merchant Service Guild v Gagnon, 1984 CanLII 18 (SCC),  1 S.C.R. 509, at pp. 518-20; and Gendron v Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC),  1 S.C.R. 1298, at pp. 1309-15. It is the jurisprudence and legislation that ensures that the bargaining agent is representative of the interests of its constituency in whatever work that it undertakes on their behalf, whether the individual employees have chosen it or not.
Similarly, a designated bargaining model, like Ontario’s School Boards Collective Bargaining Act, only leads to meaningful collective bargaining where there are statutory safeguards built in to ensure that the designated bargaining agent represents the interests of all employees and is ultimately accountable to them.
The majority claims that choice and independence “overlap considerably” with representativeness and that the difference between them “is more semantic than real” (paras. 101 and 103). With respect, such blurring of distinct concepts only creates confusion and ambiguity. Choice and independence may be a means by which representativeness is obtained, but there may be others, such as the statutory safeguards discussed above.
statutorily designated bargaining model such as the scheme established by the
Ontario School Boards Collective
Bargaining Act, can ensure that employees’ interests will be effectively
represented to management even where the employees do not choose their
individual representatives or the system in which this representation takes
Mandating choice and independence as constitutional requirements forecloses an entire class of collaborative bargaining approaches that could be designed to address particular contexts in which a Wagner model of labour relations may be ill suited.
In the case at bar, the context of a national police force led to the adoption of a statutory collaborative labour relations model. Within that model, RCMP members democratically select their representatives and those representatives have a statutory duty to represent employee interests. They can be replaced if they fail to uphold that duty.
What protects the interests of employees under the Wagner model, a designated bargaining model such as that found in the Ontario School Boards Collective Bargaining Act or the RCMP’s SRRP scheme is the obligation of representatives to act honestly and fairly in putting forward the views of the employees they represent and the establishment of a mechanism to remove those representatives if they do not.
Neither the choice of the associational framework (Delisle v Canada (Deputy Attorney General), 1999 CanLII 649 (SCC),  2 S.C.R. 989, at para. 33) nor the selection of a particular bargaining agent is a necessary component of freedom of association. Rather, because employees have a right to a meaningful “process of collective action to achieve workplace goals” (Fraser, at para. 117), the voice with which they communicate with their employer as a collective must be representative of their interests. Provided that the spokespersons through whom employees make representations to their employer have a duty to represent the interests of all employees and that there is a means to hold those representatives to account, the workers’ “constitutional right to make collective representations and to have their collective representations considered in good faith” is met (Fraser, at para. 51). Representativeness is what Fraser mandates and there is no justification to embark upon the imposition of unnecessary constitutional constraints as the majority seeks to do in this appeal.
(2) Independence of the Association
The majority says that independence of the employee association from management is constitutionally required. However, it concedes that independence may not be absolute. The argument is that independence is sufficient if it permits the activities of the association to be “aligned with the interests of its members” (para. 83).
With respect, the relevant question is not whether a legislatively prescribed association or process is independent in the sense that it segregates employees from management, but whether that process prevents employees, such as RCMP members, from associating to advance their collective workplace goals. To reiterate, the touchstone is representativeness.
The requirement that an employee association be independent from the employer originates from the Wagner Act (National Labor Relations Act, 49 Stat. 449 (1935)) – it did not pre-exist it. In recounting the history of labour relations in Canada, the majority of this Court in Health Services acknowledged that it was the Wagner Act that “explicitly recognized the right of employees to belong to a trade union of their choice, free of employer coercion or interference” and that “imposed a duty upon employers to bargain in good faith with their employees’ unions”: para. 56.
In the years preceding the enactment of the Wagner Act, “company unions” – that is, employee associations featuring some degree of employer influence – were plentiful in both the United States and Canada: L. S. MacDowell, “Company Unionism in Canada, 1915-1948”, in B. E. Kaufman and D. G. Taras, eds., Nonunion Employee Representation: History, Contemporary Practice, and Policy (2000), 96, at p. 97. Though some company unions were contrived by employers to thwart legitimate worker representation, other non-union plans were designed to actively foster representation: see D. G. Taras, “Why Nonunion Representation Is Legal in Canada” (1997), 52 R.I. 763.
In 1935, Senator Robert Wagner introduced in the U.S. Senate the bill that would become known as the Wagner Act. This Act effectively abolished company unions: B. E. Kaufman, “Accomplishments and Shortcomings of Nonunion Employee Representation in the Pre-Wagner Act Years: A Reassessment”, in Kaufman and Taras, 21, at p. 26.
Canada implemented its own version of the Wagner Act in 1944: the Wartime Labour Relations Regulations, P.C. 1003. This Order in Council, made under the authority of the War Measures Act, R.S.C. 1927, c. 206, incorporated the Wagnerian principle that employee associations be independent from the employer. At the end of the war, the Wagner model was continued in Canada by the federal Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54, and similar legislation enacted by most of the provinces: R. J. Adams, “A Pernicious Euphoria: 50 Years of Wagnerism in Canada” (1995), 3 C.L.E.L.J. 321, at p. 328.
Thus, the Wagner Act consciously introduced the notion that trade unions should be independent from the employer for the purposes of collective bargaining. Canadian labour legislation, largely modelled on the Wagner Act, likewise imported this principle of independence. The notion of independence gained popularity in this particular historical context. It is not however an inherent aspect of collective bargaining.
But even if independence were an essential feature of meaningful collective bargaining, the SRRP satisfies two of the majority’s indicia of independence: the freedom to elect employee representatives and control the association’s financial administration and activities. RCMP members democratically select the SRRs who will bring their workplace goals to management for consideration, and the Staff Relations Sub-Representatives (“sub-SRRs”) have the power to replace those SRRs who are not representative of employee interests. The SRRP administers its own budget. RCMP members cannot change their bargaining representative (the SRRP) without the consent of management and the government. But it is certainly open to them to change their SRRs if they are of the view that their collective workplace goals are not being adequately represented by the SRRP. Ontario teachers similarly cannot change their bargaining representatives without legislative approval. If the Ontario teachers’ bargaining statute meets the majority’s constitutional requirements, the SRRP must also meet those requirements.
The majority states that “a lack of independence means that employees may not be able to advance their own interests, but are limited to picking and choosing from among the interests management permits them to advance” (para. 89). Similarly, the appellants suggest that employee representatives working within a cooperative employee-management labour relations model cannot properly represent the interests of employees. According to them, employees who are dependent on management for salary increases, performance appraisals, and promotions will be reluctant to put forward employee interests that may not be looked upon favourably by management.
However, both the majority and the appellants ignore representativeness. Representatives must fairly represent the interests of all employees. Any representative who limits representation based on what management permits or who places their own employment interests above the interests of all employees will be held accountable for his or her own actions. So long as employees have recourse to ensure that their views are put forward to management and that their representatives are working in their interests, the labour relations process will not be dominated by management and employees will have the means to work towards their collective workplace goals.
Thus, the Wagner model is by no means the only way to achieve meaningful collective bargaining: alternative schemes could be equally or more effective. It is not the role of this Court to preclude legislative reform by entrenching key features of a particular system and shoehorning them into the fundamental Charter guarantee of freedom of association.
independence, and defining it as it does, the majority constitutionalizes
adversarial labour relations, a central feature of the Wagner model. As
explained above, s.
Research has suggested that adversarialism generates outcomes that are less beneficial for employees than systems involving labour-management cooperation: see R. J. Adams, “Public Employment Relations: Canadian Developments in Perspective”, in G. Swimmer, ed., Public-Sector Labour Relations in an Era of Restraint and Restructuring (2001), 212, at p. 221. Critics have decried the inherently adversarial nature of the Wagner model of labour relations as inconsistent with modern “high performance workplace” systems, and have noted that the Wagner model’s encouragement of conflict may be associated with lower levels of performance: Adams, “A Pernicious Euphoria”, at pp. 344-45. Roy J. Adams has noted the negative consequences of the Wagner model, including the model’s encouragement of employee exclusion from managerial decision-making: ibid., at pp. 342-45.
It is a mistake to view an adversarial approach as essential to meaningful collective bargaining. Where there are discussions between employees and management allowing employee concerns to be taken into account in future planning, a collaborative form of negotiation can be better at furthering workplace goals than an adversarial negotiation that takes place after managerial planning and decisions have been made and positions hardened.
relations model is perfect. That is why governments need flexibility to select
the appropriate model in any given situation and to adapt to changing
circumstances. The majority concedes that there “has been ongoing debate on the
desirability of various forms of workplace representation and cooperation and on
their coexistence” and that “[t]he search is not for an ‘ideal’ model” (paras.
96-97). The majority also acknowledges that “nothing in the Charter prevents
an employee association from engaging willingly with an employer in different,
less adversarial and more cooperative ways” (para. 97). I agree that s.
the independence of an employee association a necessary condition to satisfy s.
Implicit in the majority’s articulation of meaningful collective bargaining is the view that management is the enemy of the employees and the only way in which employees may improve their position is through adversarial confrontation. However, a collaborative model that provides an opportunity for employees to have input and influence at the strategic planning stage of decision-making can enhance rather than undermine employee control over their working conditions. Collaborative models are consistent with the majority’s holding in Health Services, that the employees’ right to collective bargaining “requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation” (para. 90 (emphasis added)).
To hold that
the derivative right to collective bargaining in s.
The seriousness of overturning two recent precedents of this Court, representing the considered views of firm majorities, cannot be overstated. This is particularly so given their recent vintage. Health Services was issued only four years ago, and, when this appeal was argued, only two years had passed.
As this Court recently observed in Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII),  3 S.C.R. 1101: “Certainty in the law requires that courts follow and apply authoritative precedents. Indeed, this is the foundational principle upon which the common law relies” (para. 38). Certainty in the law is essential: it permits Canadians to know what to expect from the courts, their governments, and each other. It is open to this Court to depart from its previous jurisprudence in some circumstances, but the importance and value of certainty demand that such departures be made infrequently and only where they have been carefully and explicitly considered to ensure that the departure is justified and that the implications of such a deviation from the normal rule of stare decisis have been fully and carefully analyzed. The majority has failed to do so and its departure from authoritative precedents does not satisfy this high standard.
D. Is It Effectively Impossible to Achieve Workplace Goals?
test for infringement of s.
attempts to excuse its departure from the Fraser standard
by asserting that the Court in that decision used “effective impossibility” to
describe the effect of a legislative scheme but used “substantial interference”
as the legal test for infringement of s.
language is now dismissed by the majority as “unnecessarily complicat[ed]”
(para. 77). However, the real complication is that the language in Fraser does
not support the majority’s revised s. 2
majority, however, now lowers this threshold by adopting a substantial
interference test, stating that “the ultimate question to be determined is
whether the measures disrupt the balance between employees and employer that s.
repeated articulation of the effective impossibility test, the majority now
reverts to a less stringent test in order to reach its desired outcome. It finds
that the SRRP substantially interferes with the ability of RCMP members to
associate to achieve collective workplace goals because the collaborative scheme
does not achieve the employer-employee balance it says s. 2
E. Application to the Facts of This Case
(1) The Imposition of the SRRP
finds that in both purpose and effect, the imposition of the SRRP violates s. 2
RCMP members did not choose their associational framework for bargaining purposes. But this is not the crucial issue. Rather, this Court must consider whether the labour relations structure that was imposed by s. 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361(repealed and replaced by SOR/2014-281) enables RCMP members to have confidence in their spokespersons and whether those representatives have a duty to represent the interests of all employees and can be held to account. Management then has a constitutional obligation to consider in good faith the representations made on behalf of RCMP members: see Fraser, at para. 99.
The SRRP must represent “the interests of all members of the Royal Canadian Mounted Police” (SRRP Constitution, s. 1 (emphasis added)) and must “facilitate [the] participation” of RCMP members “in the development and implementation of Force policies and programs” (SRRP Constitution,s. 2; see also SRRP Agreement, s. 1). RCMP members within a particular division or zone elect SRRs and sub-SRRs for that area (SRRP Constitution, ss. 4 and 16; SRRP Agreement, s. 3), and any RCMP member who is not in a conflict of interest may run for election. SRRs serve for a two-year term. They must “[c]onsult with members and/or their representatives on issues affecting or potentially affecting them” (SRRP Constitution, s. 13(C)(3)), while sub-SRRs must “[e]stablish and maintain good working relations and open channels of communication with members, supervisors and the area commander” (SRRP Constitution, s. 14(B)(1)). The program is designed, in part, to “facilitate effective representation and participation at all appropriate levels” (SRRP Constitution, s. 3(D)). All sub-SRRs in a given division, zone or designated area may unanimously declare that they do not have confidence in an SRR, removing that SRR from office. Accordingly, SRRs can be held to account to ensure that they represent employee interests.
RCMP members may also form and join independent employee organizations of their choice, such as the appellant organizations and the Mounted Police Members’ Legal Fund: see Delisle, at para. 31. These associations are able to submit the concerns of their members about workplace issues to the SRRs and sub-SRRs. The SRRP Constitution specifies that SRRs have the duty to represent members’ interests: this includes the duty to “[c]onsult with members and/or their representatives on issues affecting or potentially affecting them that are the subject of discussion in committees, at [the SRRP] Caucus or as part of studies or reviews” (s. 13(C)(3)). Sub-SRRs are similarly responsible for liaising between SRRs and members, and must “alert the SRR and management to emerging issues and concerns requiring redress at their level”: SRRP Constitution, s. 14(B)(2).
The appellants present some evidence that SRRs do not always engage with independent employee associations. But this does not render the system unconstitutional, as long as the SRRs represent the interests of all employees and can be held to account. Moreover, if it is the case that some SRRs don’t fully represent the interests of the members, the situation can be remedied without abolishing the entire labour relations model and certainly without declaring the scheme unconstitutional.
The current SRRP is far removed from the original target of U.S. Senator Wagner’s labour bill: “.... the sham or dummy union which is dominated by the employer, which is supported by the employer, which cannot change its rules or regulations without his consent, and which cannot live except by the grace of the employer’s whims”: explanatory statement by Senator Wagner on February 21, 1935, in the Senate upon introducing bill S. 1958 (79 Cong. Rec. 2368, at 2372), in Legislative History of the National Labor Relations Acts 1935, vol. 1 (1949), at p. 313.
Following this Court’s decision in Delisle, a number of changes were made to the SRRP that, as the trial judge acknowledged, enhanced its autonomy. The Staff Relations Program Officer, chosen by the RCMP Commissioner, was replaced by a Program Director selected by, and accountable to, the SRRP’s National Caucus. In 2003, the Commissioner’s Standing Orders which had governed the SRRP were replaced with the SRRP Constitution and SRRP Agreement adopted the previous year. Further, SRRs are able to challenge the conduct of RCMP management, in the labour relations context, in the courts. The companion case Meredith v Canada (Attorney General), 2015 SCC 2 (CanLII), is an illustration of that fact.
Should management or the government now attempt to unjustifiably strip away RCMP members’ representational rights, the requirement to bargain in good faith will not be met. In these circumstances, the members will have judicial recourse to assert their Charter right to meaningful collective bargaining.
The appellants point out that executive members or leaders of employee associations such as the appellant organizations have been prevented from running as SRRs. The appellants intimate that this is indicative of management interference with freedom of association. However, the evidence is that the SRRP Caucus is responsible for this rule, not management. And nothing precludes other members of the appellant associations from running for SRR positions. Employee associations like the appellants are essentially rivals of the SRRP. Were a Wagner-type model in place for the RCMP, only one of the appellants could succeed in their bid to be the members’ bargaining agent. Similar restrictions would apply against holding a leadership role within rival, independent employee associations. Restrictions of this nature reasonably seek to preclude conflicts of interest in the duties and commitments undertaken for competing associations. They do not indicate employer interference with the SRRP.
In oral argument, the appellants expressed concerns that financial constraints on the SRRP may limit the efficacy of representation. However, the appellants conceded that there was no evidence that budgetary constraints had prevented the SRRP from representing members. It may be that a government employer cannot provide an unlimited budget for its collaborative model of labour relations. However, as the appellants know, independent employee associations also face funding limits based on their income from union dues and other sources.
On an operational level, the SRRP benefits from a high level of financial autonomy: while the RCMP determines an annual budget for the SRRP, which is approved by managers at the various levels, the National Executive Council (“NEC”) of the SRRP is responsible for managing it (SRRP Agreement, ss. 12 and 14). The Commissioner does not influence, guide, or control the budgetary decisions of the NEC. The SRRP Agreement also contains a procedure through which the SRRP may request additional funding: s. 13.
allows for meaningful collective bargaining between RCMP members and their
employer. The evidence before this Court is that SRRs fairly advance employee
interests to management and thus the SRRP meets the constitutional requirement
of representativeness mandated under this Court’s interpretation of s.
(b) The SRRP Does Not Render Collective Bargaining Effectively Impossible
The majority contends that the imposition of the SRRP was designed to thwart association. It says that the SRRP’s predecessor program was “openly presented as an alternative to unionization” (para. 108). Yet both the SRRP Constitution and the SRRP Agreement, which continued that program under its current form and name, indicate that the purpose of the SRRP is not to preclude freedom of association. Rather, its purpose is to create a collaborative system of labour relations “governed by the spirit of cooperation, mutual respect and trust in which the Program was conceived” (SRRP Constitution, s. 3(B)) and to ensure “the promotion of mutually beneficial relations (SRRP Agreement, s. 1). Further, the trial judge found as fact that “the collaboration that occurs between the SRRs and management is extensive and that it is carried out in good faith by everyone involved”: (2009), 2009 CanLII 15149 (ON SC), 96 O.R. (3d) 20, at para. 31.
As an alternative to the formation of an adversarial association, a collaborative labour relations scheme was a reasonable policy choice for a national police force. As noted by the Attorney General of Canada, the RCMP is the only police force wholly responsible for national security. It can be called upon to play a role when there are strikes among provincial correctional services workers, and may be the only provider of a particular police service in a geographical area. Those dependent upon its security services cannot be left vulnerable during a confrontational work stoppage, or doubt its neutrality during a prison strike. The constitutional inquiry is not whether the SRRP is sufficiently independent or adversarial, but, according to Fraser, whether it renders associative activities by RCMP members in order to achieve workplace goals effectively impossible. It plainly does not.
The SRRP facilitates association insofar as it is “responsible for representation of the interests of all members of the Royal Canadian Mounted Police”, from Constable to Commissioner: SRRP Constitution, s. 1.
Democratically elected SRRs and sub-SRRs are tasked with representing RCMP members at all levels of the Force before management. The specific duties of SRRs include providing information, guidance, and support to RCMP members; attempting to resolve workplace issues informally and at the lowest level possible; representing members’ interests and ensuring their participation in the overall management of the RCMP; and supporting the effectiveness of the SRRP: SRRP Constitution, s. 13. Sub-SRRs have similar duties, and are also obliged to “liaise between the SRRs and members, dealing with first-level needs and notifying the SRR of emerging issues”: SRRP Constitution, s. 14(B). Both SRRs and sub-SRRs are expected to communicate with management at the appropriate level (SRRP Constitution, ss. 13(B) and 14(B)(1); SRRP Agreement, s. 9(a)) and to represent member interests in meetings, committees, and studies: SRRP Constitution, ss. 13(C) and 14(C); SRRP Agreement, s. 9(b) to (d). These procedures ensure that RCMP members may submit their workplace concerns to management through the SRRP.
The SRRP also prescribes duties and obligations for management. For instance, the SRRP Constitution states that “[c]ommunication between Staff Relations Representatives and RCMP management will be conducted openly and honestly” and that “[r]equests for information or assistance should be met in the spirit of cooperation within reasonable time frames” (s. 3(G)). Management must also respond to SRR and NEC requests and proposals “in a timely and open fashion” (SRRP Agreement, s. 11(b)); grant access to documents necessary for the conduct of SRRP business (s. 11(c)); and “provide rationale for major decisions” (s. 11(d)). And, the trial judge accepted “that RCMP management listens carefully and with an open mind to the views of SRRs in the consultative process established by the SRRP” (para. 68). Viewed together, these duties ensure that management considers the representations of SRRs and sub-SRRs in good faith. It cannot be said that such a process makes it effectively impossible for RCMP members to pursue collective workplace goals.
evidence of the effectiveness of the SRRP. While the achievement of workplace
goals is not protected by s.
Meredith deals with issues relating to the Pay Council, which is separate from the SRRP, but which is one of two other bodies forming part of the labour relations regime of the RCMP. Two SRRs sit on the Pay Council to advocate the views of RCMP members on issues that have been identified by the SRRP Caucus or by management. The Pay Council makes recommendations about pay and benefits of RCMP members to the RCMP Commissioner. The Pay Council’s objective is that RCMP members receive compensation near the average of the total compensation of the top three comparator police forces in Canada. Between 2000 and 2008, that objective was achieved in all but one year.
In Meredith, the majority indicates that notwithstanding its finding that the labour relations regime imposed on members of the RCMP infringes freedom of association, the record established that RCMP members used the Pay Council to advance their compensation-related workplace goals: para. 25. With respect, if the scheme in place permits employees to make representations for good faith consideration by management in pursuit of collective workplace goals such as ensuring competitive rates of compensation, there is no principled basis upon which to hold it unconstitutional.
The evidence indicates that the labour relations model adopted by Parliament does not make it effectively impossible for RCMP members to achieve their collective workplace goals. Even according to the new test articulated by the majority, the imposition of the SRRP as a labour relations scheme does not substantially interfere with a meaningful process of collective bargaining for RCMP members.
The trial judge ultimately held that the SRRP provides a process of consultation, but not collective bargaining. This conclusion appears to rest on the fact that, despite the process of consultation envisaged by the SRRP, final decisions are made by management: see trial reasons, at paras. 69-70.
constitutional right to collective bargaining prescribes no particular model of
labour relations and does not necessitate a dispute resolution process. In Fraser,
this Court held that the Agricultural
Employees Protection Act, 2002,
S.O. 2002, c. 16 (“AEPA”)
applicable to Ontario agricultural workers satisfied the requirements of
collective bargaining under s.
facilitates “‘a process of collective action to achieve workplace goals’,
requiring engagement by both parties”: Fraser,
at para. 117. It also involves good faith consideration of employee
representations by management. That Parliament chose a collaborative model like
the SRRP as a means of facilitating employer-employee engagement for the
national police force, does not mean that that model has rendered it effectively
impossible for RCMP members to achieve collective workplace goals. The SRRP does
not infringe s.
Service Staff Relations Act, S.C. 1966-67, c. 72 (“PSSRA”), was
enacted in 1967 and created the first comprehensive collective bargaining rights
regime for federal public servants. However, a number of categories of federal
public servants were not included in this new regime, including casual
employees, employees in managerial or confidential positions, and RCMP members
In 2003, the PSSRA was
repealed and replaced by the Public
Service Labour Relations Act, enacted by the Public
Service Modernization Act,S.C.
2003, c. 22, s. 2 (“PSLRA”),
which modernized labour relations in the federal public service. Section 2(1) of
the PSRLA defines
“employee” as a “person employed in the public service” subject to a list of
finds that para.
finds that the exclusion of RCMP members from the definition of “employee” in s.
2(1) of the PSLRA was
“intended to deny RCMP members the right to form an independent association
capable of engaging in a meaningful process of collective bargaining” (para.
126). In other words, the majority concludes that it was Parliament’s intent to
deny RCMP members’ freedom of association. However, in Delisle,
Bastarache J. found that “para.
The conclusion of the majority in Delisle was that “the purpose of the exclusion of RCMP members is simply to not grant them any status under the PSSRA – trade union representation and all it entails – which does not violate the appellant’s freedom of association”: para. 22, per Bastarache J. The purpose of excluding RCMP members from the PSLRA is not to interfere with collective bargaining, but is driven by a legitimate concern that the model imposed under that legislation is ill suited to the national police force.
It is true
that Delisle was
decided before Health Services and Fraser ushered
in a more “purposive and generous approach to labour relations” (majority
reasons, at para. 125). But the jurisprudential developments since Delisle do
not allow this Court to conclude that the purpose of the exclusion is to deny
RCMP members’ associational rights. On the contrary, the conclusion in Delisle was
reaffirmed by this Court’s statements in Health
Services and Fraser that s.
evolution in the legal understanding of s.
There has been no change of circumstances since this Court’s 1999 decision in Delisle that would justify abandoning the determination of the purpose of the exclusion of RCMP members from the general federal public service labour relations scheme at issue in that case. In fact, quite the opposite: changes to the SRRP since 1999 have reinforced the understanding that the program’s goal is to enhance representation of the interests of RCMP members without the imposition of an adversarial model. The SRRP Constitution, adopted in 2002, provides that its primary purpose is “to promote mutually beneficial relations between Force management and the wider membership” and states that the SRRP “will be recognized as the system and program of choice for management-employee relations for members of the RCMP” (ss. 2 and 3(A)). Likewise, an October 2002 agreement between the NEC of the SRRP and the RCMP Commissioner states that “management at all appropriate levels will .... recognize the role of the [SRRP], ....respond to proposals .... from [the SRRs] .... in a timely fashion; and .... provide rationale for major decisions” and that “[m]anagement and the [SRRP] will consult on specific human resources initiatives and national policy center committees in a timely and meaningful fashion” (SRRP Agreement, ss. 11(A), (B) and (D)). That Agreement also states that “[a]lthough final decisions rest with management, consultation will promote an active participatory regime” (s. 24).
Even if we
were to accept that Delisle was
incorrectly decided and that the purpose of para.
When the PSSRA was enacted in 1967, there were two Orders in Council which forbade RCMP members from engaging in any collective bargaining activity. These were later revoked and, in 1974, the Division Staff Relations Representative Program was created, the predecessor of the SSRP (Commissioner’s Standing Orders (Division Staff Relations Representative Program), made pursuant to s. 21(2) of the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9).
By 2003, when the PSSRA was replaced by the PSLRA, the RCMP labour relations scheme was considerably changed from that which existed in 1967. When s. 2 of the PSSRA was replaced by s. 2(1) of the PSLRA, Parliament reduced the number of exclusions from the definition of “employee” in the Act, thus expanding the categories of public servants who would be subject to the new statutory labour relations scheme. Parliament, however, maintained the exclusion of RCMP members. The decision to continue the exclusion was made with the knowledge that doing so did not deny members collective bargaining rights. These individuals were subject to a parallel labour relations regime – the SRRP.
In Big M Drug Mart, this Court rejected the idea that legislative provisions could have shifting purposes in response to changing social conditions (see pp. 334-36). However, in this appeal, we are faced not with a question of social change, but of legislative change. The purpose of the exclusion of RCMP members from the PSSRA and subsequently from the PSLRA has changed, as can be seen in the evolution of relevant statutory and regulatory provisions. Subsequent legislative changes may evidence a change in the purpose of Parliament in re-enacting a statutory provision. This is precisely what has occurred in this case. To ignore the significantly different context in which the exclusion of RCMP members was re-enacted in thePSLRA disregards the current legislative reality.
chose to create a collaborative labour relations model for the RCMP, to address
concerns about divided loyalties and interruptions in the essential services
provided by this national police force. The majority now makes the policy choice
that an adversarial Wagner type model of labour relations is necessary. With
respect, Parliament, as the provider of the essential service delivered by the
RCMP, must be accorded deference in the manner in which it ensures stability and
reliability of that service. Courts must be cognizant of the delicate balance
that labour relations regimes seek to maintain between employers, employees, and
the public, and of the different contexts for which legislatures must adapt
their labour relations policies. As earlier explained, para.
asserts that s.
Courts are not best placed to decide which specific labour relations scheme is best suited for a particular group of employees. In my view, requiring RCMP members to be included in the PSLRA or equivalent scheme is “to enter the complex and political field of socio-economic rights and unjustifiably encroach upon the prerogative of Parliament”: Delisle, at para. 23.
(3) Section 1 of the Charter
Although my conclusions as to the constitutionality of both the imposition of the SRRP as a labour relations scheme and the exclusion of RCMP members from the application of the PSLRA make it unnecessary to consider whether Charter infringements are justified, I will nonetheless comment briefly on the s. 1 analysis conducted by the majority.
The majority concedes that the government’s objective in this case – maintaining an independent and objective police force – is pressing and substantial. Although the majority acknowledges that the rational connection test is not onerous, it concludes that that test is not met in this case. To satisfy the rational connection test, the government must demonstrate that it is logical and reasonable to conclude that the impugned action will help bring about its objective – not that it will inevitably succeed: Little Sisters Book and Art Emporium v Canada (Minister of Justice), 2000 SCC 69 (CanLII),  2 S.C.R. 1120, at para. 228; Health Services, at paras. 148-49; Canada (Attorney General) v JTI-Macdonald Corp., 2007 SCC 30 (CanLII),  2 S.C.R. 610, at para. 40.
The state need not always adduce direct proof of a relationship between the infringing measure and the legislative objective. So long as it has been shown that logic and reason would lead one to conclude that the impugned measure will help the government attain its objective, the rational connection threshold has been met: RJR-MacDonald Inc. v Canada (Attorney General), 1995 CanLII 64 (SCC),  3 S.C.R. 199, at para. 154; Ross v New Brunswick School District No. 15, 1996 CanLII 237 (SCC),  1 S.C.R. 825, at para. 101. The low threshold discussed above is met where the legislature has implemented a collaborative model of labour relations in order to achieve a neutral, stable, and reliable national police force. It is reasonable to conclude, as explained below, that a police force which is polarized by adversarial posturing or that could be called to inaction when other bargaining units are on strike, will be viewed as less objective, neutral and reliable by the public.
The majority does not accept the argument made by the Attorney General of Canada that labour action by the RCMP could disrupt the stability of the Force and affect the perception of it as a neutral, law-enforcing body. The majority, however, disregards the fact that RCMP members play a special role in cases of national security, in emergency situations occurring in communities which do not have access to other police forces, and in situations where they can be called upon to interject in the labour disputes of others. Although unionized provincial police forces do not generally have the right to strike, there have been incidents of working to rule and job actions by municipal police forces in Hamilton, Toronto, Montréal and Québec. Some have even resorted to illegal strikes. Parliament is entitled to address concerns that an adversarial association might order its members to refuse to intervene in certain circumstances involving the labour disputes of others or that belonging to such associations could inhibit members from responding to such situations impartially.
In considering whether the SRRP minimally impairs freedom of association, the majority again starts from the premise that a labour relations scheme that is non-adversarial will not be within the range of reasonable alternatives that satisfy the minimal impairment standard. While acknowledging that the government is not bound to follow the least impairing means to achieve its end, the majority finds the SRRP inadequate in comparison to the adversarial labour relations schemes of provincial police forces. Again, the majority refuses to acknowledge that the RCMP is materially different from other Canadian police forces.
The majority argues that [para. 152]
concerns about the independence of the members of the Force could easily be considered in determining the scope of the police bargaining unit under schemes like the PSLRA, without requiring total exclusion from bargaining in the present regime. For example, s. 4 of the Labour Code, CQLR, c. C-27, restricts the membership and affiliations of municipal police associations.
With respect, the scope of the bargaining unit is beside the point. A unionized national police force would be inconsistent with the government’s pressing and substantial objective, as any adversarial, Wagner-style collective bargaining, whether the bargaining unit is restricted to RCMP members or not, risks compromising the objectivity and independence of the Force.
As acknowledged by LeBel J., at para. 275 of Advance Cutting & Coring, “differences between legislative approaches to similar problems are part of the very fabric of the Canadian constitutional experience”. He observed that in a “system of divided legislative authority”, where members within the federation have different cultural and historical experiences, “the principle of federalism means that the application of the Charter in fields of provincial jurisdiction does not amount to a call for legislative uniformity” (ibid.). This reasoning also applies to the legislative policy choices of Parliament which must address not only local interests but also the broader public interest, including national security.
It follows that the salutary effects of the imposition of the SRRP outweigh any deleterious effects.
The RCMP is a unique Canadian law enforcement organization. Not only is it our national police force, but it also provides provincial and municipal policing services in much of the country, as well as providing police services to international airports and hundreds of Aboriginal communities. The RCMP provides protective services to Canadian and foreign dignitaries, security at significant national and international events in Canada, and border policing. It provides specialized policing services to all police services in Canada, including criminal intelligence, biological evidence recovery, DNA analysis, fingerprint and criminal record information, and ballistics identification. The RCMP also runs the Canadian Firearms Program, the Canadian Police Information Centre, the Canadian Police College, the National Child Exploitation Coordination Centre, the National Sex Offender Registry, and the Technological Crime Program. Across Canada, the RCMP enforces a host of federal laws, including those dealing with commercial crime, counterfeiting, drug trafficking, organized crime, and terrorism.
The government must be entitled to organize RCMP labour relations in view of the distinctive and essential role the Force plays as our national police force. Labour action by RCMP members could cause disruption on a different order of magnitude than that of similar action by other police forces. It could also have adverse effects on other law enforcement agencies across Canada.
Parliament’s decision to use a collaborative scheme for labour relations within the RCMP is consistent with international instruments regarding freedom of association. While international conventions and covenants do not prevent domestic law from granting associational rights to police forces, the wording of those instruments reflects the fact that other countries may find it reasonable to restrict such rights in comparable contexts. See, for example, the International Labour Organization’s Convention (No. 87) concerning freedom of association and protection of the right to organize, 68 U.N.T.S. 17, art. 9, the United Nations’ International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, art. 8, and the United Nations’International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 22.
appellants have failed to establish that the SRRP makes meaningful association
to achieve workplace goals effectively impossible. This labour relations scheme
is responsive to employee interests and accountable to employees. The majority
departs from this Court’s recent jurisprudence on freedom of association in
order to justify a particular result in this case. So long as it is not
effectively impossible for employees to make collective representations on
workplace issues, through individuals who are representative of their interests,
and that those representations are considered by management in good faith, there
is no violation of s.
I would dismiss the appeal with costs to the respondent.
 Repealed since the
hearing of this appeal (SOR/2014-281, s. 58) and replaced by a substantially
similar provision, s. 56 of the Royal Canadian Mounted Police Regulations, 2014,
SOR/2014-281, (“RCMP Regulations, 2014”).
 Note that RCMP members are not excluded from Part 3 of the PSLRA — Occupational Health and Safety
Laura C. Young and Patric Senson (solicitors: Laura Young Law Offices, Toronto), for the appellants.
Peter Southey, Donnaree Nygard and Kathryn Hucal (Attorney General of Canada, Toronto), for the respondent.
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