On January 16, 2015 the Supreme Court of Canada released its decision in Mounted Police Association of Ontario v. Canada (Attorney General). The issue in that case was whether the current staff relations system available to RCMP members violates s. 2(d) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada (with Justice Rothstein dissenting) concluded that the current staff relations system violates s. 2(d) of the Charter. The Court gave the government 12 months to enact a labour relations regime for RCMP members that is consistent with the Charter.
The labour relations system at the RCMP
The majority of the Court started by identifying three bodies that comprise the current labour relations system in place at the RCMP: the Staff Relations Representative Program (SRRP), the Pay Council and the Legal Fund. The majority concluded that the “core component” of the scheme is the SRRP, and focused the remainder of its analysis on the SRRP. In the decision in Meredith v. Attorney General of Canada (released the same day, and discussed in a separate blog post), however, the Court stated that the Pay Council process depends on the existence of the SRRP and therefore cannot survive the conclusion that the SRRP is unconstitutional.
The nature of freedom of association
The majority’s analysis began with a discussion of the nature of freedom of association. The majority adopted what it referred to as an “activity-based contextual approach”, in which the Court should look to the associational activity in question in its full context and history. The Court then moved on to the purpose of freedom of association. The Court adopted the dissenting views of Dickson C.J. in the 1987 Alberta Reference decision that the purpose of freedom of association encompasses three things:
- 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 other groups or entities.
Previous Supreme Court decisions about freedom of association have focused on the constitutive approach; the cases dealing with collective bargaining more recently (such as BC Health Services or Fraser) have moved into the derivative approach. In this case, the majority adopted all three approaches to freedom of association. The majority also repeated on several occasions in its judgment that the guarantee of freedom of association cannot be indifferent to power imbalances in the labour relations context.
Freedom of association protects collective bargaining
The majority then moved on to the right to freedom of association in the collective bargaining context. The majority confirmed the decisions in BC Health Services and Fraser that freedom of association guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals. The majority repeated (on several occasions) that this does not require any particular model of labour relations. Also, this right only guarantees a process rather than an outcome.
The majority addressed an issue that has arisen after its decision in Fraser in particular: whether the standard for a breach of freedom of association is one of “effective impossibility” of exercising freedom of association. The majority clarified that the use of the terms “impossible” and “effectively nullified” does not create a standard of effective impossibility for a claimant to make out a breach of s. 2(d) of the Charter. The majority also addressed the use of the term “derivative right” in Fraser. The use of that term does not mean that the right to collective bargaining may arise as a necessary precondition to meaningful association. Collective bargaining is a necessary precondition to the meaningful exercise of freedom of association.
The majority concluded that the essential features of a meaningful process of collective bargaining include choice and independence. The degree of choice required by the Charter is one that enables employees to have effective input into the selection of the collective goals to be advanced by their association. The degree of independence is one that ensures that the activities of the association are aligned with the interests of its members after assessing the freedom to amend the association’s constitution and rules, the freedom to elect representatives, control over financial administration, and control over the activities the association chooses to pursue.
Finally, the majority pointed out that the Wagner Act model of labour relations was not the only constitutionally permissible model of labour relations in Canada. The Court specifically referred to the designated bargaining model in place for teachers in Ontario as one that may be acceptable – i.e. a model where the bargaining agent is designated rather than chosen by employees, but employees still retain sufficient choice over workplace goals and sufficient independence from management to ensure meaningful collective bargaining. The Court pointed out that different industries and workplaces may have different constitutionally permissible models.
The RCMP model violates freedom of association in purpose and effect
Turning away from broad principles to the result in the case, the majority concluded that the SRRP system violated the right to freedom of association. The majority started with the principle that a law may violate the Charter in its purpose or effect, and that either violation was sufficient to trigger a Charter breach. The majority then concluded that the purpose of the SRRP infringed s. 2(d) of the Charter. The SRRP was established in 1974 specifically because the Force was opposed to the formation of an association or a union. The SRRP continues to be imposed for the purpose of preventing collective bargaining through an independent association. This purpose alone is sufficient to make the SRRP unconstitutional.
The majority also concluded that the SRRP infringes s. 2(d) in its effects. The majority noted several areas of concern. First, significant aspects of the program are determined by management, including the number of SRRs and the program budget. Second, members of the SRRP may not communicate with anyone outside of the RCMP about RCMP programs and activities (except for conditions of work and employment) without the Commissioner’s approval. Third, the National Executive Committee must submit an annual report to management about its activities. Fourth, the application judge found that (at the time of that hearing) SRRs may not (as a matter of policy and practice) promote alternative modes of representation for RCMP members.
The majority also concluded that excluding RCMP members from the Public Service Labour Relations Act – the statute that governs collective bargaining for federal public servants – violated s. 2(d) of the Charter, largely because the purpose of the exclusion was to prevent RCMP members from collectively bargaining.
The majority finally concluded that these Charter breaches were not saved by s. 1. The majority accepted that maintaining and enhancing public confidence in the neutrality, stability and reliability of the RCMP by providing a police force that is independent and objective is a pressing and substantial purpose. However, the exclusion from collective bargaining is not rationally connected to that purpose. The majority concluded that “it is not established that meaningful collective bargaining for RCMP members will disrupt the stability of the police force or affect the public’s perception of its neutrality.”
Implications of the decision
The majority clearly states that it does not require the government to simply apply the Public Service Labour Relations Act to RCMP members. Freedom of association does not mandate a particular model of labour relations. The Court instead suspended its decision for 12 months, to give the government the opportunity to design a constitutional collective bargaining regime for RCMP members.
When the government lost this case in a lower court, it introduced Bill C-43, the Royal Canadian Mounted Police Modernization Act, in 2010. The legislation only passed first reading before it was dropped after the government won its appeal in the Ontario Court of Appeal. Bill C-43 created a labour relations system that was essentially the same as the existing Public Service Labour Relations Act, with a few modifications. For example, board members dealing with RCMP cases needed some “knowledge of policing or police organizations”, and RCMP members could not go on strike (instead, their bargaining disputes would be resolved through interest arbitration). It is too early to know whether the government will simply revive the 2010 legislation, or whether it has some other plan in mind.
The labour relations community is also anxiously awaiting the Supreme Court of Canada’s decision in Saskatchewan Federation of Labour about whether s. 2(d) protects a constitutional right or freedom to strike. The Court’s clarification of Fraser – particularly, clarifying that the standard is not one of “effective impossibility” to make out a case under s. 2(d) of the Charter – will certainly be relevant when the Court decides that issue.