RCMP Permitted to Form Unions: A Purposive Approach to Freedom of Association in Mounted Police Association of Ontario v Canada

In Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, the Supreme Court of Canada (“SCC”) made a major pronouncement on the scope of the section 2(d) freedom of association right under the Canadian Charter of Rights and Freedoms. In doing so, the court overturned Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989 [Delisle], in declaring the impugned provision (section 2) of the Public Service Labour Relations Act, SC 2003, c 22 [PSLRA], to be of no force and effect after a period of 12 months.

This case is important for providing more guidance on the standard that must be met to show an infringement of freedom of association, as it appears that the Court is moving back to the “substantial interference” standard rather than the seemingly impossible-to-meet “impossibility” standard established in Ontario (Attorney General) v Fraser, [2011] 2 SCR 3 [Fraser]. In doing so, the majority of the Court recognized that the PSLRA substantially interfered with the freedom of association rights of RCMP members.

Facts

The RCMP had previously been excluded from unionization and collective bargaining rights available to public service employees under the PSLRA. Instead, members of the RCMP have the Staff Relations Representative Program (SSRP) for employee representation through which they can voice concerns. However, the SSRP does not provide a forum to raise wage issues, lacks independence, and is the only employee association recognized by management.

The SSRP somewhat resembles a union in form; it is staffed by representatives from RCMP divisions and two of its representatives are liaisons with RCMP management. The SSRP also receives funding from membership dues and engages in political lobbying. In addition, it provides assistance to members facing disciplinary measures. However, the comparisons end there, as the organization does not provide a forum for collective bargaining with the employer and is not independently established. Rather, the SSRP was set up through RCMP Regulations and is limited in impact by management. In addition, some representatives to the SSRP are not elected, but rather appointed by commanding officers.

As such, these features motivated members of the RCMP to challenge their exclusion from the PSLRA in the present case, as they argue that the exclusion and the imposition of the SSRP employee association infringes freedom of association and cannot be justified under section 1 of the Charter.

Judicial History

The RCMP members were partially successful in the lower court, as the Ontario Superior Court judge determined that the imposition of the SSRP employee association “substantially interfered” with freedom of association. However, the lower court judge also concluded that the exclusion of RCMP members from the PSLRA was not an impediment to freedom of association, perhaps reflecting a negative view of the freedom in terms of “freedom from” associations. In any case, the decision of the lower court occurred before the release of the Fraser decision.

In contrast, the Court of Appeal decision was released after Fraser, and the Court of Appeal sided with the Attorney General in determining that the employee association and the statutory exclusion did not infringe the s. 2(d) Charter right of freedom of association. However, in the present case, the majority moves away from Fraser towards Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 [Health Services], in finding that the legislation “substantially interferes” with freedom of association for members and is thus unconstitutional.

Majority Reasoning

The majority does not overrule Fraser, however, as they find support for their position in Fraser in noting that, “applying the purposive approach…to the domain of labour relations, we conclude that s. 2(d) guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals, affirming the central holdings of Health Services and Fraser” (para 67). As such, the majority finds a way to reconcile their positions on freedom of association in the present case.

In reaching their conclusion that the impugned provision of the PSLRA is unconstitutional, the majority reasons that “freedom of association protects a meaningful process of collective bargaining” (para 5) such that employees may exercise choice and independence from management in achieving collective goals. As a result, the majority characterizes the evolution of the right of freedom of association as having moved from a “restrictive approach” to that of the current “generous and purposive approach” (para 30).

Dissent

Justice Rothstein dissented in the judgment and found that recognizing a “derivative right” to collective bargaining under the right to freedom of association would go beyond that which is expressed in the Charter. This is similar to the position adopted by Justice Rothstein in Fraser, where he voices his disagreement with the decision given by the Court in Health Services.

Further to this, Justice Rothstein notes the “impossibility” test enumerated in Fraser as the standard to be met in contrast with the majority’s “substantial interference” test for determining whether a piece of legislation violates the Charter. In reiterating this standard, Justice Rothstein acknowledged that the “impossibility” test is a high bar to meet in showing that an impugned law violates freedom of association.

Justice Rothstein then goes on to discount the need for employee choice and independence in representing their rights to the employer, as he asserts that “neither the choice of the associational framework…nor the selection of a particular bargaining agent is a necessary component of freedom of association” (para 193). As such, Justice Rothstein finds that the majority’s approach provides too much in the way of “freedom” in the right to freedom of association.

Analysis

This case was heard with the companion case of Meredith v Canada (Attorney General), 2015 SCC 2, which dealt with similar labour issues facing the RCMP, i.e., federal wage restrictions in the RCMP. However, unlike the instant case, the majority ultimately found the pay raise rollback issues raised by the RCMP members in Meredith constitutional, with Justice Abella in dissent.

This case is very significant for clarifying the standard that must be met for showing that an impugned law interferes with collective bargaining rights. The case is also significant for what it states about the rights and abilities of workers to unionize in Canada.

Although some may criticize the Court for changing its stance from the impossibility standard as set out in Fraser in returning to the substantial interference standard in Health Services, those of us with an interest in meaningful collective bargaining may see this standard as more realistic and responsive to workers’ rights. Further, the clarified standard of infringement is more consistent with other rights recognized in the Charter.

For example, freedom of religion does not require that a claimant demonstrate that legislation makes it impossible to practice their religion. Or, as Judy Fudge has noted (“‘Labour Is Not a Commodity’: The Supreme Court of Canada and the Freedom of Association” (2004) 67 Sask L Rev 425), the Court has been much more willing to recognize a broad scope for freedom of expression rights. Thus, why should freedom of association claims be held to a higher bar?

Given this decision by the Court on freedom of association, it will be interesting to watch for the next expected labour law judgment in the appeal of R v Saskatchewan Federation of Labour, 2013 SKCA 43 [Saskatchewan Federation] (commentary from The Court is available here). Although some have doubted whether the Court will recognize a right to strike deriving from freedom of association, the current case and the Court’s willingness to reconsider the position taken in Delisle suggests an evolution in the Court’s treatment of workers’ rights under the Charter.

Conclusion

The “purposive approach” favoured by the Court in this case will have interesting implications when considered in terms of strike actions. As Chief Justice Dickson (as he then was) identified the purposive approach as different from that of the “derivative” approach to rights (and he is cited with approval in the instant case), it is quite likely that the Court will also apply this approach to strikes in the Saskatchewan Federation case.

Indeed, this is hinted at by the majority in their statement that, “Dickson C.J. recognized as a starting point that s. 2(d) protected the right to do collectively what one may do as an individual. But he would also have held that the Charter protected some collective activities that have no true individual equivalents, including the right to strike” (para 36). Whether the Court truly approves of Dickson C.J.’s (as he then was) approach is still unclear. However, this will hopefully be clarified very soon in the next labour law judgment.

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