Delisle v. Canada (Deputy Attorney General)

Delisle v. Canada (Deputy Attorney General)
Collection
Supreme Court Judgments
Date
1999-09-02
Report
[1999] 2 SCR 989
Case number
25926
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 25926
Decision Content
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989
Gaétan Delisle Appellant
v.
The Attorney General of Canada Respondent
and
The Public Service Alliance of Canada,
the Canadian Police Association,
the Ontario Teachers’ Federation and
the Canadian Labour Congress Interveners
Indexed as: Delisle v. Canada (Deputy Attorney General)
File No.: 25926.
1998: October 7; 1999: September 2.
Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.
on appeal from the court of appeal for quebec
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of association -- RCMP officer challenging constitutionality of legislation excluding RCMP members from application of Public Service Staff Relations Act and Part I of Canada Labour Code -- RCMP officer alleging that impugned legislation prevents creation of independent employee association for RCMP members and encourages unfair labour practices -- Whether impugned legislation infringing freedom of association -- Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d) -- Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e) -- Canada Labour Code, R.S.C., 1985, c. L-2, s. 6 .
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression -- RCMP officer challenging constitutionality of legislation excluding RCMP members from application of Public Service Staff Relations Act and Part I of Canada Labour Code -- RCMP officer alleging that impugned legislation prevents creation of independent employee association for RCMP members -- Whether impugned legislation infringing freedom of expression -- Canadian Charter of Rights and Freedoms, s. 2 (b) ‑‑ Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e) – Canada Labour Code, R.S.C., 1985, c. L-2, s. 6 .
Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights -- RCMP officer challenging constitutionality of legislation excluding RCMP members from application of Public Service Staff Relations Act and Part I of Canada Labour Code -- RCMP officer alleging that impugned legislation prevents creation of independent employee association for RCMP members -- Whether impugned legislation infringing equality rights -- Canadian Charter of Rights and Freedoms, s. 15(1) ‑‑ Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e) – Canada Labour Code, R.S.C., 1985, c. L-2, s. 6 .
The appellant is a member of the RCMP and president of an informal association created with the aim of representing the job-related interests of RCMP members in Quebec. He brought a motion personally before the Superior Court, requesting that para. (e) of the definition of “employee” in s. 2 of the Public Service Staff Relations Act (“PSSRA ”) and s. 6 of the Canada Labour Code be declared of no force or effect as violating ss. 2 (d), 2 (b) and 15(1) of the Canadian Charter of Rights and Freedoms . Paragraph (e) expressly excludes RCMP members from the application of the PSSRA and s. 6 of the Canada Labour Code provides that Part I of the Code does not apply to employees of Her Majesty in right of Canada. His motion was dismissed and the Court of Appeal affirmed the decision.
Held (Cory and Iacobucci JJ. dissenting): The appeal should be dismissed. Paragraph (e) of the definition of “employee” in s. 2 of the PSSRA and s. 6 of the Canada Labour Code are constitutional.
Per Gonthier, McLachlin, Major and Bastarache JJ.: The freedom of association guaranteed by s. 2 (d) of the Charter does not include the right to establish a particular type of association defined in a particular statute. Only the establishment of an independent employee association and the exercise in association of the lawful rights of its members are protected under s. 2 (d). Respect for freedom of association therefore does not require in this case that the appellant be included in either the regime of the PSSRA , or any other regime, since s. 2 (d) protects RCMP members against interference by management intended to discourage the establishment of an employee association. There is no general obligation for the government to provide a particular legislative framework for its employees to exercise their collective rights.
Neither the purpose nor the effects of para. (e) of the definition of “employee” infringe s. 2 (d) of the Charter . Absent ambiguity in the meaning of a provision, it is primarily the statute as a whole which indicates its purpose. This does not mean that the general context should be ignored, but rather that the context is legislative above all else. Section 2 must be read in light of the other provisions of the Act and of the statutory regime for which it constitutes the framework. Knowing that the legislative context shows that the purpose of the statute is to govern labour relations in the public sector, under a regime of collective bargaining and trade union representation of workers, and having regard to the various applicable presumptions of legality, including the presumption of validity, it is not possible to find that the purpose of the statute infringes s. 2 (d). The exclusion of RCMP members is designed simply to not grant them any status under the PSSRA , namely trade union representation and all it entails (which does not violate the appellant’s freedom of association), and not to prevent them from establishing an independent employee association. Such an association enjoys protection analogous to that provided under ss. 6 , 8 and 9 of the PSSRA directly under s. 2 (d) of the Charter .
With respect to the effects of para. (e), the fact that the appellant cannot invoke the protection of the PSSRA has no impact on his freedom of association under the Charter . The fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue here. There is no violation of s. 2 (d) when certain groups of workers are excluded from a specific trade union regime. The ability to form an independent association and to carry on the protected activities exists independently of any statutory regime. If RCMP management has used unfair labour practices with the object of interfering with the creation of an association, or if the internal regulations of the RCMP contemplate such a purpose or effect, it is open to the appellant or any other party with standing to challenge these practices and rules directly by relying on s. 2 (d), as the RCMP is part of the government within the meaning of s. 32(1) of the Charter .
The exclusion of RCMP members from the PSSRA does not infringe the freedom of expression guaranteed by s. 2 (b) of the Charter . The reasoning that applies to the issue of freedom of association also applies to the arguments concerning freedom of expression. Except in exceptional circumstances, freedom of expression imposes only an obligation that Parliament not interfere, and the exclusion of RCMP members from the PSSRA regime therefore cannot violate it. This is not one of those exceptional cases where the government has a positive obligation to act in order to give true meaning to freedom of expression. The message of solidarity the appellant wishes to express by an association exists independently of any official form of recognition. In the current situation, this message is the same whether or not it is expressed by an association recognized by the PSSRA regime. Finally, even if the exclusion of RCMP members by the PSSRA diminished the effectiveness of the conveyance of this message, this would not violate s. 2 (b).
The exclusion of RCMP members from the PSSRA does not infringe the equality rights guaranteed by s. 15 of the Charter . While the effect of the statute is to impose differential treatment on the appellant, depriving him and other RCMP members of a benefit available to most other public service employees, this distinction is not based on one or more grounds enumerated in s. 15 or analogous thereto. Moreover, this distinction is not discriminatory. A reasonable person in the appellant’s position would conclude that it is because RCMP members perform a crucial function in maintaining order that Parliament set them apart from other public service employees. Whether this view is correct or not, it does not adversely affect the appellant’s dignity and is not based on a characteristic attributed stereotypically to police officers as a group.
Per L’Heureux-Dubé J.: The majority’s reasons are generally agreed with. Because the Charter applies to RCMP management pursuant to s. 32 , any actions, regulations or rules that, in purpose or effect, interfere with RCMP members’ ability to form an employee association would violate s. 2 (d) of the Charter , and may be challenged under a constitutional claim. The protections contained in ss. 6 , 8 and 9 of the PSSRA are therefore mirrored in the Charter ’s guarantee of freedom of association, when the employer is part of government. Where, as here, the Constitution itself prohibits the activities that a claimant alleges interfere with his freedoms of association and of expression, positive government action to include workers in a particular scheme is not required. In addition, because s. 2 (d) guarantees the collective exercise of rights that are lawful for individuals, subject to s. 1 of the Charter , RCMP management cannot refuse to recognize the right of an employee to be represented by an employee association in lawful dealings with the employer.
While an invalid legislative purpose is sufficient to find a violation of a Charter right, the evidence adduced does not show that the object of the exclusion of RCMP members from the PSSRA was to impede the formation of independent employee associations, but rather suggests that the exclusion stemmed from a desire not to grant RCMP members all the rights contemplated by the PSSRA and access to the particular remedies contained within it. Nor can it be found, in this case, that the effect of the exclusion is to violate freedom of association or expression by encouraging unfair labour practices by government actors, because such practices are prohibited through the guarantee of freedom of association in the Charter . Both intrinsic and extrinsic sources are admissible and significant in determining legislative purpose and effects.
Finally, a violation of s. 15(1) of the Charter has not been demonstrated in this case. It has not been shown that, viewed in context, this legislative distinction suggests that RCMP members are less worthy, valuable, or deserving of consideration than other public servants.
Per Cory and Iacobucci JJ. (dissenting): This appeal is not concerned with the right to strike or to bargain collectively. The issue is whether the legislation interferes with the basic freedom of employees to associate informally in pursuance of their mutual interests as employees. In light of the jurisprudence of this Court, it is clear that s. 2 (d) of the Charter protects this freedom. The freedom to associate is of fundamental importance in a democratic society. The ability of employees, who are a vulnerable group in our society, to form and join an employee association is crucially linked to their economic and emotional well‑being. A statute whose purpose or effect is to interfere with the formation of employee associations will thus clearly infringe s. 2 (d) of the Charter .
The immediate result of para. (e) of the definition of “employee” in s. 2 of the PSSRA is that members of the RCMP are excluded from the application of the PSSRA , and thus are denied the statutory protections it extends, in particular the basic right set out in s. 6 to participate in an employee organization and the basic prohibitions against unfair labour practices set out in ss. 8 and 9 . No other statute provides these statutory protections to RCMP members. Members of the RCMP are literally singled out for different treatment. The key consideration in examining Parliament’s purpose in excluding members of the RCMP from the PSSRA is the reason for the decision to exclude. If Parliament’s purpose in excluding a particular employee group from a labour statute was anti-associational, this is impermissible in light of s. 2 (d) of the Charter . In the present appeal, therefore, the express exclusion of RCMP members from the PSSRA raises the possibility that the exclusion has an invalid purpose. In light of the presumption of constitutionality, this possible interpretation of legislative purpose is to be eschewed unless there is evidence showing on a balance of probabilities that it is the probable purpose.
This is one of those rare cases in which Parliament’s purpose in enacting a legislative provision must be found to infringe the Charter . Parliament’s purpose in enacting para. (e) was to ensure that individual RCMP members remained vulnerable to management interference with their associational activities, in order to prevent the undesirable consequences which it was feared would result from RCMP labour associations -- the perceived threat of a divided loyalty among RCMP members. The perception which informed the imposition of these restrictions was that RCMP members might disobey superior orders if they were both union members and members of a quasi‑military institution, and would be unable to exercise their duties impartially and effectively in controlling the illegal acts of other workers, or indeed in the event of their own labour unrest. The invalid purpose of para. (e) is apparent from numerous sources regarding the provision’s legislative history and the context of its enactment, including, most notably: the executive orders implementing the long-standing federal government policy of preventing RCMP unionization; the authoritative statements regarding the purpose of para. (e); and the respondent Crown’s submissions and the opinions expressed in its expert reports in these proceedings. In fact, the respondent has, in its submissions and expert evidence adduced at trial, conceded that Parliament’s purpose was anti-associational. It is also particularly significant that no evidence has been presented which suggests that one of the other possible alternative purposes was Parliament’s actual purpose.
Lastly, a court may, where appropriate, look to the effects of legislation for assistance in inferring the legislation’s purpose. In particular, where the effects of the impugned legislation are contrary to the invalid purpose alleged by the Charter claimant, a court should weigh the evidence carefully before concluding that the purpose is indeed invalid. Here, no evidence was adduced that the legislation has beneficial effects for RCMP members. Rather, RCMP members continue to be subject to practices that would likely be enjoined as unfair labour practices under the PSSRA .
The issue of positive obligations and entitlements does not arise in this appeal. The appellant’s claim is not premised upon the view that Parliament is obligated to protect him against management interference, or to promote the formation of member associations. It is the invalid purpose of para. (e), and not an assertion of positive entitlements, that is the foundation for his claim.
Paragraph (e) meets the first stage of the s. 1 inquiry. Notwithstanding its more specific, impermissible purpose, para. (e)’s general legislative goal of assuring a stable national police force is sufficiently important to justify overriding a constitutionally protected freedom. Where impugned legislation has two objectives, one of which is pressing and substantial in a free and democratic society, while the other is contrary to the Charter , the legislation will satisfy the first stage of the s. 1 inquiry. It is more in keeping with the overall framework of the s. 1 inquiry to consider the existence of the second, invalid purpose as one element of the context underlying the proportionality analysis at the second stage of s. 1 inquiry.
Paragraph (e) does not meet the second stage of the s. 1 inquiry and thus does not constitute a reasonable limit upon freedom of association. The rational connection component of the proportionality test is not satisfied. Some of the evidence adduced does not support a causal link between the legislative objective and the means used to achieve that objective. Rather, this evidence supports the reverse conclusion that the means chosen engender the very mischief sought to be cured: the exclusion of RCMP members from the entirety of the PSSRA to secure a stable national police may actually contribute to the very labour unrest sought to be avoided. Since it is equally probable that para. (e) causes the very social harm it purports to target, at least in these limited circumstances, the respondent has not established a rational link between excluding RCMP members from the entirety of the PSSRA and securing a stable and reliable RCMP. If the rational connection component of the proportionality analysis under s. 1 is to have any role to play, it must at least be in circumstances such as these, where the state seeks to infringe Charter freedoms in a context where doing so may exacerbate the social ill sought to be cured.
Even if the respondent had established a rational connection, para. (e) fails the minimal impairment component of the proportionality test. While, in many if not most cases, it will be found appropriate to defer to the legislature in its determination of how best to strike the delicate balance among labour, management, and public interests, deference does not equate to a negation of constitutional analysis, nor is deference necessarily appropriate in all cases. Here, an analysis of the contextual factors relevant to the question of appropriate deference leads to the conclusion that none of them favours an exercise of deference to the legislature. First, the complete exclusion of a class of employees from a comprehensive labour relations scheme can hardly be characterized as achieving a delicate balance among the interests of labour, management and the Canadian public. Second, para. (e) of the definition of “employee” in s. 2 of the PSSRA is not designed to protect a vulnerable group in Canadian society. While it is true that the public at large is vulnerable to the harmful effects of a police strike, the general public is not a vulnerable group in the sense understood in this Court’s s. 1 jurisprudence. Third, since the evidentiary record lends some support to the view that the remedy chosen by Parliament to secure a stable national police force may actually contribute to the very labour unrest sought to be avoided, it is inappropriate to defer to the legislature’s choice. A more rigorous examination of the issue of justification is called for. Finally, in light of the importance of employee associations within Canadian society, the social and moral value of the activity suppressed by para. (e) is very high and does not warrant a deferential approach in analyzing possible justifications for para. (e).
The exclusion of RCMP members from the entirety of the PSSRA does not impair the appellant’s freedom of association as little as reasonably possible in order to achieve the legislation’s objective. The current law is not carefully tailored to balance the Charter freedoms of RCMP members and the societal interest in effective policing. The same government policy could be achieved through a statutory approach that is not nearly as restrictive of basic Charter freedoms, by limiting the ability of RCMP members to bargain collectively. By sanctioning the freedom of RCMP members to form an association or union, Parliament would be following the example set by provincial legislatures across Canada and in many comparable foreign jurisdictions. Parliament would be acting in a manner that is consistent with Canada’s international commitment to protect freedom of association.
While it is unnecessary to consider the third component of the proportionality test, it is unlikely in any event that para. (e) would be found proportionate at this stage of the inquiry. The exclusion of RCMP members from the PSSRA ’s basic associational protections has few, if any, demonstrable salutary effects which could not be achieved by a lesser exclusion. Its negative effects, on both a symbolic and a practical level, are severe and cut to the core of the Charter ’s s. 2 (d) protection.
The appropriate remedy in this case to bring an end to the interference sanctioned by para. (e) in relation to basic associational efforts by RCMP members would be to strike it down as being contrary to the Charter . In light of the importance of ensuring that members of the RCMP are not permitted to strike, the declaration of para. (e)’s invalidity should be suspended for one year, to allow amending legislation to be passed if Parliament sees fit to do so.
In light of the finding with respect to the appellant’s s. 2 (d) claim, it is unnecessary to address ss. 2 (b) and 15(1) of the Charter . Similarly, in light of the finding regarding the PSSRA , no comment is made as to the constitutional validity of s. 6 of the Canada Labour Code .
Cases Cited
By Bastarache J.
Applied: Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; referred to: Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Gladue, [1999] 1 S.C.R. 688; Opetchesaht Indian Band v. Canada, [1997] 2 S.C.R. 119; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Schachter v. Canada, [1992] 2 S.C.R. 679; Vriend v. Alberta, [1998] 1 S.C.R. 493; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084.
By L’Heureux-Dubé J.
Referred to: Haig v. Canada, [1993] 2 S.C.R. 995; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.
By Cory and Iacobucci JJ. (dissenting)
Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; Atkins v. City of Charlotte, 296 F. Supp. 1068 (1969); Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Gladue, [1999] 1 S.C.R. 688; Delisle v. Royal Canadian Mounted Police Commissioner (1990), 39 F.T.R. 217; Haig v. Canada, [1993] 2 S.C.R. 995; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; M. v. H., [1999] 2 S.C.R. 3; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. of New York, 309 U.S. 261 (1940); Thomas v. Collins, 323 U.S. 516 (1945); Lontine v. VanCleave, 483 F.2d 966 (1973).
Statutes and Regulations Cited
Cal. Gov’t Code § 3508 (West 1995).
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 6 [formerly s. 109(4) ], 8, 94 [am. 1998, c. 26, s. 42], 96.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), (d), 15(1) , 32(1) .
Code of Conduct, SOR/88-361, Part III, ss. 39 [am. SOR/94-219, s. 15], 41.
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., 1985, c. R-10 ], s. 3(2) .
Constitution Act, 1982, s. 52 .
Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 17, Arts. 2, 3.
Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54.
International Convenant on Civil and Political Rights, 999 U.N.T.S. 171, Art. 22(2).
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 8.
Mich. Stat. Ann. § 17.455(2) (Supp. 1999).
N.Y. Civil Service Law § 200 (Consol. 1995).
Parliamentary Employment and Staff Relations Act, R.S.C., 1985, c. 33 (2nd Supp .).
Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e), “employee organization”, 6, 8(1), (2), 9(1), 28, 35, 37, 41, 91.
Rules and Regulations for the Government and Guidance of the Royal Canadian Mounted Police Force of Canada, (1945) 79 Canada Gazette 1577, s. 31(a).
Tex. Loc. Gov’t Code Ann. §§ 143.303, 174.002 (West Supp. 1999).
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 23(4).
Va. Code Ann. § 40.1-57.2 (Michie 1994).
Authors Cited
Canada. Preparatory Committee on Collective Bargaining in the Public Service. Report. Ottawa: Queen’s Printer, July 1965.
Clark, Gerald. “What Happens When The Police Strike”, in Richard M. Ayres and Thomas L. Wheelan, eds., Collective Bargaining in the Public Sector: Selected Readings in Law Enforcement. Gaithersburg, Md.: International Association of Chiefs of Police, 1977, 401.
Conference on Security and Co-operation in Europe. Concluding Document of the Madrid Meeting, 1983, 22 I.L.M. 1398.
Corpus Juris Secundum, vol. 51. Brooklyn, N.Y.: American Law Book, 1967.
Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991.
Fisher, E. G., and Starek, Henry. “Police Bargaining in Canada: Private Sector Bargaining, Compulsory Arbitration, and Mediation‑Arbitration in Vancouver” (1978), 2 Canadian Police College Journal 133.
Gibson, Dale. The Law of the Charter: General Principles. Toronto: Carswell, 1986.
Howard, George. Guardians of the Queen’s Peace. London: Odhams Press, 1953.
Royal Canadian Mounted Police. The Royal Canadian Mounted Police and Unionization, vol. I, part I, “An Historical Perspective on the R.C.M.P. and Protection of the National Interest: Responsibility Precluding Unionization”, research paper prepared by William Beahen, October 1987.
Weiler, Paul C. “The Charter at work: Reflections on the constitutionalizing of labour and employment law” (1990), 40 U.T.L.J. 117.
APPEAL from a judgment of the Quebec Court of Appeal, [1997] R.J.Q. 386, 144 D.L.R. (4th) 301, [1997] Q.J. No. 189 (QL), affirming a judgment of the Superior Court, [1990] R.J.Q. 234. Appeal dismissed, Cory and Iacobucci JJ. dissenting.
James R. K. Duggan, for the appellant.
Claude Joyal, Raymond Piché, Michel Pépin, Winston Fogarty and Stéphane Perrault, for the respondent.
Andrew Raven and David Yazbeck, for the intervener the Public Service Alliance of Canada.
Julius H. Grey and Valérie Marcas, for the intervener the Canadian Police Association.
Howard Goldblatt and Vanessa Payne, for the intervener the Ontario Teachers’ Federation.
Steven Barrett and Vanessa Payne, for the intervener the Canadian Labour Congress.
The following are the reasons delivered by
//L’Heureux-Dubé J.//
1 L’Heureux-Dubé J. -- I have had the advantage of reading the joint reasons of Justices Cory and Iacobucci, as well as those of Justice Bastarache. I agree with Bastarache J. that the appeal should be dismissed, and I am in general agreement with his reasons. In my opinion, given the manner in which the appellant has presented his claim, he has not shown that the exclusion of RCMP members from the legislative scheme of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“PSSRA ”), violates his Charter rights by impeding or preventing the formation of an independent employee association.
2 The appellant argued that because of the exclusion from the legislation, he is denied protection against unfair labour practices, and that the management of the RCMP is therefore permitted to design structures and rules, or carry out practices that interfere with the formation of independent employee associations. His counsel specifically stated that he was asking for no more than the right to access to the protections against employer interference contained within the PSSRA .
3 I agree with Bastarache J. that because the Canadian Charter of Rights and Freedoms applies to RCMP management pursuant to s. 32 of the Charter , any actions, regulations or rules that, in purpose or effect, interfere with RCMP members’ ability to form an employee association would violate s. 2 (d) of the Charter , and may be challenged under a constitutional claim. The protections contained in ss. 6 , 8 and 9 of the PSSRA are therefore mirrored in the Charter ’s guarantee of freedom of association, when the employer is part of government. In addition, because s. 2 (d) guarantees the collective exercise of rights that are lawful for individuals, subject to s. 1 of the Charter , RCMP management cannot refuse to recognize the right of an employee to be represented by an employee association in lawful dealings with the employer. I would add that existing jurisprudence of labour boards on unfair labour practices may be of great assistance to a court in evaluating claims and determining the appropriate remedies when it is alleged, under s. 2 (d), that government policies or practices interfere with the formation or maintenance of employee associations. Essential to resolving this appeal is the fact that the appellant already has the rights that he requests, through the guarantee of freedom of association in the Charter .
4 As explained by Cory and Iacobucci JJ., actions to discourage or prevent employee associations within the RCMP have a long history. The passage of the Charter with its guarantee of freedom of association, however, means that such actions are no longer lawful. In my view, if challenges to practices, regulations, or structures such as the Division Staff Relations Representative Program are made and they are found to contravene s. 2 (d), the arguments of Cory and Iacobucci JJ. in relation to s. 1 are convincing.
5 With respect, I cannot agree with the conclusions of Cory and Iacobucci JJ. in relation to legislative purpose. The evidence presented has not shown, in my view, that RCMP members were excluded from the PSSRA for reasons other than that it was felt that this particular regime, which included collective bargaining rights and a particular method for adjudication of grievances and other complaints through the Public Service Staff Relations Board, would be inappropriate for RCMP members. The Report of the Preparatory Committee on Collective Bargaining in the Public Service (1965), in the paragraph before it discusses the reasons for excluding RCMP members from the legislation, states as follows (at p. 27):
The Preparatory Committee believes that steps should be taken to ensure that, with certain specified exceptions, all employees of the Federal Government (defined in the broadest possible terms) have access to a system of collective bargaining. . . . [Emphasis added.]
The report then discusses the reasons for the exclusion of RCMP members from the regime, noting the special nature of their duties. Similarly, the recommendation of the Preparatory Committee in relation to coverage is as follows (at p. 27):
The Preparatory Committee recommends that, with the following exceptions, the Public Service system of collective bargaining and arbitration be made to apply to all elements of the Public Service. . . . [Emphasis added.]
It then lists RCMP members among the exceptions. In my view, therefore, the report does not show that the object of the exclusion was to impede the formation of independent employee associations, but suggests that the exclusion stemmed from a desire not to grant RCMP members all of the rights contemplated by the legislation and access to the particular remedies contained within it. Nor can I find, in this case, that the effect of the exclusion is to violate freedom of association or expression by encouraging unfair labour practices by government actors, because such practices are prohibited through the guarantee of freedom of association in the Charter .
6 I agree with the discussion in the reasons of Cory and Iacobucci JJ. of the importance of freedom of association, and of the inherent vulnerability of workers in the face of management. The unique context of labour relations must always be considered in constitutional claims in this area, and the right to freedom of association must take into account the nature and importance of labour associations as institutions that work for the betterment of working conditions and the protection of the dignity and collective interests of workers in a fundamental aspect of their lives: employment. The contextual approach to Charter analysis must also take into account the history of the need for government intervention to make effective the rights of workers to associate together. I agree with my colleagues that both intrinsic and extrinsic sources are admissible and significant in determining legislative purpose and effects, and with their comments on the fact that an invalid purpose is sufficient to find a violation of a Charter right.
7 I recognize that in cases where the employer does not form part of government, there exists no Charter protection against employer interference. In such a case, it might be demonstrated that the selective exclusion of a group of workers from statutory unfair labour practice protections has the purpose or effect of encouraging private employers to interfere with employee associations. It may also be that there is a positive obligation on the part of governments to provide legislative protection against unfair labour practices or some form of official recognition under labour legislation, because of the inherent vulnerability of employees to pressure from management, and the private power of employers, when left unchecked, to interfere with the formation and administration of unions. The majority of this Court held as follows in Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1039:
The distinctions between “freedoms” and “rights”, and between positive and negative entitlements, are not always clearly made, nor are they always helpful. One must not depart from the context of the purposive approach articulated by this Court in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. Under this approach, a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required. This might, for example, take the form of legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information.
See also Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at pp. 361-62, per Dickson C.J., dissenting. This case was not argued in a manner that alleged any positive entitlements, and I do not believe that positive government action to include workers in a particular scheme is required when the Constitution itself prohibits the activities that the claimant alleges interfere with his freedom of association and expression.
8 Finally, I agree that there is no violation of equality rights because a conflict with the purposes of s. 15(1) of the Charter has not been demonstrated. It has not been shown that, viewed in context, this legislative distinction suggests that RCMP members are less worthy, valuable, or deserving of consideration than other public servants. In my opinion, because RCMP members do not generally suffer from disadvantage or stereotyping, and it has not been shown that the effect of the distinction is to devalue or marginalize them within Canadian society, no discrimination has been shown. A reasonable person in the position of the claimant would not find his or her human dignity violated by the exclusion from the PSSRA . However, occupation and working life are often important sources of personal identity, and there are various groups of employees made up of people who are generally disadvantaged and vulnerable. Particular types of employment status, therefore, may lead to discrimination in other cases, and should be recognized as analogous grounds when it has been shown that to do so would promote the purposes of s. 15(1) of preventing discrimination and stereotyping and ameliorating the position of those who suffer social and political disadvantage and prejudice.
9 In the result, I would dismiss the appeal without costs, and answer the constitutional questions as proposed by Bastarache J.
English version of the judgment of Gonthier, McLachlin, Major and Bastarache JJ. delivered by
//Bastarache J.//
10 Bastarache J. -- I have had the benefit of reading the joint reasons of Cory and Iacobucci JJ. I accept their description of the facts and account of the judicial history. Like them, I believe that s. 2 (d) of the Canadian Charter of Rights and Freedoms protects RCMP members against any interference by management in the establishment of an employee association. However, this right exists independently of any legislative framework. Respect for freedom of association does not require that the appellant be included in either the regime of the Public Service Staff Relations Act, R.S.C., 1985, c. P‑35 (“PSSRA ”), or any other regime, as s. 2 (d) of the Charter protects the appellant directly against such interference. Accordingly, I am of the view that the appeal must be dismissed.
11 The outcome of the case at bar has largely been determined by the previous decisions of this Court which have defined the concept of freedom of association, guaranteed in s. 2 (d) of the Charter . The three cases of the 1987 trilogy — Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, PSAC v. Canada, [1987] 1 S.C.R. 424, and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460 — are especially determinative of this issue as they explore the concept in the labour relations context. In a recent decision, Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157, this Court had the opportunity to confirm its position. In that case, the majority of the Court cited with approval at para. 112 the following excerpt from the reasons of Sopinka J., which was taken from Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367, at p. 402:
. . . first, that s.