Constitutional protection of a collective exercise of freedom of expression: Alberta v. UFCW

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The Supreme Court has now clearly determined that the collective and social exercise of the fundamental freedoms enumerated by the Canadian Charter of Rights and Freedoms is worthy of constitutional protection and scrutiny. This was not always so.

The 1987 trilogy – limiting the scope to that of individual exercise 

In 1987, a trilogy of cases (Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, PSAC v. Canada, [1987] 1 SCR 424; RWDSU v. Saskatchewan, [1987] 1 SCR 460] severely limited the scope of the fundamental freedom of association. The Supreme Court ruled in those cases that freedom of association could not encompass the activity of collective bargaining because an individual could not, on his or her own, bargain collectively. The logic was then that freedom of association belonged to individual persons only and that this freedom of association could not be enlarged in scope simply by the individuals acting in concert. Since an individual could not bargain collectively, individuals acting together could not claim that their freedom of association extended to an action that they could not individually carry out. This unfortunate (in my respectful opinion) determination knocked the stuff out of freedom of association for a quarter century.

Dunmore 2001 and the move to undo the tie to individual exercise

Starting in 2001, the Court began to erode away the underpinnings of the 1987 trilogy’s constitutional legacy. In 2001, Bastarche J, speaking for the Court, breathed new life into the s. 2(d) freedom of association. He dispensed with the argument that freedom of association had to be limited to those activities that an individual could conduct individually:

“As I see it, the very notion of “association” recognizes the qualitative differences between individuals and associations. It recognizes that the press differs qualitatively from the journalist, the language community from the language speaker, the union from the worker. In all cases, the community assumes a life of its own and develops needs and priorities that differ from those of its individual members….”

Of interest is the fact that Bastarache J had already started to recognize the communal, collective or social quality of important aspects of the fundamental freedoms (expression, association). In other words, it is not just freedom of association that is important from a collective perspective but also freedom of expression (and logically and necessarily, freedom of religion –though not expressly noted by Bastarache J in the examples given). Indeed, in the example of the press differing qualitatively from the journalist, Bastarache J expressly acknowledges that that aspect of the s. 2(b) freedom has important uniquely collective characteristics. The “press” as it has evolved in its current forms has many collective qualities – from the joint editorship and control over publication to the mass readership and dissemination of the product.

Perhaps, due to Canada’s constitutionalized bilingualism and recognition and protection of collective linguistic and aboriginal rights, the Court had become more accustomed to concept of collectively exercised rights. Maybe this was why Bastarache J. was led to refer to the example of the language community differing from the language speaker.

In any event, certainly by 2001, the Court was leaving behind the rigid philosophy that individual rights and freedoms could have no greater scope than the scope carved out by the exercise of such rights or freedoms by an individual. By the time of Dunmore, the Court was already flagging its inclination to accept that the human condition has certain fundamental components that are communal, social or collective in nature and that fall within the ambit of the constitutionally protected rights and freedoms.

2013 Alberta v. UFCW – the union’s freedom of expression

Enter the Court’s decision in Alberta (Protection of Information and Privacy Commissioner) v.UFCW, 2013 SCC 62 released on November 15, 2013. While many may consider that the importance of this case was the fact that the privacy of the individual was held to be secondary in importance to the union’s interests (which is undoubtedly a matter of great importance), what caught my eye was the Court’s reference to the “union’s freedom of expression”. Justices Abella and Cromwell gave the reasons for judgment for the Court. In the opening paragraph of their reasons for judgment, the Justices explained what issue was being determined in the appeal:

“This appeal requires the Court to determine whether Alberta’s Personal Information Protection Act unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike. At issue is whether the Act achieves a constitutionally acceptable balance between the interests of individuals in controlling the collection, use and disclosure of their personal information and a union’s freedom of expression.”

(emphasis added)

In paragraph 25, the Justices state: “the Act does not include any mechanisms by which a union’s constitiutional right to freedom of expression may be balanced with the interests protected by the legislation” (emphasis added). Later, at paragraph 30, they quote with approval from the International Labour Organization that “[t]he exercise of freedom of association and collective bargaining is dependent on the maintenance of fundamental civil liberties, in particular…. freedom of opinion and expression”: Report of the Director-General: Freedom of association in practice: Lessons learned (2008), para. 34.

Thus, a right that is conferred by the Charter on “everyone” has become a constitutional right of a union, an entity that by its very definition is a collectivity. The express recognition by the Court of the importance of the collective exercise of some of the fundamental freedoms, including freedom of association and freedom of expression has far-reaching implications.

Ramifications and implications

Concepts are not “expressed” in a vacuum. They are expressed by one person to one or more other persons. They are discussed among people in groups in communities, formal and informal. Ideas and concepts and thoughts are shared, shaped, moulded and adapted by individuals and groups of persons, individuals and groups whose membership is constantly shifting. This has always been a core element of human expression. Now the Court has clearly confirmed that it is worthy of constitutional protection.

The significance of this development must be appreciated in the context of the world we now find ourselves in. Marshall McLuhan’s concepts of a global community have been realized through the advent of the Internet and world wide communication systems. The term “Friends” has taken on new significance with communities built on Facebook.  With a click of a computer key, people can share their ideas, their thoughts, their photos, their music, their videos with hundreds or thousands or millions of people. “Viral” used to be something only with negative connotations. Now, if you launch a video that goes viral, that may be a fantastic development.

In a future post, I will outline what I think the ramifications of this “collective”, “social” or “communal” constitutional protection are.  For now, I will say simply that the world is a different place today and the Court apparently is adapting its jurisprudence to reflect that condition.

Until then, I remain

Constitutionally yours

Arthur Grant

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Abolition of the Senate? Simplistic but is it wise?

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Yesterday and today, our highest court heard arguments on the reform and on the abolition of Canada’s Upper Chamber, the Senate. This all came about because of the Conservative government’s attempt to legislate amendments respecting how senators would be selected and respecting the imposition of term limits (as opposed to age limits). Arguing that Parliament had the power to legislate unilaterally in respect of itself and relying on the shaky premise that the “consultative” elections would not bind the Prime Minister in appointing new members to the Senate, the government proceeded some distance down that path before a number of provincial governments indicated their displeasure with the proposed process, not the least of which was Quebec. Indeed, the Quebec government referred the constitutionality of the bill to its Court of Appeal which, on October 24, 2013, rendered its reasons for judgment: the bill was unconstitutional. In order to carry out the sorts of amendments proposed by the federal government, the federal government will have to involve the provinces. See Renvoi sur un projet de loi federal relative au Senat, 2013 QCCA 1807.

Recent scandals involving individual senators’ expenses has drawn the normally obscure Chamber into the spotlight, and frankly, into disrepute. Shaken by the opposition to its attempts to reform the Senate and embarrassed by the spending habits of some of the relatively newly appointed Conservative senators, the federal government has indicated that, if it cannot proceed with its amendments, it wants to abolish the Senate. “The Senate must change or vanish” said Minister of State for Democratic Reform Pierre Poilievre, “the status quo is not acceptable.”

Since the likely result of this Senate Reference will an opinion that the federal government must obtain the support of 7 provinces having at least 50% of the population in order to reform the Senate, and assuming that at least that minimum requirement will be necessary for the abolition of the Senate, the federal government will be expected to have to do something.  Reform or abolish? Change or vanish? I fear that the temptation will be to simply abolish.

I think that reform will be hard. The reason why it will be hard is that the democratization of the Senate (in other words, the election of the Senators) will mean that the Senate would transition from being a place of “second sober thought” to one of democratic legitimacy. The senators who would have fought for their seats and who would therefore represent their respective provinces would not be willing to simply sit back and let the members of the House of Commons dominate the legislative process. While the basis of their democratic mandate might be different (senators would represent provinces: members of Parliament represent their constituency), in each case, they would have a democratic mandate and would expect (and be expected) to exercise their democratic clout.

If elected then, the distribution of Senate seats takes on new importance. Would it be it appropriate in today’s Canada and with an elected (and therefore effective) Senate, that Ontario and Quebec each get 24 Senate seats but British Columbia and Alberta each get 6? Would there be a logical rationale for the fact that the four Western provinces combined get 24 senate seats but the four Atlantic provinces get 30? Obviously, the current distribution of Senate seats is due to historical developments and the addition of provinces over time resulting in the present distribution. But any province such as British Columbia which is and has been historically underrepresented in the House of Commons and is even more underrepresented in the Senate would be hard pressed to support election of senators without a corresponding rationalization and redistribution of Senate seats. Failure to do so would mean that provinces such as Alberta and British Columbia would be forever subject to the historical decisions based on old and now flawed concepts of the confederation that gave the more populous provinces of Ontario and Quebec the status of separate “regions”. As an “elected” Senate became democratically “effective”, one could expect that the federal government would have to consider the regional interests of Ontario and Quebec first in order to obtain their nearly 50% support in the Upper House. Central Canadian senators would naturally support legislative proposals that would be good for their provinces but British Columbia and Alberta senators would be too few in number to merit consideration.

Any reform involving redistribution of the Senate seats will not be an easy task.  As we all know, many have tried, none have succeeded. Thus, the simple approach, the easy way out may be to simply abolish the Senate. In light of the current public distaste for the Senate, this might be easier to accomplish than reform.  Few provinces, even those who have substantial over-representation in Ottawa by reason of their numerous Senate seats, would have popular support for reform. But popular opinion  does not mean that abolition is the better route. I would argue for a renewed and creative approach to reform.

A federation without a bicameral central legislature is a rarity – and for good reason. In a country as big and as diverse as Canada, it is important to have a mechanism for the regional sensitization of legislative proposals. A properly functioning bicameral legislature will achieve this objective by having one house enact legislation on the basis of simply “majority rule”. The other house, however, will pass a legislative proposal on the basis of a majority of regions or provinces (or states, as the case may be).  This is, after all, the essence of a federal legislature.

Unfortunately, we have not had an effective and properly functioning Upper Chamber doing more than providing “sober second thought”. There has not been the sort of regional input into central legislative decision-making that would make federal legislation better, more inclusive and more in tune with regional issues. We have seen examples of this: Alberta should remember how the National Energy Policy was imposed by a government, a House of Commons and a Senate dominated by Central Canadian interests. I would wager that a Senate that was elected, effective and properly regionally distributed would have required a different sort of national energy policy than the one that was introduced in the early 1980’s.

Accordingly, if, as I suspect will be the case, the Supreme Court of Canada determines that the proposed amendments constitutionally require the participation of the provinces for both reform and for abolition (and for the latter, probably the participation and consent of all of the provinces), I would urge Canadians and the Canadian and provincial governments to roll up their sleeves and get down to determining a principled way of reforming the Senate so that it becomes a democratic and effective component of our federal Parliament and not the subject of derision because of its impotence and its irrelevance in the eyes of most citizens.

In the end, I agree with Minister Poilievre — in part. I agree that “the status quo is not acceptable”. I agree that the Senate must change. I disagree that it should simply vanish.  Simply because it would be really, really hard to reform does not justify abolition. I think we owe it to all Canadians to keep on trying until we get it right.