In two decisions released only two weeks apart, the Supreme Court of Canada has clearly moved to “refang” the union movement, especially insofar as it involves government employers. In its first decision of the year, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the majority of the Court ruled that the laws prohibiting RCMP members from being able to freely organize their own independent labour association (ie. a labour union) contravened their freedom of association as protected by s. 2(d) of the Charter and could not be justified under s. 1. In last Friday’s decision, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, a majority of the Court held that Saskatchewan’s “essential services” laws which prohibit the public service from striking were similarly contrary to s. 2(d) and unconstitutional. In both cases, Justice Rothstein (joined by Justice Wagner in the second decision) provided powerful dissents. As a result of these decisions and other relatively recent decisions, Canada constitutional protection of freedom of association has now come to protect core elements of labour relations, such as the right to bargain collectively, the right to strike and the right to freely choose an independent labour association to represent their interests viz-a-viz the employer. We have come a long, long way from the labour trilogy of 1987.

In 1999, the Court had previously ruled that the exclusion of the RCMP from the application of the collective bargaining provided by the Public Service Labour Relations Act was not contrary to s. 2(d) of the Charter: Delisle v. Canada (Deputy Attorney General), [1999] 2 SCR 989. Even earlier than that, in 1987, the Court had ruled in a trilogy of cases that, while individuals had the right to create and join unions, they did not have the right to bargain collectively or to withhold collectively their labour services (to strike): Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (the “Alberta Reference”); PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460. This very limited interpretation of s. 2(d) was criticized by numerous academics and authors.

In 2007, the Court made a clear departure from this narrow view of the protection of freedom of association. In Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (“Health Services”), the Court held that the British Columbian laws that effectively prohibited the unions’ ability to bargain collectively infringed the union members’ freedom of association. This broader approach to freedom of association was confirmed in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3 (“Fraser”).

In the Mounted Police decision, a number of independent associations (such as the Mounted Police Association of Ontario) brought a constitutional challenge of the legislation that excluded the members from any collective bargaining. They complained that their legislative exclusion from the PSLRA when coupled with the management mechanism used for dealing with any labour issues imposed on them, the Staff Relations Representative Program (“SRRP”) infringed their rights under s. 2(d). Importantly, their exclusion was historically part of an express decision not to let the Force to unionize. This historical decision has meant that the RCMP is the only police force in Canada not to be unionized.

In the Saskatchewan Labour decision, the Province had enacted legislation that designated the public service as “essential services”. So designated, their right to strike was stripped from the public service unions. The Saskatchewan Federation of Labour and a number of the public service unions brought a constitutional challenge to this legislation, emboldened by the success of the British Columbian unions in 2007 and the Ontario unions in 2011.

In Mounted Police, the Chief Justice and Justice LeBel outlined the three different approaches that could be taken to the interpretation of the s. 2(d) freedom: (1) constitutive; (2) derivative; and (3) purposive:

[51] In his dissenting reasons in the Alberta Reference, Dickson C.J. identified three possible approaches to the interpretation of s. 2(d) — constitutive, derivative and purposive. We conclude that section 2(d) protects each of the aspects of freedom of association with which these approaches are concerned.

[52] 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.

[53] 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.

[54] The purposive approach, adopted by Dickson C.J. in the Alberta Reference, defines the content of s. 2(d) by reference to the purpose of the guarantee of freedom of association: “. . . 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” (Alberta Reference, at p. 365). The object of Dickson C.J.’s words is a concrete one, not an abstract expression of a desire for a better life. Elaborating on this interpretive approach, Dickson C.J. states that the purpose of the freedom of association encompasses the protection of (1) individuals joining with others to form associations (the constitutive approach); (2) collective activity in support of other constitutional rights (the derivative approach); and (3) 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.

[55] The purposive approach thus recognizes that freedom of association is empowering, and that we value the guarantee enshrined in s. 2(d) because it empowers groups whose members’ individual voices may be all too easily drowned out. This conclusion is rooted in “the historical origins of the concepts enshrined” in s. 2(d) (Big M Drug Mart, at p. 344).

The Chief Justice and Justice LeBel went on to note that the purpose of freedom of association is to allow individuals to band together and to assert themselves against the more powerful, such as their employers:

[57] 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:

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. [Emphasis added; pp. 365-66.].

[58] This then is a fundamental purpose of s. 2(d) — to protect the individual from “state-enforced isolation in the pursuit of his or her ends”: Alberta Reference, at p. 365. The guarantee functions to protect individuals against more powerful entities. By banding together in the pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society.

The majority recognized expressly that freedom of association is, by definition, not simply a right exercisable by an individual but rather a “collective” right exercised by an association. This is another marked departure from previous constitutional thought. They stated:

[62] Section 2(d), we have seen, protects associational activity for the purpose of securing the individual against state-enforced isolation and empowering individuals to achieve collectively what they could not achieve individually. It follows that the associational rights protected by s. 2(d) are not merely a bundle of individual rights, but collective rights that inhere in associations. L’Heureux-Dubé J. put it well in Advance Cutting:

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. [para. 66]

[63] 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.

[64] 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, [2010] 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, [2002] 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, [2009] 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).

They reviewed the purpose of freedom of association in the labour relations context and conclude that the freedom of association right protects against substantial infringement of the workers’ right to bargain collectively:

[80] To recap, s. 2(d) protects against substantial interference with the right to a meaningful process of collective bargaining. Historically, workers have associated in order “to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”, namely, their employers: Alberta Reference, at p. 366. The guarantee entrenched in s. 2(d) of the Charter cannot be indifferent to power imbalances in the labour relations context. To sanction such indifference would be to ignore “the historical origins of the concepts enshrined” in s. 2(d): Big M Drug Mart, at p. 344. It follows that the right to a meaningful process of collective bargaining will not be satisfied by a legislative scheme that strips employees of adequate protections in their interactions with management so as to substantially interfere with their ability to meaningfully engage in collective negotiations.

The majority went on to contemplate what sort of labour model could result in a meaningful process of collective bargaining. They concluded that any labour model with a meaningful process of collective bargaining would have to ensure that the workers have a sufficiently high degree of choice as to the type of association that represents them and a sufficient degree of independence from management.

[85] 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…
…
[88] 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.

They then proceeded to determine that the SRRP imposed on the RCMP members and the decision to exclude them from collective bargaining generally available under the PSLRA contravened s. 2(d) and could not be justified under s. 1 of the Charter.

Justice Rothstein dissented. He would have taken a far more deferential approach to Parliament’s decision and would have made “representativeness” the hallmark of collective bargaining – not choice and independence. He complained that, by selecting “choice’ and “independence”, the majority had effectively constitutionalized the “Wagner” model of labour relations:

[159] 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.

[160] 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] 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, [2013] 3 S.C.R. 157, at para. 19, per Abella J.

[161] 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.

[162] 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.

In Saskatchewan Labour, Justice Abella authored the reasons for the majority (McLachlin CJC, LeBel, Cromwell and Karakatsanis JJ concurring; Rothstein and Wagner JJ dissenting). The logical extension of the argument enunciated in the Mounted Police decision was applied here with the result that the right to withdraw labour services on a collective basis was found to be protected activity under the ambit of freedom of association. Justice Abella opened her reasons with the following synopsis of the Court’s seminal cases treating freedom of association:

[1] In the Alberta Reference …, this Court held that the freedom of association guaranteed under s. 2(d) of the Canadian Charter of Rights and Freedoms did not protect the right to collective bargaining or to strike. Twenty years later, in Health Services …, this Court held that s. 2(d) protects the right of employees to engage in a meaningful process of collective bargaining. The rights were further enlarged in …Fraser, … where the Court accepted that a meaningful process includes employees’ rights to join together to pursue workplace goals, to make collective representations to the employer, and to have those representations considered in good faith, including having a means of recourse should the employer not bargain in good faith. And, most recently, in Mounted Police …, the Court recognized that a process of collective bargaining could not be meaningful if employees lacked the independence and choice to determine and pursue their collective interests. Clearly the arc bends increasingly towards workplace justice.

[2] The question in this appeal is whether a prohibition on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment amounts to a substantial interference with their right to a meaningful process of collective bargaining and, as a result, violates s. 2(d) of the Charter. The question of whether other forms of collective work stoppage are protected by s. 2(d) of the Charter is not at issue here.

Justice Abella noted that the Court had affirmed the Charter values that underpin the protection of freedom of association in both Health Services and in Mounted Police, and held that the right to strike is “essential” to upholding those values.

[53] In Health Services, this Court recognized that the Charter values of “[h]uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” supported protecting the right to a meaningful process of collective bargaining within the scope of s. 2(d) (para. 81). And, most recently, drawing on these same values, in Mounted Police it confirmed that protection for a meaningful process of collective bargaining requires that employees have the ability to pursue their goals and that, at its core, s. 2(d) aims

to protect the individual from “state-enforced isolation in the pursuit of his or her ends”. . . . The guarantee functions to protect individuals against more powerful entities. By banding together in the pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society. [para. 58]

[54] The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives (Fudge and Tucker, at p. 334). The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.

[55] Striking — the “powerhouse” of collective bargaining — also promotes equality in the bargaining process: England, at p. 188. This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. In the Alberta Reference, Dickson C.J. observed that

[t]he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers. [p. 368]

And this Court affirmed in Mounted Police that

[Section] 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.

The 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. . . [the] process of collective bargaining will not be meaningful if it denies employees the power to pursue their goals.

(at paras. 70-71)

Also relying on Canada’s international human right commitments, Justice Abella pointed to international covenants adopted by Canada which expressly protect the right to strike. She concluded that the legislation which allowed the government to designate which public services were “essential services” and thereby removing from those public servants the right to strike was unconstitutional.

Justices Rothstein and Wagner wrote a forceful dissent. One does not have to delve into the entirety of their reasoning to understand the direction that they head. In the first four paragraphs of their reasons, they summarize their concerns:

[104] This case requires the Court to consider whether the right to strike is constitutionally protected under s. 2(d) of the Canadian Charter of Rights and Freedoms. The appellant unions challenge Saskatchewan’s The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (“PSESA”), which restricts the ability of public sector workers who provide essential services to strike. The majority finds that these workers do have a constitutional right to strike. We disagree.

[105] McLachlin C.J. and LeBel J., writing for a unanimous Court in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, cautioned that

[j]udging the appropriate balance between employers and unions is a delicate and essentially political matter. Where the balance is struck may vary with the labour climates from region to region. This is the sort of question better dealt with by legislatures than courts. Labour relations is a complex and changing field, and courts should be reluctant to put forward simplistic dictums. [para. 85]

Thirteen years later, the majority in this case ignores this sage warning in reaching its conclusion. Our colleagues have taken it upon themselves to determine “the appropriate balance between employers and unions”, despite the fact that this balance is not any less delicate or political today than it was in 2002. In our respectful view, the majority is wrong to intrude into the policy development role of elected legislators by constitutionalizing the right to strike.

[106] In the Labour Trilogy, this Court firmly rejected the proposition that the right to strike in Canada is constitutionally entrenched (…the “Alberta Reference”…; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460 (collectively, the “Labour Trilogy”)). Then, in Health Services… and …Fraser…, despite the evolution in the s. 2(d) jurisprudence, this Court rejected the idea that there is a constitutional right to a dispute resolution process. The majority (at para. 1) now casts off these and other precedents and injects a one-sided view of “workplace justice” into s. 2(d) of the Charter. The majority has so inflated the right to freedom of association that its scope is now wholly removed from the words of s. 2(d).

[107] The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees, and the public. Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained. We are compelled to dissent.

A few comments can be made. First, as I noted in an earlier post, the judiciary has been actively rearming the labour movement through a series of judicial pronouncements which have had the effect of expanding the constitutional protections afforded to unions, not just to union members (see: The unions’ renewed swagger – giving teeth to freedom of association (February 27, 2014)). Whether the pendulum has now swung too far in favour of the union movement and a future panel of the Court will revisit the words of the dissenting Justices Rothstein and Wagner (just as a majority of these panels has revisited the words of dissenting Dickson CJC in the Alberta Reference) will remain to be seen.

In these decisions, a majority of the Court has recognized the collective quality of many of the fundamental freedoms. In Mounted Police, the Court expressly noted that freedom of association is exercised by associations. The fundamentally social quality of humanity has been now clearly and unequivocally recognized by the Court. The implications that this judicial recognition will have for the ambit of other rights and freedoms previously subject to more severe interpretive limitation are yet to be fully uncovered. Freedom of expression in the file-sharing age of the Internet; loosely-formed associations for the purposes of political, environmental and other protests; religious movements with quasi-political or national overtones. All of these and many other associational activities will fall to be examined under the new interpretive prism afforded freedom of association.

Finally, in both of these decisions, the majority was not reluctant in the slightest to reverse and overturn earlier decisions of the Court. In Mounted Police, the majority overturned Delisle. In Saskatchewan Labour, the majority overturned Alberta Reference. Future litigators should not consider longstanding decisions of the Court as gospel. If the world has changed, it may be time to challenge those precedents. The Court has shown that it is indeed willing to entertain such arguments.

I remain

Constitutionally yours,

Arthur Grant