Supreme Court of Canada to Consider Freedom of Association in
Collective Bargaining Process provided background details
regarding an upcoming decision of the Supreme Court of Canada
("SCC"). In short, currently the RCMP is prohibited from
unionization. By way of decision dated January 16, 2015 the SCC has
determined that the current labour regime is contrary to section 2
(d) of the Canadian Charter of Rights and Freedoms
("Charter") (the fundamental right of freedom of
association) and is therefore unconstitutional, potentially opening
the door to RCMP unionization.
Section 2(d) of the Charter guarantees the right of
employees to meaningfully associate in the pursuit of collective
workplace goals. In the decision, the SCC has reaffirmed that
section 2(d) does not guarantee an outcome, but a process.
In other words, a certain labour relations scheme (i.e.
"unionization") cannot be imposed by section2(d), but the
scheme that is in place must respect the rights guaranteed by the
Charter. According to the SCC, choice and
independence are the two essential features of any
constitutional collective bargaining regime and must be assessed
together when determining whether a particular regime respects
Charter rights. Employees must be provided a degree of
choice and independence sufficient to enable them to determine and
pursue their collective workplace interests.
The degree of choice must enable employees to have effective
input into the selection of the collective goals. A scheme that
holds representatives accountable to the employees who choose them
ensures that the association works towards the purposes for which
the employees joined together. The degree of independence required
is one that permits the activities of the association to be aligned
with the interests of its members. The analysis of the degree of
choice and independence required is a contextual one, depending on
The SCC found that under the RCMP's current regime, the
element of employee choice is almost entirely missing, and the
structure involves no independence from management. The scheme is
essentially part of the chain of command and therefore the final
word on all labour relations matters always rests with management.
As such, the SCC found that the regime fails to achieve the balance
between employees and employer that is essential for meaningful
collective bargaining, leaving members in a disadvantaged,
vulnerable position. The current regime is therefore
The other issue considered by the SCC is the exclusion of RCMP
members from the definition of "employee" in the
Public Service Labour Relations Act. That Act establishes
the general framework for labour relations and collective
bargaining in the federal public sector. As a result of this
exclusion, RCMP members have historically been excluded from
collective bargaining rights. The SCC also found this exclusion to
be unconstitutional, but delayed the declaration of invalidity for
12 months to allow the federal government time to implement a new
It should be noted that section 1 of the Charter allows
the government to disregard constitutional rights, as long as it is
in "suchreasonable limits prescribed by law as
can be demonstrably justified in a free and democratic
However, the SCC found the use of section 1 would not be
appropriate in the circumstances. The SCC rejected the
government's arguments that: the exclusion of RCMP members from
a statutorily protected collective bargaining process ensured the
neutrality, stability and reliability of the Force or that
permitting collective bargaining for RCMP members would disrupt the
stability of the police force or affect the public's perception
of its neutrality. The SCC also noted that the RCMP is currently
the only police force in Canada without a collective agreement to
regulate working conditions.
Implications of this Decision
Choice and independence will now be the most relevant criteria
when Courts consider the constitutionality of labour relation
Section 2(d) of the Charter cannot be used to impose a
particular labour relations scheme. In this regard, the SCC stopped
short of saying the RCMP can form a union.
It must be remembered that the Charter operates to
protect individuals from government policies and actions, as such,
if it is a private employer's action or policy limiting an
employee's right to associate, the Charter will not
This article was prepared with assistance from Maxime
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