Supreme Court of Canada finds current RCMP labour relations regime unconstitutional – denies freedom of choice.
16, January 16, 2015 - Filed in: Court Cases
"RCMP members are not permitted to unionize or engage in collective bargaining. They have been excluded from the labour relations regime governing the federal public service since collective bargaining was first introduced in the federal public service, first, under the Public Service Staff Relations Act (“PSSRA ”) and now under the Public Service Labour Relations Act (“PSLRA ”). Instead, members of the RCMP are subject to a non-unionized labour relations scheme. At the time of the hearing of this appeal, that scheme was imposed upon them by s. 96 of the Royal Canadian Mounted Police Regulations, 1988 (“RCMP Regulations”), since repealed and replaced by the substantially similar s. 56 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281.
The core component of the current RCMP labour relations regime is the Staff Relations Representative Program (“SRRP”). The SRRP is the primary mechanism through which RCMP members can raise labour relations issues (excluding wages), and the only form of employee representation recognized by management. The SRRP is governed by a National Executive Committee and is staffed by member representatives from various RCMP divisions and regions elected for a two-year term by both regular and civilian members of the RCMP. Two of its representatives act as the formal point of contact with the national management of the RCMP. The aim of the program is that, at each level of the hierarchy, members’ representatives and management consult on human resources initiatives and policies, with the understanding that the final word always rests with management.
A little over fifteen years ago, the Court held that the exclusion of RCMP members from collective bargaining under the PSLRA ’s predecessor legislation did not infringe s. 2 (d) of the Charter : Delisle v. Canada (Deputy Attorney General),  2 S.C.R. 989. That case did not involve a direct challenge to the sufficiency of the entire RCMP labour relations scheme. Since that decision was rendered, the RCMP labour relations regime has undergone a number of changes that have increased the independence afforded to the SRRP, but none of those changes has substantially altered its purpose, place or function within the RCMP chain of command.
In May 2006, a constitutional challenge was initiated by two private associations of RCMP members whose goal is to represent RCMP members in Ontario and British Columbia on work‑related issues but who have never been recognized for the purpose of collective bargaining or consultation on workplace issues by RCMP management or the federal government. They sought a declaration that the combined effect of the exclusion of RCMP members from the application of the PSLRA and the imposition of the SRRP as a labour relations regime unjustifiably infringes members’ freedom of association. A judge of the Ontario Superior Court of Justice concluded that s. 96 of the RCMP Regulations, which imposed the SRRP as a labour relations regime, substantially interfered with freedom of association and could not be justified under s. 1 of the Charter . However, the judge also held that the exclusion of RCMP members from the federal public service labour relations regime did not infringe s. 2 (d) of the Charter . The Court of Appeal allowed the Attorney General of Canada’s appeal and held that the current RCMP labour relations scheme does not breach s. 2 (d) of the Charter ."
In Mounted Police Association of Ontario v. Canada (Attorney General), the S.C.C. held (6:1) that the appeal is allowed.
In joint reasons the Chief Justice & Justice LeBel wrote as follows (at paras. 4-5, 154-156):
"This case was heard together with a related appeal, brought by two Staff Relations Representatives (“SRRs”) on behalf of all members of the RCMP, challenging the constitutionality of federal wage restraint legislation: Meredith v. Canada (Attorney General), 2015 SCC 2. While the factual background of both appeals overlap, they raise different legal issues. Meredith addresses the question of whether a piece of legislation and its implementation unconstitutionally interfered with the existing RCMP labour relations scheme, but does not challenge that scheme as a whole as constitutionally deficient under s. 2 (d). The present appeal is directed at the constitutionality of the scheme comprising both the PSLRA exclusion and the SRRP process.
We conclude that the s. 2 (d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests. The current RCMP labour relations regime denies RCMP members that choice, and imposes on them a scheme that does not permit them to identify and advance their workplace concerns free from management’s influence. Accordingly, we allow the appeal and find that s. 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (“RCMP Regulations”), which was in effect at the time of the hearing of this appeal, is inconsistent with s. 2 (d) of the Charter . We also find that the exclusion of RCMP members from collective bargaining under para. (d) of the definition of “employee” in s. 2(1) of the PSLRA infringes s. 2 (d) of the Charter . Neither infringement is justified under s. 1 of the Charter .
Within the impugned legislative scheme, the imposition of the SRRP and the exclusion in s. 2(1) of the PLSRA deny members of the RCMP the right to any meaningful process of collective bargaining. And, while s. 2 (d) does not protect the right to any particular process of collective bargaining, it does protect the right to a meaningful process. Having found that s. 96 of the RCMP Regulations and para. (d) of the definition of “employee” in s. 2(1) of the PSLRA infringe the freedom guaranteed to RCMP members under s. 2 (d) of the Charter , and that these provisions cannot be saved under s. 1 , we conclude that the appropriate remedy is to strike down the offending provision of the PSLRA under s. 52 of the Constitution Act, 1982 . We would similarly strike down s. 96 of the RCMP Regulations were it not repealed.
The Attorney General of Canada argues that this conclusion would go against the proposition, which we accept, that s. 2 (d) does not guarantee a right to a particular labour relations process. The Attorney General argues that striking down the offending provision of the PSLRA would constitutionalize the labour relations process set out in that Act.
This argument misconstrues our conclusion. We do not conclude that the PSLRA process is constitutionalized, but rather that the existing labour relations scheme and the purpose motivating the PSLRA exclusion are inconsistent with the Charter and fail under s. 52 of the Constitution Act, 1982. This conclusion does not mandate a particular labour relations regime or bar the federal government from pursuing an avenue other than the PSLRA to govern labour relations within the RCMP. Should it see fit to do so, Parliament remains free to enact any labour relations model it considers appropriate to the RCMP workforce, within the constitutional limits imposed by the guarantee enshrined in s. 2 (d) and s. 1 of the Charter.
Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.