



COURT OF APPEAL FOR ONTARIO

CITATION: Mounted
    Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363

DATE: 20120601

DOCKET: C50475

Doherty, Rosenberg and Juriansz JJ.A.

BETWEEN

Mounted Police Association of
    Ontario/Association de la Police Montée de lOntario and B.C. Mounted Police
    Professional Association on their own behalf and on behalf of all Members of
    the Royal Canadian Mounted Police

Applicants
    (Respondents/Appellants by way of cross-appeal)

and

The Attorney General of Canada

Respondent
    (Appellant/Respondent by way of cross-appeal)

Kathryn Hucal and Susan Keenan, for the appellant/cross-respondent

Laura Young, for the respondents/cross-appellants

Ian Roland and Michael Fenrick, for the intervener the
    Canadian Police Association

Kelly Henriques and John Craig, for the intervener the
    Mounted Police Members Legal Fund

James R.K.
    Duggan, for the intervener LAssociation des Membres de la Police Montée du
    Québec

Heard: November 22, 2011

On appeal from the judgment of Justice Ian A. MacDonnell
    of the Superior Court of Justice dated April 6, 2009, with reasons reported at
    (2009), 96 O.R. (3d) 20.

Juriansz
    J.A.:

A.

overview

[1]

In four recent decisions, the Supreme Court of Canada has addressed the
    content and scope of s. 2(d) of the
Charter of Rights and Freedoms
,
    which protects freedom of association, as it applies to employees associational
    activities in pursuit of workplace goals. In those decisions, the Supreme Court
    set out the principles that were necessary to resolve the particular issues
    posed by those cases.

[2]

Yet many issues regarding the
Charter
s guarantee of freedom of
    association in the labour context remain. This appeal raises questions that
    were not directly contemplated in the previous cases. One new question is
    whether the right to collective bargaining under s. 2(d) guarantees workers
    the right to be represented in their relationship with their employer by an
    association of their own choosing. Another new question is whether the right
    to collective bargaining under s. 2(d) requires that the vehicle for dealing
    with workers collective concerns with management be structurally independent
    of management. I answer these questions based on my understanding of the
    Supreme Courts jurisprudence. They will ultimately, in this case or another,
    have to be decided by the Supreme Court.

[3]

The Mounted Police Association of Ontario (MPAO) and the British
    Columbia Mounted Police Professional Association (BCMPPA) commenced a
Charter
application, challenging the validity of three provisions governing the current
    labour relations regime for members of the Royal Canadian Mounted Police
    (RCMP). The two associations, representing the individuals who are their
    members, sought a declaration that s. 2(1)(d) of the
Public Service Labour
    Relations Act
, S.C. 2003, c. 22 (
PSLRA
), and ss. 41 and 96 of the
Royal Canadian Mounted Police Regulations, 1988
, SOR/88-361 (
Regulations
),
    infringe ss. 2(b), 2(d) and 15 of the
Charter
.
Two
    other associations, the Canadian Police Association (CPA) and lAssociation
    des Membres de la Police Montée du Québec Inc.
(AMPMQ), intervene in
    support of the MPAO and BCMPPA. The Mounted Police Members Legal Fund (Legal
    Fund) intervenes in support of the Attorney General.

[4]

The
PSLRA
establishes a labour relations scheme that enables most
    employees of the federal public service to engage in a process of collective
    bargaining with management. Section 2(1)(d) of the
PSLRA
excludes
    members of the RCMP from that regime. The RCMP members have a separate employee
    relations scheme, the Staff Relations Representative Program (SRRP),
    established by s. 96 of the
Regulations
. Section 41 of the
Regulations
prohibits members of the RCMP from publicly criticizing the Force.

[5]

The application judge found that s. 96 of the
Regulations
infringes s. 2(d) of the
Charter
, which guarantees freedom of
    association, and that this infringement could not be justified under s. 1. The
    application judge dismissed the associations other claims. The Attorney
    General of Canada appeals the holding that s. 96 of the
Regulations
violates s. 2(d) of the
Charter
. The MPAO and the BCMPPA cross-appeal from
    the application judges dismissal of two of their claims relating to s. 41 of
    the
Regulations
and s. 2(1)(d) of the
PSLRA
. The relevant
    legislative provisions are set out in the Appendix to these reasons.

[6]

Based on my reading of the Supreme Courts s. 2(d) jurisprudence, I
    would allow the Attorney Generals appeal and dismiss the respondents
    cross-appeal.

B.

BACKGROUNd

(1)

The Parties and
    Interveners

[7]

The MPAO, BCMPPA and AMPMQ are independent private associations of RCMP
    members. Their existence is not contemplated by any statute or regulation. They
    have been organized at the initiative of individual RCMP members acting in
    concert.

[8]

The MPAO was incorporated in 1998 and has approximately 500 members in Ontario.
    The BCMPPA, based in British Columbia, was incorporated in 1994 and has about 2,000
    members. However, the total number of paid up members of both the MPAO and the
    BCMPPA was 890 in 2008 (the latest figures in the record). The AMPMQ was
    established in 1985 and claims to represent the majority of the members of the
    RCMP in Quebec, although there are no membership statistics in the record. In
    2008, there were approximately 20,000 members of the RCMP in Canada.

[9]

These associations aspire to represent RCMP members in collective
    bargaining. The associations are currently unable to do so under the
PSLRA
because s. 2(1)(d) of that Act excludes the RCMP from its application. More
    specifically, while RCMP members are free to form and participate in the lawful
    activities of employee organizations of their choice, voluntary employee
    organizations, such as the respondents, cannot apply to the Public Service
    Staff Relations Board to be certified as the bargaining agent for a proposed
    bargaining unit. Individual RCMP members and the employee organizations they
    form are therefore excluded from the entire regulatory regime for collective
    bargaining provided by the
PSLRA
that is available to most other federal
    public employees.

[10]

The
    MPAO, BCMPPA and AMPMQ are also not recognized by RCMP management. While the
    associations purport to provide a collective means of raising and resolving
    employment issues, and while RCMP members are free to form and join such
    associations, s. 96 of the
Regulations
establishes the SRRP as the
    process by which RCMP members can address labour issues with RCMP management.


[11]

The
    CPA, an umbrella group of 172 police associations across Canada, intervenes in
    support of the associations. It represents some 56,800 police personnel at the
    federal, provincial and municipal levels.

[12]

Also
    participating as an intervener, the Legal Fund is a not-for-profit corporation under
    the
Canada Corporations Act
, R.S.C. 1970, c. C-32. It was established to
    help RCMP members with various employment-related issues arising under RCMP
    policies and directives.

(2)

The SRRP

[13]

Section
    96(1) of the
Regulations
provides that the RCMP shall have a Staff
    Relations Representative Program to provide for representation of the
    interests of all members with respect to staff relations matters. The SRRP is
    organized divisionally (by province or territory) and regionally to align with
    the management configuration of the RCMP. Section 96(2) provides that the
    program shall be carried out by the representatives of the members of the
    divisions and zones who elect them.

[14]

The
    representatives of the members are called Staff Relations Representatives (SRRs).
    The collective body of SRRs is the National Caucus, and there are also Regional
    and Divisional Caucuses. There are 34 SRRs elected by RCMP members and an
    additional five national representatives elected by the National Caucus.
    There are also 150 elected part-time sub-SRRs.

[15]

The
    SRRP has a National Executive Committee (NEC). The NEC is comprised of one SRR
    from each of the RCMPs five regions and two full-time SRRs who are elected by
    the National Caucus.

[16]

As
    set out in the SRRP Constitution, the duties of SRRs include providing
    information, guidance and support to RCMP members and representing RCMP members
    interests in negotiations with the management of the RCMP:
RCMP Staff
    Relations Representative Program Constitution
, July 14, 2004. SRRs attend
    divisional management meetings at which issues affecting the employment
    conditions of their constituents are considered.

[17]

A
    formal agreement between the Commissioner and the SRRP provides that management
    will recognize the role of the SRRP, respond to proposals and requests from
    SRRs in a timely and open fashion, and provide rationales for major decisions:
Agreement
    Between the Commissioner of the Royal Canadian Mounted Police and the Staff
    Relations Representative Program
, clause 11, October 28, 2002. The
    agreement also provides that management and the SRRP will consult on specific human
    resources initiatives in a meaningful and timely fashion and participate
    together in national policy centre committees. Although final decisions rest
    with management, consultation is meant to promote an active participatory
    regime.

[18]

Clause
    18 of the agreement between the SRRP and the Commissioner provides that the two
    full-time SRRs on the NEC will be the formal point of contact for the SRR
    Caucus, and its Committees, with the Commissioner, Senior Management, and the
    Solicitor General of Canada. The two SRRs attend all meetings of the RCMPs
    Senior Management Team, which meets three times a year, to identify and
    consider the key issues in policing and law enforcement confronting the RCMP,
    and all meetings of the Senior Executive Committee, which develops force-wide
    policies for the RCMP.

[19]

The
    Treasury Board has the ultimate authority to establish pay and allowances for
    RCMP members. Before exercising that authority, Treasury Board receives the
    recommendations of the RCMP Pay Council. The Pay Council was established in May
    1996 to provide an alternative to the traditional collective bargaining model
    set out in the
PSLRA
. It has five members, made up of two SRRs, two
    representatives of management and an impartial chair. Its mandate on issues
    concerning pay and benefits is broad. Before making its recommendations, it
    solicits the views and input of the membership of the RCMP. Its recommendations
    are then presented to the Commissioner, and if they are accepted by the
    Commissioner, they form the basis of a Treasury Board submission. The submission
    is first reviewed by the Minister of Public Safety, and if the Minister
    approves it, it is presented to Treasury Board on behalf of the Commissioner.

[20]

The
    existence of the SRRP was not always provided for by the
Regulations
.
    The SRRP was first established in 1974, after the creation of the
Public
    Service Staff Relations Act
, R.S.C., 1985, c. P-35 (
PSSRA
)
    in 1967. The
PSSRA
was enacted to provide a comprehensive labour
    relations regime for members of the federal public service, but it excluded
    RCMP members.

[21]

There
    was significant dissatisfaction among RCMP members with their exclusion from
    the federal labour relations regime, and some began to organize an association.
    Representatives of that group met with the RCMP Commissioner, who proposed a 14-point
    plan for a more formal employee relations system, featuring full-time, elected member
    representatives. Those who were in attendance agreed to take the proposal back
    to their divisions, hold a referendum on it, and report back to the
    Commissioner.

[22]

There
    was overwhelming acceptance of the Commissioners proposals by members in every
    division, except members of C Division in Quebec who voted against the
    proposal. This led to the establishment of the Division Staff Relations
    Representative (DSRR) Program, which eventually evolved into the SRRP.

(3)

The Wagner Model

[23]

As
    will be discussed below, the Attorney General takes the position that what the
    associations seek is access to a Wagner model of labour relations. To make
    sense of that claim, and to understand how the SRRP compares with that model,
    it is helpful to review what is meant by the Wagner model.

[24]

The
    Wagner model is named after New York Senator Robert F. Wagner, who sponsored
    the
National Labour Relations Act
(NLRA) enacted by the United States
    Congress in 1935. The
NLRA
, which is also known as the 
Wagner Act
,
    is the template for most legislated labour regimes in North America. Most
    Canadian provinces passed legislation incorporating the main objectives of the
Wagner
    Act
by the end of the 1930s.

[25]

The
    Wagner model is a legislated labour regime of collective bargaining with
    several distinctive features. A single, exclusive bargaining agent is
    recognized for employees in a bargaining unit through a certification
    application to an independent labour board. To protect employees engaged in
    collective activities from employer interference or reprisal, employers are
    prohibited from using unfair labour practices. Employers are required to
    recognize and bargain in good faith with the employees bargaining agent, who
    in turn must bargain in good faith with the employer. Finally, disputes that
    occur during the life of a collective agreement must be dealt with by
    arbitration rather than strike or lock-out.

[26]

Majoritarianism/exclusivity
    is a fundamental principle of the Wagner model. Majoritarianism/exclusivity
    means that the association supported by the majority of employees in the
    bargaining unit has the exclusive right to bargain on behalf of all employees
    in the unit. In a Wagner labour regime, an association that represents a
    minority of the employees, as much as 49 per cent of them, has no right to
    collectively bargain with the employer. Once a bargaining agent is certified by
    the relevant labour board, no other association of employees has any officially
    recognized status. An uncertified association has no right to bargain on behalf
    of workers, or so much as meet with employers to discuss the views of the
    workers they claim to represent. Even individual employees cannot negotiate
    their own terms and conditions of employment but must deal with the employer
    through the certified union.

[27]

In
    light of the exclusive status accorded to the certified bargaining agent,
    labour legislation usually imposes on the agent a duty of fair representation.
    The agent must represent all employees in the unit in a manner that is not
    arbitrary, discriminatory or in bad faith.

[28]

It
    is an important feature of the Wagner model that the employees bargaining
    representative be structurally autonomous and independent of the employer. For example,
    it is an unfair labour practice under s. 186(1)(a) of the
PSLRA
for a
    member of management to participate in the formation or administration of an
    employee organization or the representation of employees by an employee
    organization. Even more striking, s. 15 of Ontarios
Labour Relations Act,
    1995
, S.O. 1995, c. 1, Sched. A.

prohibits the Labour Relations
    Board from certifying a union if an employer has participated in its formation
    or administration, or has contributed financial or other support to it.

[29]

As
    can be seen, a Wagner labour regime provides comprehensive affirmative support
    for employees ability to organize and collectively engage the employer
    regarding workplace issues.

[30]

While
    the Wagner model is widely acclaimed and credited with extending freedom of
    association and collective bargaining to approximately 30 per cent of the
    Canadian workforce, it is not without its detractors. Two criticisms are worth
    noting.

[31]

First,
    the Wagner model is sometimes seen as institutionalizing an adversarial tone to
    the labour-management relationship. Carolyn J. Tuohy comments on the
    adversarial nature of the Wagner model in
Policy and Politics in Canada:
    Institutionalized Ambivalence
(Philadelphia: Temple University Press,
    1992), at p. 164:

The Wagner model is essentially one of regulated and delimited
    adversarialism. It thus contrasts with the codetermination models of Germany
    and Sweden, which imply the participation of workers in managerial decision
    making through structures of industrial democracy such as work councils and
    employee representation on corporate boards. Under the Wagner model, labour and
    management recognize each other as legitimate adversaries. Conflict between
    them is to be regulated through agreed-upon rules and structures, which they are
    to respect in good faith.

[32]

A
    second criticism of the Wagner model is of the majoritarianism/exclusivity
    principle. For example, as Professor Roy Adams has argued, a system that
    prohibits minority unions from representing their members violates the associational
    rights of those minority workers under international law:

[T]he [International Labour Organization]s position is that if
    workers decide to organize outside of the bounds of statutory majoritarian
    exclusivity, their organizations still ought to be recognized for bargaining
    purposes. In its 2006 Digest of Decisions, the Committee on Freedom of
    Association has this to say: Where, under a system for nominating an exclusive
    bargaining agent, there is no union representing the required percentage to be
    so designated, collective bargaining rights should be granted to all the unions
    in this unit, at least on behalf of their own members. On this reasoning,
    employees who want to be represented by minority unions have an international
    human right to bargain collectively, in Canada and elsewhere: Roy J. Adams, 
Fraser
    v. Ontario
and International Human Rights: A Comment (2008) 14 Canadian
    Lab. & Emp. L.J. 379, at pp. 383-84.

[33]

These
    criticisms remind us that there is more than one conception of collective bargaining.
    This is important since, as discussed below, the Supreme Court has made it
    abundantly clear that s. 2(d) does not guarantee any particular model of labour
    relations.

[34]

In
    my view, it takes sustained discipline to apply this principle, since the Wagner
    model so completely pervades our thinking about the meaning of collective
    bargaining and other models are outside our experience. Professor Brian
    Langille put it this way in his article Why are Canadian Judges Drafting
    Labour Codes  And Constitutionalizing the
Wagner Act
Model? (2010) 15
    Canadian Lab. & Emp. L.J. 101, at p. 108:

Canadian labour lawyers have grown up
    in a world where, for as long as any of us can remember, we have instantiated
    freedom of association in the Wagner model, with some Canadian innovations such
    as a mandatory rights arbitration and the no-strike rule during the life of a
    collective agreement. We cannot, it seems, imagine any other way of doing
    freedom of association. We are stuck with our own local practices, and have no ability
    to bring to bear any wider or deeper perspective.

With this background in mind, I now turn to the
    decision under appeal.

C.

DECISION BELOW

[35]

A
    comprehensive review of the application judges s. 2(d) analysis is unnecessary
    because he was unable to consider and apply the Supreme Courts most recent
    decision on s. 2(d), which was released after his decision:
Ontario
    (Attorney General) v. Fraser
, 2011 SCC 20, [2011] 2 S.C.R. 3. In fact, this
    appeal was delayed pending the release of the Supreme Courts decision in
Fraser
so that the parties and this court would have
    the benefit of the latest word from the Supreme Court on the difficult question
    of the proper scope and application of s. 2(d) of the
Charter
.

[36]

In
    deciding the application, the application judge relied primarily
on the Supreme Courts earlier decision in
Health Services and
    Support  Facilities Subsector Bargaining Assn. v. British Columbia
,
    2007 SCC 27, [2007] 2 S.C.R. 391 (
B.C.
Health
). He also referred to this
    courts decision in
Fraser
(
Fraser v. Ontario (Attorney General)
,
    2008 ONCA 760, 92 O.R. (3d) 481).

[37]

The
    application judge arrived at the legal conclusion at para. 55

that

the
    members of the RCMP have a constitutional right to form an independent

association
    for labour relations

purposes
,
free of management interference or
    influence as guaranteed by s. 2(d) of the
Charter
. He held that s. 96
    of the
Regulations
, which requires members of the RCMP to interact
    collectively with management regarding labour issues through the SRRP, violates
    s. 2(d) for two reasons. First, the SRRP is not

an independent
    association formed or chosen by members of the RCMP. Second, the interaction
    between the SRRP and management is restricted to a process of consultation and cannot
    reasonably be described as a process of collective bargaining. In his view, the
    breach of s. 2(d) cannot be saved by s. 1 as it fails the minimal impairment
    test.

[38]

In
    reaching this conclusion, the application judge relied on a robust conception
    of collective bargaining, rooted in traditional labour practice, which includes
    a process of negotiation based on a comparative equality of bargaining strength
    and in which management does not have the last word. He defined collective
    bargaining at paras. 47-49:

In my opinion, while the majority in
BC Health Services
described the process [of collective bargaining] variously as one of
    consultation, discussion and dialogue, their reasons as a whole make it
    clear that it encompasses more than simple consultation. For example, they
    stated that the process cannot be reduced to a mere right to make
    representations, and that the duty to consult
and
negotiate in good
    faith is the fundamental precept of collective bargaining.

It is
difficult
    to conceive of as a negotiation, let alone as bargaining, a process in which
    employees can make no offer to management of a quid pro quo because management
    can have the quid regardless of whether it surrenders the quo
.

It is instructive that the majority adopted the definition of
    collective bargaining offered by Professor Bora Laskin (as he then was):

Collective bargaining is the
    procedure through which the views of the workers are made known, expressed
    through representatives chosen by them, not through representatives selected or
    nominated or approved by employers.
More than that
, it is a procedure
    through which terms and conditions of employment may be settled
by
    negotiations between an employer and his employees on the basis of a
    comparative equality of bargaining strength
.


While the first sentence of that definition might describe a
    process of consultation, the second demonstrates that something more is
    required. If one side can unilaterally determine the outcome of the negotiations,
    it can hardly be said that there is a comparative equality of bargaining strength.
    [Citations omitted; italics in original; underlining added.]

[39]

The
    application judge also concluded that the exclusion of RCMP members from the
PSLRA
by virtue of s. 2(1)(d) of that Act does not
    violate s. 2(d) of the
Charter
. He relied on the
    Supreme Courts decision in
Delisle v. Canada (Deputy
    Attorney General)
, [1999] 2 S.C.R. 989, in which the Supreme Court
    held that the exclusion of RCMP members from the application of the
PSLRA
s
    predecessor statute did not violate the s. 2(d) freedom of RCMP members. The
    application judge reasoned that the Supreme Court in
Delisle
had
    rejected the argument that the exclusion of members of the RCMP from the labour
    relations scheme of the
PSLRA
infringed s. 2(d) of the Charter, and
    there was no reason to reassess that determination.

[40]

The
    application judge dismissed the remainder of the associations claims. He held
    that there was no factual foundation for a consideration of  whether s. 41 of
    the
Regulations
interferes with the RCMP members freedom of expression (under
    s. 2(b) of the
Charter
) in the context of their freedom of association
    (under s. 2(d) of the
Charter
). He noted the main concern of the MPAO
    and BCMPPA was the impact of s. 41 on the efforts of RCMP members to exercise
    their associational freedoms. They had conceded before the application judge
    that s. 41 has never been used to interfere with the efforts of RCMP members to
    unionize or engage in collective bargaining. Therefore he found that there was
    an insufficient factual grounding for this claim.

[41]

Finally,
    the application judge dismissed the claim that the SRRP violates the RCMP
    members equality rights under s. 15 of the
Charter
, as the MPAO and
    the BCMPPA did not show that any failings of the program fall
    disproportionately on s. 15 protected groups. The respondent associations do
    not pursue their s. 15 claim before this court.

[42]

As
    a remedy, the application judge issued a declaration that s. 96 violates s.
    2(d) and is of no force or effect. As s. 2(1)(d) of the
PSLRA
remained in place, he
    recognized that this declaration would leave both the members of the RCMP and
    management without a statutory framework within which to identify the
    appropriate representative of the members and to conduct a process of
    collective bargaining: para. 117. He suggested that Parliament might act to
    provide such a framework but would need time to consider the issue.
    Consequently, he suspended the declaration for a period of 18 months.

D.

PositionS of the Parties

(1)

The Attorney General
    of Canada

[43]

The
    Attorney General challenges the application judges conclusion that s. 96 of
    the
Regulations
violates s. 2(d) of the
Charter
. The Attorney
    General relies on the Supreme Courts decision in
Fraser
for the
    proposition that workers s. 2(d)-protected freedom is only breached where there
    is
substantial interference
with that freedom, such that their
    meaningful pursuit of collective goals is rendered effectively impossible.
    The appellant notes that the majority in
Fraser
equates
    substantial interference with a standard of effective impossibility. For
    instance, at para. 47, McLachlin C.J. and LeBel J., writing for the majority,
    state that [i]f it is shown that is impossible to meaningfully exercise the
    right to associate due to substantial interference by a law (or absence of laws
     ) or by government action, a limit on the exercise of s. 2(d) is established.
    See also paras. 32-34 and 46 of
Fraser
.

[44]

The
    Attorney General points out that while the challenged legislation in
Fraser
required only that the employer listen to
    oral representations and read written representations with implied good faith,
    the Supreme Court nonetheless concluded that the legislation complied with s.
    2(d).

[45]

The
    Attorney General asserts that the SRRP more than meets what is required by
Fraser
. The SRRP constitution provides for actual
    employee participation in the decision-making process at the national, regional
    and divisional levels of the RCMP. The SRRs are elected by the members of the
    RCMP to provide fair and equitable representation with management and to facilitate
    participation in the development of policies and procedures that affect their employment.
    The Attorney General argues that this process is constitutionally sufficient,
    and the respondents are seeking to constitutionalize the Wagner model.

[46]

Finally,
    the Attorney General challenges the respondents submissions that s. 2(1)(d) of
    the
PSLRA
breaches s. 2(d) and that s. 41 of the
Regulations
breaches s. 2(b).

(2)

The Mounted Police
    Members Legal Fund

[47]

The
    Legal Fund submits that the appeal should be allowed because s. 96 does not
    violate s. 2(d) of the
Charter
. The SRRP is a legitimate employee
    association that allows RCMP members to voice their concerns, and does not
    render freedom of association effectively impossible.

(3)

The MPAO and the
    BCMPPA

[48]

The
    two respondent associations submit that the
Fraser
decision does not
    alter the law upon which the application judge found that s. 96 of the
Regulations
is unconstitutional. Rather,
Fraser
affirms
B.C.
    Health
and the principle that freedom of association includes protection
    for the process of collective bargaining. The associations emphasize that the
Fraser
majority specifically held at para. 55 that
B.C. Health
continues to
    represent good law.

[49]

In
    particular, the associations contend that the two rationales for the
    application judges decision  that the SRRP is not an independent association
    and that the interaction between the SRRP and management cannot reasonably be
    described as a process of collective bargaining  are not undermined by the
Fraser
decision.

[50]

Counsel
    for the MPAO and the BCMPPA relies on the majoritys statement in
Fraser
that the right to engage in a process of

collective bargaining is
    derivative of the employees freedom to form and maintain an association. This
    means that the process of collective bargaining does not come into play until
    after the employees have formed an association. First, the employees form an
    association, and then it is the association itself that asserts the collective
    right to engage in collective bargaining. The employees freedom of association
    cannot be severed from

the association they have chosen and grafted onto
    another entity.

[51]

Counsel
    submits that the Attorney Generals position that the SRRP is a
    constitutionally adequate form of collective bargaining must be rejected.

The
    SRRP is not a genuine employee association, freely chosen by the employees, but
    a branch of the RCMP imposed on them. Moreover, it is not independent from
    management. Though SRRP representatives are elected by R
C
MP members, the following facts demonstrate the programs lack of
    independence:

·

The SRRP is a program within the RCMP, not an employee
    association.

·

The SRRP lacks institutional and financial independence.

·

SRRP representatives are not required to represent members; they
    represent the program.

·

The SRRP is not limited to non-commissioned members; all ranks
    are allowed to vote for the representatives.

[52]

The
    second leg of the respondents argument is that the SRRP does not engage in
    collective bargaining. On their reading of the majority decision in
Fraser
, which affirms
B.C. Health
,
    collective bargaining involves more than an opportunity to consult. The
    respondents point to several passages from the majoritys decision in
Fraser
to support this view, including paras. 37 and 38:

Applying the principles of interpretation established in
Dunmore
,
    a majority of the Court [in
B.C. Heath
] held that s. 2(d) includes a
    process of collective action to achieve workplace goals (para. 19). This
    process requires the parties
to meet and bargain in good faith
on issues
    of fundamental importance in the workplace (para. 90).

The claimants had a right to pursue workplace goals and
collective
    bargaining activities
related to those goals. [Emphasis added.]

[53]

The
    associations point out that, at para. 40, the majority in
Fraser
reiterated that
B.C. Health
had affirmed that:

bargaining activities protected by s. 2(d) in the labour
    relations context include good faith bargaining on important workplace issues
    (para. 94; see also paras. 93, 130 and 135). This is not limited to a mere
    right to make representations to ones employer, but requires the employer to
    engage in a process of consideration and discussion to have them considered by
    the employer. In this sense, collective bargaining is protected by s. 2(d).

[54]

The
    respondents rely on the fact that the
Fraser
majority reiterates para. 90 of
B.C. Health
, at para. 40 of
Fraser
:

Thus the employees right to collective bargaining imposes
    corresponding duties on the employer. It requires both employer and employees
    to meet and to bargain in good faith, in the pursuit of a common goal of
    peaceful and productive accommodation.

[55]

They
    emphasize that, at para. 50, the
Fraser
majority disagrees with the more narrow reading of
B.C. Health
proposed
    by Deschamps J.:

If s. 2(d) merely protected the right to act collectively and
    to make collective representations, the legislation at issue in that case would
    have been constitutional. The legislation in that case violated s. 2(d) since
    it undermined the ability of workers to engage in meaningful collective
    bargaining, which the majority defined as good faith negotiations.

[56]

The
    respondents also note that, in responding to the dissenting reasons of
    Rothstein J., the
Fraser
majority states at para. 95: [T]he principle
    that employers and trade unions should negotiate in good faith and endeavour to
    reach an agreement was precisely the general principle that [
B.C.
Health
]

endorses.

[57]

Finally,
    the respondents note the
Fraser
majoritys use
    of the words negotiate, at paras. 49, 50 and 95.

[58]

Thus,
    the associations claim that they have, on behalf of their members, more than
    the right to make collective representations to the employer  they claim the
    right to meet and bargain in good faith, and to engage in good faith negotiations
    with the

employer regarding workplace issues.

[59]

The
    MPAO and the BCMPPA also bring a cross-appeal, challenging the application
    judges conclusion that s. 2(1)(d) of the
PSLRA
 the provision that
    excludes the RCMP from the general public employee labour relations scheme 
    does not violate s. 2(d) of the
Charter
.

[60]

Finally,
    the associations challenge the application judges determination that there was
    an insufficient factual foundation to assess the constitutionality of s. 41 of
    the
Regulations
. They submit that s. 41 violates s. 2(b) of the
Charter
.

(4)

The CPA

[61]

The
    CPA supports the respondents position that the Supreme Courts decision in
Fraser
does not undermine the application judges decision. In
Fraser
, the
    Supreme Court decided that the Ontario Court of Appeal erred by ordering
specific statutory supports
for agricultural workers in
    Ontario. In this case, the application judge invalidated s. 96 of the
Regulations
but did not require the enactment of specific statutory supports. He left the
    appropriate legislative response to Parliament.

[62]

The
    CPA also submits that the application judges decision is supported by
B.C.

Health
, which states that collective
    bargaining requires more than a process of consultation and cannot be reduced
    to a mere right to make representations.

(5)

The AMPMQ

[63]

The
    intervener, the AMPMQ, offers a somewhat different perspective on why s. 96 of
    the
Regulations
is allegedly unconstitutional. The association submits
    that the case turns on the constitutionally protected freedom of the members of
    the RCMP to form independent voluntary associations without interference. It
    contends, relying on
Delisle
, that the application judge effectively
    found that the establishment of the SRRP and its continued existence is an
    unfair labour practice.

[64]

The
    AMPMQ reminds this court that Bastarache J. states at para. 10 of
Delisle,
that since the RCMP is a government
    employer, s. 2(d) protects RCMP members against any interference by management
    in the establishment of an employee association. Bastarache J. adds, at para.
    32:

If

RCMP management has
    used unfair labour practices with the object of interfering with the creation
    of [a voluntary employee 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 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
.

[65]

The
    AMPMQ submits that the purpose and effect of s. 96 of the
Regulations
is
    to completely prevent an independent association from representing its members.
    In oral argument, counsel referred to the long history of anti-union activity by
    RCMP management described by the minority judges in
Delisle
(beginning
    at para. 104). This union busting activity would constitute an unfair labour
    practice in any legislated labour regime, such as a Wagner-style regime. In a legislated
    labour regime, the SRRP could not be certified as the bargaining agent because it
    would be regarded as a company union. In the AMPMQs submission, s. 96 of the
Regulations
should be struck down as an unfair labour practice that
    prevents the independent associations from representing their members.

E.

ISSUES

[66]

In
    light of the submissions of the parties, the following issues must be
    addressed:

1. Does s.
    96 of the
Regulations
, which creates the SRRP,

violate s. 2(d) of
    the
Charter
?

2.
    Does s. 96 constitute an unfair labour practice that is prohibited by s. 2(d)
    of the
Charter
?

3.
    Does the exclusion of the RCMP from the
PSLRA
violate s. 2(d) of the
Charter
?


4. Does s. 41 of the
Regulations
violate s. 2(b) of the
Charter
?

[67]

I
    will consider each of these issues in turn.

F.

Section 2(
D
): The
Charter
s
    guarantee of freedom of association

(1) Section 2(d) Jurisprudence

[68]

Before
    turning to a discussion of the issues in this appeal, it is important to review
    the jurisprudence setting out the framework for that discussion.

[69]

The
    four key Supreme Court of Canada decisions interpreting s. 2(d) of the
Charter
are:
Delisle; Dunmore v. Ontario (Attorney General)
, 2001 SCC 94, [2001]
    3 S.C.R. 1016;
B.C. Health
; and
Fraser
.
Fraser
is the most
    important authority to consider when interpreting s. 2(d), not only because it
    is the most recent, but also because it restates the Supreme Courts
    conclusions in the earlier cases.

(a)

Delisle

[70]

As
    previously noted,
Delisle
also concerned the s. 2(d) freedom of RCMP
    members. Mr. Delisle was the president of the intervener AMPMQ. He brought an
    application attacking the provision in the
PSSRA
(the predecessor to the
    current
PSLRA
) that expressly excluded RCMP members from the
PSSRA
labour relations regime. He also challenged
    the provision of the
Canada Labour Code
, R.S.C., 1985, c. L-2 that
    provided that it did not apply to public service employees. He argued that the
    purpose or effect of these provisions was to interfere with RCMP members
    freedom to associate.

[71]

The
    Supreme Court held that s. 2(d) does not give RCMP members the right to
    establish a particular type of association defined in a particular statute.
    Section 2(d) does not require that RCMP members be included in the
PSSRA
or any other legislative regime. What s. 2(d) does guarantee is the
    establishment of an independent employee association and the exercise in
    association of the lawful rights of its members:
Delisle
, at para. 12.

[72]

However,
    the Supreme Court also noted that s. 2(d) protects RCMP members from management
    interference in the establishment of an independent employee association. If
    RCMP management uses unfair labour practices to interfere with the creation of an
    employee association, it would be open to an RCMP member to challenge these
    practices 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:
Delisle
, at para. 32.

[73]

When
    the majority in
Fraser
summarizes
Delisle
, it emphasizes that
    Bastarache J. had concluded that there is no general obligation for the
    government to provide a particular legislative framework for employees to
    exercise their collective rights, i.e. a different framework than already
    provided for RCMP members:
Fraser
, at para. 23.


(b)

Dunmore

[74]

The
    2001 decision of the Supreme Court in
Dunmore
concernd the exclusion of
    agricultural

workers from Ontarios statutory labour relations regime.
    Except for a brief period after the enactment of the
Agricultural Labour
    Relations Act, 1994
, S.O. 1994, c. 6, agricultural workers in Ontario have
    historically been excluded from the labour relations regime generally available
    to workers. The
Labour Relations and Employment Statute Law Amendment Act,
    1995
, S.O. 1995, c. 1, repealed the
Agricultural Labour Relations Act
,
    and s. 3(b) of Ontarios
Labour Relations Act
excluded agricultural
    workers from the protections of that Act.

[75]

The
    appellants in
Dunmore,
who were farm workers and union organizers, argued
    that these statutes had the effect of preventing them from establishing,
    joining and participating in the lawful activities of a trade union. The
    Supreme Court concluded that the exclusion of agricultural workers from the
Labour
    Relations Act
infringed the appellants freedom of association.

[76]

A
    large portion of the majoritys reasons, written by Bastarache J., address the
    agricultural workers claim that s. 2(d) obligated the government to provide
    them with a protective regime to enable them to effectively exercise their
    associational freedoms in their relationships with private employers. The court
    concludes that in the circumstances facing the agricultural workers in
Dunmore
,
    s. 2(d) gives the workers the right to be included within a protective regime.

[77]

When
    the
Fraser
majority summarizes
Dunmore
, McLachlin C.J. and LeBel
    J. characterize
Dunmore
as a case in which workers sought affirmative
    government action to safeguard their associational activity. They remark, at
    para. 26, that
Dunmore
raised the question of whether s. 2(d) requires
    the government to provide a legislative framework which enables employees to
    associate to obtain workplace goals in a meaningful process.

[78]

The
Fraser
majority describes Bastarache J.s conclusion as follows: [T]he
    absence of legislative protection for farm workers to organize in order to
    achieve workplace goals made meaningful association to achieve workplace goals
    impossible:
Fraser
, at para. 31. Bastarache J. found that the absence
    of legislative support discredited the organizing efforts of agricultural
    workers and had a chilling effect on their constitutional right to associate
    and he concluded that farm workers in Ontario were substantially incapable of
    exercising their fundamental freedom to associate without a protective regime:
Fraser
, at para. 31. The absence of legislative protection for
    associational activity made it impossible to achieve workplace goals and
    constituted substantial interference with the workers freedom of association
    as guaranteed by s. 2(d):
Fraser
, at para. 47.

[79]

McLachlin
    C.J. and LeBel J. summarize, at para. 33, the propositions supporting the
    majority decision in
Dunmore
:

·

Section 2(d), interpreted purposively, guarantees freedom of
    associational activity in the pursuit of individual and common goals.

·

The common goals protected extend to some collective bargaining
    activities,

includ
ing the right to organize
    and to present submissions to the employer.

·

What is required is a process that permits the meaningful pursuit
    of these goals. No particular outcome is guaranteed. However, the legislative
    framework must permit a process that makes it possible to pursue the goals in a
    meaningful way.

·

The
effect
of a process that renders impossible the
    meaningful pursuit of collective goals is to substantially interfere with the
    exercise of the right to free association, in that it negates the very purpose
    of the association and renders it effectively useless. This constitutes a limit
    under s. 2(d) which is unconstitutional unless justified by the state under s.
    1 of the
Charter
....

·

The remedy for the resultant breach of s. 2(d) is to order the
    state to rectify the legislative scheme to make possible meaningful
    associational activity in pursuit of common workplace goals. [Emphasis in
    original; citations omitted.]

(c)

B.C.
    Health

[80]

The
    context in which
B.C. Health
was decided is
    significant. Factually, the case is quite different than
Dunmore
.
    Unlike the farm workers in
Dunmore
, the health care workers in
B.C. Health
had collective bargaining rights under
    traditional Wager model legislation. Rather than seeking to impose positive
    obligations on an employer, they sought protection from interference with the
    collective bargaining rights that they already possessed. The dispute arose
    when the government introduced legislation that invalidated a number of basic
    provisions in the collective agreement between the health care workers and the
    B.C. government, and effectively precluded meaningful collective bargaining on
    a number of specific issues: para. 11.

[81]

Overruling
    prior case law (the so-called labour trilogy:
Reference re Public Service
    Employee Relations Act (Alberta)
, [1987] 1 S.C.R. 313,
Public Service
    Alliance of Canada v. Canada
, [1987] 1 S.C.R. 424, and
Retail, Wholesale
    and Department Store Union v. Saskatchewan
, [1987] 1 S.C.R. 460), a
    majority of the court concluded that s. 2(d) protects the capacity of members
    of labour unions to engage in collective bargaining on workplace issues:
B.C.
    Health
, para. 2. The court determined that a number of provisions that
interfered with the terms of existing collective
    agreements and that prohibited future bargaining on important issues

violated s. 2(d) of the
Charter
and were not saved by s. 1.

[82]

The
    court states that the constitutional right to collective bargaining might be
    described as employees banding together to achieve particular work-related
    objectives: para. 89. The constitutional right to collective bargaining means
    that employees have the right to unite, to present demands to health sector employers
    collectively and to engage in discussions in an attempt to achieve
    workplace-related goals: para. 89. This right entails a corresponding duty on
    the part of government employers to agree to meet and discuss with [the
    employees]: para. 89.

[83]

The
    s. 2(d) constitutional right recognized in
B.C. Health
does not protect
    all aspects of the associational activity of collective bargaining. It protects
    only against substantial interference with associational activity. The
    interference must be so substantial that it interferes not only with the
    attainment of the union members objectives (which is not protected), but with
    the very process that enables them to pursue these objectives by engaging in
    meaningful negotiations with the employer: para. 91. The question in every
    case is whether the process of voluntary, good faith collective bargaining
    between employees and the employer has been, or is likely to be, significantly
    and adversely impacted: para. 92.

[84]

The
    majority in
Fraser
describes
B.C. Health
as providing a general discussion of s. 2(d), even though the case concerned
    the actions of a government employer nullifying collective bargaining
    arrangements with unions representing its own employees:
Fraser
, at para.
    37. The
Fraser
majority states that
B.C. Health
affirms that, in
    the labour relations context, s. 2(d) protects good faith bargaining on
    important workplace issues: para. 40. Good faith bargaining is not limited to making
    representations to the employer, but requires the employer to engage in a
    process of consideration and discussion to have [the representations]
    considered by the employer: para. 40.

[85]

McLachlin
    C.J. and LeBel J. summarize, at para. 41 of
Fraser
, the elements of good
    faith bargaining established by

B.C. Health
:

·

Section 2(d) requires the parties to meet and engage in
    meaningful dialogue. They must avoid unnecessary delays and make a reasonable
    effort to arrive at an acceptable contract;

·

Section 2(d) does not impose a particular process. Different
    situations may demand different processes and timelines;

·

Section 2(d) does not require the parties to conclude an
    agreement or accept any particular terms and does not guarantee a legislated
    dispute resolution mechanism in the case of an impasse;

·

Section 2(d) protects only the right ... to a general process of
    collective bargaining, not to a particular model of labour relations, nor to a
    specific bargaining method. [Citations omitted.]

(d)

Fraser

[86]

In
    response to
Dunmore
, the Ontario legislature enacted a separate labour
    relations scheme for farm workers under the
Agricultural Employees
    Protection Act
, 2002
, S.O. 2002, c. 16

(
AEPA
). The
AEPA
grants
    farm workers the right to form and join an employee association, the right to
    have the association make representations to their members employers on the
    terms and conditions of employment, and the right to be protected against
    interference, coercion and discrimination in the exercise of their
    associational rights. The Act requires employers to give an association the
    opportunity to make representations respecting terms and conditions of
    employment, and requires the employers to listen to or read those
    representations. The
AEPA
also creates a tribunal to hear and decide disputes about the application of
    the Act.

[87]

The
    Court of Appeal for Ontario, relying on
B.C. Health
and noting that the primary
    difficulty has been that the union has been unsuccessful in engaging employers,
    who have no statutory duty to bargain in good faith (para. 98), held that the
AEPA
does not
    provide the minimum statutory protections required to enable agricultural
    workers to exercise their right to bargain collectively in a meaningful way.
    The Court of Appeal held that the Act does not meet the requirements of s. 2(d)
    of the
Charter
because it fails to provide three protections: (1) a
    statutory duty to bargain in good faith; (2) statutory protection for
    majoritarian/exclusivity, meaning that each bargaining unit would be represented
    by a single bargaining agent; and (3) a mechanism to resolve bargaining
    impasses and interpret collective agreements.

[88]

A
    divided Supreme Court allowed the appeal, holding that the
AEPA
satisfies the requirements of s.
    2(d) of the
Charter
.

[89]

Early
    in its reasons, at para. 18, the majority articulates the issue in the case:

The ultimate question is whether s. 2(d), properly understood
    and applied, requires the Ontario legislature to provide a particular form of
    collective bargaining rights to agricultural workers, in order to secure the
    effective exercise of their associational rights.

In contrast with
B.C. Health
,
    where the workers sought protection from legislative interference, the farm
    workers in
Fraser
sought affirmative
    government action to safeguard their associational activities.

[90]

According
    to the majority, the
AEPA
does not substantially interfere with the ability of farm workers to achieve
    workplace goals through collective actions so as to have the effect of negating
    their freedom of association. Accordingly, the
AEPA
does not constitute a limit on s.
    2(d)s guarantee of freedom of association. The Act provides for the required
    process of engagement that permits employee associations to make
    representations to employers, which employers must consider and discuss in good
    faith: para. 2.

[91]

The
Fraser
majority concludes that the Court of Appeal overstated the ambit
    of the s. 2(d) right, by misreading
B.C. Health
s

affirmation of
    the right to collective bargaining as constitutionalizing a full-blown
Wagner
    Act
system. The court in
B.C. Health
had unequivocally stated that
    s. 2(d) does not guarantee
a particular model of collective bargaining or a
    particular outcome
:
Fraser
, at para. 45 (emphasis added).

[92]

The
    majority reiterates that what s. 2(d) protects is the freedom to associate to
    achieve collective goals. Section 2(d) protects collective bargaining in a
derivative
sense, as the majority describes at para. 46:

Laws or government action that
make it impossible to achieve collective goals

have
    the effect
of limiting freedom of association, by making it pointless. It
    is in this derivative sense that s. 2(d) protects a right to collective
    bargaining: see
Ontario (Public Safety and Security) v. Criminal Lawyers
    Association
, 2010 SCC 23, [2010] 1 S.C.R. 815 (
CLA
), where the
    right to access government information was held to be a derivative right which
    may arise where it is a necessary precondition of meaningful expression on the
    functioning of government (para. 30). However, no particular type of
    bargaining is protected. In every case, the question is whether the impugned
    law or state action has
the effect of making it
    impossible to act collectively to achieve workplace goals.
[Italics in
    original; underlining added.]

[93]

The
    majority explains, at para. 47, what
B.C. Health
did not decide:

[B.C. Health] does not support the
    view  that legislatures are constitutionally required, in all cases and for
    all industries, to enact laws that set up a uniform model of labour relations
    imposing a statutory duty to bargain in good faith, statutory recognition of
    the principles of exclusive majority representation and a statutory mechanism
    for resolving bargaining impasses and disputes regarding the interpretation or
    administration of collective agreements. [Citations omitted.]

[94]

Rather,
    what is protected is associational activity, not a particular process or result:
Fraser
, at para. 47. In order to establish a breach of s. 2(d), it must
    be shown that it is
impossible
to meaningfully exercise the freedom to
    associate due to substantial interference by government action, as in
B.C.
    Health
,

or absence of government action, as in
Dunmore
.

[95]

Applying
    these principles, the question in
Fraser
was whether the legislative
    scheme rendered association in pursuit of workplace goals
impossible
,
    thereby substantially impairing the exercise of the s. 2(d) associational freedom.
    The majority repeats this question in slightly different terms at para. 98,
    asking whether the
AEPA

process, viewed in
    terms of its effect, makes good faith resolution of workplace issues between
    employees and their employer
effectively impossible
 (emphasis added).

[96]

The
    majority notes that the
AEPA

gives employee associations the right to make representations to their
    employers, and provides that employers shall listen to oral representations,
    read written representations and acknowledge having read them. Further, the
AEPA
implicitly
    requires employers to consider employee representations in good faith.

[97]

Since
    the
AEPA
,
    correctly interpreted, protects not only the right of employees to make
    submissions to employers on workplace matters, but also the right to have those
    submissions considered in good faith by the employer, it follows that it does
    not violate s. 2(d) of the
Charter
.

(e)

The Derivative Right
    to Collective Bargaining

[98]

I
    would like to highlight one aspect of the
Fraser
decision that sheds light on the nature of the s. 2(d) right to bargain
    collectively. The majority in
Fraser
, at para. 46, states that s. 2(d)
    protects the right to collective bargaining in a derivative sense.

[99]

To
    understand what the Supreme Court means by a derivative right, we must return
    first to
Delisle.
At para. 26, Bastarache J. points out that s. 2 [of
    the
Charter
] generally imposes a negative obligation on the government
    and not a positive obligation of protection or assistance. He draws an analogy
    to freedom of expression, echoing the courts remark in
Haig v. Canada,
[1993]
    2 S.C.R. 995, at p. 1035, that the freedom of expression contained in s. 2(b)
    prohibits gags, but does not compel the distribution of megaphones. He notes,
    however, that in
Haig
, the court did leave open the possibility that 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:
Haig
, at p. 1039.

[100]

Bastarache J.
    concludes that except perhaps in exceptional circumstances, freedom of
    expression requires only that Parliament not interfere. In my view, the same is
    true for freedom of association:
Delisle
, at para. 27.

[101]

The majority in
Fraser
carries the analogy to freedom of expression further, by
    referring to
Ontario (Public Safety and Security) v. Criminal Lawyers
    Association
, 2010 SCC 23, [2010] 1 S.C.R. 815 (
CLA
) to explain the nature of a
    derivative right. In
CLA
, the court introduces the term derivative
    right to
Charter
jurisprudence, and I find it of immense assistance in
    understanding the concept.

[102]

The
CLA
case has an interesting context. Glithero J. stayed a prosecution
    for the murder of Domenic Racco, finding at p. 300:

many instances of abusive conduct by state
    officials involving deliberate non-disclosure, deliberate editing of useful
    information, negligent breach of the duty to maintain original evidence,
    improper cross-examination and jury addresses during the first trial.

[103]

These findings
    led to an investigation by the Ontario Provincial Police (OPP) of potential
    police misconduct. The OPPs report exonerated the police of any wrongdoing,
    and its report was not made public. The CLA requested the report under the

Freedom of Information and
    Protection of Privacy Act
, R.S.O. 1990, c. F.31
(
FIPPA
), and the responsible Minister, relying on exemptions in and
    discretion bestowed by the Act, refused to disclose it. T
he CLA, relying
    on s. 2(b) of the
Charter
, attacked provisions of
FIPPA
and the exercise of discretion
    by the Minister who refused to disclose the report. The CLA argued that its
    freedom of expression was infringed because its ability to make public comment
    was hampered by not knowing the content of the report.

[104]

The Supreme Court dismissed the bulk of the CLAs claim, and
    concluded that s. 2
(
b
) of the
Charter
guarantees freedom of expression, not
    access to information:
CLA
, at para. 30. However, McLachlin C.J. and
    Abella J., writing for the court, did not completely close the door on the
Charter
providing a right of access to government information. They comment at para. 30
    that [a]ccess is a derivative right which may arise
where it is a necessary
    precondition
of meaningful expression on the functioning of government
    (emphasis added). At para. 31, they conclude

that the scope of
    the s. 2(
b
) protection
    includes a right to access to documents only where access is necessary to
    permit meaningful discussion on a matter of public importance, subject to
    privileges and functional constraints.

[105]

They go on, at para. 33, to discuss the scope
    of s. 2(
b
) protection
    where the issue is access to documents in government hands:

To demonstrate that there is expressive
    content in accessing such documents, the claimant must establish that the
    denial of access
effectively precludes
meaningful commentary. If the
    claimant can show this, there is a
prima facie
case for the production of the documents in question. [Emphasis
    added.]

[106]

The court concludes at paras. 37 and 38:

In sum, there is a
prima facie
case that s. 2(
b
)
    may require disclosure of documents in government hands where it is shown that,
    without the desired access, meaningful public discussion and criticism on
    matters of public interest would be
substantially impeded
. As Louis D.
    Brandeis famously wrote in his 1913 article in
Harpers
    Weekly
entitled What Publicity Can Do: Sunlight is said to be the
    best of disinfectants.... Open government requires that the citizenry be
    granted access to government records when it is necessary to meaningful public
    debate on the conduct of government institutions.

If this
necessity
is established, a
prima
    facie
case for production is made out. However, the claimant must go
    on to show that the protection is not removed by countervailing considerations
    inconsistent with production. [Emphasis added.]

[107]

The court goes on to find that
meaningful
    public discussion of the handling of the investigation into the murder of
    Domenic Racco and the prosecution of those suspected of the murder could take
    place without disclosure of the OPPs report. The CLA had not established that
    disclosure was necessary for meaningful public discussion of the problems in
    the administration of justice relating to the Racco murder: para. 59. The CLA,
    while unable to comment on the content of the report itself, could exercise its
    freedom of expression by commenting on the findings of the trial judge and the
    fact the report had not been made public.

[108]

In the
CLA
case, it is clear that a
    derivative right to disclosure of information is not a stand alone right. Instead,
    the right arises only in circumstances where it is a necessary precondition
    to the exercise of the fundamental freedom itself. McLachlin C.J. and Abella J.
    describe the derivative right in para. 30 as one that may arise.

[109]

The Supreme
    Court in
Fraser
draws on the analogy of a derivative right to access
    information, as described in
CLA
, to define the parameters of when
    positive government action is required to support the freedom of association,
    at para. 70:

A purposive protection of freedom of association may require
    the state
to act positively
to protect the ability of individuals to
    engage in fundamentally important collective activities, just as a purposive
    interpretation of freedom of expression may require the state to disclose
    documents to permit meaningful discussion. [Emphasis added.]

[110]

Since the
Fraser
majority
    cites the
CLA
case as the source of the concept of a derivative right,
    it may be taken that the majority intended for the derivative right to collective
    bargaining to function the same way as the derivative right to information.

[111]

Therefore, as I
    understand the
Fraser
majoritys discussion of collective bargaining as a derivative constitutional
    right, a positive obligation to engage in good faith collective bargaining will
    only be imposed on an employer when it is effectively impossible for the
    workers to act collectively to achieve workplace goals.

G.

Analysis of THE s. 2(d)

Issues
    in this Case

(1)

Does s. 96 of the
Regulations
violate s. 2(d)?

[112]

In the
    respondents formulation, their members are seeking positive measures to enable
    them to exercise their freedom of association. As affirmed by
Delisle
, RCMP
    members have the freedom to establish, join and maintain an independent
    employee association of their choice and to exercise in association the lawful rights
    of its members. Members of those associations are able to collectively convey
    representations about workplace issues to their employer. The employer,
    however, refuses to recognize the associations they have formed and ignores any
    representations they make through their associations. The essence of the
    associations position is that their freedom of association is effectively
    useless unless their employer is under a positive obligation to recognize and
    to engage in collective bargaining with the associations. They seek to have a
    positive obligation placed on the employer to recognize and collectively
    bargain with them.

[113]

Since the
    members of the associations are employed by the state, the associations need
    not argue that the government is constitutionally bound to impose the positive
    obligation on the employer by statute. The positive obligation of their
    government employer to engage in collective bargaining with them, if it
    exists, stems directly from the constitution.

[114]

I begin with two
    observations about the associations claim that s. 2(d) imposes on their
    employer a positive obligation to engage in collective bargaining.

[115]

First, the
    associations embrace an expansive concept of the constitutionally guaranteed
    right to collective bargaining. Their position is that once employees have
    formed an independent association to engage in collective bargaining, s. 2(d)
    gives them the right to negotiate with the employer on the basis of
    comparatively equal bargaining power. In their view, the Supreme Courts
    jurisprudence leaves it open for them to argue that s. 2(d) guarantees a
    mechanism to break deadlocks in negotiations between the independently formed
    association and the employer.

[116]

Counsel for the associations
    acknowledges that the result of accepting their claim is that any combination
    of employees who choose to form an association will have the same collective
    right, and the employer will be obliged to negotiate with each and every
    association formed. Counsel recognizes this would lead to unwieldy labour
    relations but suggests that the government could step in and enact a
    legislative regime that provides for majoritarianism/exclusivity.

[117]

I do not regard
    the solution as that simple. If the associations position is accepted, a
    legislative regime providing for majoritarianism/exclusivity would itself run
    counter to s. 2(d), since it would deny all minority associations the right to engage
    in collective bargaining as conceived by the associations. One commentator
    has interpreted the jurisprudence in this fashion. Professor Roy Adams argues
    that, following
B.C. Health
, public sector workers who have not yet
    organized now apparently have a constitutional right to form minority unions
    and have them recognized by their government employers for bargaining purposes:
    Prospects for Labours Rights to Bargain Collectively After
B.C. Health
    Services
 (2009) 59 U.N.B. L.J. 85, at p. 89.

[118]

I do not accept
    that the principles enunciated by the Supreme Court

lead to the result
    that Wagner model labour regimes are
prima facie
unconstitutional and
    would have to be justified under s. 1. In my view, had the Supreme Court
    intended to de-constitutionalize the predominant form of collective bargaining
    in Canada, it would have done so unambiguously.

[119]

In any event,
    the Supreme Courts jurisprudence makes clear that the associations conception
    of the content of collective bargaining is too expansive.  In my view, the Supreme
    Court has established that the content of the constitutionally guaranteed right
    to collective bargaining is narrower than how that term is used in Wagner
    model regimes.  Collective bargaining under s. 2(d) protects only the right
    to make collective representations and to have those collective representations
    considered in good faith.

[120]

Second, collective
    bargaining under s. 2(d) is a derivative right. A government employer is
    obligated to engage in collective bargaining under s. 2(d) only when the
    employees are able to claim the derivative right under s. 2(d). They are able
    to claim that derivative right upon showing that the exercise of the
    fundamental freedom of association is effectively impossible. Only where the
    core protection of s. 2(d) ... to act in association with others to pursue
    common objectives and goals (
Fraser
, at para. 25) cannot be meaningfully
    exercised does the derivative right arise. As s. 2(d) does not
    constitutionalize minority unions, the test of effective impossibility is
    applied to the workers at large, and not to any particular combination of
    workers.

[121]

Applying the
    test in that way, I conclude that it is not effectively impossible for RCMP
    members to meaningfully exercise their fundamental freedom under s. 2(d). I
    reach that conclusion for several reasons.

[122]

First, RCMP members
    have been able to form the voluntary associations before the court in this
    case.

[123]

The Supreme
    Court has already indicated that the ability of RCMP members to form voluntary
    associations is significant and sets RCMP members apart from, for example,
    relatively disempowered agricultural workers.

[124]

In
Delisle
,
    Bastarache J. remarks, at para. 31, that the fact that RCMP members have formed
    voluntary independent associations shows that they are not prevented from doing
    so:

[I]t is difficult to argue that the exclusion of RCMP members
    from the statutory regime of the
PSSRA
prevents the establishment of an
    independent employee association because RCMP members have in fact formed such
    an association in several provinces....

[125]

In
Dunmore
,
    Bastarache J. refers back to
Delisle
and contrasts RCMP members with
    agricultural workers. Agricultural workers were unable to form employee
    associations in provinces that denied them protection. He lists the
    distinguishing features of agricultural workers: political impotence; lack of
    resources to associate without state protection; vulnerability to reprisal by
    employers; poor pay; difficult working conditions; low levels of skill and
    education; low status; and limited employment mobility:
Dunmore
, at
    para. 41.

[126]

By contrast,
    Bastarache J. links RCMP officers ability to associate to their relative
    status, comparing them to the armed forces, senior executives in the public
    service and judges: para. 45. The exclusion of RCMP members from the labour
    regime of the
PSSRA
could not discourage RCMP members from associating
    in light of their relative status, their financial resources and their access
    to constitutional protection: para. 45.

[127]

The majority in
B.C.
    Health
referred to Bastarache J.s analysis in
Delisle
. At para. 35,
    the majority observed that Bastarache J. had reconciled the imposition of a
    positive obligation on government in
Dunmore
with the result in
Delisle
,
    in which no positive obligation was imposed. He had done so by distinguishing
    the effects of the legislation in the two cases. Unlike the RCMP members in
Delisle
,
    farm workers faced barriers that made them
substantially incapable
of
    exercising their right to form associations outside the statutory framework:
B.C.
    Health
, at para. 35 (emphasis in original). In my view this is enough to
    dispose of this issue: the Supreme Court has already decided that it is not
    effectively impossible for RCMP members to exercise their fundamental freedom
    of association guaranteed by s. 2(d) of the
Charter
.

[128]

The second
    reason for concluding that it is not effectively impossible for RCMP members to
    act collectively to achieve workplace goals is the existence of the SRRP. The
    SRRP was criticized by the associations, who devoted much of their argument to
    distinguishing the SRRP from 
a labour relations model of
    independent representation and collective bargaining. No doubt the SRRP lacks
    the attributes of a Wagner model bargaining representative. T
he SRRP is
    not institutionally independent. The RCMP members have never had the
    opportunity to choose a bargaining agent in a Wagner labour regime, and the
    SRRP is created by regulation (though the formation of its predecessor, the
    DSRR, was endorsed in a referendum). The question at this stage, though, is not
    whether the SRRP should be regarded as an adequate alternative to a collective
    bargaining agent in the traditional labour relations model. Rather, the
    question is whether the legislative framework makes it effectively impossible for
    the workers to act collectively to pursue workplace issues in a meaningful way.

[129]

The SRRs elected
    by the RCMP membership are included in all important management processes. Two
    SRRs attend all meetings of the RCMPs Senior Management Team. SRRs attend
    divisional management meetings. Two SRRs, along with two representatives of
    management and an impartial chair, make up the Pay Council.

[130]

The application
    judges findings of fact make it unnecessary to reprise the description of the
    SRRP in paras. 13-19 above. The application judge found that there was
    extensive collaboration between SRRs and management that was carried out in
    good faith by everyone involved. He accepted, at para. 68, that RCMP
    management listens carefully and with an open mind to the views of SRRs in the
    consultative process established by the SRRP. There is no reason to interfere
    with that finding.

[131]

The extensive
    collaboration between the elected SRRs and management shows that it is not
    impossible for the RCMP members to associate to achieve collective goals.

[132]

The third reason
    I conclude that the exercise of the fundamental freedom of association by RCMP
    members is not effectively impossible is the existence of the Legal Fund. As
    noted above, the Legal Fund is a voluntary not-for-profit corporation. Some
    14,000 RCMP members have joined the Fund and some 100 additional members join each
    month. It was established to help its members with various employment-related
    issues. It assists RCMP members by acting to advance their dignity and welfare,
    in relation to matters arising under RCMP policies and directives. It is funded
    exclusively by the dues of its members, and is entirely self-governed,
    independent and autonomous, with independent, democratically elected directors
    and officers. The Legal Fund plays a role that is complementary to, and
    supportive of, the SRRP.

[133]

The respondents
    submit the Legal Fund is a smart and adaptive way of trying to deal with the
    shortcomings of the SRRP. For example, the SRRP (as a program of the RCMP) must
    use the legal services of the Department of Justice. The Legal Fund is able to
    provide private legal representation to RCMP members.

[134]

That the Legal
    Fund expends some funds in ways that the respondents consider inappropriate is
    neither here nor there. The point is that the formation and maintenance of such
    a robust association by RCMP members and the functions it performs support the
    conclusion it is not effectively impossible for RCMP members to exercise their
    fundamental freedom of association in relation to workplace issues.

[135]

For these
    reasons, I conclude that it is not effectively impossible for RCMP members to act
    collectively to achieve workplace goals. It follows that the respondent
    associations members are unable to claim the derivative right to collective
    bargaining under s. 2(d). Accordingly, there is no constitutional obligation on
    the government to take positive action, in the sense discussed in
Haig
,
Delisle
,
CLA
and
Dunmore
, to facilitate the exercise of the RCMP members s.
    2(d)-protected freedom. There is no necessary precondition for placing a positive
    obligation on the employer to recognize and negotiate with the respondent associations
    in order to make meaningful association possible for their members.

[136]

The conclusion
    that the members of the respondent associations cannot claim the derivative
    right to collective bargaining renders the principal concerns of the
    application judge immaterial. He considered the inability of RCMP members to
    form an independent association for the purpose of collectively bargaining to
    be the principal source of the infringement of s. 2(d). As
Delisle
establishes, RCMP members do have the freedom to form independent employee
    associations. The additional guidance provided by
Fraser
indicates their
    ability to associate is not so ineffective that they are able to claim the
    derivative right to collectively bargain. The constitutional right to form an
    independent association for the purpose of collective bargaining, if it exists,
    would be a facet of the derivative right to collective bargaining and does not
    arise in this case.

(2)

Is s. 96 an unfair
    labour practice?

[137]

In the
    formulation of the AMPMQ, this case involves the active interference of the
    government with the freedom of association of RCMP members. The AMPMQ argues
    that the application judge found, in effect, that s. 96 of the
Regulations
and the historical actions of RCMP management constitute unfair labour
    practices that prevent RCMP members from being able to organize an effective
    voluntary association. The application judge, in describing the evolution of
    the SRRP, noted the government and the Commissioners history of opposing the
    unionization of RCMP members.

[138]

The application
    judge did not use the term unfair labour practice. However, accepting for the
    sake of argument that the application judge did, in effect, find that the
    government engaged in unfair labour practices, it is my view he erred in making
    that finding.

[139]

Without the
    benefit of the Supreme Courts decision in
Fraser
, the application judge
    proceeded with an inflated view of the content of collective bargaining
    protected by s. 2(d). He did not appreciate the derivative nature of the right,
    and he brought to bear values from the Wagner model. His conception of the
    constitutionally required attributes of an employee association would preclude
    models of employee relations that bring employees into the decision making
    structures in a non-adversarial, collaborative fashion. Such alternative models
    of employer-employee relations are widely used in other industrial democracies.
[1]


[140]

In any event,
    the AMPMQs claim ultimately devolves into the same claim as that brought by the
    respondent associations. A constitutionally protected right must exist before
    practices can be found to unfairly interfere with it. If the associations have
    no constitutional right to demand that RCMP management recognize and negotiate
    with them, practices that hinder them from doing so cannot rise to the level of
    constitutional violations.

[141]

The AMPMQs
    formulation of s. 2(d) must be rejected for the same reasons as the MPAO and
    the BCMPPAs formulation.

(3)

Does the exclusion of
    the RCMP from the
PSLRA
violate s. 2(d) of the
Charter
? (The
    Cross-Appeal)

[142]

The cross-appeal
    of the application judges conclusion that the exclusion of the RCMP from the
PSLRA
does not violate s. 2(d) of the
Charter
must be dismissed on the same
    analysis set out above. As it is not effectively impossible for RCMP members to
    associate collectively to achieve workplace goals, there is no positive
    obligation on the government to include them in the labour regime set out in
    the
PSLRA
. Moreover, the Supreme Court has already addressed the constitutionality
    of the RCMP members exclusion from the
PSSRA
, the predecessor to the
PSLRA
,
    in
Delisle
.

H.

Section 2(b): The
Charter

s
Guarantee of Freedom of
    Expression

[143]

The associations
    appeal from the application judges dismissal of their claim that s. 41 of the
Regulations
violates s. 2(b) of the
Charter
. Section 41 states:

A member shall not publicly criticize, ridicule, petition or
    complain about the administration, operation, objectives or policies of the
    Force, unless authorized by law.

[144]

As the application
    judge noted, at para. 104, the respondents confined their challenge to s. 41
    to a particular context, namely its impact on the efforts of RCMP members to
    exercise their associational freedoms. Their factum, as well, made it clear
    that ss. 2(d) was their real concern.

[145]

In this context,
    the application judge found that there was an inadequate factual foundation to
    consider this claim because the RCMP has chosen not to use s. 41 to discipline
    its members in the labour relations context, and because insufficient evidence
    was adduced by the associations to demonstrate the effect of s. 41 on the
    freedom of expression. He concluded that in the context in which it was
    challenged, the constitutionality of s. 41 of the
Regulations
ought not to be
    considered in the abstract: para. 107.

[146]

On appeal, the cross-appellants
    seek to advance a general attack on s. 41 as violating the s. 2(b) freedom of
    expression of RCMP members. They argue that [t]he violation of 2(b) is self
    evident  the purpose of the provision is to curtail speech which the
    government considers might be harmful or embarrassing to the force.

[147]

In my view,
    having initially confined their attack on s. 41 to its impact on their members
associational freedoms, the cross-appellants cannot mount a general
    challenge to s. 41 for the first time in this court. I see no error in the
application
    judges disposition of the issue that was placed before him. I would not
    interfere with his decision.

I.

CONCLUSION

[148]

For these
    reasons, I would allow the Attorney Generals appeal and set aside the
    application judges declaration that s. 96 of the
Regulations
violates
    the s. 2(d)
Charter
rights of RCMP members.

[149]

I would dismiss
    the associations cross-appeal.

[150]

The parties, but
    not the interveners, may make written submissions not exceeding five pages regarding
    the costs of the appeal and of the application.

[151]

Finally, I note
    that the question whether an Ontario court was the most appropriate forum for
    this proceeding was not raised before the application judge and was not considered
    by him. All parties and interveners agree it is not a matter that should be
    considered by this court at this stage.

R.G. Juriansz J.A.

I agree D. Doherty
    J.A.

I agree M. Rosenberg
    J.A.

Released: June 01, 2012




Appendix

Public
    Service Labour Relations Act,
S.C. 2003,
    c. 22

2(1) The
    following definitions apply in this Act:

...

employee,
    except in Part 2, means a person employed in the public service, other than

...

(d) a
    person who is a member or special constable of the Royal Canadian Mounted
    Police or who is employed by that force under terms and conditions
    substantially the same as those of one of its members;

Royal
    Canadian Mounted Police Regulations, 1988
, SOR/88-361

41. A
    member shall not publicly criticize, ridicule, petition or complain about the
    administration, operation, objectives or policies of the Force, unless
    authorized by law.

96(1)
    The Force shall have a Division Staff Relations Representative Program to
    provide for representation of the interests of all members with respect to
    staff relations matters.

(2)
    The Division Staff Relations Representative Program shall be carried out by the
    division staff relations representatives of the members of the divisions and
    zones who elect them.





[1]
Alternative labour relations regimes were described in detail in the affidavit
    of Professor Richard Chaykowski. As he notes:

Variations
    exist across jurisdictions and within jurisdictions in traditional labour
    relations legislation and policy.

There
    exist a variety of alternative models of employee representation both within
    Canada and among industrialized democracies that constitute legitimate
    alternatives to the traditional Canadian model of unionism and collective
    bargaining. One important example is works councils, which constitute a quite
    different model of employee representation from unions and collective
    bargaining:

 work councils  are
    workplace level committees of employee (and sometimes employer) representatives
    with information sharing, consultation, and/or joint decision making rights. In
    theory, these mechanisms not only extend democratic rights, they also make for
    more inclusive decision processes, so that workers and their representatives
    are in a proactive rather than reactive position. In theory, this should in
    turn help to facilitate a more consensual relationship, with potentially
    positive performance implications.

Work councils are extensively
    utilized, internationally, in a range of industrialized countries, including
    Germany, Belgium, Denmark, Spain, France, Great Britain, Greece, Ireland,
    Italy, Luxembourg, the Netherlands, and Portugal. [Citations omitted.]


