A New Chapter in the Ongoing Reform of Freedom of Association

The Ontario Superior Court of Justice ruled on Monday that by excluding the RCMP from the collective bargaining regime established by the Public Service Labour Relations Act (PSLRA), and  substituting an alternative model pursuant to s. 96  of the Royal Canadian Mounted Police Regulations known as SSRP, infringed Section 2(d) of the Charter (freedom of association), and that the infringement was not ‘saved’ by Section 1 of the Charter.  In fact, it was the SSRP model in the Regulations that infringed the Charter, and not the exclusion of the RCMP from the PSLRA.  I have done a very quick perusal.  Here is the decision in Mounted Police Association of Ontario, et al. v. Canada (A.G.).
The Supreme Court came to a different conclusion back in 1999 in the Delisle decision.  But the legal landscape has changed dramatically since then with the decisions of the Supreme Court in Dunmore and B.C. Health Services, and the more recent decision of the Ontario Court of Appeal in Fraser (which is now on the way to the Supreme Court).  The scope of Section 2(d) has been expanded considerably in those decisions.  For example, unlike at the time of Delisle, Section 2(d) now includes a right to collective bargaining, which includes an obligation to bargain in good faith.
This was an important factor in the new RCMP case.  The Court ruled that alternative statutory model of employee representation established for the police, known as the Staff Relations Representation Program (SRRP), failed to meet the new standard for Constitutional collective bargaining.  Justice MacDonnell ruled that the SRRP was not ‘independent’ of the employer, so that the fact that the employer can chose to deal only with the SRRP and thereby refuse to bargain with other independent representatives freely chosen by the workers effectively denies the workers the right to bargain through an representative of their own choosing. (Note that on this point, the court relied on an affidavit from Professor Lynk of Western – nice work Michael!)
The Court also ruled that the process engaged in between the employer and the SRRP was one of mere ‘consultation’ and not collective bargaining as mandated in B.C. Health Services.  Ultimately, all decisions rested unilaterally with the employer.   MacDonnell J. ruled that the “SRRP not only substantially interferes with [the right of workers to collective bargaining], it completely precludes it.” (para. 74)
As such, the Court ruled the state has infringed the employees’ Charter rights by mandating the SSRP and denying meaningful collective bargaining as required by B.C. Health Services.  On the Section 1 analysis, the Court found that the state failed the minimum impairment test. While acknowledging that that the maintenance of police force is a pressing objective, the court found that the state had not established that denying the workers the Constitutionally protected right to engage in meaningful collective bargaining (without a right to strike) was the least intrusive means for ensuring that objective.
On the issue of remedy, the Court elected only to make a declaration that Section 96 of the Regulations, which created the alternative consultation model, was invalid, and it suspended that declaration for 18 months to give the government time to consider  what, if anything, should now be done.  Since the Court did not strike down the exclusion of the RCMP from the PSLRA, the situation will be that the statutory exclusion stands, but the alternative SSRP model appears to be dead.
And so the evolution continues …