The Supreme Court upholds the right of the RCMP members to collectively bargain in Mounted Police Association of Ontario v Canada (Attorney General)

The Supreme Court of Canada issued its landmark decision in Mounted Police Association of Ontario v Canada (Attorney General) on January 16, 2015. After nearly a decade of legal battles, the Royal Canadian Mounted Police (the “RCMP”) members finally won the right to collectively bargain with the government.

Members of the RCMP are prohibited by law from unionizing. They are specifically excluded from the legislation that permits collective bargaining for federal workers, the Public Service Labour Relations Act (the “PSLRA”). Instead, the RCMP workers are subject to a non-unionized labour relations scheme whose key component is the Staff Relations Representative Program (the “SRRP”). The SRRP is a management-controlled mechanism through which RCMP members can raise labour relations issues (except wages). Management retains exclusive control over the issues that can be advanced through the SRRP and gets the final word in any negotiations. The SRRP is the only avenue of employee representation for RCMP members.

Various employee associations for RCMP members brought a legal challenge to the SRRP and their exclusion from the PSLRA as an unconstitutional restriction of their right to freedom of association under section 2(d) of the Charter. The Ontario Superior Court of Justice determined that the SRRP was unconstitutional, but the Court of Appeal overturned this decision on the basis that it was not “effectively impossible” for RCMP members to meaningfully exercise their 2(d) rights. The Supreme Court of Canada disagreed with the Court of Appeal’s analysis, holding that both the SRRP and the RCMP’s exclusion from the PSLRA violated the RCMP members’ constitutional right to associate.

The Supreme Court has previously determined that meaningful collective bargaining is protected under s. 2(d) of the Charter. In this decision, the Court clarified the key elements of this right.

Writing for the majority, Chief Justice McLachlin and Justice LeBel first determined that s. 2(d) protects against “substantial interference” with workers’ ability to pursue their collective interests. They asserted that, “[w]hatever the nature of the restriction, the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining”.

The Court went on to describe the two essential features of meaningful collective bargaining: independence and choice. The degree of choice required by the Charter is that which allows employees to form, join and dissolve representative associations as well as set and change collective workplace goals. The Court also noted that a representative association’s accountability to its members is an important element of choice because it provides employees with more control over the collective bargaining process. The Court then explained the second key component of meaningful collective bargaining, independence from management. It asserted that workers must be able to advance their interests independent of management’s control to ensure a level playing field in bargaining.

The Court noted that there are many different models of labour relations that could provide sufficient choice and independence for workers, and that the Charter does not protect the “ideal” regime. Rather, the Charter sets the minimum standards for independence and choice in a given labour relations scheme.

Applying its analysis to the RCMP’s labour relations regime, the Court held that the SRRP did not provide RCMP members with sufficient choice or independence. It stated that the SRRP was not a freely chosen representative body, nor was it independent from management. The Court concluded the SRRP was nothing more than an “internal human relations scheme” that failed to provide any meaningful form of collective bargaining.

The Court further concluded that the RCMP members’ exclusion from the PSLRA’s bargaining regimewas unconstitutional and could not be saved by section 1 of the Charter. In particular, the Court held that the government failed to show why prohibiting RCMP members from unionizing was necessary to further its purported goal of protecting the “stability and neutrality” of the police force. The Court also stated that the government could not explain why the RCMP was materially different from the other unionized police forces in Canada so as to justify its exclusion from the PSLRA.

The Court determined that the appropriate remedy in the circumstances was to strike down the offending provision in the PSLRA, subject to a 12-month grace period to allow the government to respond. However, the Court was careful to say that this does not mean that the government is obliged to include the RCMP members in the PSLRA regime. Rather, the government is free to create a different labour relations scheme for RCMP members, so long as it respects the constitutional parameters of s. 2(d).

Overall, the Mounted Police Association decision is a significant win for the labour movement. The Supreme Court not only rectified the historic injustice against RCMP members but also affirmed the constitutional right of Canadian workers everywhere to collectively pursue their workplace goals. All News