In a decision released January 16, 2015, the Supreme Court of Canada once again revisited how much constitutional protection is afforded to the collective bargaining process. In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the Court held that a special labour relations regime legislated for the RCMP infringed section 2(d) of the Charter of Rights and Freedoms(freedom of association) and could not be justified as a reasonable limit under section 1. The relevant provisions were struck down, but will remain in effect for the rest of 2015 so that the Government can enact a replacement regime.

Collective bargaining was historically denied to RCMP members on the basis that it was necessary to preserve the RCMP’s stability, reliability, and image of neutrality. Initially, the RCMP was excluded outright from any labour relations scheme. Then, beginning in the 1970s, a series of reforms gradually allowed for some degree of representation, while limiting employees’ rights to be represented in grievances or other proceedings. At the time the case was heard, this system had evolved into three entities, with the Staff Relations Representative Program, or SRRP, at its core. The SRRP involves representatives who act as a point of contact with RCMP management but work under the assumption that management has the final say. The case was brought by several associations that lobby on behalf of RCMP officers, although none has ever been recognized as a collective bargaining agent by management or the Government.

The majority of the Court decided that the SRRP was an unconstitutional deprivation of collective bargaining rights. In doing so, the majority clarified what section 2(d) protects:

  1. The right to join with others and form associations;
  2. The right to join with others in pursuit of other constitutional rights; and
  3. The right to join with others on equal terms the power and strength of other groups.

The Court held that in deciding whether section 2(d) of the Charter has been violated, the question is whether there has been substantial interference with the employee’s right to a “meaningful process” of collective bargaining. This “meaningful process” essentially boils down to employee choice and independence from management. The requirement of employee choice is satisfied by a process that allows employees to have effective input. Employees may do this through creating associations, dissolving existing ones, and choosing representatives who can be held accountable.

In the Court’s view, the SRRP failed because the system did not allow the employees to choose their own representative. In addition, the system was not designed to provide the employees with sufficient independence from management. As explained by the Court, “independence” means that employees have effective input into the proposals that are put forward, they are represented separate from management’s structure, and they control their own activities. The SRRP failed on this ground as well. The program was an internal scheme controlled by management, and its very raison d’être was to resist independent association and create an alternative to unionization.

While the decision represents a more generous interpretation of section 2(d) than previous decisions, it is equally important to recognize what the majority held the Charter does not protect. There is still no constitutional right to strike (though this could change when the Court releases its decision in Saskatchewan Federation of Labour v. Saskatchewan, which was heard last May), nor is there any requirement that the bargaining process be adversarial or that there be a particular labour relations scheme.

Elsewhere the Court has held that the Charter protects processes and activities, but does not guarantee outcomes. This principle was mentioned in the companion case Meredith v. Canada (Attorney General), 2015 SCC 2, where the Court found that a statute limiting wage increases for the RCMP was constitutionally valid. Generally speaking, as long as a labour relations scheme allows employees to bargain independently without substantial interference from management, it should be able to withstand a constitutional challenge.