Delisle v. Canada (Deputy Attorney General), 1999 CanLII 649 (SCC), [1999] 2 SCR 989

Delisle v. Canada (Deputy Attorney General), 1999 CanLII 649 (SCC), [1999] 2 SCR 989

Gaétan Delisle Appellant

v.

The Attorney General of Canada Respondent

and

The Public Service Alliance of Canada,

the Canadian Police Association,

the Ontario Teachers’ Federation and

the Canadian Labour Congress Interveners

Indexed as: Delisle v. Canada (Deputy Attorney General)

File No.: 25926.

1998: October 7; 1999: September 2.

Present: L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

on appeal from the court of appeal for quebec

Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of association -- RCMP officer challenging constitutionality of legislation excluding RCMP members from application of Public Service Staff Relations Act and Part I of Canada Labour Code -- RCMP officer alleging that impugned legislation prevents creation of independent employee association for RCMP members and encourages unfair labour practices -- Whether impugned legislation infringing freedom of association -- Canadian Charter of Rights and Freedoms, ss. 1, 2(d) -- Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e) -- Canada Labour Code, R.S.C., 1985, c. L-2, s. 6.

Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression -- RCMP officer challenging constitutionality of legislation excluding RCMP members from application of Public Service Staff Relations Act and Part I of Canada Labour Code -- RCMP officer alleging that impugned legislation prevents creation of independent employee association for RCMP members -- Whether impugned legislation infringing freedom of expression -- Canadian Charter of Rights and Freedoms, s. 2(b) ‑‑ Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e) – Canada Labour Code, R.S.C., 1985, c. L-2, s. 6.

Constitutional law ‑‑ Charter of Rights ‑‑ Equality rights -- RCMP officer challenging constitutionality of legislation excluding RCMP members from application of Public Service Staff Relations Act and Part I of Canada Labour Code -- RCMP officer alleging that impugned legislation prevents creation of independent employee association for RCMP members -- Whether impugned legislation infringing equality rights -- Canadian Charter of Rights and Freedoms, s. 15(1) ‑‑ Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e) – Canada Labour Code, R.S.C., 1985, c. L-2, s. 6.

The appellant is a member of the RCMP and president of an informal association created with the aim of representing the job-related interests of RCMP members in Quebec. He brought a motion personally before the Superior Court, requesting that para. (e) of the definition of “employee” in s. 2 of the Public Service Staff Relations Act (“PSSRA”) and s. 6 of the Canada Labour Code be declared of no force or effect as violating ss. 2(d), 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms. Paragraph (e) expressly excludes RCMP members from the application of the PSSRA and s. 6 of the Canada Labour Code provides that Part I of the Code does not apply to employees of Her Majesty in right of Canada. His motion was dismissed and the Court of Appeal affirmed the decision.

Held (Cory and Iacobucci JJ. dissenting): The appeal should be dismissed. Paragraph (e) of the definition of “employee” in s. 2 of the PSSRA and s. 6 of the Canada Labour Code are constitutional.

Per Gonthier, McLachlin, Major and Bastarache JJ.: The freedom of association guaranteed by s. 2(d) of the Charter does not include the right to establish a particular type of association defined in a particular statute. Only the establishment of an independent employee association and the exercise in association of the lawful rights of its members are protected under s. 2(d). Respect for freedom of association therefore does not require in this case that the appellant be included in either the regime of the PSSRA, or any other regime, since s. 2(d) protects RCMP members against interference by management intended to discourage the establishment of an employee association. There is no general obligation for the government to provide a particular legislative framework for its employees to exercise their collective rights.

Neither the purpose nor the effects of para. (e) of the definition of “employee” infringe s. 2(d) of the Charter. Absent ambiguity in the meaning of a provision, it is primarily the statute as a whole which indicates its purpose. This does not mean that the general context should be ignored, but rather that the context is legislative above all else. Section 2 must be read in light of the other provisions of the Act and of the statutory regime for which it constitutes the framework. Knowing that the legislative context shows that the purpose of the statute is to govern labour relations in the public sector, under a regime of collective bargaining and trade union representation of workers, and having regard to the various applicable presumptions of legality, including the presumption of validity, it is not possible to find that the purpose of the statute infringes s. 2(d). The exclusion of RCMP members is designed simply to not grant them any status under the PSSRA, namely trade union representation and all it entails (which does not violate the appellant’s freedom of association), and not to prevent them from establishing an independent employee association. Such an association enjoys protection analogous to that provided under ss. 6, 8 and 9 of the PSSRA directly under s. 2(d) of the Charter.

With respect to the effects of para. (e), the fact that the appellant cannot invoke the protection of the PSSRA has no impact on his freedom of association under the Charter. The fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue here. There is no violation of s. 2(d) when certain groups of workers are excluded from a specific trade union regime. The ability to form an independent association and to carry on the protected activities exists independently of any statutory regime. If RCMP management has used unfair labour practices with the object of interfering with the creation of an 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 and rules 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.

The exclusion of RCMP members from the PSSRA does not infringe the freedom of expression guaranteed by s. 2(b) of the Charter. The reasoning that applies to the issue of freedom of association also applies to the arguments concerning freedom of expression. Except in exceptional circumstances, freedom of expression imposes only an obligation that Parliament not interfere, and the exclusion of RCMP members from the PSSRA regime therefore cannot violate it. This is not one of those exceptional cases where the government has a positive obligation to act in order to give true meaning to freedom of expression. The message of solidarity the appellant wishes to express by an association exists independently of any official form of recognition. In the current situation, this message is the same whether or not it is expressed by an association recognized by the PSSRA regime. Finally, even if the exclusion of RCMP members by the PSSRA diminished the effectiveness of the conveyance of this message, this would not violate s. 2(b).

The exclusion of RCMP members from the PSSRA does not infringe the equality rights guaranteed by s. 15 of the Charter. While the effect of the statute is to impose differential treatment on the appellant, depriving him and other RCMP members of a benefit available to most other public service employees, this distinction is not based on one or more grounds enumerated in s. 15 or analogous thereto. Moreover, this distinction is not discriminatory. A reasonable person in the appellant’s position would conclude that it is because RCMP members perform a crucial function in maintaining order that Parliament set them apart from other public service employees. Whether this view is correct or not, it does not adversely affect the appellant’s dignity and is not based on a characteristic attributed stereotypically to police officers as a group.

Per L’Heureux-Dubé J.: The majority’s reasons are generally agreed with. Because the Charter applies to RCMP management pursuant to s. 32, any actions, regulations or rules that, in purpose or effect, interfere with RCMP members’ ability to form an employee association would violate s. 2(d) of the Charter, and may be challenged under a constitutional claim. The protections contained in ss. 6, 8 and 9 of the PSSRA are therefore mirrored in the Charter’s guarantee of freedom of association, when the employer is part of government. Where, as here, the Constitution itself prohibits the activities that a claimant alleges interfere with his freedoms of association and of expression, positive government action to include workers in a particular scheme is not required. In addition, because s. 2(d) guarantees the collective exercise of rights that are lawful for individuals, subject to s. 1 of the Charter, RCMP management cannot refuse to recognize the right of an employee to be represented by an employee association in lawful dealings with the employer.

While an invalid legislative purpose is sufficient to find a violation of a Charter right, the evidence adduced does not show that the object of the exclusion of RCMP members from the PSSRA was to impede the formation of independent employee associations, but rather suggests that the exclusion stemmed from a desire not to grant RCMP members all the rights contemplated by the PSSRA and access to the particular remedies contained within it. Nor can it be found, in this case, that the effect of the exclusion is to violate freedom of association or expression by encouraging unfair labour practices by government actors, because such practices are prohibited through the guarantee of freedom of association in the Charter. Both intrinsic and extrinsic sources are admissible and significant in determining legislative purpose and effects.

Finally, a violation of s. 15(1) of the Charter has not been demonstrated in this case. It has not been shown that, viewed in context, this legislative distinction suggests that RCMP members are less worthy, valuable, or deserving of consideration than other public servants.

Per Cory and Iacobucci JJ. (dissenting): This appeal is not concerned with the right to strike or to bargain collectively. The issue is whether the legislation interferes with the basic freedom of employees to associate informally in pursuance of their mutual interests as employees. In light of the jurisprudence of this Court, it is clear that s. 2(d) of the Charter protects this freedom. The freedom to associate is of fundamental importance in a democratic society. The ability of employees, who are a vulnerable group in our society, to form and join an employee association is crucially linked to their economic and emotional well‑being. A statute whose purpose or effect is to interfere with the formation of employee associations will thus clearly infringe s. 2(d) of the Charter.

The immediate result of para. (e) of the definition of “employee” in s. 2 of the PSSRA is that members of the RCMP are excluded from the application of the PSSRA, and thus are denied the statutory protections it extends, in particular the basic right set out in s. 6 to participate in an employee organization and the basic prohibitions against unfair labour practices set out in ss. 8 and 9. No other statute provides these statutory protections to RCMP members. Members of the RCMP are literally singled out for different treatment. The key consideration in examining Parliament’s purpose in excluding members of the RCMP from the PSSRA is the reason for the decision to exclude. If Parliament’s purpose in excluding a particular employee group from a labour statute was anti-associational, this is impermissible in light of s. 2(d) of the Charter. In the present appeal, therefore, the express exclusion of RCMP members from the PSSRA raises the possibility that the exclusion has an invalid purpose. In light of the presumption of constitutionality, this possible interpretation of legislative purpose is to be eschewed unless there is evidence showing on a balance of probabilities that it is the probable purpose.

This is one of those rare cases in which Parliament’s purpose in enacting a legislative provision must be found to infringe the Charter. Parliament’s purpose in enacting para. (e) was to ensure that individual RCMP members remained vulnerable to management interference with their associational activities, in order to prevent the undesirable consequences which it was feared would result from RCMP labour associations -- the perceived threat of a divided loyalty among RCMP members. The perception which informed the imposition of these restrictions was that RCMP members might disobey superior orders if they were both union members and members of a quasi‑military institution, and would be unable to exercise their duties impartially and effectively in controlling the illegal acts of other workers, or indeed in the event of their own labour unrest. The invalid purpose of para. (e) is apparent from numerous sources regarding the provision’s legislative history and the context of its enactment, including, most notably: the executive orders implementing the long-standing federal government policy of preventing RCMP unionization; the authoritative statements regarding the purpose of para. (e); and the respondent Crown’s submissions and the opinions expressed in its expert reports in these proceedings. In fact, the respondent has, in its submissions and expert evidence adduced at trial, conceded that Parliament’s purpose was anti-associational. It is also particularly significant that no evidence has been presented which suggests that one of the other possible alternative purposes was Parliament’s actual purpose.

Lastly, a court may, where appropriate, look to the effects of legislation for assistance in inferring the legislation’s purpose. In particular, where the effects of the impugned legislation are contrary to the invalid purpose alleged by the Charter claimant, a court should weigh the evidence carefully before concluding that the purpose is indeed invalid. Here, no evidence was adduced that the legislation has beneficial effects for RCMP members. Rather, RCMP members continue to be subject to practices that would likely be enjoined as unfair labour practices under the PSSRA.

The issue of positive obligations and entitlements does not arise in this appeal. The appellant’s claim is not premised upon the view that Parliament is obligated to protect him against management interference, or to promote the formation of member associations. It is the invalid purpose of para. (e), and not an assertion of positive entitlements, that is the foundation for his claim.

Paragraph (e) meets the first stage of the s. 1 inquiry. Notwithstanding its more specific, impermissible purpose, para. (e)’s general legislative goal of assuring a stable national police force is sufficiently important to justify overriding a constitutionally protected freedom. Where impugned legislation has two objectives, one of which is pressing and substantial in a free and democratic society, while the other is contrary to the Charter, the legislation will satisfy the first stage of the s. 1 inquiry. It is more in keeping with the overall framework of the s. 1 inquiry to consider the existence of the second, invalid purpose as one element of the context underlying the proportionality analysis at the second stage of s. 1 inquiry.

Paragraph (e) does not meet the second stage of the s. 1 inquiry and thus does not constitute a reasonable limit upon freedom of association. The rational connection component of the proportionality test is not satisfied. Some of the evidence adduced does not support a causal link between the legislative objective and the means used to achieve that objective. Rather, this evidence supports the reverse conclusion that the means chosen engender the very mischief sought to be cured: the exclusion of RCMP members from the entirety of the PSSRA to secure a stable national police may actually contribute to the very labour unrest sought to be avoided. Since it is equally probable that para. (e) causes the very social harm it purports to target, at least in these limited circumstances, the respondent has not established a rational link between excluding RCMP members from the entirety of the PSSRA and securing a stable and reliable RCMP. If the rational connection component of the proportionality analysis under s. 1 is to have any role to play, it must at least be in circumstances such as these, where the state seeks to infringe Charter freedoms in a context where doing so may exacerbate the social ill sought to be cured.

Even if the respondent had established a rational connection, para. (e) fails the minimal impairment component of the proportionality test. While, in many if not most cases, it will be found appropriate to defer to the legislature in its determination of how best to strike the delicate balance among labour, management, and public interests, deference does not equate to a negation of constitutional analysis, nor is deference necessarily appropriate in all cases. Here, an analysis of the contextual factors relevant to the question of appropriate deference leads to the conclusion that none of them favours an exercise of deference to the legislature. First, the complete exclusion of a class of employees from a comprehensive labour relations scheme can hardly be characterized as achieving a delicate balance among the interests of labour, management and the Canadian public. Second, para. (e) of the definition of “employee” in s. 2 of the PSSRA is not designed to protect a vulnerable group in Canadian society. While it is true that the public at large is vulnerable to the harmful effects of a police strike, the general public is not a vulnerable group in the sense understood in this Court’s s. 1 jurisprudence. Third, since the evidentiary record lends some support to the view that the remedy chosen by Parliament to secure a stable national police force may actually contribute to the very labour unrest sought to be avoided, it is inappropriate to defer to the legislature’s choice. A more rigorous examination of the issue of justification is called for. Finally, in light of the importance of employee associations within Canadian society, the social and moral value of the activity suppressed by para. (e) is very high and does not warrant a deferential approach in analyzing possible justifications for para. (e).

The exclusion of RCMP members from the entirety of the PSSRA does not impair the appellant’s freedom of association as little as reasonably possible in order to achieve the legislation’s objective. The current law is not carefully tailored to balance the Charter freedoms of RCMP members and the societal interest in effective policing. The same government policy could be achieved through a statutory approach that is not nearly as restrictive of basic Charter freedoms, by limiting the ability of RCMP members to bargain collectively. By sanctioning the freedom of RCMP members to form an association or union, Parliament would be following the example set by provincial legislatures across Canada and in many comparable foreign jurisdictions. Parliament would be acting in a manner that is consistent with Canada’s international commitment to protect freedom of association.

While it is unnecessary to consider the third component of the proportionality test, it is unlikely in any event that para. (e) would be found proportionate at this stage of the inquiry. The exclusion of RCMP members from the PSSRA’s basic associational protections has few, if any, demonstrable salutary effects which could not be achieved by a lesser exclusion. Its negative effects, on both a symbolic and a practical level, are severe and cut to the core of the Charter’s s. 2(d) protection.

The appropriate remedy in this case to bring an end to the interference sanctioned by para. (e) in relation to basic associational efforts by RCMP members would be to strike it down as being contrary to the Charter. In light of the importance of ensuring that members of the RCMP are not permitted to strike, the declaration of para. (e)’s invalidity should be suspended for one year, to allow amending legislation to be passed if Parliament sees fit to do so.

In light of the finding with respect to the appellant’s s. 2(d) claim, it is unnecessary to address ss. 2(b) and 15(1) of the Charter. Similarly, in light of the finding regarding the PSSRA, no comment is made as to the constitutional validity of s. 6 of the Canada Labour Code.

Cases Cited

By Bastarache J.

Applied: Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; PSAC v. Canada, 1987 89 (SCC), [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, 1987 90 (SCC), [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 72 (SCC), [1990] 2 S.C.R. 367; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203; referred to: Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688; Opetchesaht Indian Band v. Canada, 1997 344 (SCC), [1997] 2 S.C.R. 119; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493; Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, 1994 27 (SCC), [1994] 3 S.C.R. 627; Ramsden v. Peterborough (City), 1993 60 (SCC), [1993] 2 S.C.R. 1084.

By L’Heureux-Dubé J.

Referred to: Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995; Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313.

By Cory and Iacobucci JJ. (dissenting)

Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; PSAC v. Canada, 1987 89 (SCC), [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, 1987 90 (SCC), [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 72 (SCC), [1990] 2 S.C.R. 367; Atkins v. City of Charlotte, 296 F. Supp. 1068 (1969); Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211; McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229; Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R. 986; Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688; Delisle v. Royal Canadian Mounted Police Commissioner (1990), 39 F.T.R. 217; Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995; Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877; M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3; RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825; Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1 S.C.R. 369; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. of New York, 309 U.S. 261 (1940); Thomas v. Collins, 323 U.S. 516 (1945); Lontine v. VanCleave, 483 F.2d 966 (1973).

Statutes and Regulations Cited

Cal. Gov’t Code § 3508 (West 1995).

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 6 [formerly s. 109(4)], 8, 94 [am. 1998, c. 26, s. 42], 96.

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 15(1), 32(1).

Code of Conduct, SOR/88-361, Part III, ss. 39 [am. SOR/94-219, s. 15], 41.

Commissioner’s Standing Orders (Division Staff Relations Representative Program) [made pursuant to s. 21(2) of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10], s. 3(2).

Constitution Act, 1982, s. 52.

Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 17, Arts. 2, 3.

Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54.

International Convenant on Civil and Political Rights, 999 U.N.T.S. 171, Art. 22(2).

International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 8.

Mich. Stat. Ann. § 17.455(2) (Supp. 1999).

N.Y. Civil Service Law § 200 (Consol. 1995).

Parliamentary Employment and Staff Relations Act, R.S.C., 1985, c. 33 (2nd Supp.).

Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 2 “employee” (e), “employee organization”, 6, 8(1), (2), 9(1), 28, 35, 37, 41, 91.

Rules and Regulations for the Government and Guidance of the Royal Canadian Mounted Police Force of Canada, (1945) 79 Canada Gazette 1577, s. 31(a).

Tex. Loc. Gov’t Code Ann. §§ 143.303, 174.002 (West Supp. 1999).

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 23(4).

Va. Code Ann. § 40.1-57.2 (Michie 1994).

Authors Cited

Canada. Preparatory Committee on Collective Bargaining in the Public Service. Report. Ottawa: Queen’s Printer, July 1965.

Clark, Gerald. “What Happens When The Police Strike”, in Richard M. Ayres and Thomas L. Wheelan, eds., Collective Bargaining in the Public Sector: Selected Readings in Law Enforcement. Gaithersburg, Md.: International Association of Chiefs of Police, 1977, 401.

Conference on Security and Co-operation in Europe. Concluding Document of the Madrid Meeting, 1983, 22 I.L.M. 1398.

Corpus Juris Secundum, vol. 51. Brooklyn, N.Y.: American Law Book, 1967.

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991.

Fisher, E. G., and Starek, Henry. “Police Bargaining in Canada: Private Sector Bargaining, Compulsory Arbitration, and Mediation‑Arbitration in Vancouver” (1978), 2 Canadian Police College Journal 133.

Gibson, Dale. The Law of the Charter: General Principles. Toronto: Carswell, 1986.

Howard, George. Guardians of the Queen’s Peace. London: Odhams Press, 1953.

Royal Canadian Mounted Police. The Royal Canadian Mounted Police and Unionization, vol. I, part I, “An Historical Perspective on the R.C.M.P. and Protection of the National Interest: Responsibility Precluding Unionization”, research paper prepared by William Beahen, October 1987.

Weiler, Paul C. “The Charter at work: Reflections on the constitutionalizing of labour and employment law” (1990), 40 U.T.L.J. 117.

APPEAL from a judgment of the Quebec Court of Appeal, 1997 10323 (QC CA), [1997] R.J.Q. 386, 144 D.L.R. (4th) 301, [1997] Q.J. No. 189 (QL), affirming a judgment of the Superior Court, [1990] R.J.Q. 234. Appeal dismissed, Cory and Iacobucci JJ. dissenting.

James R. K. Duggan, for the appellant.

Claude Joyal, Raymond Piché, Michel Pépin, Winston Fogarty and Stéphane Perrault, for the respondent.

Andrew Raven and David Yazbeck, for the intervener the Public Service Alliance of Canada.

Julius H. Grey and Valérie Marcas, for the intervener the Canadian Police Association.

Howard Goldblatt and Vanessa Payne, for the intervener the Ontario Teachers’ Federation.

Steven Barrett and Vanessa Payne, for the intervener the Canadian Labour Congress.

The following are the reasons delivered by

L’Heureux-Dubé J.

1L’Heureux-Dubé J. -- I have had the advantage of reading the joint reasons of Justices Cory and Iacobucci, as well as those of Justice Bastarache. I agree with Bastarache J. that the appeal should be dismissed, and I am in general agreement with his reasons. In my opinion, given the manner in which the appellant has presented his claim, he has not shown that the exclusion of RCMP members from the legislative scheme of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“PSSRA”), violates his Charter rights by impeding or preventing the formation of an independent employee association.

2The appellant argued that because of the exclusion from the legislation, he is denied protection against unfair labour practices, and that the management of the RCMP is therefore permitted to design structures and rules, or carry out practices that interfere with the formation of independent employee associations. His counsel specifically stated that he was asking for no more than the right to access to the protections against employer interference contained within the PSSRA.

3I agree with Bastarache J. that because the Canadian Charter of Rights and Freedoms applies to RCMP management pursuant to s. 32 of the Charter, any actions, regulations or rules that, in purpose or effect, interfere with RCMP members’ ability to form an employee association would violate s. 2(d) of the Charter, and may be challenged under a constitutional claim. The protections contained in ss. 6, 8 and 9 of the PSSRA are therefore mirrored in the Charter’s guarantee of freedom of association, when the employer is part of government. In addition, because s. 2(d) guarantees the collective exercise of rights that are lawful for individuals, subject to s. 1 of the Charter, RCMP management cannot refuse to recognize the right of an employee to be represented by an employee association in lawful dealings with the employer. I would add that existing jurisprudence of labour boards on unfair labour practices may be of great assistance to a court in evaluating claims and determining the appropriate remedies when it is alleged, under s. 2(d), that government policies or practices interfere with the formation or maintenance of employee associations. Essential to resolving this appeal is the fact that the appellant already has the rights that he requests, through the guarantee of freedom of association in the Charter.

4As explained by Cory and Iacobucci JJ., actions to discourage or prevent employee associations within the RCMP have a long history. The passage of the Charter with its guarantee of freedom of association, however, means that such actions are no longer lawful. In my view, if challenges to practices, regulations, or structures such as the Division Staff Relations Representative Program are made and they are found to contravene s. 2(d), the arguments of Cory and Iacobucci JJ. in relation to s. 1 are convincing.

5With respect, I cannot agree with the conclusions of Cory and Iacobucci JJ. in relation to legislative purpose. The evidence presented has not shown, in my view, that RCMP members were excluded from the PSSRA for reasons other than that it was felt that this particular regime, which included collective bargaining rights and a particular method for adjudication of grievances and other complaints through the Public Service Staff Relations Board, would be inappropriate for RCMP members. The Report of the Preparatory Committee on Collective Bargaining in the Public Service (1965), in the paragraph before it discusses the reasons for excluding RCMP members from the legislation, states as follows (at p. 27):

The Preparatory Committee believes that steps should be taken to ensure that, with certain specified exceptions, all employees of the Federal Government (defined in the broadest possible terms) have access to a system of collective bargaining. . . . [Emphasis added.]

The report then discusses the reasons for the exclusion of RCMP members from the regime, noting the special nature of their duties. Similarly, the recommendation of the Preparatory Committee in relation to coverage is as follows (at p. 27):

The Preparatory Committee recommends that, with the following exceptions, the Public Service system of collective bargaining and arbitration be made to apply to all elements of the Public Service. . . . [Emphasis added.]

It then lists RCMP members among the exceptions. In my view, therefore, the report does not show that the object of the exclusion was to impede the formation of independent employee associations, but suggests that the exclusion stemmed from a desire not to grant RCMP members all of the rights contemplated by the legislation and access to the particular remedies contained within it. Nor can I find, in this case, that the effect of the exclusion is to violate freedom of association or expression by encouraging unfair labour practices by government actors, because such practices are prohibited through the guarantee of freedom of association in the Charter.

6I agree with the discussion in the reasons of Cory and Iacobucci JJ. of the importance of freedom of association, and of the inherent vulnerability of workers in the face of management. The unique context of labour relations must always be considered in constitutional claims in this area, and the right to freedom of association must take into account the nature and importance of labour associations as institutions that work for the betterment of working conditions and the protection of the dignity and collective interests of workers in a fundamental aspect of their lives: employment. The contextual approach to Charter analysis must also take into account the history of the need for government intervention to make effective the rights of workers to associate together. I agree with my colleagues that both intrinsic and extrinsic sources are admissible and significant in determining legislative purpose and effects, and with their comments on the fact that an invalid purpose is sufficient to find a violation of a Charter right.

7I recognize that in cases where the employer does not form part of government, there exists no Charter protection against employer interference. In such a case, it might be demonstrated that the selective exclusion of a group of workers from statutory unfair labour practice protections has the purpose or effect of encouraging private employers to interfere with employee associations. It may also be that there is a positive obligation on the part of governments to provide legislative protection against unfair labour practices or some form of official recognition under labour legislation, because of the inherent vulnerability of employees to pressure from management, and the private power of employers, when left unchecked, to interfere with the formation and administration of unions. The majority of this Court held as follows in Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, at p. 1039:

The distinctions between “freedoms” and “rights”, and between positive and negative entitlements, are not always clearly made, nor are they always helpful. One must not depart from the context of the purposive approach articulated by this Court in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295. Under this approach, 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. This might, for example, take the form of legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information.

See also Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313, at pp. 361-62, per Dickson C.J., dissenting. This case was not argued in a manner that alleged any positive entitlements, and I do not believe that positive government action to include workers in a particular scheme is required when the Constitution itself prohibits the activities that the claimant alleges interfere with his freedom of association and expression.

8Finally, I agree that there is no violation of equality rights because a conflict with the purposes of s. 15(1) of the Charter has not been demonstrated. It has not been shown that, viewed in context, this legislative distinction suggests that RCMP members are less worthy, valuable, or deserving of consideration than other public servants. In my opinion, because RCMP members do not generally suffer from disadvantage or stereotyping, and it has not been shown that the effect of the distinction is to devalue or marginalize them within Canadian society, no discrimination has been shown. A reasonable person in the position of the claimant would not find his or her human dignity violated by the exclusion from the PSSRA. However, occupation and working life are often important sources of personal identity, and there are various groups of employees made up of people who are generally disadvantaged and vulnerable. Particular types of employment status, therefore, may lead to discrimination in other cases, and should be recognized as analogous grounds when it has been shown that to do so would promote the purposes of s. 15(1) of preventing discrimination and stereotyping and ameliorating the position of those who suffer social and political disadvantage and prejudice.

9In the result, I would dismiss the appeal without costs, and answer the constitutional questions as proposed by Bastarache J.

English version of the judgment of Gonthier, McLachlin, Major and Bastarache JJ. delivered by

Bastarache J.

10Bastarache J. -- I have had the benefit of reading the joint reasons of Cory and Iacobucci JJ. I accept their description of the facts and account of the judicial history. Like them, I believe that s. 2(d) of the Canadian Charter of Rights and Freedoms protects RCMP members against any interference by management in the establishment of an employee association. However, this right exists independently of any legislative framework. Respect for freedom of association does not require that the appellant be included in either the regime of the Public Service Staff Relations Act, R.S.C., 1985, c. P‑35 (“PSSRA”), or any other regime, as s. 2(d) of the Charter protects the appellant directly against such interference. Accordingly, I am of the view that the appeal must be dismissed.

11The outcome of the case at bar has largely been determined by the previous decisions of this Court which have defined the concept of freedom of association, guaranteed in s. 2(d) of the Charter. The three cases of the 1987 trilogy — Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313, PSAC v. Canada, 1987 89 (SCC), [1987] 1 S.C.R. 424, and RWDSU v. Saskatchewan, 1987 90 (SCC), [1987] 1 S.C.R. 460 — are especially determinative of this issue as they explore the concept in the labour relations context. In a recent decision, Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157, this Court had the opportunity to confirm its position. In that case, the majority of the Court cited with approval at para. 112 the following excerpt from the reasons of Sopinka J., which was taken from Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 72 (SCC), [1990] 2 S.C.R. 367, at p. 402:

. . . first, that s. 2(d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of individuals.

12The appellant’s main argument is that para. (e) of the definition of “employee” in s. 2 of the PSSRA, which excludes members of the Royal Canadian Mounted Police (the “RCMP”) from the regime created by the Act, infringes his freedom of association. As we have just seen, considering that only the establishment of an independent employee association and the exercise in association of the lawful rights of its members are protected under s. 2(d) of the Charter, it must be determined in the instant case whether the exclusion of RCMP members from the PSSRA regime breaches certain specific aspects of freedom of association.

I. Does the Exclusion of RCMP Members from the Statutory Regime of the PSSRA Contravene s. 2(d) of the Charter?

13The appellant made reference to the purpose of the Act at para. 100 of his factum, where he stated that the purpose of the PSSRA is to prevent the establishment of a union for the RCMP. He did not address this issue in his oral argument. In my view, there is no doubt that he did not discharge his burden of proving the unconstitutionality of the purpose of the Act, if that is his contention. As we will see later, the appellant chose instead to attempt to establish the unconstitutionality of the Act in its effects.

14Inspired, no doubt, by the dichotomy which is typical of human rights case law, this Court made a distinction in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, between unconstitutionality which is the direct result of the purpose of the legislation and that which is the indirect result of the effects of the legislation. In most cases, a direct violation is obvious. There are certain cases, however, when the true purpose of the legislation may be determined only after a detailed examination of much intrinsic and extrinsic evidence. In Big M Drug Mart, Dickson J. proposed an analysis of the purpose of the legislation, to be followed by an analysis of its effects only if the Court found the purpose of the statute valid. Wilson J. recommended the opposite approach in order to lessen the burden on the plaintiff and to place the emphasis on the effects of the legislation, which is appropriate in Charter cases. In any event, the difference between the two approaches does not seem to have had much impact, as Professor Dale Gibson indicates in The Law of the Charter: General Principles (1986), at p. 55. The important thing is to verify all aspects of the government action to ensure total compliance with the Charter.

15In the instant case, Cory and Iacobucci JJ. have found para. (e) of the definition of “employee” in s. 2 of the PSSRA to be invalid in its purpose. I will consider their arguments, and then speak to the appellant’s submissions with respect to the issue of effects. Just before turning to the purpose of the exclusion, I would like to point out that there is an important relationship between the purpose and the effects of a statute. On this issue, Dickson J. said in Big M Drug Mart at p. 331:

Purpose and effect respectively, in the sense of the legislation’s object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation’s object and thus, its validity.

Later, at p. 333, he added:

In any event, I would find it difficult to conceive of legislation with an unconstitutional purpose, where the effects would not also be unconstitutional.

16The relationship typical of the purpose and effects of legislation is also the subject of the following passage from The Interpretation of Legislation in Canada (2nd ed. 1991) by Professor P.‑A. Côté, at p. 314:

The distinction between intention as meaning and intention as goal is fundamental. The concepts are not the same, although they nevertheless interact. The meaning of the words will, in large part, aid in determining the aim of the legislation. On the other hand, the aim of the legislation, as an element of its context, will help define the meaning of its words.

In other words, the intention as goal defines the meaning of the words and identifies the intention as meaning, which in turn determines the purpose of the legislation. In the instant case, the interpretation of the impugned statutory enactment is not at issue because it could not be any clearer and its meaning has not been challenged. Section 2 simply excludes RCMP members from the PSSRA regime. The meaning of the provision will accordingly be of much assistance in determining the purpose of the legislation, just as it is in determining its effects.

A. Purpose of the Exclusion

17What then are the factors, apart from the wording itself of the legislation, which may be relevant for discovering the purpose of s. 2 of the PSSRA? Although extrinsic sources may be used to interpret legislation and to determine its true meaning, when the meaning of the challenged provision is clear, they are of little assistance in determining the purpose of a statute in order to evaluate whether it is consistent with the Charter. Generally, the Court must not strike down an enactment which does not infringe the Charter in its meaning, form or effects, which would force Parliament to re-enact the same text, but with an extrinsic demonstration of a valid purpose. That would be an absurd scenario because it would ascribe a direct statutory effect to simple statements, internal reports and other external sources which, while they are useful when a judge must determine the meaning of an obscure provision, are not sufficient to strike down a statutory enactment which is otherwise consistent with the Charter. Legislative intent must have an institutional quality, as it is impossible to know what each member of Parliament was thinking. It must reflect what was known to the members at the time of the vote. It must also have regard to the fact that the members were called upon to vote on a specific wording, for which an institutional explanation was provided. The wording and justification thereof are important precisely because members have a duty to understand the meaning of the statute on which they are voting. This is more important than speculation on the subjective intention of those who proposed the enactment.

18In Big M Drug Mart, supra, one of the only decisions to date in which this Court has declared the purpose of a statute invalid, the purpose of the legislation at issue, namely the Lord’s Day Act, undeniably violated the respondent’s freedom of religion (see also Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, and R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697); not only was this clear from the title and very wording of the Act, but no other purpose consistent with the Charter was probable in that case because of the limits to the jurisdiction of the federal Parliament.

19Accordingly, absent ambiguity in the meaning of a provision, it is primarily the statute as a whole which indicates its purpose. This does not mean that the general context should be ignored, but rather that the context is legislative above all else. Section 2 must be read in light of the other provisions of the Act and of the statutory regime for which it constitutes the framework. (See R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, at para. 25, and Opetchesaht Indian Band v. Canada, 1997 344 (SCC), [1997] 2 S.C.R. 119, at paras. 73 and 80.)

20Knowing that the legislative context shows that the purpose of the statute is to govern labour relations in the public sector under a regime of collective bargaining and trade union representation of workers, and having regard to the various applicable presumptions of legality, including the presumption of validity (Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038), I cannot find that the purpose of the statute infringes s. 2(d). In the case at bar, the evidence that suggests that the purpose of para. (e) of the definition of “employee” in s. 2 of the PSSRA violates the appellant’s freedom of association is not very compelling. Cory and Iacobucci JJ. draw our attention to the Report of the Preparatory Committee, the social and historical context, the expert reports and the Crown’s own submissions in this appeal. That, in my view, confuses possible ultimate or strategic motives of some government players with the purpose of the statute. At best these sources show the fear Parliament felt about the divided loyalty that the existence of an RCMP members’ union association might create. That in no way suggests that the purpose of the statute at issue was to prevent RCMP members from forming any type of independent association, but merely that Parliament did not want the appellant to be entitled to the benefits of the PSSRA, or to be governed by a statute it considered inappropriate to the appellant’s situation. The very definition of “employee organization” (“organisation syndicale”) in the statute limits the scope of the phrase to an organization of employees “for the purposes of this Act”. I note here that the French version of the Act is much clearer than the English version. In my view, it is artificial to extend the scope of the Act beyond the regime it establishes to subsequently find its purpose unconstitutional based on that extension. The purpose of the legislation must be related to what was in fact enacted by Parliament.

21One of the sources adduced to call into question the purpose of the statute clearly relates to Parliament: Orders‑in‑Council P.C. 1918-2213 and P.C. 174/1981. I do not dispute that these Orders‑in‑Council might, at least a priori, have had the purpose and effect of interfering with the formation of an RCMP member association. Nor do I dispute that legislative sources may be used to establish the purpose of another statute, particularly if they contain definitions that might clarify the true meaning of the impugned statute. When the meaning of the impugned provision is clear, however, I believe that the appropriate solution would be to challenge these extrinsic sources themselves, rather than a separate statute to which they appear to be related. The issue does not arise in the case at bar, since the Orders‑in‑Council were revoked in 1974.

22On the face of the text of the PSSRA itself, and particularly s. 2, I find nothing to suggest that the purpose of the statute is inconsistent with its effects. In my view, the purpose of the exclusion of RCMP members is simply to not grant them any status under the PSSRA — trade union representation and all it entails — which does not violate the appellant’s freedom of association. Cory and Iacobucci JJ. are of the view that the PSSRA applies to the creation not only of certified employee organizations, but also of uncertified employee organizations with special protection against anti‑union activities (ss. 6, 8 and 9). They apparently find that the appellant is entitled, under the Charter, to a minimum status equivalent to an uncertified employee organization, because that would be necessary in order to guarantee him the minimum protection of ss. 6, 8 and 9 of the PSSRA, which are analogous to the freedoms implicit in s. 2(d) of the Charter. In my view, certification is not the solution to the problem. We have here a statutory regime providing for one or more types of organization defined by the Act, upon which recognition depends. An employee organization, in the Act, is governed by the regime created by the Act: see particularly ss. 6, 28, 35, 37, 41 and 91. The Act prohibits only these specific organizations — organizations created “for the purposes of this Act” — in which the appellant cannot claim a membership right under s. 2(d) of the Charter. This does not mean that an association that does not come under the PSSRA cannot exist or enjoy analogous protection to that provided under ss. 6, 8 and 9 of the PSSRA directly under s. 2(d) of the Charter.

23In short, I believe that the distinction my colleagues draw regarding the types of employee organization contemplated by the PSSRA has no bearing on the issue in this case. It is not because the PSSRA prohibits uncertified employee organizations that it would, by extension, prohibit any RCMP member organization not formed under the Act. Paragraph (e) of the definition of “employee” in s. 2 of the PSSRA cannot prohibit more than that to which it applies, namely employee organizations formed under the Act. We could at most find that para. (e) is invalid only insofar as it infringes the right to form an employee association which was not established for the purposes of the Act. But this suggestion exposes precisely the inconsistency in the proposition. In my view, the conclusion of my colleagues and the compensatory remedy they propose is the equivalent of recognizing a right to positive action to give effect to freedom of association through legislation. The basis of such a right must necessarily follow from the right to union representation. I am of the view that this would be to enter the complex and political field of socio-economic rights and unjustifiably encroach upon the prerogative of Parliament. Therefore, I find that para. (e) of the definition of “employee” in s. 2 of the PSSRA does not infringe s. 2(d) of the Charter in its purpose.

B. Effects of the Exclusion

24The appellant’s position is that in the absence of any other applicable trade union regime, the express exclusion of RCMP members from the PSSRA regime encourages unfair labour practices and interferes with the creation of an independent employee association for RCMP members. In my view, neither the lack of rights under the PSSRA regime, nor the failure to provide RCMP members with a statutory or other associative regime can be confused with an infringement of their freedom of association.

25The structure of s. 2 of the Charter is very different from that of s. 15 and it is important not to confuse them. While s. 2 defines the specific fundamental freedoms Canadians enjoy, s. 15 provides they are equal before and under the law and have the right to equal protection and equal benefit of the law. The only reason why s. 15 may from time to time be invoked when a statute is underinclusive, that is, when it does not offer the same protection or the same benefits to a person on the basis of an enumerated or analogous ground (on this issue, see Schachter v. Canada, 1992 74 (SCC), [1992] 2 S.C.R. 679), is because this is contemplated in the wording itself of s. 15. The distinguishing feature of s. 15 is that the Charter may require the government to extend the special status, benefit or protection it afforded to the members of one group to another group if the exclusion is discriminatory and is based on an enumerated or analogous ground of discrimination. Thus, as Cory J. stated in Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, at para. 107, the exclusion of homosexuality from the list of prohibited grounds of discrimination set out in the Alberta Individual’s Rights Protection Act violates s. 15 of the Charter because:

The IRPA in its underinclusive state creates a distinction which results in the denial of the equal benefit and protection of the law on the basis of sexual orientation, a personal characteristic which has been found to be analogous to the grounds enumerated in s. 15. This, in itself, would be sufficient to conclude that discrimination is present and therefore there is a violation of s. 15. The serious discriminatory effects of the exclusion of sexual orientation from the Act reinforce this conclusion.

However, while the letter and spirit of the right to equality sometimes dictate a requirement of inclusion in a statutory regime, the same cannot be said of the individual freedoms set out in s. 2, which generally requires only that the state not interfere and does not call upon any comparative standard. In this case, the state has not restricted the appellant’s freedom of association by creating a statutory regime which does not apply to him. The fact that Mr. Delisle cannot invoke the protection of the PSSRA has no impact on his freedom of association under the Charter.

26In Big M Drug Mart, supra, this Court discussed the fundamental freedoms entrenched in s. 2 of the Charter in the context of freedom of religion. In that case, Dickson J. defined the term “freedom” as follows, at pp. 336-37:

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. [Emphasis added.]

It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance.

27With respect to freedom of expression, this principle was articulated by this Court in Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, at p. 1035:

The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones.

The majority later qualified its remarks by stating, at p. 1039:

Under this approach, 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. [Emphasis added.]

The general approach was subsequently confirmed in Native Women’s Assn. of Canada v. Canada, 1994 27 (SCC), [1994] 3 S.C.R. 627, in which this Court held that the government’s decision not to provide financial assistance or extend an invitation to the association involved so that it could express its opinion during discussions on Aboriginal self-determination did not violate s. 2(b) of the Charter. This means then 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.

28In the labour relations context, this Court has previously indicated whether the state has a duty to officially recognize employee associations. In Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), supra, at p. 384, Cory J., dissenting, made an assertion similar to the one the appellant is making here, namely that:

Once a government has enacted a statutory definition of a group, as a legal entity, then any individual should be able to attempt to get his or her group recognized as such an entity, or to change the existing group entitled to exercise the rights granted under that legislative scheme. Arbitrary or totally discretionary restrictions placed upon the employees’ right to choose their association must prima facie violate the freedom of association.

Although five separate sets of reasons were given in that case, the majority clearly rejected this proposition. Dickson C.J. stated at p. 374:

Reluctantly, I find that I am unable to agree with Cory J.’s assertion that once a legislature has chosen to establish a public sector collective bargaining scheme it may not place arbitrary restrictions upon the choice of association with which it will engage in collective bargaining.

L’Heureux‑Dubé J. added, at p. 394:

While s. 42(1)(b) of the Act may affect the ability of an association to gain recognition and therefore to bargain on behalf of employees, it does not fetter the activity recognized and protected by the Charter, the associational activity of one person with another.

Writing for himself and La Forest J., Sopinka J. concluded at pp. 405 and 407-8:

Putting the incorporation point aside for the moment, it is plain that the statutory monopoly created by s. 42(1)(b) has no effect on the existence of the Institute or the ability of any individual to be a member of the Institute. . . .

The respondent Commissioner . . . argues that nothing in the impugned section affects the existence, membership or maintenance of any association.

Upon considering the words of the impugned section, I find myself in agreement with the respondent. I observe that s. 42(1)(b) does not prohibit the establishment of or membership in other unions, and it does not prevent any such union from seeking incorporation under the Act. [Emphasis in original.]

It is accordingly settled that the exclusion of a group of workers from a specific statutory regime does not preclude the establishment of a parallel, independent employee association, and thus does not violate s. 2(d) of the Charter. Neither is there any violation of s. 2(d) merely because one group of workers is included in the regime while another is not.

29I find this conclusion very sensible. To accept the appellant’s assertion to the contrary would be to prohibit, based on an “all or nothing” policy, any government action intended to promote fundamental freedoms, as it suggests that Parliament should promote all forms of expression and all associations equally or else it will repress some of them and, therefore, violate s. 2 of the Charter. Thus, according to this line of reasoning, the state could not financially support the theatre because that would violate the freedom of expression of musicians; it could not help charitable organizations without violating the freedom of association of chess clubs. In short, under no circumstances could the state protect or assist a particular association or form of expression in any way, unless it helped them all equally. That is why it is clear that this type of reasoning should be limited to the class of subjects under s. 15 and confined to the enumerated and analogous grounds of discrimination. As long as Parliament’s decision is consistent with the other provisions of the Charter, it must be open to the government to determine which associations or forms of expression are entitled to special support or protection. In the labour relations context, the government must be able to choose the employee organizations with which it will negotiate.

30The appellant argues that the specific and exclusive exclusion of RCMP members from any statutory regime has an important chill on freedom of association because it clearly indicates to its members that unlike all other employees, they cannot unionize, and what is more, that they must not get together to defend their interests with respect to labour relations. Even if this were true, it should first be noted that the greater protection offered by trade union representation is completely separate from the simple creation of an independent association; second, one must admit that the exclusion of RCMP members is hardly exclusive. Numerous other groups such as the armed forces, senior executives in the public service, and indeed judges are in a similar situation. The chill is therefore greatly reduced, if it exists at all.

31Moreover, it 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, including Quebec, where “C” Division was created by Mr. Delisle himself. If there is intimidation with respect to the establishment of a non-union association, it is not a result of the Act. It is also curious that the appellant would complain of interference with his efforts to create a non-union association when his association has in fact attempted to obtain union certification and brought legal proceedings because it failed to obtain certification.

32Last, it certainly cannot be claimed in the case at bar that the exclusion under para. (e) of the definition of “employee” in s. 2 of the PSSRA leaves RCMP members without any protection against the employer’s attempts to interfere with the establishment of an independent employee association. If RCMP management has used unfair labour practices with the object of interfering with the creation of “C” Division, 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.

33On the whole, the fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue in the instant case. In accordance with the decision of the majority of this Court in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), supra, there is no violation of s. 2(d) of the Charter when certain groups of workers are excluded from a specific trade union regime. The ability to form an independent association and to carry on the protected activities described below, the only items protected by the Charter, exists independently of any statutory regime. Freedom of association does not include the right to establish a particular type of association defined in a particular statute; this kind of recognition would unduly limit the ability of Parliament or a provincial legislature to regulate labour relations in the public service and would subject employers, without their consent, to greater obligations toward the association than toward their employees individually. I share the opinion expressed by McIntyre J. in Reference re Public Service Employee Relations Act (Alta.), supra, at p. 415, when he states that labour relations is an area in which a deferential approach is required in order to leave Parliament enough flexibility to act. The effects of para. (e) of the definition of “employee” in s. 2 of the PSSRA do not infringe the appellant’s freedom of association.

II. Content of the Protection that Section 2(d) Provides an Employee Association

34The appellant points to the existence of a large number of internal RCMP rules that might violate freedom of association, including s. 3(2) of the Commissioner’s Standing Orders (Division Staff Relations Representative Program), ss. 39(1) and 39(2) of the Code of Conduct, SOR/88-361, Part III, and certain acts of the Commissioner cited in evidence. It is important to note, however, that although these government acts and these rules of law are undeniably subject to constitutional review given the RCMP’s status as an agent of the Crown, the appellant has not challenged them directly. Therefore, this Court is not required to consider their constitutionality. As I said before, the appellant or any other person with standing may directly challenge these practices by relying on s. 2(d).

35In my opinion, the answer to the problem posed by the acts and rules in question does not lie in striking down para. (e) of the definition of “employee” in s. 2 of the PSSRA. This provision has nothing to do with the Orders‑in‑Council and the Code of Conduct. The validity of the acts and rules in question must be analysed independently, in light of the previous decisions of this Court regarding the scope of s. 2(d) of the Charter. For ease of reference, here again is the concept of freedom of association the majority of this Court accepted in Canadian Egg Marketing Agency v. Richardson, supra, at para. 112:

. . . first, that s. 2(d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of individuals.

36With this definition as a starting point, and knowing that s. 2 of the Charter generally imposes no positive obligations on the government, it is clear that all of the acts or rules of law that prohibit the formation or maintenance of an independent employee association, or that impose sanctions on those who wish to create such an organization or participate in its lawful activities, infringe the Charter unless they are justified under s. 1. In other words, subject to s. 1, RCMP management cannot prohibit activities in association that RCMP members may carry on individually; see Canadian Egg Marketing Agency v. Richardson, supra, at para. 113. Nothing requires the RCMP to set up mechanisms for negotiating working conditions or grievance arbitration; it can very well set all working conditions for its members without violating s. 2(d). All freedom of association implies is that the existing mechanisms are as open to independent employee associations as to individual RCMP members, absent a trade union representation regime for the RCMP, of course. This does not require the RCMP to grant official recognition to these independent employee associations.

37Since this Court’s decision in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), supra, it is clear that under the trade union certification system, the government may limit access to mechanisms that facilitate labour relations to one employee organization in particular, and impose certain technical rules on that organization. It goes without saying that it must, however, be a genuine employee association that management does not control. Otherwise, there would be a violation of s. 2(d). This said, I repeat that there is no general obligation for the government to provide a particular legislative framework for its employees to exercise their collective rights. However, they may freely set up an independent employee association which is protected against employer interference in its business by s. 2(d) of the Charter and which may carry on any lawful activity that its members may carry on individually, including representing their interests.

III. Freedom of Expression and the Right to Equality

38The appellant and certain interveners in particular argue that the exclusion of RCMP members from the PSSRA violates the members’ freedom of expression and right to equality. The reasoning that applies to the issue of freedom of association also applies here. As I said before, except in exceptional circumstances, freedom of expression imposes only an obligation that Parliament not interfere (see in this regard Native Women’s Assn. of Canada v. Canada, supra), and the exclusion of RCMP members therefore cannot violate it.

39The appellant argues, however, that the main purpose of forming a recognized association is to convey a collective message that is distinct from that of its members. At para. 118 of his factum, he states:

The whole purpose of forming a union is to send the following message to the employer:

“We have joined together in our own union. We are expressing our collective solidarity. We will be heard.”

Therefore, in his opinion, this is one of those exceptional cases where the government has a positive obligation to act in order to give true meaning to freedom of expression. I am of the view that such a message of solidarity is not a distinct message from that which might come from an association that is not recognized under the PSSRA.

40In the current situation, the message of solidarity is the same whether it is expressed by an association the employer does not recognize or by an employee organization. Only the effectiveness of the message differs from one situation to the other. The medium used to convey the message must not be confused with the message itself. Although s. 2(b) may be violated when Parliament restricts access to a medium, it does not require Parliament to make that medium available (or, as I said before, to ensure equal use for all, subject to the requirements of s. 15). A similar issue arose in Ramsden v. Peterborough (City), 1993 60 (SCC), [1993] 2 S.C.R. 1084, where this Court held that entirely prohibiting postering on utility poles violated s. 2(b), but that freedom of expression did not require the government to install notice boards to promote postering.

41The message of solidarity the appellant wishes to express exists independently of any official form of recognition. Even if the exclusion of RCMP members by the PSSRA diminished the effectiveness of the conveyance of this message, this would not violate s. 2(b).

42The appellant also argues that his exclusion from the PSSRA is discriminatory and deprives him of a benefit of the law. This Court was recently asked to examine s. 15 of the Charter in detail in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497. The approach adopted by the Court need not be explained again. In the case at bar, it is clear that the effect of the statute is to impose differential treatment on the appellant, depriving him and other RCMP members of a benefit available to most other public service employees.

43However, it must be established whether this distinction is based on one or more grounds enumerated in s. 15 or analogous thereto, and ultimately the issue of whether the distinction in question is discriminatory must be considered. Since no enumerated ground was argued, I believe I should repeat what my colleague McLachlin J. and I said in Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, at para. 13:

What . . . are the criteria by which we identify a ground of distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 -- race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit‑based decision making.

44In this case the appellant has not established that the professional status or employment of RCMP members are analogous grounds. It is not a matter of functionally immutable characteristics in a context of labour market flexibility. A distinction based on employment does not identify, here, “a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality” (Corbiere, at para. 8), in view in particular of the status of police officers in society.

45Moreover, the exclusion of RCMP members from the PSSRA is not discriminatory. This is confirmed simply by referring to para. 88 of Law regarding the discriminatory nature of a distinction:

In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant.

According to the evidence, police officers in general and RCMP members in particular enjoy an excellent reputation in Canadian society. As the respondent points out, their exclusion from the trade union regime in no way affects their dignity or suggests that they deserve less respect than anyone else. I am of the view that a reasonable person in the appellant’s position would conclude that it is because RCMP members perform a crucial function in maintaining order during conflicts that may arise in society that Parliament set them apart from other public service employees. Whether this view is correct or not, it does not adversely affect the appellant’s dignity and is not based on a characteristic attributed stereotypically to police officers as a group.

46The appellant has therefore not discharged his burden of showing that the distinction created by para. (e) of the definition of “employee” in s. 2 of the PSSRA is discriminatory within the meaning of s. 15 of the Charter.

IV. Disposition

47In view of all of the foregoing, I would dismiss the appeal without costs and answer the constitutional questions as follows:

(1) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe or deny the appellant’s freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms?

No.

(2) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe or deny the appellant’s freedom of association guaranteed in s. 2(d) of the Canadian Charter of Rights and Freedoms?

No.

(3) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe upon the appellant’s equality rights guaranteed in s. 15(1) of the Canadian Charter of Rights and Freedoms?

No.

(4) If the answer to questions 1, 2, or 3 is in the affirmative, can s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act be justified under s. 1 of the Canadian Charter of Rights and Freedoms?

Not applicable.

The following are the reasons delivered by

Cory and Iacobucci JJ.

48Cory and Iacobucci JJ. (dissenting) -- This appeal is about the basic freedom of employees to associate informally together in pursuit of their mutual interests. The appellant, Gaétan Delisle, is a member of the Royal Canadian Mounted Police (“RCMP”). The central issue raised by his appeal is whether the legislation he challenges has the purpose or effect of interfering with his constitutionally protected freedom to participate in a labour association of RCMP members. If the answer to this question is yes, it must then be determined whether the infringement may be saved under s. 1 of the Canadian Charter of Rights and Freedoms.

I. Factual Background

49In 1985, RCMP members in Quebec formed the Association des membres de la Division “C” (now the Association des membres de la police montée du Québec). It was an informal association created with the aim of representing the job-related interests of members. In 1987, the appellant, who was president of the Association des membres de la Division “C”, brought a motion personally before the Superior Court of Quebec, requesting that para. (e) of the definition of “employee” in s. 2 of the Public Service Staff Relations Act, R.S.C., 1985, c. P-35 (“PSSRA”), and s. 6 of the Canada Labour Code, R.S.C., 1985, c. L-2, be declared of no force or effect as violating ss. 2(d), 2(b), and 15(1) of the Charter. Paragraph (e) expressly excludes RCMP members from the application of the PSSRA. Section 6 of the Canada Labour Code provides that Part I of the Code does not apply to employees of Her Majesty in right of Canada. His motion was dismissed by Michaud J. on November 28, 1989, and a subsequent appeal to the Court of Appeal for Quebec was dismissed on January 29, 1997. Baudouin J.A. dissented on the freedom of association issue.

50The appellant has appealed to this Court. His purpose-based freedom of association argument regarding the PSSRA is straightforward. He states that the purpose of the exclusion of RCMP members from the PSSRA was to reinforce the federal government’s long‑standing policy of preventing or impeding the formation of RCMP member associations. In his words, “the purpose of the impugned provisions is to prevent formation of a union . . . and therein lies their basic inconsistency with the Charter guarantee of freedom of association”.

II. Summary of Findings

51It is important to emphasize at the outset that this appeal relates directly to the core of the Charter’s freedom of association guarantee. Although previous decisions of this Court have concluded that certain restrictions upon collective bargaining and strike activity do not infringe the Charter’s freedom of association guarantee, this appeal is not concerned with the right to strike or to bargain collectively. The appellant does not argue that he has a constitutional entitlement to participate in a certified trade union under the PSSRA with the right to engage in collective bargaining. His submissions are focussed upon the purpose and effect of the legislation in relation to basic associational activities by RCMP members. Although the respondent and several of the interveners sought to characterize the issue in this appeal as relating more broadly to collective bargaining, we do not consider it necessary or appropriate to go beyond the scope of the appellant’s narrow claim. We are concerned here with the issue of whether the purpose or effect of the legislation is to interfere with the basic freedom of employees to associate informally in pursuance of their mutual interests as employees. It is clear in light of the jurisprudence of this Court that s. 2(d) of the Charter does protect this freedom.

52Our analysis herein will begin with a summary of the extensive and uncontested jurisprudential and legislative foundation for the freedom of employees to form and participate in informal associations. Next, we examine in detail Parliament’s purpose in excluding members of the RCMP from the application of the PSSRA. In our view, the appellant’s purpose-based freedom of association claim is well founded. In light of the history of the RCMP and the social and legislative context surrounding the enactment of para. (e) of the definition of “employee” in s. 2 of the PSSRA, we find that para. (e) has the improper purpose of seeking to maintain the inability of RCMP members to associate into labour associations, aside altogether from any negative effects that the provision may have upon such associations. We conclude that the impugned provision is not saved under s. 1.

53In light of our finding with respect to the appellant’s s. 2(d) claim, it is not necessary to address the question of whether the impugned legislation has impermissible effects, or the appellant’s claims under ss. 2(b) or 15(1) of the Charter. Similarly, in light of our finding regarding the PSSRA, we make no comment as to the constitutional validity of s. 6 of the Canada Labour Code.

III. Relevant Constitutional and Statutory Provisions

54 Canadian Charter of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(d) freedom of association.

Public Service Staff Relations Act, R.S.C., 1985, c. P‑35

2. In this Act,

“employee” means a person employed in the Public Service, other than

(e) 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 a member thereof. . .

IV. Judicial History

A. Superior Court of Quebec, [1990] R.J.Q. 234

55 Michaud J. found that, notwithstanding various disadvantages and unfairness experienced by members of the RCMP as a result of their exclusion from a statutory labour relations regime, the exclusion does not infringe their freedom of association under s. 2(d). Relying upon the 1987 trilogy of Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313 (the “Alberta Reference”), PSAC v. Canada, 1987 89 (SCC), [1987] 1 S.C.R. 424, and RWDSU v. Saskatchewan, 1987 90 (SCC), [1987] 1 S.C.R. 460, Michaud J. held that s. 2(d) guarantees neither the right to bargain collectively nor the right to strike. Michaud J. noted that the denial of constitutional protection to collective bargaining did not imply that members of the RCMP have no right to associate, stating that they do have the right to associate for lawful purposes. Michaud J. also dismissed the ss. 2(b) and 15(1) claims.

56 Having found no Charter infringement, Michaud J. did not rule on the issue of justification under s. 1. However, extensive expert and other social science evidence had been adduced by the parties, particularly regarding police unionization, and he stated that it would be useful for appellate courts to be provided with a summary of the s. 1 evidence. Michaud J. first reviewed five rationales put forward by the Attorney General of Canada in favour of preventing members of the RCMP from forming a union with the ability to engage in work slowdowns and strikes. He stated that, although the problems associated with the anticipated pressure tactics by an association of RCMP members were serious, it was not clear to him whether it was more or less likely that members of the RCMP would engage in a strike or work slowdown if they became members of a certified union. He suggested that unionization and effective collective bargaining might in fact reduce the risk of such drastic tactics, precisely because members would be provided with an effective vehicle for employee communication with management. Michaud J. went on to survey the formation of police unions in Canada and four comparable countries. He found that, in Canada, almost all police forces are unionized and have access to collective bargaining, and although some police forces have engaged in pressure tactics, others have not, despite having been associated into certified unions for many years. He noted that most police forces do not have the right to strike but do have access to compulsory arbitration of disputes.

B. Quebec Court of Appeal (1997), 1997 10323 (QC CA), 144 D.L.R. (4th) 301

(1) Fish J.A., Forget J.A., concurring

57 Fish J.A. characterized the issue before the court as being whether or not the Charter protects the right to union certification and its effects, including the right

to bargain collectively. He stated that the decision of this Court in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 72 (SCC), [1990] 2 S.C.R. 367 (“PIPSC”), determined that the right to bargain collectively was not protected by s. 2(d). Fish J.A. referred to the plurality reasons of Sopinka J. in PIPSC, where it was stated that, because restrictions on collective bargaining do not usually affect the capacity of individuals to create or join a union, such restrictions do not constitute infringements of s. 2(d), unless they interfere with the creation or joining of a union. Fish J.A. considered that, in the appellant’s case, the impugned legislation did not interfere with the creation of an association of employees, but rather only denied to an employee association the right to have reciprocal obligations imposed upon it and its employer through certification. Fish J.A. also dismissed the s. 2(b) and s. 15(1) claims. Having found no infringement of the Charter, Fish J.A. did not consider the issue of justification under s. 1.

(2) Baudouin J.A., dissenting

58 Baudouin J.A. agreed that the impugned legislation did not infringe s. 2(b) or s. 15(1) of the Charter, but found that the legislation did violate s. 2(d)’s guarantee of freedom of association. He stated that the direct effect of the impugned legislative provisions was to interfere with the ability of RCMP members to associate freely in an association of their choice, apart altogether from issues of certification and collective bargaining. He stated that certification and collective bargaining are possible but not essential consequences of association into a union, and that the legislation could quite properly have permitted unionization without according full collective bargaining rights or the right to strike. In support of his conclusion, Baudouin J.A. referred to Atkins v. City of Charlotte, 296 F. Supp. 1068 (1969), in which a three-judge panel of the United States District Court of North Carolina found that the right to join a national labour organization was protected under the First and Fourteenth Amendments, but that the right to bargain collectively was not similarly protected.

59 Baudouin J.A. found that the infringement of s. 2(d) of the Charter did not pass the minimal impairment element of the s. 1 inquiry. He noted that the legislation was not the least drastic reasonable means of assuring continued public security, since it was possible to permit the formation of RCMP member associations without permitting work slowdowns or strikes, as was the case for several other police forces. Baudouin J.A. concluded that it was not inconsistent with this Court’s 1987 trilogy to find that the simple right to organize into an employee association is protected under s. 2(d). He stated that the denial of the right to unionize in this limited way was inconsistent with the principles set out in the preamble to the Canada Labour Code and with Canada’s international obligations pursuant to Article 22(2) of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.

V. Issues

60 On December 17, 1997, the Chief Justice stated the following four constitutional questions:

(1) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe or deny the appellant’s freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms?

(2) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe or deny the appellant’s freedom of association guaranteed in s. 2(d) of the Canadian Charter of Rights and Freedoms?

(3) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe upon the appellant’s equality rights guaranteed in s. 15(1) of the Canadian Charter of Rights and Freedoms?

(4) If the answer to questions 1, 2, or 3 is in the affirmative, can s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act be justified under s. 1 of the Canadian Charter of Rights and Freedoms?

61 Once again it is important to recall that the appellant does not seek in these proceedings to obtain the right to bargain collectively. Further he does not dispute that there can be statutory provisions prohibiting strikes and work slowdowns. His position is that the very purpose of the impugned legislation is to interfere with his ability to participate in an informal association of RCMP members, and that the legislation has been successful in impeding the creation of such associations.

VI. Analysis

A. Freedom of Association

62 The human animal is inherently sociable. People bind together in a myriad of ways, whether it be in a family, a nation, a religious organization, a hockey team, a service club, a political party, a ratepayers association, a tenants organization, a partnership, a corporation, or a trade union. By combining together, people seek to improve every aspect of their lives. Through membership in a religious group, for example, they seek to fulfill their spiritual aspirations; through a community organization they seek to provide better facilities for their neighbourhood; through membership in a union they seek to improve their working conditions. The ability to choose their organizations is of critical importance to all people. It is the organizations which an individual chooses to join that to some extent define that individual.

63 This Court has emphasized on several occasions the fundamental importance in a democratic society of the freedom to associate, as protected under s. 2(d) of the Charter. The words of Dickson C.J. in the Alberta Reference, supra, exemplify the tenor of these various statements (at pp. 365‑66):

The purpose of the constitutional guarantee of freedom of association is, I believe, to recognize the profoundly social nature of human endeavours and to protect the individual from state‑enforced isolation in the pursuit of his or her ends.

As social beings, our freedom to act with others is a primary condition of community life, human progress and civilized society.

Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association has always been the means through which political, cultural and racial minorities, religious groups and workers have sought to attain their purposes and fulfil their aspirations; it has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.

For similar comments see, e.g., Alberta Reference, supra, at p. 334, per Dickson C.J., p. 395, per McIntyre J., and p. 391, per Le Dain J.; PIPSC, supra, at pp. 379‑80, per Cory J.; Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211, at p. 316, per La Forest J., and p. 343, per McLachlin J.

(1) The Freedom of Employees to Associate, as Expressed in Jurisprudence, Legislation, and International Instruments

64 In the Alberta Reference, supra, all judges who wrote expressed their unqualified agreement that s. 2(d) of the Charter protects the basic freedom to create, join, and maintain membership in an association such as a trade union. Writing for three of the six members of the Court who took part in the judgment, Le Dain J. stated, at p. 391:

. . . the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted. That is indicated by its express recognition and protection in labour relations legislation. It is a freedom that has been suppressed in varying degrees from time to time by totalitarian regimes.

What is in issue here is not the importance of freedom of association in this sense, which is the one I ascribe to s. 2(d) of the Charter, but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. [Emphasis added.]

Similarly, McIntyre J. stated, at p. 407:

. . . it must surely be accepted that the concept of freedom of association includes at least the right to join with others in lawful, common pursuits and to establish and maintain organizations and associations. . . .

Speaking for himself and Wilson J., Dickson C.J. echoed the same point, at p. 363:

. . . it is unquestionable that s. 2(d), at a minimum, guarantees the liberty of persons to be in association or belong to an organization. . . . [Emphasis in original.]

65 In PIPSC, supra, Sopinka J. summarized the unanimous finding of the Court in the Alberta Reference on this point in the following terms, at pp. 401‑2:

Upon considering the various judgments in the Alberta Reference, I have come to the view that four separate propositions concerning the coverage of the s. 2(d) guarantee of freedom of association emerge from the case: first, that s. 2(d) protects the freedom to establish, belong to and maintain an association;

Any governmental restriction on the formation of or membership in associations would fall afoul of this aspect of s. 2(d), which may safely be regarded as the narrowest conception of the freedom of association.

66 An interpretation of s. 2(d) as protecting the right to participate in a trade union accords well with a purposive and contextual reading of the Charter. It is clear from this Court’s jurisprudence that a fundamental purpose of the freedom of association guarantee is to preserve and promote the existence of associations which assist in the attainment of individual goals and individual self‑fulfilment. It is equally clear that trade unions play an essential role in Canadian society in achieving precisely these purposes. This Court has consistently recognized the importance of work as an essential element of human personality. In the Alberta Reference, supra, Dickson C.J. stated, at p. 368:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being.

See similarly, e.g., McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229, at p. 300, per La Forest J.; Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R. 986, at p. 1002; Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701, at para. 95, per Iacobucci J.

67 The Court has also acknowledged the inherent vulnerability and inequality of the individual employee in the workplace in the face of management. In Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1051, Dickson C.J. concluded, on behalf of the majority of the Court, that employees are a vulnerable group in Canadian society. In Wallace, supra, Iacobucci J. noted that this vulnerability is underscored by the very importance which our society attaches to employment. He emphasized the inequality of bargaining power and information between employees and employers, noting that this power imbalance is not limited to the context of the employment contract proper, but rather affects “virtually all facets of the employment relationship”: para. 92.

68 The ability of employees to form and join an employee association is thus crucially linked to their economic and emotional well‑being. Membership in employee groups assists the individual member in a great many ways. Simply to join a trade union is an important exercise of an individual’s freedom of expression. It is a group which so often brings to the individual a sense of self-worth and dignity. An employee association provides a means of openly and frankly discussing work-related problems without fear of interference or intimidation by the employer. The association provides a means of expressing a collective voice, not only in communicating with the employer, but also in communicating with government, other groups, and the general public. The fundamental importance of the union remains, even though a statute may prohibit the employees from going on strike, or from holding a sit‑in. The freedom of employees to participate in an employee association is basic and essential in our society. A statute whose purpose or effect is to interfere with the formation of employee associations will clearly infringe s. 2(d) of the Charter.

69 The fundamental freedom of the individual simply to participate in a union is widely recognized in provincial and federal statutes and in international covenants to which Canada is a party. For example, s. 6 of the PSSRA specifically protects this basic right for employees who are subject to its labour relations provisions, in the following terms:

basic rights and prohibitions

Rights

6. Every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which the employee is a member.

70 The basic right to form and join an employee association as guaranteed by s. 6 is given further protection by provisions of the PSSRA which prohibit specific forms of interference with associational activities by employees. Section 8(1) prohibits management from participating in or interfering with the formation or administration of an employee organization, or with the representation of employees by such an organization. Section 8(2) prohibits discrimination, harassment, or intimidation against any person relating to his or her membership in an employee organization or to his or her having exercised any other right under the PSSRA. Section 9(1) prohibits management from discriminating against an employee organization itself. See, analogously, ss. 8, 94 and 96 of the Canada Labour Code.

71 The same protections contained in the federal statutory labour relations regimes are found in several international instruments to which Canada is a signatory. These include Article 23(4) of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948); Article 22 of the International Covenant on Civil and Political Rights; Article 8 of the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3; Articles 2 and 3 of the International Labour Organization’s Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 17; and the Conference on Security and Co‑operation in Europe -‑ Concluding Document (Madrid Conference (1983)), 22 I.L.M. 1398, p. 1399, at para. 13. All of these instruments protect the fundamental freedom of employees to associate together in pursuit of their common interests as employees. Several of these international agreements do recognize the right of Canada and other states to impose lawful restrictions on the armed forces and police where that is necessary to protect national security or public safety. However, we see such restrictions as premised upon lawful justifications for infringement of the freedom to associate, and thus relevant under s. 1 of the Charter, rather than as part of the definition of freedom of association itself.

72 We would emphasize that it is not necessary in this appeal to go beyond this unassailable core content of the freedom of association guarantee. It is not necessary to expand upon or apply the principles articulated by this Court in previous cases regarding the interplay between collective bargaining rights and s. 2(d) of the Charter. In our view, the appellant is correct in arguing that the very purpose of the exclusion of RCMP members from the definition of “employee” in s. 2 of the PSSRA is to ensure the continued vulnerability of RCMP members to management interference with their efforts to participate in member associations. This invalid purpose is sufficient in itself to infringe the appellant’s freedom of association under s. 2(d) of the Charter. This purpose exists regardless of one’s views as to whether the ability of RCMP members to engage in collective bargaining should receive constitutional protection.

(2) The Purpose of the Exclusion of RCMP Members

73 It is well established that either the purpose or the effects of impugned legislation may infringe a Charter right or freedom. Either type of infringement will require the government to attempt to justify the infringement under s. 1. See R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at pp. 331‑33, per Dickson J. (as he then was); R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, at p. 752, per Dickson C.J.

74 In Big M Drug Mart, Dickson J. held that the purpose of impugned legislation is the primary consideration in assessing compliance with the Charter, while effects will be largely irrelevant if it can be shown that the law has an invalid purpose. As he stated, at p. 334:

. . . I agree with the respondent that the legislation’s purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. [Emphasis added.]

In applying the foregoing principles to the facts of the case before him, Dickson J. explained that there is no necessary link between an invalid purpose and invalid effects. Legislation may be shown to have entirely permissible effects, or the Charter claimant may be unable to establish a probability that the legislation has impermissible effects, yet an invalid purpose will constitute an infringement of the Charter. In his words, at p. 333:

If the acknowledged purpose of the Lord’s Day Act, namely, the compulsion of sabbatical observance, offends freedom of religion, it is then unnecessary to consider the actual impact of Sunday closing upon religious freedom. Even if such effects were found inoffensive, as the Attorney General of Alberta urges, this could not save legislation whose purpose has been found to violate the Charter’s guarantees. In any event, I would find it difficult to conceive of legislation with an unconstitutional purpose, where the effects would not also be unconstitutional. [Emphasis added.]

75 The emphasis placed in Big M Drug Mart upon the importance of considering the validity of legislation’s purpose is justified by a number of considerations of fairness for the Charter claimant. One can easily imagine cases where the actual tangible effects of legislative action may be difficult to prove in practice even though they may be strongly suspected, and where it is vital to the protection of Charter rights to permit the legislation to be attacked on the basis of its invalid purpose. There may similarly be occasions where legislation with an invalid purpose has no actual effects, whether permissible or impermissible -- for example in the case of some declaratory legislation, or even simply where legislation is ineffective. A Charter claimant should not be penalized by the peculiar circumstances surrounding the claim, nor should legislation be immune from Charter scrutiny, where the legislation at issue was undertaken for a purpose that conflicts with the Charter. A court must intervene where an invalid purpose for enacting the legislation has been shown because the legislature has in those circumstances exceeded its jurisdiction, regardless of whether it has caused actual harm. The point is well stated by Dickson J., at pp. 331-32:

. . . consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter. The declaration that certain objects lie outside the legislature’s power checks governmental action at the first stage of unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant’s need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation’s actual impact.

76 A Charter claimant who seeks to establish that impugned legislation infringes a Charter right or freedom by virtue of its purpose bears the onus of establishing the alleged invalid purpose on a balance of probabilities. The ordinary rules of evidence applicable in civil trials apply. Accordingly, it cannot be assumed that the purpose of a law is invalid solely because an invalid purpose is a plausible purpose of the law. There must be clear evidence that an invalid purpose is probable. In addition, the evidence must rebut the presumption of constitutionality. That is, if there are two equally probable purposes for the impugned legislation, and one of these purposes is valid and is not inextricably linked to the invalid purpose, then the valid purpose is presumed to apply: Slaight Communications, supra, at p. 1078, per Lamer J. (as he then was); Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, at pp. 581-82, per Lamer C.J. However, where the Charter claimant is able to adduce a preponderance of evidence of the invalid purpose, the presumption of constitutionality is rebutted and the court is required to find an infringement of the Charter.

77 In considering the purpose of para. (e) of the definition of “employee” in s. 2 of the PSSRA in the present appeal, we are mindful of the importance of determining the original purpose of the provision at its enactment. It is inappropriate to premise Charter analysis upon a modern understanding of legislative purpose which is different from, and perhaps more constitutionally acceptable than, the original purpose. On the error of accepting a “shifting purpose”, see, e.g., Big M Drug Mart, supra, at pp. 334-36, per Dickson J.; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731, at p. 761, per McLachlin J.

78 It is equally important to ensure that, in evaluating the constitutional validity of the purpose of a legislative provision, the court consider only the purpose of the provision itself and not the broader purpose of the surrounding legislation as a whole. Thus, in the present appeal, the essential issue under s. 2(d) of the Charter is whether the purpose of para. (e) infringes freedom of association, not whether the PSSRA as a whole does so. Indeed, it is clear that the purpose of the PSSRA as a whole is to enhance the associational ability of those employees who are subject to it. The focus must be upon the purpose of excluding members of the RCMP from the PSSRA.

79 In determining the purpose of an impugned legislative provision, a court should look to intrinsic and admissible extrinsic sources regarding the provision’s legislative history and the context of its enactment: R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688. In some cases, it is possible for a court to determine the purpose of a particular provision by looking solely to sources intrinsic to the legislation itself, for example by considering the provision in light of the surrounding provisions, including definitions, analogous provisions, and the organization of the Act as a whole. Looking to intrinsic sources may be particularly important where there is little admissible extrinsic evidence of legislative purpose. However, in all cases a court is entitled to consider admissible extrinsic sources if they exist, and indeed is duty-bound to consider such evidence where it is presented by the parties. This accords with the modern contextual approach to statutory interpretation that has been endorsed by this Court. It accords, too, with the contextual manner in which this Court has interpreted and applied the Charter. Indeed, in Charter cases where a claimant asserts that a law has an invalid purpose, it is to be expected that most if not all of the relevant evidence of legislative purpose will be extrinsic to the statute per se.

80 In our view, the present case is one of those rare cases in which Parliament’s purpose in enacting a legislative provision must be found to infringe the Charter. All indications are that Parliament’s purpose in enacting the impugned para. (e) was to ensure that individual RCMP members remained vulnerable to management interference with their associational activities, in order to prevent the undesirable consequences which it was feared would result from RCMP labour associations. Parliament is not entitled to premise a legislative choice upon the perceived “mischief” of employees associating together for a common purpose, subject of course to s. 1. Under s. 2(d), freedom of association is infringed by any law whose purpose is anti-associational.

81 The invalid purpose of the impugned para. (e) is apparent from numerous sources regarding the provision’s legislative history and the context of its enactment, including, most notably: (i) executive orders implementing the long‑standing federal government policy of preventing RCMP unionization, (ii) authoritative statements regarding the purpose of the impugned provision, and (iii) the respondent Crown’s submissions and the opinions expressed in its expert reports in these proceedings. Importantly, we have not been pointed to any evidence of a valid alternative legislative purpose.

82 Before turning to consider the evidence relating to Parliament’s purpose in enacting the impugned para. (e), let us consider the legislation itself.

(a) The Legislation

83 In 1967, Parliament enacted the PSSRA, which established for the first time a comprehensive statutory labour relations regime applicable to members of the federal public service. Section 2 of the PSSRA limits the application of the PSSRA to members of the federal public service who fall within its definition of an “employee”. Section 2 reads, in relevant part:

2. In this Act,

“employee” means a person employed in the Public Service, other than

(e) 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 a member thereof. . .

84 The immediate result of para. (e) is that members of the RCMP are excluded from the application of the PSSRA, and thus are denied the statutory protections it extends. The protections are of several varieties. Many of the protections are accorded specifically to a trade union which has been certified as a bargaining agent for the purposes of the PSSRA, and are aimed at permitting employees to engage in collective bargaining. Other provisions provide public service employees with access to a grievance procedure whereby they may challenge the conditions of their employment, or the interpretation and application of a relevant statute, regulation, or collective agreement. Still other provisions accord certain fundamental associational protections to individual employees, regardless of whether they belong to a certified trade union, notably the basic right set out in s. 6 of the PSSRA to participate in an employee organization, and the basic prohibitions against unfair labour practices set out in ss. 8 and 9 of the PSSRA. It is these latter protections that are brought into play in this appeal.

85 No other statute provides these statutory protections to RCMP members. At the same time, almost all other employees over whom Parliament exercises labour relations jurisdiction receive these very basic protections of their freedom to associate informally for their mutual benefit. Depending upon the specific employer or occupation, the applicable federal statute is the Canada Labour Code, the Public Service Staff Relations Act or the Parliamentary Employment and Staff Relations Act, R.S.C., 1985, c. 33 (2nd Supp.). Members of the RCMP are literally singled out for different treatment. The question in this appeal is to consider why Parliament chose to single them out in this way.

86 We may begin by considering the historical and social context of the statute’s enactment. The provisions in ss. 6, 8 and 9 of the PSSRA and in similar statutes which specifically protect basic associational activities are the product of more than a century of economic and political struggle, and their enactment represented a watershed in Canadian labour relations law. Until the introduction of The Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54, although Parliament had experimented with labour relations legislation, it had never provided full protection to the right of employees to freedom of association, and the right to be protected against unfair labour practices by management. The 1948 Act signalled a new era in labour relations law in which the statutory emphasis was upon achieving socio‑economic fairness. Associational activities, always important to labour, were asserted as being equally fundamental to the Canadian fabric.

87 In this context, leaving aside altogether the collective bargaining rights and the grievance procedure set out in the PSSRA, the fact that RCMP members are excluded from the application of even these limited associational protections is significant. The PSSRA is modelled upon The Industrial Relations and Disputes Investigation Act. It was enacted at a time when legislative awareness of the fundamental importance of the freedom of employees to associate was high, as evidenced by domestic and international legislation at the time. It is unquestionable that Parliament was aware of the importance of freedom of association for all employees, and of the possibility of protecting this freedom without providing all employees with collective bargaining rights. The symbolism inherent in declining to guarantee to RCMP members even the basic freedom to associate must have been recognized.

88 Nonetheless, one can imagine a variety of reasons why Parliament might have chosen to exclude members of the RCMP from the PSSRA at the time of its enactment. It cannot be presumed that Parliament had an invalid purpose in excluding members of the RCMP from the legislation simply because the legislation was ameliorative. Possible reasons for the exclusion are, for example:

1. Parliament did not turn its mind to the specific issue of RCMP labour relations prior to enacting the legislation, and so excluded them until such time as it turned its mind to the issue;

2. Parliament anticipated passing a separate labour relations statute for members of the RCMP;

3. Parliament was studying the appropriateness of including RCMP members within a statutory labour relations regime at the time of the enactment of the statute, and so excluded the RCMP until it reached a final decision on point;

4. Parliament had concluded after careful study that the underlying socio-economic circumstances were such that, unlike most public service employees, members of the RCMP did not require freedom of association protections; or

5. Parliament understood the PSSRA as a collective bargaining statute, and excluded members of the RCMP because, although it was not opposed to RCMP employee associations, it did not wish to permit such associations to engage in collective bargaining.

None of these five possible purposes underlying the exclusion of RCMP members from the PSSRA, except perhaps No. 5, is anti-associational in nature, in a way that contravenes s. 2(d) of the Charter. None is driven by an intention to remedy the perceived “mischief” of the formation of RCMP member associations, in the sense of seeking to ensure that such associations did not arise. However, there is another possible purpose for the impugned para. (e), which would infringe s. 2(d) in this way:

6. Parliament may have intentionally chosen to exclude RCMP members from the PSSRA because it wished to maintain the inherent difficulty faced by RCMP members in attempting to associate together to confront management on more equal terms.

89 In our view, this latter possible reason for the enactment of para. (e) would infringe s. 2(d) of the Charter, because it is an anti-associational purpose. The key consideration, in examining Parliament’s purpose in excluding members of the RCMP from the PSSRA, is the reason for the decision to exclude. If Parliament’s purpose in excluding a particular employee group from a labour statute was to ensure that the employee group remained vulnerable to management interference with labour association, this is impermissible in light of s. 2(d). Even though the effect of the exclusion may be simply to maintain the status quo of employees whereby they are

burdened with the inherent imbalance of power in the employment context, the central consideration is whether Parliament’s deliberate decision to exclude flowed from a purpose that is in conflict with the fundamental freedom of employees to associate. It is of some relevance that the status quo in the labour relations context is one of inherent employee vulnerability to management interference with labour associations. It is simply not open to Parliament to enact a statutory provision where the motivation for enacting the provision is anti-associational, subject of course to s. 1 of the Charter.

90 In the present appeal, therefore, the express exclusion of RCMP members from the PSSRA raises the possibility that the exclusion has an invalid purpose. In light of the presumption of constitutionality, this possible interpretation of legislative purpose is to be eschewed unless there is evidence showing on a balance of probabilities that it is the probable purpose. Indeed, it will often be the case that one possible understanding of the purpose of a legislative provision will conflict with the Charter. Usually, though, it will not be possible to show that this invalid purpose is the actual purpose of the provision.

91 It is at this point that the peculiar factual circumstances of this case come into play. In the case of the impugned para. (e) of the definition of “employee” in s. 2 of the PSSRA, there is an extensive historical record of the federal government having discouraged or interfered with RCMP labour associations throughout the entirety of the twentieth century. There is also evidence that this anti-associational policy, founded upon the concern that labour associations would foster a conflict of interest among RCMP members, infused the decision to exclude them from the PSSRA. It is particularly significant that no evidence has been presented which suggests that one of the other possible purposes listed above was Parliament’s actual purpose. Indeed, as we will now discuss in our review of the evidence, the respondent has, in its submissions and in its expert evidence adduced at trial, conceded that Parliament’s purpose was anti-associational.

(b) Evidence of Parliamentary Purpose in Enacting Paragraph (e)

(i) Executive Orders Prohibiting Unionization

92 It was long the policy of the federal government to prohibit outright the unionization of RCMP members. During much of the twentieth century, while most federally regulated employees came to be subject to the protections and requirements of statutory labour relations regimes, members of the RCMP saw their efforts at creating employee associations openly punished. Between 1918 and 1974, members of the Royal Northwest Mounted Police and subsequently of the RCMP were expressly prohibited by Order‑in‑Council P.C. 1918‑2213 from any union‑related activity, on pain of instant dismissal. The Order‑in‑Council stated:

No member of the Royal Northwest Mounted Police or of the Dominion Police, whether officer, non‑commissioned officer or man, shall become a member of or in any wise associated with any Trades Union Organization or any Society or Association connected or affiliated therewith; or with any union, Society or Association of employers or any Society or Association connected or affiliated therewith; or with any Union, Society or Association having for its object the rights or interest of employees or of labour, or of employers or of capital in competition with each other; and any contravention of this regulation shall be cause for instant dismissal.

93 The policy underlying this Order‑in‑Council of 1918 was founded upon the fear that the organization of RCMP members into an employee association would result in members experiencing a “divided loyalty” or conflict of interest between their allegiance to their fellow workers and their required obedience to superior orders. The concern was to ensure that members of the RCMP remained loyal to only one superior, namely their commanding officers. It was feared that, if RCMP members began to organize into employee associations in order to promote their interests as employees,

members would experience a divided allegiance. RCMP members might be unable or unwilling to obey commands if they felt that obedience would be inconsistent with allegiance to the cause of their fellow employees. This concern was particularly pronounced in relation to the role of the RCMP in quelling labour unrest. The federal government felt that RCMP members might refuse to obey the command to subdue labour uprisings, or to fill in for a striking local police force, if their allegiance to their fellow employees came into conflict with such a command. Hence the government sought to attack the perceived problem at its source, by prohibiting even informal employment-related associations. This policy was well expressed in the preamble to the Order‑in‑Council in the following terms:

Whereas attention has been called to the public importance of excluding the members of the regular police forces of the country from membership or association with Trade Union Organizations or affiliated Societies or unions or societies of employers or employees constituted for the purpose or with the object of regulating relations of employers and employees or as between capital and labour;

And Whereas unfortunately occasions arise when it is necessary to invoke the aid of the police for the maintenance of order in connection with strikes, lock‑outs or labour disturbances;

And Whereas it is considered that the public might in a measure be deprived of the service which it is entitled to expect from the police or that the quality of that service might be prejudicially affected, if the police were in any manner permitted to identify themselves with one side or the other of a controversy resulting in breach of the peace; [Emphasis added.]

94 The same policy was apparent almost 30 years later in the enactment by the federal government in 1945 of Order‑in‑Council P.C. 174/1981, which approved the coming into force of new Rules and Regulations for the Government and Guidance of the Royal Canadian Mounted Police Force of Canada, (1945) 79 Canada Gazette 1577 (“Rules and Regulations”). Section 31(a) of the Rules and Regulations also prohibited RCMP employee associations, in the following terms:

31. Towards the attainment of complete police efficiency it is essential that members of the Force cultivate and maintain the respect and esteem of the general public. This may be accomplished by pursuing a steady and impartial line of conduct in the discharge of duty and by a respectful bearing to all classes; also, by prompt obedience to all lawful commands, and by clean, sober and orderly habits.

(a) Membership in any organization or union, which by its nature may influence or constrain the individual concerned against the impartial exercise of his duty, is prohibited to members of the Force. [Emphasis added.]

95 These complete prohibitions on RCMP employee associations remained in effect throughout the course of much of this century. At the time of the enactment of the PSSRA in 1967, both prohibitions were in force. The PSSRA did not directly adopt these regulatory prohibitions in statutory form, in the sense that the Act did not expressly prohibit RCMP unionization. The PSSRA simply excluded members of the RCMP from its application. However, the exclusion of RCMP members neatly accommodated these existing prohibitions, suggesting a continuity in government policy from the time of enactment of the Order‑in‑Council of 1918 through the enactment of the 1945 Rules and Regulations to the time of the enactment of the PSSRA. The federal government’s consistent position that members of the RCMP should not form or participate in employee associations provides important insight into Parliament’s goal in enacting the impugned para. (e). As we will now discuss, it is a government position that was present at the enactment of the PSSRA and that continues to the present day.

96 Indeed, although it is clearly not determinative of the issue of legislative purpose, it is worth noting that a few years after the enactment of the PSSRA, in 1974, the Order‑in‑Council of 1918 was revoked as being redundant: P.C. 1974‑1339. At the time of the revocation, Assistant Deputy Minister Robin Bourne of the Department of the Solicitor General wrote a letter to RCMP Commissioner Nadon, advising the Commissioner as to how to respond to press queries on point. The Commissioner was advised to inform the press that:

In taking this action, the Government has responded to the wishes of the majority of members of the RCMP who recognized that this Order‑in‑Council was now redundant, particularly in view of the provisions of the Public Service Relations Act [sic] which was passed by Parliament in 1967. This Act deliberately excludes members of the RCMP in the definition of “employee” under the Act.

(ii) The Report of the Preparatory Committee

97 Shortly before the enactment of the PSSRA, the federal government struck a Preparatory Committee on Collective Bargaining in the Public Service, with the mandate of formulating recommendations for a proposed comprehensive statutory labour relations regime applicable to employees of the federal public service. The Preparatory Committee issued its report in 1965, in which it recommended that the new statutory labour relations regime that it was proposing should not apply to members of the RCMP. The basis for the Committee’s recommendation that the RCMP be excluded was the Committee’s concern that membership in and allegiance to an employee association was incompatible with the RCMP’s quasi‑military employment hierarchy. The report states, at p. 27:

In the opinion of the Preparatory Committee, it would be inappropriate to apply the provisions of the proposed legislation to some groups of public servants and impractical to apply them to others. Two large groups ‑‑ the Armed Forces and members of the Royal Canadian Mounted Police ‑‑ are recommended for exclusion because of the nature of their duties and the fact that their conduct is subject to military or similar codes of law and discipline. [Emphasis added.]

For the Preparatory Committee, then, just as for those who enacted the Order‑in‑Council of 1918 and s. 31(a) of the Rules and Regulations in 1945, there was a perception that members of the RCMP could not simultaneously adhere to the directives of a union and obey superior orders. The purpose of excluding RCMP members from the PSSRA was thus to prevent the formation of member associations which might cause individual RCMP members to question their loyalty to the Force.

98 It must be stressed that the Preparatory Committee’s concerns, and the concerns underlying the two subsisting regulatory prohibitions at the time, were specifically with the anticipated dangers of association per se. It is clear from these sources that it was felt that a divided loyalty would result from the process of RCMP

members associating together and, it was anticipated, developing an antagonism to management. The fear was that the very process of forming a member association, and

the mutual reinforcement of views and mutual exchange of information which would flow from membership and involvement, would build a loyalty among employees and the potential for a corresponding conflict of allegiance in the face of superior orders. The fear was not simply that a divided loyalty would result from a grant of full collective bargaining rights to a certified union of RCMP members (although this fear existed as well). Rather, it was anticipated that any association of RCMP members formed with the purpose of bettering working conditions, whether the association be formal or informal, would contribute to a divided loyalty and to labour unrest. To those who adhered to the belief that a divided loyalty was harmful and likely, the danger was that RCMP members would begin to fight for collective bargaining rights, not that, once the rights were gained, labour unrest would then occur.

(iii) The Respondent’s Submissions and Expert Reports

99 In its submissions before this Court, the respondent repeatedly endorsed this same view, i.e., that the impugned provision of the PSSRA was enacted with the purpose of curtailing the formation of RCMP member associations in order to prevent the problem of divided loyalty. The respondent has thus effectively conceded that the provision possesses a constitutionally invalid purpose. For example, the respondent states expressly in its factum at para. 162 that it opposes the appellant’s s. 2(d) claim on the basis that [translation] “membership in a union and the obligation to obey its directives could create a conflict of loyalty between the obligations and duties of RCMP members towards the Canadian population and their obligations towards their union” (emphasis added).

100 The respondent also filed two expert reports before Michaud J., both of which endorse a policy of prohibiting or impeding unionization. Worthy of particular attention in this regard is the report of Dr. William Beahen, which is entitled “An Historical Perspective on the R.C.M.P. and Protection of the National Interest: Responsibility Precluding Unionization” (October 1987). The Conclusion to Dr. Beahen’s report accurately summarizes the thrust of its contents:

In 1918, the federal government forbade members of the Mounted Police to join unions on the grounds that their neutrality should never be in question when used in times when disorder occurred. This decision has been proven correct and in the national interest many times since. . . . It continues to be in the interest of Canada to have its national police force free from the constraints of unionization. [Emphasis added.]

101 The importance of ensuring a strong and effective national police force for Canada is not in doubt. However, concerns about ensuring the integrity of a police force are concerns which are appropriately dealt with under s. 1 of the Charter. Such concerns do not negate an invalid legislative purpose. Where, as here, the very purpose of the legislation is to “free” members of the RCMP from merely joining a union of fellow employees, there is unquestionably an infringement of s. 2(d).

(iv) The Absence of Contradictory Effects

102 Dickson J. in Big M Drug Mart, supra, emphasized that the effects of impugned legislation need not be looked to if the purpose of the legislation is invalid, and further that even if the effects are looked to and found to be “inoffensive” this fact will not affect a finding that the purpose of the legislation is invalid. Nonetheless, courts may, where appropriate, look to the effects of legislation for assistance in inferring the legislation’s purpose, as Dickson J. noted, at p. 331. In particular, where the effects of the impugned legislation are contrary to the invalid purpose alleged by the Charter claimant, a court should weigh the evidence carefully before concluding that the purpose is indeed invalid. In light of the presumption of constitutionality, it is fitting for a court to look for the existence of any such beneficial effects before ruling that the purpose of a law is contrary to the Charter.

103 In the present case, we have not been referred to the existence of any positive effects that the exclusion of RCMP members from the PSSRA may have had upon the associational freedom of members. Rather, RCMP members continue to be subject to practices that would likely be enjoined as unfair labour practices under the PSSRA. Perhaps the most relevant example of a practice within the RCMP which interferes with the associational activities of RCMP members is one which arises in the context of the Division Staff Relations Representative Program (“DSRR Program”). Established in 1974, the DSRR Program is an employee advisory board created and ultimately controlled by RCMP management, with the purpose of representing the interests of RCMP members to management. Its structure and functioning are governed by the Commissioner’s Standing Orders (Division Staff Relations Representative Program). Of particular importance for present purposes, s. 3(2) of the Commissioner’s Standing Orders prohibits union‑related activities by participants in the DSRR Program, on pain of removal from the Program, in the following terms:

3. (2) Division Staff Relations Representatives and Sub‑Representatives shall not engage in activities that

(a) are prejudicial to the goals and objectives of the Division Staff Relations Representative Program,

(b) promote alternate programs in conflict with the non‑union status of the Division Staff Relations Representative Program, or

(c) may undermine the credibility or effectiveness of the Division Staff Relations Representative Program.

104 It bears noting that disciplinary proceedings have in fact been launched on several occasions against DSRR Program representatives, including the appellant, who have involved themselves in the formation and operation of RCMP member associations. For example, during the late 1980s, RCMP management attempted to expel the appellant from the DSRR Program because of his activities with the “C” Division members. The expulsion was prevented by an injunction issued by Reed J. of the Federal Court (Trial Division): Delisle v. Royal Canadian Mounted Police Commissioner (1990), 39 F.T.R. 217. In 1994, the appellant and two other DSRR Program participants were again subject to disciplinary proceedings. The offending conduct was that the three men had attended at the inaugural meeting of the “E” Division Member Association in British Columbia and had been, in the words of the notice of complaint subsequently received by the appellant, “part of a ‘panel discussion’ where collective bargaining was identified as a long term goal of the Association”.

105 There are other aspects of labour‑management relations within the RCMP which involve management interference in RCMP member associations in a manner which would likely contravene s. 8 or s. 9 of the PSSRA. Section 39(1) of the RCMP Code of Conduct, SOR/88-361, Part III, prohibits the perpetration of “disgraceful or

disorderly act[s] or conduct”. This provision is not necessarily objectionable in itself, of course, but s. 39(2) defines the prohibition as applying to acts or conduct that are “prejudicial to the impartial performance of the member’s duties”. The latter provision is reminiscent of the wording of s. 31(a) of the Rules and Regulations of 1945, discussed above, which prohibited unionization on the basis that it would interfere with the impartial performance of members’ duties. Were the provision to be similarly interpreted and applied today, it would clearly qualify as what would normally be an unfair labour practice. Similarly, s. 41 of the Code of Conduct has the potential to interfere with the ability of members to participate meaningfully in an employee association, by providing that a “member shall not publicly criticize, ridicule, petition or complain about the administration, operation, objectives or policies of the Force, unless authorized by law”.

106 It is also worthwhile to note the dearth of RCMP member associations across the country. Following the repeal of the 1918 Order-in-Council in 1974, a few fledgling associations of RCMP members came into being in the latter half of the 1970s, but were unable to establish a strong foothold. Only in 1985, with the establishment of the Association des membres de la Division “C” in Quebec, have organized local associations of members come into existence. Even so, similar informal associations have emerged but only very gradually, with a regional association coming into being in Ontario in 1990, in British Columbia in 1994, and in the Capital Region in 1995. In most provinces, there are no RCMP member associations. Certainly the exclusion of RCMP members from the PSSRA has not helped their cause as employees.

(c) Conclusion on the Purpose of Paragraph (e)

107 In sum, the original purpose of what is now para. (e) of the definition of “employee” in s. 2 of the PSSRA was to ensure that RCMP members remained unassociated in the face of management, with a view to protecting the integrity of the RCMP hierarchy against the perceived threat of a divided loyalty among members. The perception which informed the imposition of these restrictions was that members of the RCMP would disobey superior orders if they were both union members and members of a quasi‑military institution, and would be unable to exercise their duties impartially and effectively in controlling the illegal acts of other workers, or indeed in the event of their own labour unrest. This immediate purpose of para. (e) exists apart altogether from issues of collective bargaining. In this case, there is strong evidence that Parliament’s purpose was to discourage RCMP associations. Further there is neither any evidence supporting an alternative hypothesis as to why para. (e) was included in the PSSRA, nor any evidence that the legislation has beneficial effects for RCMP members. In those circumstances this Court must find that the purpose of the impugned provision infringes the appellant’s freedom of association under s. 2(d). If a Charter claimant cannot make out a purpose-based infringement of the Charter on the basis of this type of evidentiary record, then the promising words of Dickson J. in Big M Drug Mart will become meaningless.

108 Before considering whether the impugned para. (e) may be justified under s. 1 of the Charter, some comment should be made regarding the question of positive constitutional entitlements. One of the respondent’s arguments against the appellant’s

claim was that, in its view, the appellant is effectively asserting a constitutional entitlement to the enactment of remedial legislation for his benefit, i.e., a right to the associational protections contained in ss. 6, 8 and 9 of the PSSRA. The respondent submits that there can be no constitutional right to statutory entitlements, because the Charter does not create positive obligations for the state, but rather only protects claimants against harms caused by the state through legislation.

109 This Court has referred to the distinction between positive and negative constitutional entitlements in a number of cases: see, e.g., Haig v. Canada, 1993 58 (SCC), [1993] 2 S.C.R. 995, at p. 1038, per L’Heureux‑Dubé J., speaking for the majority of the Court; Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, at para. 73; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, at para. 64, per Cory and Iacobucci JJ., speaking for the majority of the Court. These cases have emphasized the conceptual distinction between legislation which interferes with the exercise of a Charter right or

freedom, and legislation which assists in the exercise of such a right or freedom. Legislation whose purpose or effect is to interfere with a Charter right or freedom will infringe the Charter. Legislation whose purpose or effect is to assist in the exercise of a right or freedom will generally not infringe the Charter simply on the basis of its remedial role.

110 In the present case, the answer to the respondent’s submission that the appellant is asserting a positive constitutional entitlement is that the appellant’s claim is not premised upon the view that Parliament is obligated to protect him against management interference, or to promote the formation of member associations. The issue of positive obligations and entitlements simply does not arise in this appeal. The appellant does not say that he has a Charter right to be subject to the PSSRA or any of its discrete protections. Rather, he makes the narrow claim that the purpose of para. (e) of the definition of “employee” in s. 2 of the PSSRA as currently constituted is to ensure that RCMP members continue to be disadvantaged in their ability to associate together for a common purpose. It is this invalid purpose, and not an assertion of positive entitlements, that is the foundation for the appellant’s claim.

B. Section 1

111 The burden is on the respondent, as the party seeking to uphold a limitation on Charter freedoms, to prove that the limitation is reasonable and demonstrably justified in a free and democratic society. To satisfy this burden, two central criteria must be satisfied, as established by the decision of this Court in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, at pp. 136‑39, and elaborated upon in other cases, including Dagenais v.

Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835; Eldridge, supra; Thomson Newspapers Co. v. Canada (Attorney General), 1998 829 (SCC), [1998] 1 S.C.R. 877; and M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3. First, the objective sought to be served by the limitation must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. Second, the respondent must show that the means chosen in order to achieve this objective are proportionate, according to the three‑part proportionality test initially set out in Oakes, supra. As recently confirmed in Thomson Newspapers, supra, the analysis at all steps of the s. 1 analysis is contextual in nature. As stated by Bastarache J. in Thomson Newspapers for a majority of the Court, at para. 87:

The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

(1) Sufficiently Important Objective

112 A question which arises in this appeal is whether a legislative provision whose purpose infringes the Charter may nonetheless be found to have an objective

that is sufficiently important to justify overriding a Charter freedom. In the present case, we have already explained that the purpose of para. (e) of the definition of “employee” in s. 2 of the PSSRA is to ensure that individual members of the RCMP remain vulnerable to management interference with their associational activities, in contravention of s. 2(d) of the Charter. If this were the only purpose of the impugned provision, it would not qualify as a pressing and substantial objective, and the s. 1 inquiry would cease at this stage of the analysis: Big M Drug Mart, supra, at pp. 352‑53.

113 However, the respondent submits that para. (e)’s anti-associational purpose serves a broader purpose which is sufficiently important to justify overriding the appellant’s freedom of association and freedom of expression. The broader purpose of the provision is to secure, for all Canadians, a national police force that is both stable and impartial. The respondent submits that the RCMP is a unique police force whose stability and reliability are particularly important, because (a) it is the primary provincial police force in eight provinces and the primary municipal police force in almost 200 municipalities across the country; (b) the RCMP is responsible for national identification services and forensic programs; (c) the RCMP is responsible for Canada’s international policing obligations; and (d) the RCMP is called upon with some regularity to fill the void left when a municipal or provincial police force or a union of prison guards goes on strike. The continued availability and reliability of the RCMP are essential, the respondent states, because no other police force could fulfil these special roles, and the Armed Forces are not well suited as a replacement in the event of an RCMP strike. The respondent referred the Court to articles and other materials regarding the harmful effects of a police strike: see, e.g., G. Clark, “What Happens When The Police Strike” , in R. M. Ayres and T. L. Wheelan, eds., Collective Bargaining in the Public Sector: Selected Readings in Law Enforcement (1977), 401, at p. 401.

114 The appellant argued to the contrary effect. He stated that the importance of stability within the RCMP is little greater than the importance of stability in other police forces in Canada, and these police forces are protected in their freedom to associate and also enjoy some collective bargaining rights. He pointed to the fact that RCMP members have never gone on strike, and that they do not seek the right to strike, as evidence that the respondent’s concerns regarding anticipated labour unrest and strike activity are factually ill‑founded. In the appellant’s view, such ill‑founded concerns cannot support a finding that the impugned legislation pursues an objective which is sufficiently important to justify overriding constitutionally protected freedoms.

115 In our view, the general legislative goal of assuring a stable national police force is a pressing and substantial objective for the purpose of the first stage under s. 1. The fact that other police forces in Canada have the right to associate and to engage in limited collective bargaining does not negate the importance of ensuring that the essential services which a police force provides can be relied upon on a continuous basis. Rather, the phenomenon merely illustrates that various provincial legislatures have chosen a different balance between the interests of police officers as employees, on the one hand, and the public interest in reliable policing, on the other. Moreover, although it may be that labour unrest within the RCMP is unlikely ever to be sufficient to affect the supply of effective national policing services, the essential nature of these services and the harmful consequences of a police strike are sufficient to justify the objective of negating even a slim risk of a breakdown in policing by the RCMP. The real question is whether Parliament has chosen a proportionate means to deal with this risk.

116 We would note, though, that the pressing and substantial objective contained in para. (e) is specifically that of ensuring a stable and reliable national police force. The discrete objective of ensuring the impartiality of RCMP members as between labour and management is not, in and of itself, a pressing and substantial objective. Quite the contrary, the existence of partiality towards labour is inherent in labour activism in pursuit of just working conditions by RCMP members. Only if such impartiality is factually linked to RCMP stability and reliability will the achievement of such impartiality be considered pressing and substantial under s. 1.

117 In finding that the impugned legislation has a general purpose which accords with s. 1, notwithstanding its more specific, impermissible purpose, we are mindful that the objective of an impugned provision should not be overstated. The Court should not impute to a specific legislative provision a broader purpose than it can reasonably bear: RJR‑MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, at para. 144, per McLachlin J. In our view, though, the importance of identifying the specific objective of the infringing measure does not negate the equal importance of identifying all aspects of that objective. In the present case, para. (e) of the definition of “employee” in s. 2 of the PSSRA has both the specific purpose of maintaining the power of RCMP management to block associational efforts by members, and the more indirect purpose of assuring a stable national police force. These two interrelated objectives are contained in the same infringing measure.

118 To conclude on the issue of legislative objective, we are of the view that, where impugned legislation has two objectives, one of which is pressing and substantial in a free and democratic society, while the other is contrary to the Charter, the legislation will satisfy the first stage of the s. 1 inquiry. The fact that one purpose of the impugned legislation is impermissible clearly means that the Charter is infringed. However, it seems contrary to the purpose of s. 1 to find that, even though legislation serves one demonstrably justified purpose, it nonetheless should be deemed not to have such a purpose for other reasons. It is more in keeping with the overall framework of the Oakes inquiry to consider the existence of the second, invalid purpose as one element of the context underlying the proportionality analysis.

(2) Proportionality

(a) Rational Connection

119 At the rational connection stage of the proportionality analysis in this case,

the respondent must show, on the basis of reason or logic, a causal connection between the objective of securing a stable and reliable national police force and the means chosen to secure this objective. Although scientific evidence of a causal connection (or of a lack thereof) is relevant at this stage of the s. 1 inquiry, it is not always required: RJR‑MacDonald, supra, at paras. 153‑54, per McLachlin J.; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825, at para. 101.

120 The respondent argues that the important objective of securing a national police force which can be relied upon to perform all of the important functions discussed above can be achieved through the exclusion of RCMP members from the basic associational protections contained in the PSSRA. But is there really a logical causal link between blocking access of RCMP members to the PSSRA in its entirety, and preventing the same members from engaging in labour unrest? It is certainly a debatable point.

121 Michaud J. in the Superior Court commented that it was not clear to him whether it was more likely or less likely that RCMP members would engage in a strike or work slowdown if they were subject to a statutory labour relations regime. He suggested, without deciding, that unionization and the implementation of limited collective bargaining arrangements might actually reduce the risk of more drastic bargaining tactics, precisely because RCMP members would have an effective vehicle for communicating with management. In short, he suggested that, if RCMP members were treated well by management and by the state, they would be less likely to feel forced to use methods other than negotiation to resolve their claims.

122 The logic suggested by Michaud J. finds some support in past events in Canada and similar countries. The police strikes of 1918 and 1919 in England, for example, appear to have occurred largely because police force members were repeatedly denied the freedom to associate and the right to bargain collectively. See, e.g., G. Howard, Guardians of the Queen’s Peace (1953), at pp. 156‑58. Conversely, throughout Canada, numerous police forces benefit from statutory protections of their freedom to associate, and are subject to limited collective bargaining regimes which take into account the role of police officers as essential service workers. Although there has been sporadic labour unrest among some of these unions, the majority of police unions have never resorted to work slowdowns or strikes in order to resolve their labour disputes: see, e.g., E. G. Fisher and H. Starek, “Police Bargaining in Canada: Private Sector Bargaining, Compulsory Arbitration, and Mediation‑Arbitration in Vancouver” (1978), 2 Canadian Police College Journal 133. Moreover, it is difficult to state with certainty that there is a causal link between those work disruptions which have occurred and the prior unionization of the particular police forces in question. As in the English example, it is possible that these disruptions would have occurred in any event, as a result of the degree of labour mobilization, and the labour relations culture, within the particular police forces.

123 The historical record illustrates the problem inherent in arguing that there is a causal connection between excluding RCMP members from a statutory labour relations regime and avoiding labour strife. It may be reasonable to assume that a lack of labour organizations means a lack of labour mobilization and thus a lack of labour unrest. However, it is also reasonable to assume, on the basis of not only logic but also experience, that actively supporting the suppression of employees’ associational activity by management causes exactly the type of problem sought to be avoided through the phenomenon of suppression.

124 The question which arises is this: if it is equally logical to assume that a legislative provision actually causes a problem as it is to assume that it remedies the problem, is there really a rational connection sufficient to satisfy this element of the Oakes test? Generally speaking, where this Court has been faced with contradictory evidence of causation for the purpose of the rational connection inquiry, the difficulty has been simply in deciphering whether the evidence supported a causal link. This case raises the somewhat unusual situation that some of the evidence not only does not support a causal link between the legislative objective and the means used to achieve that objective, but it supports precisely the reverse conclusion, namely that the means chosen engender the very mischief sought to be cured. It seems contrary to the purpose of s. 1 of the Charter to find that the state has demonstrably justified its law in circumstances where it is equally probable that the law causes the very social harm it purports to target.

125 We are inclined to find, at least in these limited circumstances, that the respondent has not established a rational link between excluding RCMP members from the entirety of the PSSRA and securing a stable and reliable RCMP. If the rational connection component of the proportionality analysis under Oakes is to have any role to play, it must at least be in circumstances such as these, where the state seeks to infringe Charter freedoms in a context where doing so may exacerbate the social ill sought to be cured. At the same time, though, the respondent’s position with respect to rational connection is not per se illogical, standing alone. Even if it can be said that the respondent has established a rational connection between the legislative objective and the impugned provision, we also find that the legislation fails the minimal impairment component of the proportionality analysis. It is to this issue that we now turn.

(b) Minimum Impairment

(i) Context and Deference

126 Labour relations law is typically an area in which courts have shown the legislature a degree of deference, owing to the complexity and delicacy of the balance sought to be struck by legislation among the interests of labour, management, and the public. This point was well expressed by McIntyre J. in the Alberta Reference, supra, at p. 414:

Labour law, as we have seen, is a fundamentally important as well as an extremely sensitive subject. It is based upon a political and economic compromise between organized labour ‑‑ a very powerful socio‑economic force ‑‑ on the one hand, and the employers of labour ‑‑ an equally powerful socio‑economic force ‑‑ on the other. The balance between the two forces is delicate and the public‑at‑large depends for its security and welfare upon the maintenance of that balance. One group concedes certain interests in exchange for concessions from the other. There is clearly no correct balance which may be struck giving permanent satisfaction to the two groups, as well as securing the public interest. The whole process is inherently dynamic and unstable. Care must be taken then in considering whether constitutional protection should be given to one aspect of this dynamic and evolving process while leaving the others subject to the social pressures of the day.

See also Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1 S.C.R. 369, at para. 57. Similar opinions regarding the desirability of deference to the legislature in labour relations matters, particularly in cases involving constitutional claims, have been expressed in the academic literature. See, e.g., P. C. Weiler, “The Charter at work: Reflections on the constitutionalizing of labour and employment law” (1990), 40 U.T.L.J. 117, at p. 184.

127 We agree that, in many if not most cases, it will be found appropriate to defer to the legislature in its determination of how best to strike the delicate balance among labour, management, and public interests. However, deference does not equate to a negation of constitutional analysis: Vriend, supra, at para. 54. Nor is deference necessarily appropriate in all cases. In Thomson Newspapers, supra, Bastarache J. discussed the need to examine the surrounding context in order to determine the appropriateness of deference to the legislature in a particular set of circumstances. He listed four contextual factors which would favour a more deferential approach at one or more stages of the s. 1 inquiry, namely: (1) the role of the legislature in striking a balance between the interests of competing groups, as distinct from the situation where the legislature is the “singular antagonist” of the individual whose Charter freedoms have been infringed; (2) the vulnerability of the group that the legislature seeks to protect, and that group’s subjective fears and apprehension of harm; (3) the inability to measure scientifically a particular harm in question or the efficaciousness of a remedy; and (4) the low social value of the activity suppressed by the legislation.

128 It is important to stress that the present case is somewhat unusual in the labour relations area, insofar as none of the contextual factors discussed by Bastarache J. in Thomson Newspapers favours an exercise of deference to the legislature.

129 First, the complete exclusion of a class of employees from a comprehensive labour relations scheme can hardly be characterized as achieving a delicate balance among the interests of labour and those of management and the Canadian public. For members of the RCMP, no balance has been struck at all. Their interests as employees are entirely and intentionally ignored by the PSSRA, with the effect that the Act enhances the interests of RCMP management and those of the public far above those of RCMP members. In singling out RCMP members for a complete lack of protection against even the most basic associational protections, the state can hardly be characterized as a mediator.

130 Second, the impugned para. (e) of the definition of “employee” in s. 2 of the PSSRA is not designed to protect a vulnerable group in Canadian society. It is true that the public at large is vulnerable to the harmful effects of a police strike. However, in our view, the general public is not a vulnerable group in the sense understood in this Court’s s. 1 jurisprudence: see, e.g., Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927, at p. 995, per Dickson C.J. and Lamer and Wilson JJ.; Ross, supra, at para. 88; Thomson Newspapers, supra, at paras. 88‑90, per Bastarache J. The only vulnerable group at issue in the present analysis is RCMP members themselves. Although clearly police officers are not generally considered a vulnerable group within the overall fabric of Canadian society, they are members of a vulnerable group in a relative sense insofar as they are employees. As mentioned above, Dickson C.J. noted in Slaight Communications, supra, at p. 1051, that legislation which seeks to ameliorate the position of employees falls within “a class of cases in which the governmental objective is that of protection of a particularly vulnerable group, or members thereof”. It follows that legislation whose purpose is to maintain the inherent weakness of employees, such as para. (e) in the present case, is not entitled to deference. Indeed, such legislation should be examined with particular care.

131 Third, there is clearly some difficulty in this case in determining with scientific precision whether a link exists between the objective of securing a stable national police force and the means chosen to achieve this objective, namely the exclusion of RCMP members from the PSSRA. Ordinarily, this evidentiary difficulty would favour granting to the legislature a certain leeway in its choice of legislative remedy from a range of reasonable alternatives: RJR‑MacDonald, supra, at para. 160, per McLachlin J. However, as we have already discussed in relation to the issue of rational connection, the evidentiary record here lends some support to the view that the remedy chosen by Parliament to secure a stable national police force may actually contribute to the very labour unrest sought to be avoided. Faced with such evidence, it is inappropriate to defer to the legislature’s choice. A more rigorous examination of the issue of justification is called for.

132 Fourth, and finally with respect to the contextual factors relevant to the question of appropriate deference, the social and moral value of the activity suppressed by the impugned legislation in this case is very high. It is not necessary to review again here the importance of employee associations within Canadian society, which has already been discussed above. It is sufficient to note that the nature of the associational activity at issue does not warrant a deferential approach in analyzing possible justifications for the impugned legislation.

(ii) The Existence of a Less Restrictive Alternative

133 The question at this stage of the s. 1 inquiry is whether the exclusion of RCMP members from the entirety of the PSSRA impairs the appellant’s freedom of association and freedom of expression as little as reasonably possible in order to achieve the legislation’s objective. As stated by McLachlin J. in RJR‑MacDonald, supra, at para. 160:

The impairment must be “minimal”, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.... On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.

134 The essential practical question at this stage is whether Parliament could have granted to RCMP members, either within the PSSRA itself or through the enactment of a separate statute, some of the basic associational protections contained in the PSSRA without compromising the important objective of securing a stable and reliable national police force. This is the entire thrust of the appellant’s claim -- i.e., that it was unnecessary for Parliament to seek to ensure the continued vulnerability of RCMP members to management interference with the free association in order to ensure the broader objective of securing a stable and reliable national police force. In other words, Parliament could have achieved its valid broader objective without following through on its invalid narrow objective of ensuring a lack of RCMP member associations. The respondent argued before this Court that no less restrictive means could suffice, because it is the fact of association itself which produces the anticipated “divided loyalty” and thus leads to labour unrest among RCMP members. In the respondent’s view, the preliminary step of permitting employee associations and protecting such associations against interference by management has the potential to destabilize the RCMP and thus ultimately to decrease public security.

135 In our view, the respondent’s argument overstates the necessity of completely discouraging the formation of RCMP employee associations. It must first be recognized that many RCMP members already experience what the government has described as “divided loyalty”, without yet having gone on strike as a result. The gradual rise of informal associations of RCMP members is a manifestation of the dissatisfaction of some RCMP members with the existing labour relations framework within the force. While this dissatisfaction may ultimately transform itself into more active expressions of labour unrest, the important point is that the dissatisfaction already exists. The denial of statutory protections for RCMP member associations does not prevent a “divided loyalty”. The dual allegiance of RCMP members to their police superiors and to their fellow employees is thus a contemporary reality, not an anticipated “harm”. The most that the exclusion of RCMP members from the PSSRA has accomplished in this respect is to slow the rate at which individual RCMP members have acquired this dual allegiance.

136 If RCMP members have been experiencing an antagonism to RCMP management without serious labour unrest for many years, it seems likely that there must be additional factors beyond their exclusion from the PSSRA which contribute to the continued stability of the force. One of these factors is presumably the quasi‑military structure of the force, and the significant penalties imposed upon members who violate internal rules of conduct. Another more significant factor is the strong sense of honour which RCMP members must feel in adhering to the law even while fighting ardently for its reform. Whatever the combination of factors that has contributed to the continued stability of the RCMP throughout this century, it is certain that exclusion from the PSSRA is not the decisive factor.

137 Indeed, it is hard to imagine how purposefully endorsing the use of unfair labour practices by RCMP management could have anything other than a detrimental effect upon the loyalty of RCMP members to their superiors. To the extent that members perceive their employer as actively opposed to their socio‑economic interests, it is reasonable to expect an increase in employee dissatisfaction over time, all other things being equal. It seems strange to think that inequality between employees and their employers, and unfair practices by management, could be looked to as an effective means of maintaining an employee’s allegiance to the institution in which he or she works.

138 The evidence before the Court regarding labour unrest by police forces in Canada and in other industrialized countries reveals that the factors which determine the stability of a particular police force and the likelihood of its members to strike are numerous and complex. Among other factors, the integrity of a police force appears to be largely determined by informal and express codes of conduct within the force, and by the broader political and economic culture in which the police force is situated. In particular, as suggested in some of the material presented by the respondent, an important determining factor in police force stability is the manner in which members of the force are treated by management and by the state: see, e.g., Clark, supra. To the extent that grievances and inequities are dealt with promptly and fairly, members of the force are far less likely to mobilize in protest.

139 In light of the foregoing, it is our opinion that the valid objective of securing a stable and reliable RCMP can be achieved through a legislative mechanism that is less restrictive of free association than the existing complete exclusion from the PSSRA. The current law is not carefully tailored to balance the Charter freedoms of RCMP members and the societal interest in effective policing. Rather, para. (e) of the definition of “employee” in s. 2 of the PSSRA is, to borrow the language of Bastarache J. in Thomson Newspapers, supra, at para. 111, a very crude instrument. It seeks to achieve the legitimate objective of minimizing labour unrest within the RCMP through the overbroad and ineffective mechanism of totally excluding RCMP members from even the most basic associational protections. The result is a denial of freedom of association in some of its most socially significant manifestations.

140 The same government policy could be achieved through a statutory approach that is not nearly as restrictive of basic Charter freedoms, by limiting the ability of RCMP members to bargain collectively. The solution in most jurisdictions has been to prohibit striking and to require employment disputes be subject to some form of binding arbitration. It is not possible or appropriate in these reasons to provide precise guidance as to the most desirable or constitutionally acceptable manner of structuring a labour relations statute that would apply to members of the RCMP. It will have to be left to another day to decide whether any balance subsequently struck by Parliament among the interests of RCMP members, RCMP management, and the Canadian public does in fact accord with the Charter. The key point for the purpose of this case is that the freedom of employees to join an association of their choice is of such fundamental importance that it should not be as lightly set aside as it has been here.

141 By sanctioning the freedom of RCMP members to form an association or union, Parliament would be following the example set by provincial legislatures across Canada and in many comparable foreign jurisdictions. Parliament would be acting in a manner that is consistent with Canada’s international commitment to protect freedom of association.

142 In this regard, it is useful to consider the situation in the United States, where rights of employees, including police employees, to organize and join unions are fundamental rights that are accorded protection under the Constitution. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at p. 33, and Amalgamated Utility Workers (C.I.O.) v. Consolidated Edison Co. of New York, 309 U.S. 261 (1940), at pp. 263‑64. The right of employees to associate has been described in these words:

The right of laborers to organize unions has been held to be an exercise of the common‑law right of every citizen to pursue his calling, whether of labor or business, as he in his judgment thinks fit.

The right to assemble and function through labor organizations is a concomitant of the right of assembly guaranteed by the First Amendment....

(Corpus Juris Secundum, vol. 51, at p. 670.)

Provisions that restrict the right of individuals to join a trade union are therefore unconstitutional. It must be remembered that although the First Amendment provides constitutional protection for peaceful assembly, there is nothing analogous to s. 1 of the Charter in the Constitution of the United States. Therefore any limitation to the scope of the First Amendment guarantees must be derived from the wording of the relevant portion of that Amendment.

143 In Thomas v. Collins, 323 U.S. 516 (1945), the Supreme Court recognized that the First Amendment protected the right to be free to join a trade union. A statute of Texas required labour organizers to register with the state official before soliciting memberships in labour unions. While a court order restraining the appellant, a labour organizer, from violating the statute was in effect, he made a speech to a group of workers, urging them to join a union. He was sentenced to a fine and imprisonment for contempt. The Supreme Court held that the statute imposed a restraint upon the appellant’s rights of free speech and free assembly in violation of the First and Fourteenth Amendments.

144 In Atkins v. City of Charlotte, supra, the City of Charlotte was opposed to the idea of its firemen being part of a labour union, and argued that fire departments are quasi‑military in structure and that firemen must be ready to respond instantly and without question to orders of a superior. The District Court accepted that there was indeed a valid state interest at stake but held that it could be served by legislation more narrowly drawn. It was recognized that the right to join a national labour organization was protected under the First and Fourteenth Amendments. At the same time it was found that the right to bargain collectively was not similarly protected. Specifically, it was held that North Carolina statutes prohibiting government employees from becoming members of national labour organizations were unconstitutional. However a statute prohibiting collective bargaining agreements between governmental units and labour organizations did not violate the Constitution. At p. 1077 it was said:

. . . that the firemen of the City of Charlotte are granted the right of free association by the First and Fourteenth Amendments of the United States Constitution; that that right of association includes the right to form and join a labor union -- whether local or national; that membership in such a labor organization will confer upon the firemen no immunity from proper state regulation to protect valid state interests which are, in this case, the protection of property and life from destruction by fire. We think such a conclusion flows inevitably from the enunciations of the United States Supreme Court set out above.

145 Finally in Lontine v. VanCleave, 483 F.2d 966 (10th Cir. 1973), an action was brought against a county sheriff by a deputy sheriff who was dismissed because of his membership in a policemen’s union. Following the reasoning of Atkins v. City of Charlotte, supra, the Court of Appeal held that sheriff’s deputies have a First Amendment right to participate and retain membership in a union. However, it went on to observe that the sheriff might not be required to bargain collectively with such a union. Further it noted that appropriate and clearly defined legislation may validly prohibit strikes, slowdowns, and the like on the part of public employees whether members of a union or not.

146 The principle that legislation can impose restrictions upon police associations in the interests of national security has also found expression in the legislation of many states, including Virginia, Michigan, New York, California, and Texas, to name just a few. See respectively Va. Code Ann. § 40.1-57.2 (Michie 1994); Mich. Stat. Ann. § 17.455(2) (Supp. 1999); N.Y. Civil Service Law § 200 (Consol. 1995); Cal. Gov’t Code § 3508 (West 1995), and Tex. Loc. Gov’t Code Ann. §§ 143.303, 174.002 (West Supp. 1999).

147 These comparisons are of interest to the extent that they demonstrate that conceptually a clear distinction can be drawn between provisions whose purpose is to keep employees from forming and joining an employee association and those which limit collective bargaining. Furthermore, they emphasize the fundamental value of employee organizations in the context of labour relations and support the view that such organizations do not exist for the sole purpose of entering into collective bargaining.

(c) Deleterious and Salutary Effects

148 Having found that the impugned para. (e) of the definition of “employee” in s. 2 of the PSSRA does not minimally impair the appellant’s freedom of association, it is not necessary to consider the proportionality between the importance of the objective and the deleterious effects of the measure, or between the deleterious and salutary effects. We would note, though, that it is unlikely that the provision would be found proportionate at this stage of the inquiry. The exclusion of RCMP members from the PSSRA’s basic associational protections has few, if any, demonstrable salutary effects which could not be achieved by a lesser exclusion. Its negative effects, on both a symbolic level and a practical level, are severe and cut to the core of the Charter’s s. 2(d) protection.

C. Remedy

149 Once again it must be emphasized that the appellant has not sought to establish that he has the right to join a certified trade union or the right to engage in collective bargaining. Rather, he simply seeks to bring an end to the interference sanctioned by the impugned legislation in relation to basic associational efforts by RCMP members. In our view, the only appropriate remedy in this case is to strike down para. (e) of the definition of “employee” in s. 2 of the PSSRA as being contrary to the Charter and thus of no force or effect under s. 52 of the Constitution Act, 1982. In light of the importance of ensuring that members of the RCMP are not permitted to strike, we would also suspend the declaration of para. (e)’s invalidity for one year, to allow amending legislation to be passed if Parliament sees fit to do so. We note that the remedy of striking down is the remedy sought by the appellant, albeit without a suspension of the declaration of invalidity.

150 It is useful to be clear, though, as to why no other remedy is appropriate. In particular, it could be argued that the appropriate remedy is to permit members of the RCMP to be “employees” capable of forming an “employee organization” that receives basic associational protections under ss. 6, 8 and 9 of the PSSRA, but to forbid any RCMP employee organization from obtaining union certification so as to engage in collective bargaining. The effect of such a ruling would be that RCMP members would receive the protections accorded by the PSSRA to all individual employees and to uncertified employee organizations, but would not receive the protections accorded specifically to an organization that has been certified as a bargaining agent for the purposes of the PSSRA. Given that the Act could accommodate such an arrangement, and that the appellant has not argued in favour of collective bargaining rights, it might seem fitting to amend the PSSRA judicially to protect the appellant’s freedom to associate in this way.

151 However, leaving aside altogether the question of whether it is appropriate or feasible for a court to amend legislation in such a detailed manner, we feel that there is another reason why this form of reading in would be an inappropriate remedy. The Court has been asked in this case to rule upon whether the impugned para. (e) is unconstitutional because of its anti-associational purpose. We have found that the exclusion of RCMP members from the basic associational protections in the PSSRA does have this purpose and violates the Charter, yet because of the manner in which the appellant has articulated his claim we have done so without being required to decide whether a Charter violation results from the total exclusion of RCMP members from the PSSRA’s collective bargaining regime. As explained by Sopinka J. in PIPSC, supra, at p. 405, it may be that such a total exclusion could interfere with the ability of employees to associate, and thus infringe the Charter’s freedom of association guarantee. We do not believe that it is appropriate to decide, at the remedy stage of the analysis, whether it is constitutionally permissible to exclude RCMP members entirely from a collective bargaining regime. Moreover, we do not wish to prejudge the question of whether Parliament may wish to extend limited collective bargaining rights to RCMP members. We would note, too, that there are questions as to the proper method of enforcing the rights granted by ss. 6, 8 and 9 of the PSSRA, that are best left to be answered by the legislative branch. Accordingly, we would strike down para. (e).

VII. Conclusions and Disposition

152 For the reasons outlined herein, the appeal is allowed with costs. The judgment of the Quebec Court of Appeal is set aside. We conclude that para. (e) of the definition of “employee” in s. 2 of the PSSRA infringes s. 2(d) of the Charter and cannot be saved under s. 1. Paragraph (e) is hereby declared of no force or effect by reason of s. 52 of the Constitution Act, 1982. The declaration of invalidity is suspended for one year.

153 We would answer the constitutional questions as follows:

(1) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe or deny the appellant’s freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms?

Answer: It is not necessary to answer this question.

(2) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe or deny the appellant’s freedom of association guaranteed in s. 2(d) of the Canadian Charter of Rights and Freedoms?

Answer: With respect to s. 6 of the Canada Labour Code, it is not necessary to answer this question. With respect to the definition of “employee” at para. (e) of s. 2 of the Public Service Staff Relations Act, yes.

(3) Do s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act infringe upon the appellant’s equality rights guaranteed in s. 15(1) of the Canadian Charter of Rights and Freedoms?

Answer: It is not necessary to answer this question.

(4) If the answer to questions 1, 2, or 3 is in the affirmative, can s. 6 (formerly 109(4)) of the Canada Labour Code and para. (e) of the definition of “employee” at s. 2 of the Public Service Staff Relations Act be justified under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: No.