R. v. Advance Cutting & Coring Ltd.

R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70

Advance Cutting & Coring Ltd., Gilles Thériault,

Luc Loyer, Éric Schryer, Jean Grégoire, Daniel Matte,

Raymond Matte, Paul Rock, Marc Piché, Denis St-Amour,

Ray Matte Couvreur, 161614 Canada Inc.,

Ateliers de Menuiserie Allaire Inc., Paul Rodrigue,

Raymond Plante and Michel Mongeon Appellants

v.

Her Majesty The Queen Respondent

and

The Attorney General of Quebec Mis en cause

and

Commission de la construction du Québec,

Centrale des syndicats démocratiques (CSD-Construction),

Confédération des syndicats nationaux (CSN-Construction),

Conseil provincial du Québec des métiers de la construction (International),

Fédération des travailleurs du Québec (FTQ-Construction),

Canadian Coalition of Open Shop Contracting Associations and

Canadian Office of the Building and

Construction Trades Department, AFL-CIO Interveners

Indexed as: R. v. Advance Cutting & Coring Ltd.

Neutral citation: 2001 SCC 70.

File No.: 26664.

2000: March 20; 2001: October 19.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Labour law -- Quebec construction industry -- Contractors charged with hiring employees who did not have competency certificates and workers charged with working without competency certificates as required under Quebec construction legislation -- Whether requirement that workers become members of one of listed union groups in order to obtain competency certificates unconstitutional -- Canadian Charter of Rights and Freedoms, s. 2(d) -- Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry, R.S.Q., c. R-20, ss. 28-40, 85.5, 85.6, 119.1, 120.

Constitutional law -- Charter of Rights -- Freedom of association -- Contractors charged with hiring employees who did not have competency certificates and workers charged with working without competency certificates as required under Quebec construction legislation -- Whether requirement that workers become members of one of listed union groups in order to obtain competency certificates unconstitutional -- Whether guarantee of freedom of association includes right not to associate -- Canadian Charter of Rights and Freedoms, s. 2(d) -- Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry, R.S.Q., c. R-20, ss. 28-40, 85.5, 85.6, 119.1, 120.

The appellants, who are contractors, real estate promoters and construction workers, were charged with hiring employees who did not have the required competency certificates to work on a construction project or with working in the industry without the proper competency certificates, contrary to s. 119.1 of the Quebec Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry (the “Construction Act”). The appellants asserted that workers could not obtain the proper competency certificates without becoming members of one of the union groups listed in s. 28 of the Construction Act. They claimed that this obligation was unconstitutional because it breached the right not to associate which, in their opinion, was a component of the guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms.

At the time, s. 28 of the Construction Act provided that the five union groups listed were the only groups entitled to an assessment of their representativeness. Under s. 30, the Commission de la construction du Québec draws up a list of construction workers qualified to take part in a mandatory vote under s. 32, during which each worker must opt for one of the union groups as his or her bargaining representative. In order to take part in that vote, a construction worker must hold a journeyman competency certificate, an occupation competency certificate or an apprentice competency certificate. Construction workers must also have worked 300 hours in the industry in the 15 months before the election is held. On the basis of the vote, the Commission determines the representativeness of every association under s. 35. This degree of representativeness determines the extent of the influence of each association in the negotiation process. Only a union or a group of associations with a representativeness of 50 percent or greater of all certified construction workers may negotiate collective agreements. If a union’s degree of representativeness does not reach at least 15 percent, it is even deprived of the right to attend collective bargaining sessions.

The trial judge dismissed the constitutional argument and found the appellants guilty as charged. The Superior Court affirmed that judgment. The Court of Appeal dismissed the appellants’ motion for leave to appeal to that court.

Held (McLachlin C.J. and Major, Bastarache and Binnie JJ. dissenting): The appeal should be dismissed. The impugned legislation is constitutional.

Per Gonthier, Arbour and LeBel JJ.: The appellants have standing to raise the constitutional questions stated. As appears from the legislation challenged, the conditions governing the issuance of competency certificates and union membership are closely linked. A successful challenge to the provisions governing the compulsory choice of a collective bargaining agent might give rise to some defence to the specific charges laid in this case. Moreover, at the present stage of the proceedings, the interest of justice favours a careful consideration of the substantive issues brought before this Court.

Although the right of association represents a social phenomenon involving the linking together of a number of persons, it belongs first to the individual. It fosters one’s self-fulfilment by allowing one to develop one’s qualities as a social being. The act of engaging in legal activities, in conjunction with others, receives constitutional protection. The focus of the analysis remains on the individual, not on the group.

While the majority of the Court acknowledged in Lavigne that there was a negative right not to associate, it also accepted a democratic rationale for putting internal limits on it. An approach that fails to read in some inner limits and restrictions on a right not to associate would deny the individual the benefits arising from an association. The acknowledgement of a negative right not to associate would not justify a finding of an infringement of the guarantee whenever a form of compelled association arises. Some forms of compelled association in the workplace might be compatible with Charter values and the guarantee of freedom of association. An inquiry must take place into the nature of the commitment to an association. In the case of a legislated form of union security, the nature of the legislative scheme must also be closely scrutinized.

The appellants have not made out a case that the challenged legislation establishes a form of ideological conformity that would trigger the application of s. 2(d) of the Charter. As it stands, the law does not impose on construction workers much more than the bare obligation to belong to a union. Their obligation boils down to the obligation to designate a collective bargaining representative, to belong to it for a given period of time, and to pay union dues. At the same time, the Act provides protection against past, present and potential abuses of union power. Unions are deprived of any direct control over employment in the industry. They may not set up or operate an office or union hall. No discrimination is allowed against the members of different unions. Provided they hold the required competency certificates, all workers are entitled to work in the construction industry without regard to their particular union affiliation. Section 96 grants members clear rights of information and participation in union life. The law allows any construction worker to change his or her union affiliation, at the appropriate time.

There is simply no evidence to support judicial notice of Quebec unions ideologically coercing their members. Such an inference presumes that unions hold a single ideology and impose it on their rank and file, including the complainants in this case. Such an inference would amount to little more than an unsubstantiated stereotype. The appellants presented no evidence that the legislation imposes a form of ideological conformity or threatens a liberty interest protected by the Charter, which is necessary for it to infringe the right not to associate under s. 2(d). The evidence does not even indicate whether unions are engaged in causes and activities that the appellants disapprove of. This is not a subject where judicial knowledge could and should replace proper evidentiary records unless the fact of joining a union were, of itself, evidence of a particular ideological bent. The well-known fact of trade union participation in public life in Canada does not demonstrate that every union worker joining a union under a union security arrangement should be considered prima facie a victim of a breach of the Charter.

The question at stake in this appeal should be left to the political process. Such a solution retains a balance in the application of the Charter, and leaves the legal management of labour relations to Parliament and legislatures as well as to the parties to labour agreements. The management of labour relations requires a delicate exercise in reconciling conflicting values and interests. The relevant political, social and economic considerations lie largely beyond the area of expertise of courts. This limited and prudent approach to court interventions in the field of labour relations reflects a proper understanding of the functions of courts and legislatures. In the application of the Charter, it also avoids characterizing any kind of governmental action in support of human rights as a prima facie infringement of the Charter that would have to be justified under s. 1.

Even if the legislation had infringed the s. 2(d) right not to associate, it would still be justified under s. 1 of the Charter. Legislatures are entitled to a substantial, though not absolute, degree of latitude and deference to settle social and economic policy issues. Courts should be mindful to avoid second-guessing legislatures on controversial and complex political choices. The jurisprudence acknowledges that legislative policy-making in the domain of labour relations is better left to the political process, as a general rule. The limits at issue here are prescribed by law. The law also addresses a pressing and substantial purpose. The history of the legislation demonstrates that the Quebec National Assembly tried to address problems that had become a pressing social and economic issue, which led to a process of trial and error that lasted for several years, and is still going on.

Moreover, a rational connection existed between the means chosen by the legislature and their goal. The voting procedure constituted the fairest and most effective way to determine the representativeness of unions. The obligation to join them demonstrated the will to involve workers in the management of their association, to foster and increase their participation in union life and in union decisions, after a period when democratic values had often been flouted by local unions. The legislature viewed this form of security as a better instrument to maintain and develop democracy than the Rand formula, under which workers pay for services and have no say on the most important issues concerning the association and its members. As it still does, the construction industry played a major role in the economy and development of the province. Its labour relations were constantly in turmoil for several years. Union democracy was in peril. It had become difficult to set up a workable system of collective bargaining. A resolution of these difficulties involved both the establishment of the representative status of labour unions and the safeguarding of union democracy. The National Assembly sought, in this way, to address the objective of establishing peace and economic efficiency in the industry. Given the nature of these difficulties, the provisions involving the selection of a bargaining representative, the obligation to choose among a limited number of union groups and compulsory financial support were related to this objective. They attempted to create a workable mechanism to establish the representativeness of unions while safeguarding union pluralism. There is no evidence that any active employee association in the industry was left out of the process. On the contrary, the legislature usually tried to take into account the numerous changes in the organization of the labour groups. In this manner, these measures directly aim to further important social and economic purposes.

Viewed in the context of the particular historical experience of Quebec’s labour relations, the legislation also meets the minimal impairment test. This limited form of compelled association respects fundamental democratic values. It requires only a limited commitment from construction employees. They must choose a collective bargaining agent. The legislation gives them a choice among five union groups. It appears that no new group has been left out of the process. The law also calls upon construction employers to support the chosen approach. Nothing more is imposed by the law. Finally, the advantages of the legislation clearly outweigh their limited impact upon the asserted negative right not to associate. The Construction Act imposes strict obligations on unions in respect of internal democracy. Any form of employment discrimination is also forbidden. The whole process of hiring has been entirely removed from union control by legislation. Through a difficult process of legislative experimentation, the legislation has reestablished a degree of peace and union democracy in the Quebec construction industry. The Court is called upon to consider the validity of a complex legislative scheme, born out of a history of attempts, failures and disappointments. At the time the present litigation started, this legislation presented the result of about 30 years of legislative work to create a proper system of collective bargaining in the industry. A considerable degree of deference is due to the legislature and the difficulties inherent in the art of government in such a traditionally fractious environment. Court intervention might affect sensitive aspects of a carefully balanced scheme and is not warranted in the circumstances of this case.

Per L’Heureux-Dubé J.: LeBel J.’s extensive review of the troubled history of labour relations in the Quebec construction industry and of the legislative history of the Construction Act was agreed with, as was his conclusion that the Act is constitutional. For the reasons given by Wilson J. in Lavigne, however, s. 2(d) of the Charter includes only the positive freedom to associate. The alleged protected “right not to associate” is nowhere articulated in the Charter, and is antithetical to the purpose and scope of the protected right of association. The negative right does not sit well with the structure of the Charter. Moreover, it would trivialize the Charter since the recognition of such a right would have serious consequences, which would oblige the courts to adopt severe limitations to differentiate between genuine and constitutionally insignificant violations of s. 2(d). While no one should be forced to associate, s. 2(d) of the Charter does not offer such constitutional protection. Rather, and particularly on the narrowly circumscribed definition of that right and numerous built-in exceptions adopted by LeBel J., the constitutional guarantee of freedom of expression under s. 2(b) will come into play if and when one is forced to associate, as well as possibly s. 7 of the Charter.

Negative rights are viewed as individual rights embodying individual goals: an individual is given the constitutional right not to belong to an association. If the fundamental purpose of freedom of association is to permit the collective pursuit of common goals, then the very concept of a “negative freedom of association” becomes suspect. The collective pursuit of “common goals” in such a context leads to an abstraction which is difficult to justify.

The course of judicial restraint suggests that no new constitutional doctrine should be developed if existing doctrine could resolve the issue. Constitutional remedies are powerful tools which ought to be used with prudence. When required, however, they should be applied with vigour and in a purposive manner. An additional reason for caution is based on the fact that the impetus for efforts to establish the negative right to association has historically originated with those opposed to the establishment or maintenance of labour associations. The creation and application of new judicial tools, featuring a questionable mark of origin, will inevitably generate new jurisprudence to which there are certain risks attached. Such a development may not be viewed as prudent, especially in light of the fact that there is no need to take such a risk because proven alternatives are available.

Per Iacobucci J.: The freedom of association guaranteed by s. 2(d) of the Charter encompasses a negative right to be free from compelled association, which is infringed by the legislation at issue here. An analysis that construes the negative freedom within s. 2(d) more broadly than the “ideological conformity” test should be adopted. Where the state obliges an association of individuals whose affiliation is already compelled by the facts of life (such as in the workplace), and the association serves the common good or furthers the collective social welfare, s. 2(d) will not be violated unless the forced association imposes a danger to a specific liberty interest. The state-imposed association established by the Construction Act does not promote the common good or further the collective social welfare within the context of s. 2(d) of the Charter. The legislation fails to provide any justification for the compelled union association that it envisages for Quebec’s construction industry. Membership in union groups is not contingent upon any competency requirements and there is thus no public assurance that workers within these groups will have the necessary skills and abilities to carry out their trade. Furthermore, the provisions of this legislation impair the appellants’ liberty interests. The present appeal involves construction workers in Quebec who have no choice but to unionize in order to carry out their work. Their liberty is further restricted by the fact that they must become members of one of five union groups that have been specifically accepted by the state. However, the legislation is justified under s. 1 of the Charter. The Construction Act was adopted within a unique and complex historical context, and served to promote distinct social and economic objectives that were, and remain, pressing and substantial. Further, for the reasons given by LeBel J., the legislation is rationally connected to these objectives, it minimally impairs the freedoms guaranteed under s. 2(d), and its benefits outweigh its deleterious effects.

Per McLachlin C.J. and Major, Bastarache and Binnie JJ. (dissenting): Section 2(d) of the Charter implies a negative right not to associate. The test for an infringement of this right, however, is not whether there is evidence of ideological coercion or conformity imposed by the forced association. For ideological conformity to exist, it is not necessary that there be evidence of an imposition of union values or opinions on the member, evidence of a limitation of the member’s free expression, or evidence that the union participates in causes and activities of which the member disapproves. The interpretation of ideological conformity must be broader and take place in context. In this case, this context would take into account the true nature of unions as participatory bodies holding political and economic roles in society which, in turn, translates into the existence of ideological positions. To mandate that an individual adhere to such a union is ideological conformity.

The challenged statutory provisions infringe the negative right which forms part of s. 2(d). Under the Construction Act, membership in one of the unions is obligatory. Furthermore, membership has meaning. Membership is about sharing values, joining to pursue goals in common, expressing views reflecting the position of a particular group in society. It is because of the collective force produced by membership that unions can be a potent force in public debate, that they can influence Parliament and the legislatures in their functions, that they can bargain effectively. This force must be constituted democratically to conform to s. 2(d).

It is not necessary to have more independent evidence of the ideological views of the specific unions involved in this case. It is in fact sufficient that adherence is required to a scheme advocating state-imposed compulsory membership which affects freedom of conscience and expression, as well as liberty and mobility interests, for it to have a negative impact on the right to work, because such adherence itself is a form of ideological coercion. Ideological constraint exists in particular where membership numbers are used to promote ideological agendas and this is so even where there is no evidence that the union is coercing its members to believe in what it promotes.

In this case, workers objected to being forced to join a union and objected generally to the compulsory unionization scheme, which is ideological in nature. This is a case where the freedom not to associate is markedly infringed. It is a clear situation of government coercion, the result of which mandates that workers in the construction industry in Quebec group together in a few unions which are specified and approved by government. The fact that there are five unions from which workers can choose in no way negates this infringement for it remains government-mandated group affiliation. Self-realization of the worker is violated in many ways. He or she must unionize. Within the prescribed regime, democracy is further restricted by limited choice. There is no guarantee that a majority of voters will exercise their right. A default provision can determine the outcome of elections. Those voting for minority associations may be left out of future negotiations. When freedom not to associate is considered in light of other Charter values, including liberty, freedom of conscience and expression, mobility and the right to work, it must be concluded that governmental mandatory union association infringes this important Charter right. Ideological conformity is engaged in particular because the members of the associations necessarily participate in and indirectly support a system of forced association and state control over work opportunity. This is a situation whereby the democratic rights of workers are taken away. Being forced to accept and participate in a system that severely limits the democratic principle in the area of labour relations is a form of coercion that cannot be segregated totally from ideological conformity.

There is also a breach of the positive right to associate. There are severe restrictions on the right of a person to join one of the five chosen unions in order to work in the construction industry in Quebec. Even if the conditions imposed by s. 30 of the Construction Act were permissible limitations on freedom of association, the regional quotas would still need to be justified under s. 1. They unduly infringe the ability of workers to join a union, which is a prerequisite for working in the construction industry in Quebec. As such, they are an infringement of the s. 2(d) freedom of association.

The infringement of s. 2(d) is not justifiable. In determining whether this infringement can be justified by s. 1, this Court must again take into consideration Charter values including liberty, freedom of expression, the right to work and mobility rights. While it is in the public interest to have structured collective bargaining and to provide for competency requirements, and these are no doubt pressing and substantial objectives, they are not the true objectives of the impugned provisions. The legislation brings into play restrictions on the admission to the industry, cancellation of the ability to have a non-unionized business, restrictions on bargaining rights, imposition of regional quotas and impingement of regional mobility. It has not been demonstrated that there is a logical relationship between the legislation’s stated objectives and these restrictions. Any justification based on competency is untenable. The actual requirements of s. 30 and the regional quotas have little if anything to do with the professional competence of workers in the construction industry. Being a resident of Quebec in the previous year, having worked a set number of hours in that year, and being less than 50 years old, do not verify competence. The same may be said for the regional quotas and control over regional mobility within the province. There is accordingly no rational connection between the objective and the measures taken. Moreover, the requirements of the minimal impairment branch of the proportionality test have not been met. If the purpose of the legislation is viewed as ensuring the competency of construction workers, neither the limitation of the “freedom to associate” nor the limitation of the “freedom from association” is minimally impairing. Section 30 and the regional quotas have little or nothing at all to do with competence and therefore cannot be viewed as minimal impairments of s. 2(d).

Cases Cited

By LeBel J.

Considered: Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211; Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; referred to: Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 72 (SCC), [1990] 2 S.C.R. 367; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27; Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989; PSAC v. Canada, 1987 89 (SCC), [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, 1987 90 (SCC), [1987] 1 S.C.R. 460; International Longshoremen’s and Warehousemen’s Union __ Canada Area Local 500 v. Canada, 1994 109 (SCC), [1994] 1 S.C.R. 150; RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497; Reference re Education Act (Que.), 1993 100 (SCC), [1993] 2 S.C.R. 511; Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1; Mahe v. Alberta, 1990 133 (SCC), [1990] 1 S.C.R. 342; Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010; R. v. Adams, 1996 169 (SCC), [1996] 3 S.C.R. 101; Black v. Law Society of Alberta, 1989 132 (SCC), [1989] 1 S.C.R. 591; R. v. Skinner, 1990 107 (SCC), [1990] 1 S.C.R. 1235; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 105 (SCC), [1990] 1 S.C.R. 1123; Libman v. Quebec (Attorney General), 1997 326 (SCC), [1997] 3 S.C.R. 569; Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 22 (SCC), [1990] 3 S.C.R. 644; Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701; R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32; R. v. Williams, 1998 782 (SCC), [1998] 1 S.C.R. 1128; Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670; Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); American Federation of Labor v. American Sash & Door Co., 335 U.S. 538 (1949); Railway Employes’ Department v. Hanson, 351 U.S. 225 (1956); International Association of Machinists v. Street, 367 U.S. 740 (1961); Brotherhood of Railway and Steamship Clerks v. Allen, 373 U.S. 113 (1963); Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435 (1984); Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292 (1986); Communications Workers of America v. Beck, 487 U.S. 735 (1988); Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991); Eur. Court H.R., Young, James and Webster judgment of 13 August 1981, Series A No. 44; Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A No. 43; Eur. Court H.R., Sigurjónsson v. Iceland judgment of 30 June 1993, Series A No. 264; Eur. Court H.R., Gustafsson v. Sweden judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II; Chassagnou and Others v. France [GD], Nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III; Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203; Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), [1989] 1 S.C.R. 927; R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3; Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892; U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 650 (SCC), [1999] 2 S.C.R. 1083; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825; R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303; Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Reference re Secession of Quebec, 1998 793 (SCC), [1998] 2 S.C.R. 217.

By L’Heureux-Dubé J.

Considered: Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211; referred to: Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989; Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296; Merry v. Manitoba and Manitoba Medical Association (1989), 1989 7322 (MB QB), 58 Man. R. (2d) 221; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313; Eur. Court H.R., Sigurjónsson v. Iceland judgment of 30 June 1993, Series A No. 264; Chassagnou and Others v. France [GD], Nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III.

By Iacobucci J.

Considered: Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211.

By Bastarache J. (dissenting)

Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211; Ford Motor Co. of Canada v. U.A.W.-I.C.O. (1946), 46 C.L.L.C. ¶18,001; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817; Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326; R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411; Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863; Mooring v. Canada (National Parole Board), 1996 254 (SCC), [1996] 1 S.C.R. 75; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315; Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313.

Statutes and Regulations Cited

Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry, R.S.Q., c. R-20, ss. 1, 17(9), 27, 28-40, 30, 31, 32, 33, 34, 35, 36, 36.1 [ad. 1996, c. 74, s. 36], 38, 39, 41, 42.1, 85.5, 85.6, 94, 95, 96, 99, 101, 102, 104, 119, 119.1, 120, 124.

Act to amend the Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry and other legislative provisions, S.Q. 1993, c. 61, s. 15(3).

Act to amend the Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry and other legislative provisions, S.Q. 1994, c. 8.

African Charter on Human and Peoples’ Rights, art. 10(2).

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 6, 7, 15, 23, 32.

Civil Code of Québec, S.Q. 1991, c. 64, arts. 2085, 2097.

Code of Penal Procedure, R.S.Q., c. C-25.1.

Collective Agreement Decrees Act, R.S.Q. 1964, c. 143 (now R.S.Q., c. D-2).

Collective Labour Agreements Extension Act, S.Q. 1934, c. 56.

Constitution Act, 1982, s. 35.

Construction Industry Labour Relations Act, S.Q. 1968, c. 45, ss. 3, 59.

Election Act, R.S.Q., c. E-3.3.

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, arts. 9, 10, 11.

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.

International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, arts. 6, 8(1)(a).

Labour Code, R.S.Q., c. C-27, s. 47.

Labour Code, R.S.Q. 1964, c. 141.

Labour Code, S.Q. 1963-64, c. 45.

Labour Relations Act, R.S.Q. 1941, c. 162A.

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

Referendum Act, R.S.Q., c. C-64.1.

Regulation respecting the election of a representative association by the employees of the construction industry, (1997) 129 O.G. II, 1866, s. 23.

Regulation respecting the issuance of competency certificates, (1987) 119 O.G. II, 1471 [am. (1989) 121 O.G. II, 2782], ss. 1, 2, 2.1, 3, 4, 4.1.

Regulation respecting the placement of employees in the construction industry, R.R.Q. 1981, c. R-20, r. 10, ss. 6, 10.

Regulation respecting the registration certificate issued by the Office de la construction du Québec, R.R.Q. 1981, c. R-20, r. 3 [repealed in 1997], ss. 1, 3.

Regulation respecting the vocational training and qualification of manpower in the construction industry, R.R.Q. 1981, c. F-5, r. 3, ss. 7, 16, Schedule B.

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 20.

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APPEAL from a judgment of the Quebec Court of Appeal, [1998] Q.J. No. 4173 (QL), dismissing an application for leave to appeal a judgment of the Superior Court, 1998 11295 (QC CS), [1998] R.J.Q. 911 (sub nom. Thériault v. R.), affirming Judge Bonin’s dismissal of the appellants’ constitutional challenge and convicting them of offences under the Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry. Appeal dismissed, McLachlin C.J. and Major, Bastarache and Binnie JJ. dissenting.

Julius H. Grey, Elizabeth Goodwin and Vincent Basile, for the appellants.

Jean-François Jobin and Benoit Belleau, for the mis en cause.

Jean Ménard, for the intervener Commission de la construction du Québec.

Robert Toupin and Edward Kravitz, for the interveners Centrale des syndicats démocratiques (CSD-Construction), Confédération des syndicats nationaux (CSN-Construction) and Conseil provincial du Québec des métiers de la construction (International).

Robert Laurin and France Colette, for the intervener Fédération des travailleurs du Québec (FTQ-Construction).

Peter A. Gall, Andrea L. Zwack and Corrado De Stefano, for the intervener Canadian Coalition of Open Shop Contracting Associations.

Harold F. Caley, for the intervener Canadian Office of the Building and Construction Trades Department, AFL-CIO.

The reasons of McLachlin C.J. and Major, Bastarache and Binnie JJ. were delivered by

Bastarache J. (dissenting) -- I have had the opportunity of reading the reasons of my colleagues. I respectfully disagree with L’Heureux-Dubé J. on the existence of the right to be free from compelled association. Although I appreciate the value of the long historical development discussed by LeBel J. and agree with him on the existence of the negative right just mentioned, I cannot agree with him on a number of fundamental issues. First, I have a different view of the content of freedom from association, in other words, the scope of the negative right. Second, I do not agree with the restrictive approach to the s. 1 analysis adopted by LeBel J. in this case. In addition, I believe this Court must consider the restrictions on the right to associate, the positive right, that are imposed in particular by s. 30 of the Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry, R.S.Q., c. R-20, and the regional regulatory quotas. The appellants directly challenged s. 30 of the Act as infringing s. 2(d) of the Canadian Charter of Rights and Freedoms; as noted by the appellants in their oral arguments, it is therefore necessary to consider all s. 2(d) issues that are raised. Based on my view of the scope of the negative right and the analysis of the infringement of the positive right, I would allow the appeal.

Section 2(d): The Scope of the Negative Right

LeBel J. concludes that s. 2(d) of the Charter implies a negative right not to associate; he states that the test for an infringement of this right is whether there is evidence of ideological coercion or conformity imposed by the forced association. Having found that no such ideological conformity exists in the present case, he finds no infringement of this right. With respect, I disagree both with the test used and his ultimate finding in the present case.

The test relied upon by LeBel J. is based primarily upon the decision of McLachlin J. (as she then was) in Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211. According to LeBel J., for ideological conformity to exist, there must be evidence of an imposition of union values or opinions on the member, evidence of a limitation of the member’s free expression, or evidence that the union participates in causes and activities of which the member disapproves (para. 232). In other words, LeBel J.’s interpretation of ideological conformity is a narrow one where, in order to exist, there must be some impact on the member’s moral convictions. This test, as formulated by LeBel J., is, in my opinion, too narrow and results in a negative right that is too constrained. I do not agree that McLachlin J.’s opinion in Lavigne need be interpreted so restrictively. In my view, the interpretation of ideological conformity must be broader and take place in context. In this case, this context would take into account the true nature of unions as participatory bodies holding political and economic roles in society which, in turn, translates into the existence of ideological positions. To mandate that an individual adhere to such a union is ideological conformity.

It is evident that even prior to the coming into force of the Charter, ideological conformity was a major concern of the courts when considering forced association. In fact, this is shown by the Rand formula, which has been so important in the historical development of the union movement. According to Rand J., the democratic principle is an underlying value of prime importance in this analysis and any form of coercion affecting it must be taken very seriously. As noted by M. MacNeil, M. Lynk and P. Engelmann in Trade Union Law in Canada (loose-leaf ed.), at p. 2-13:

Rand attempted to balance the interest of individuals in not being forced to associate with an organization against their will with the interest of the majority in preventing a minority from acquiring the fruits of collective bargaining without having to pay for it. [Emphasis added.]

At issue in the labour dispute arbitrated by Rand J. in 1946 was whether a union shop clause could be inserted into a collective agreement. He created an alternative to the union shop clause which became widely accepted and known as the ‘Rand formula’. As noted above, in Ford Motor Co. of Canada v. U.A.W.-I.C.O. (1946), 46 C.L.L.C. ¶18,001, Rand J. was concerned with individual workers’ rights and the democratic principles underlying union membership. He stated at p. 159:

As I conceive it, from the social and economic structure in which we live I must select considerations which have attained acceptance in the public opinion of this country and which as principles are relevant to controversies of the nature of that before me;

At pp. 160 and 161, he noted that:

[O]rganized labour itself develops and depends upon power, which in turn must be met in balancing controls in relation to the individual members or workers over whom it may be exercised, as well as to industry and public.

The organization of labour must in a civilized manner be elaborated and strengthened for its essential function in an economy of private enterprise. For this there must be enlightened leadership at the top and democratic control at the bottom. . . . Hitherto the tendency has been to treat labour as making demands quite unwarranted on any basis of democratic freedom in relation to property and business and the ordinary mode of settling labour disputes, a piecemeal concession in appeasement. I cannot see much effort to place conciliation on principle and although at once I disclaim any hope of doing more than to suggest principle through a slightly altered approach, I must at least make that attempt. [Emphasis added.]

He continued, at p. 163, discussing the balancing of union security with that of individual choice. He remarked:

What is asked for is a union shop with a check-off. A union shop permits the employer to engage employees at large, but requires that within a stated time after engagement they join the union or be dismissed if they do not. This is to be distinguished from what is known as a “closed shop” in which only a member of the union can be originally employed, which in turn means that the union becomes the source from which labour is obtained.

. . . Where there is a closed or union shop, the check-off becomes less significant because of the fact that expulsion from the union requires dismissal from employment.

In addition to the foregoing of which there may be many modifications, there is what is known as “maintenance of membership” which is a requirement that an employee member of a union maintain that membership as a condition to his continuing employment for a stated time, generally the life of an agreement. . . .

Basing my judgment on principles which I think the large majority of Canadians accept, I am unable in the circumstances to award a union shop. It would subject the Company’s interest in individual employees and their tenure of service to strife within the union and between them and the union which, with extraordinary consequences, . . . and it would deny the individual Canadian the right to seek work and to work independently of personal association with any organized group. It would also expose him even in a generally disciplined organization to the danger of arbitrary action of individuals and place his economic life at the mercy of the threat as well as the action of power in an uncontrolled and here an unmatured group. [Emphasis added.]

Finally, at p. 165, he concluded that the mechanism chosen “preserves the basic liberties of [the] Company and employee” (emphasis added) aforementioned.

The Rand formula was discussed by this Court in Lavigne, supra. Wilson J. noted the reason for the success of this type of clause in Canada and distinguished it from situations where union membership was mandatory. She stated, at p. 272:

Its success in Canada has stemmed from the fact that in enhancing union security it does not work to suppress expression but to foster it.

Why is this so? Viewed closely, it is evident that there is nothing about the agency shop which purports to align those subject to its operation with the union or any of its activities. Indeed, the Rand formula specifically provides for dissent by stipulating that no member of the bargaining unit is required to join and thereby become a member of the union. Free expression was thus enhanced by giving unionists and non-unionists alike a voice in the administration of the employment relationship. [Emphasis added.]

Finding that the Rand formula infringes s. 2(d) of the Charter but is justified by s. 1, La Forest J. also noted, at p. 341, that the Rand formula does not mandate union membership. Further, McLachlin J. remarked, at p. 347:

The whole purpose of the formula is to permit a person who does not wish to associate himself or herself with the union to desist from doing so. The individual does this by declining to become a member of the union. The individual thereby dissociates himself or herself from the activities of the union.

The infringement in the present case is much more important than that created by the Rand formula and requires justification that is therefore more extensive. It was decided in Lavigne that ideological conformity is at the core of freedom from association; it is not necessary to decide here whether it is the only factor to be considered in all cases, as will be shown later in these reasons.

In order to understand the entire scope of the negative right, one must consider the impact of other Charter values on its infringement, as required under the rules of Charter interpretation described in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, where Dickson J. (as he then was) stated, at p. 344:

The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam [Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145] emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society of Upper Canada v. Skapinker, 1984 3 (SCC), [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts. [First emphasis in original; second emphasis added.]

Dickson C.J. referred to this decision in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, where he remarked, at p. 119:

To identify the underlying purpose of the Charter right in question, therefore, it is important to begin by understanding the cardinal values it embodies.

Both of these cases provide inspiration for defining the limits of the s. 2(d) negative right under the Charter. The whole context of the right must be considered. This was already a consideration of Rand J. in Ford Motor, supra, at p. 159, wherein he speaks of the social and economic structure in which we live and which gives rise to principles of law. This context includes, as I have said, a consideration of Charter values that come into play in the particular situation at issue. In this case, the fundamental values that must be protected in the workplace include freedom of conscience, mobility, liberty, freedom of expression and the right to work. The necessity of considering the totality of the rights and values that are interrelated when dealing with forced association in the workplace, in my opinion, points to the need to take a broad view of the Charter right not to associate.

This approach is supported by consideration of this freedom in light of international conventions and the jurisprudence of this Court.

The United Nations Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), states:

Article 20

2. No one may be compelled to belong to an association.

In addition, the United Nations International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, provides that:

Article 8. 1. The States Parties to the present Covenant undertake to ensure:

(a) the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; [Emphasis added.]

This Court has regularly made reference to and relied upon the aforementioned international documents in interpreting fundamental freedoms in the Charter. As stated in Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157, at para. 57, “the development of international human rights [is] an important influence leading to an entrenched guarantee of rights and freedoms in this country”. In that case, the Court cited with approval an article written by former Chief Justice Dickson where he stated:

The Charter reflects an agreement by the federal and provincial governments to limit their legislative sovereignty so as not to infringe on certain rights and freedoms.

(“The Canadian Charter of Rights and Freedoms: Context and Evolution”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), 1, at p. 1-15)

Further, this Court stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 70:

The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries . . . . It is also a critical influence on the interpretation of the scope of the rights included in the Charter: Slaight Communications [Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038]; R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697.

The same sentiment has been expressed (and these international agreements have been used as interpretative tools) in numerous cases decided by this Court, including Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326, at p. 1377; R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at p. 484 (the right to privacy as found in s. 8); Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, at pp. 881-82; Mooring v. Canada (National Parole Board), 1996 254 (SCC), [1996] 1 S.C.R. 75, at para. 51 (the right to a remedy as found in s. 24(1)); R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 178 (the protection of children as it impacts s. 2(b)); and R. v. Keegstra, 1990 24 (SCC), [1990] 3 S.C.R. 697, at pp. 749-55 (the scope of s. 2(b)).

It is interesting to note that the African Charter on Human and Peoples’ Rights, which was referred to in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 115 (SCC), [1995] 1 S.C.R. 315, at para. 38 (the scope of the right to liberty in s. 7), provides, at art. 10:

2. Subject to the obligation of solidarity provided for in Article 29 no one may be compelled to join an association. [Emphasis added.]

In Reference re Public Service Employee Relations Act (Alta.), 1987 88 (SCC), [1987] 1 S.C.R. 313 (“Alberta Reference”), and Lavigne, supra, this Court used these international agreements as interpretative tools in an analysis of s. 2(d) of the Charter. In Alberta Reference, Dickson C.J. (dissenting) noted, at p. 350, that the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, were adopted in an effort to make more specific the broad principles included in the Universal Declaration of Human Rights. I would like to note, however, that the specificity of the international covenants did not replace the broad principles enunciated in the Universal Declaration. These covenants clarify art. 20(1) of the Universal Declaration (the positive right), but do not minimize the negative right. Actually, the continuing importance of the negative right is seen in art. 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights, wherein the joining of a union is referred to as the “right” of the worker to join a union of his or her “choice”.

The importance of these documents in relation to s. 2(d) was discussed by La Forest J. in Lavigne, where he prescribed a broad and liberal interpretation of s. 2(d) in light of other Charter values. He stated, at pp. 318-20:

Forced association will stifle the individual’s potential for self-fulfillment and realization as surely as voluntary association will develop it. Moreover, society cannot expect meaningful contribution from groups or organizations that are not truly representative of their memberships’ convictions and free choice. Instead, it can expect that such groups and organizations will, overall, have a negative effect on the development of the larger community. . . . Recognition of the freedom of the individual to refrain from association is a necessary counterpart of meaningful association in keeping with democratic ideals.

Furthermore, this is in keeping with our conception of freedom as guaranteed by the Charter. . . .

It is clear that a conception of freedom of association that did not include freedom from forced association would not truly be “freedom” within the meaning of the Charter.

This brings into focus the critical point that freedom from forced association and freedom to associate should not be viewed in opposition, one “negative” and the other “positive”. These are not distinct rights, but two sides of a bilateral freedom which has as its unifying purpose the advancement of individual aspirations. The bilateral nature of the associational right is explicitly recognized in Art. 20 of the United Nations Universal Declaration of Human Rights, 1948, . . . .

This construction of the associational right in two reflective strands serves to recognize the often overlooked potential for coercion in association. Governmental tyranny can manifest itself not only in constraints on association, but in forced association. There is no logical inconsistency in recognizing this reality. Nor do I accept the proposition that including the right to be free from compelled association within the reach of s. 2(d) will weaken or “trivialize” the cherished right to be free to form associations. It will do nothing but strengthen it. Moreover, the purposive approach to Charter interpretation demands such a result.

Finally, that some aspects of the freedom may be protected by ss. 7, 2(a) or 2(b) of the Charter, to cite the most obvious possibilities, should not dissuade us from giving full meaning to s. 2(d). All of the liberties guaranteed by the Charter are particular aspects of the broader freedom we enjoy in Canada. As the Court noted in R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 326:

Before entering into a detailed discussion of the issues, it may be useful to note that this case exemplifies the rather obvious point that the rights and freedoms protected by the Charter are not insular and discrete (see, e.g., my comments in this regard in R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588). Rather, the Charter protects a complex of interacting values, each more or less fundamental to the free and democratic society that is Canada (R. v. Oakes, . . .), and the particularization of rights and freedoms contained in the Charter thus represents a somewhat artificial, if necessary and intrinsically worthwhile attempt to structure and focus the judicial exposition of such rights and freedoms. The necessity of structuring the discussion should not, however, lead us to overlook the importance of appreciating the manner in which the amplification of the content of each enunciated right and freedom imbues and informs our understanding of the value structure sought to be protected by the Charter as a whole and, in particular, of the content of the other specific rights and freedoms it embodies.

Accordingly, a person is not deprived of protection under a provision of the Charter merely because protection may also be derived under another. The rights overlap in defining Canadian society, and I see no reason for depriving a litigant of success because he has chosen one provision that legitimately appears to cover the matter of which he or she complains, rather than another. That would often be the effect if the individual rights and freedoms were construed as discrete rather than overlapping.

He went on to discuss the scope of this Charter right. In doing so, he noted that s. 2(d) has limitations and that it was not meant to protect the people of Canada from the association with others that is “a necessary and inevitable part of membership in a democratic community” (p. 320). He mentioned governmental policies requiring the payment of taxes and the association with others that is compelled by the organization of our society, such as membership in a family. I am not persuaded that these are examples of true associations as envisaged within the meaning of s. 2(d) or that they constitute true exceptions to the freedom from association. In this, I think we have to be guided by the purpose of the section. On this point, it is worth quoting La Forest J., at pp. 322-23, where he stated:

At the core of the guarantee of freedom of association is the individual’s freedom to choose the path to self-actualization. This is an aspect of the autonomy of the individual. It is of little solace to a person who is compelled to associate with others against his or her own will that no one will attribute the views of the group to that person. . . . Consequently, the test should not be whether the payments “may reasonably be seen” as association, or must “indicate to any reasonable person” that the individual has associated himself with an ideological cause. An external manifestation of some link between the individual and the association is not a prerequisite to the invocation of the right; it is enough that the individual’s freedom is impaired. [Emphasis added.]

I think this has to be read with the words of Dickson C.J. in Oakes, supra, at p. 136:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. [Emphasis added.]

The recognition of the union movement as a fundamental institution is implicit here precisely because it is a participant in the political and social debate at the core of Canadian democracy. To suggest that the unions in the present case are not associated with any ideological cause is to ignore the history of the union movement itself. Although it has been accepted that freedom of association protects an activity by an association that is permitted by an individual, this does not mean that there is no distinctive function for an association, or that associational analogues to individual rights need be ignored. The collective character of the right to associate is undeniable because collective activity is not equivalent to the addition of individual activities. It is important, however, that belonging to important social institutions be free; this is how democracy will be enhanced.

Discussing limitations on the freedom from association, La Forest J. noted that some of the liberty interests at issue in the context of the right to be free from association were discussed by Professor B. Etherington in his article “Freedom of Association and Compulsory Union Dues: Towards a Purposive Conception of a Freedom to not Associate” (1987), 19 Ottawa L. Rev. 1, and include (at pp. 43-44):

1. governmental establishment of, or support for, particular political parties or causes;

2. impairment of the individual’s freedom to join or associate with causes of his choice;

3. the imposition of ideological conformity; and

4. personal identification of an objector with political or ideological causes which the service association supports.

La Forest J. noted that this view is consistent with the reasons of Dickson J. in Big M Drug Mart, supra.

I agree with La Forest and McLachlin JJ. that there is a negative aspect to the s. 2(d) right. However, I do not think it is useful to distinguish between the factors proposed by Professor Etherington or to formulate a definitive opinion with regard to the various factors that could, in any given situation, provide a framework for the conclusion that freedom from association has been breached. With regard to the content of the right, it is sufficient to refer to ideological conformity in this case because that factor has already been recognized, because it is at play and because its scope is such that it encompasses all aspects of the case on its facts. I am left here with a number of options. For instance, I could accept that there is an internal qualification of the negative aspect of s. 2(d) and that it is triggered by the infringement of a liberty interest, other Charter values and/or the imposition of ideological conformity; or I could accept that there is a negative aspect to s. 2(d) and that a s. 1 justification is immediately required upon a finding that there has been state-imposed association. First, a distinction may be made between the exceptions to s. 2(d) protection, as discussed by La Forest J. and noted at para. 16 of these reasons, and true associations which are protected by s. 2(d). Although not necessary to determine in this case, as these exceptions are not brought into play by the factual situation in issue, it may be said that these “necessary” associations do not truly fall within the purpose of s. 2(d) protection since they do not involve persons coming together in the pursuit of a common goal or purpose as this is generally understood. Association in a labour organization would not in any case be part of the “necessary” associations category. Further, any element of necessity which would impact protections provided by s. 2(d) would, in my opinion, fall within a s. 1 justification of a s. 2(d) infringement rather than at the initial Charter breach analysis. Second, it should be added that even if forced associations in and of themselves should not be considered ab initio contrary to universal values or principles, once coercion is applied by government to association in circumstances where ideological conformity is imposed, I believe s. 2(d) is infringed and the government must justify this forced association pursuant to s. 1.

I would add here that I disagree with the statement of LeBel J. at para. 199 of his reasons that La Forest J. was of the opinion that the obligation to join a union whose purposes were limited to collective bargaining would not even engage s. 2(d). This inference, in my view, is not consistent with the fact that La Forest J.’s discussions of constitutional issues in Lavigne had nothing to do with mandatory membership (see p. 325). Furthermore, this is not relevant here, as will be demonstrated later, because the association in question goes beyond the purpose of collective bargaining.

Section 2(d): Was the Negative Right Infringed?

D. Wright notes in his article “Unions and Political Action: Labour Law, Union Purposes and Democracy” (1998), 24 Queen’s L.J. 1, at p. 7:

Though labour has supported a variety of political parties over the years, trade union support for organized political parties has been a prominent part of labour’s activities throughout most of this century.

He states that labour has played an important part in the development of the New Democratic Party and Parti québécois and that the purpose of trade unions transcends that of collective bargaining on behalf of members and includes, as a fundamental purpose, the political representation of members. Rand J. noted that union representation is about power, as seen earlier. LeBel J. explains that the history of labour relations in Quebec is rife with violence and dissonance. Eventually, a system of representative unions was recognized by legislation. In 1974, after violence broke out at the James Bay Project site, the government set up the Cliche Commission. The representative union system was modified and a system of regional quotas was created. In discussing the political activity of representative unions in Quebec, G. Murray and P. Verge, La représentation syndicale: Visage juridique actuel et futur (1999), note, at p. 85:

[translation] The 1995 referendum debate on Quebec sovereignty also caused most of the large Quebec union federations to take positions, including the CEQ, the CSN and the FTQ.

They also later state, in discussing general social preoccupations of unions in Quebec, at p. 91:

[translation] The general social issues giving rise to positions by organized labour encompass health and welfare, language and education.

And at pp. 93-94:

[translation] Since 1977, the Conseil de la langue française has been monitoring, for the Minister, the situation of the French language and language developments in general in Quebec. The Conseil is composed of 12 members appointed by the government, including “two persons chosen after consultation with the representative union bodies”. [Quotations are from the Charter of the French Language, R.S.Q., c. C-11, ss. 186 and 187.]

. . . Finally, although the Institut canadien d’éducation des adultes is not a governmental organization, the FTQ, the CSN and the CEQ contribute to its work, along with other labour organizations, educational institutions, training and leadership organizations, community groups and cultural community organizations.

At p. 141:

[translation] Labour representation is expected to continue to reach beyond the framework of the company, whether it is dealing with the intermediation of the employee’s interests as such or, more broadly, the interests of the employee-citizen. The labour organizations themselves, as we have seen, naturally saw that protecting groups of employees would also lead them into larger arenas, in accordance with their objects and their methods of action. [Emphasis added.]

The authors continue this discussion by dividing the two forms of representation: [translation] “employee-employee” and [translation] “employee-citizen”, the latter of which comprises the social and economic activities of the union. In discussing this, they state, at p. 146:

[translation] But the future of labour representation in relation to these different political, economic and social issues will basically depend on the preferences expressed by employee-citizens themselves. [Emphasis added.]

J. Boivin and J. Guilbault, in Les relations patronales-syndicales au Québec (1982), also write, at pp. 85-86, under the title “Le gouvernement du Parti québécois et l’orientation idéologique des centrales syndicales”:

[translation] The arrival of a new party on the provincial political scene -- the Parti québécois founded in 1968 -- would enable the popular discontent with traditional parties to be chanelled and would give a number of union activists the opportunity to become actively involved in political activity. As a result, the Parti québécois benefited from the support of a large number of volunteers experienced in working with groups such as social movements and unions.

Over and above its role as a sovereignist party, which is its main raison d’être, the Parti québécois openly asserted its “bias in favour of workers” without being a true labour party, such as the Labour Party in England or even the NDP in Canada. In addition to being founded on traditional electoral reasons, this aspect of the PQ’s political agenda corresponds to the party’s sociological reality which, as we have already noted, relies largely on the social movements and the union activists from all the central labour bodies.

The PQ’s exercise of power since 1976 has enabled the scope of this “bias in favour of workers” to be confirmed and has resulted in the various labour organizations clarifying their real ideological orientation.

Interestingly, at p. 87, the authors commence to discuss the ideological orientation of key unions in Quebec, notably the FTQ, the CSN, the CEQ and the CSD. This is the backdrop upon which the statutory provisions in the Act and its Regulations fall. It is relevant to the consideration of the concept of ideological conformity. The social and economic impact of the union movement is a matter of general knowledge.

The legislation in question here is complex; it creates an entire labour relations scheme which governs, amongst other matters, union membership, employers associations, collective bargaining and the creation of the Commission de la construction du Québec and committees on construction and vocational training.

The mis en cause argues that the action against the appellants was directed solely at their failure to obtain competency certificates. According to the mis en cause, there is a distinction between this requirement and the requirement to become a member of one of the five recognized employee associations. I disagree with this assertion. The scheme of the Act provides that both requirements must be met as conditions precedent to working in the construction industry in Quebec; these conditions are certified together on one document, referred to as the competency certificate, and the only way to receive such a certificate pursuant to s. 39 of the Act is if both conditions have been met. As stated by Trudel J., 1998 11295 (QC CS), [1998] R.J.Q. 911, at p. 923:

[translation] Without an identity card establishing his or her membership in one of these five representative associations, an employee cannot work in Quebec in the construction sector. His or her competency, in other words, since it is acquired largely on the job, is directly related to his or her forced association with one of the five bargaining agents currently recognized by the Act for construction workers.

This is confirmed in ss. 36 and 36.1 of the Act and by s. 23 of the Regulation respecting the election of a representative association by the employees of the construction industry, (1997) 129 O.G. II, 1866. As admitted by the intervener Commission de la construction du Québec, at para. 60 of its factum, this was also the practice in Quebec prior to the coming into force of this Regulation.

The mis en cause also argues that designating a representative union is not the same as becoming a member of a union. Again, I disagree with this technical distinction. Although these unions are stated to be recognized for representative collective bargaining purposes, they remain “unions”, as exemplified by ss. 1(a), 17(9) and 38 of the Act. Further, the Act clearly views those who elect a representative union as “members” of that union, as can be seen in numerous provisions, including s. 30, which makes them “electors” within the association, s. 34, which states that the Commission will forward a list of employees “who have become members of such association”, and s. 39, which speaks of his membership in the representative union (see also ss. 31, 32, 41, 96(2), 99, 101, 104, and 119). The only contrary argument that can be found is in s. 102, which states that no association can discriminate against an employee for “abstain[ing] from belonging to any association”; however, both ss. 32 and 94 suggest that the employee must choose one of the five chosen representative unions. This was even acknowledged by counsel for the mis en cause at the oral hearing when he stated: [translation] “we are not claiming that there is no associative act here resulting from the choice made by any employee, which is mandatory” (emphasis added). In his factum, he also noted, at paras. 26 and 38, that pursuant to s. 39, all new construction employees must choose a representative association and in the event of failure to do so, the worker cannot be employed. Finally, it is noteworthy that the role of the union is to represent the interests of its “members”, as stated in the definition of “association” in s. 1(a). This was also mentioned in the mis en cause’s factum where it is stated, at para. 53, that, pursuant to s. 94, the right to belong to a representative union means the right to become a member and participate in its activities.

In the December 16, 1968 debates of the Legislative Assembly surrounding Bill 290 (i.e. the first version of the present legislation in 1968), wherein the idea of representative association for collective bargaining was introduced, Jean-Paul Lefebvre stated (3rd sess., 28th Leg., vol. 7, No. 105, at p. 4987):

[translation] Will it permit the labour movement -- especially the two central labour bodies -- to represent the workers in accordance with their wishes but in a climate of improved co-operation, while at the same time allowing the normal competition between the different unions to continue? In fact -- and I think we should be happy about this -- we do not have a union monopoly in our province; rather we have a “duopoly” which, when you really think about it, promotes greater freedom for the workers, in my opinion. [Emphasis added.]

In discussing the consequences of having one dominant union and one minority union, it was also said in the debates (at p. 4998) that both will wish to get the confidence of the workers and that:

[translation] The result is that one of the unions will pride itself on providing better service to its members. [Emphasis added.]

At p. 520 of the mis en cause’s record, the Cliche Commission report (Rapport de la Commission d’enquête sur l’exercice de la liberté syndicale dans l’industrie de la construction (1975), at p. 8) is quoted:

[translation] Individual Rights of Workers

The Commission is convinced that: –

2 -- The construction worker must enjoy freedom of choice to belong to one of the two existing associations, that is, to the one that he believes embodies his aspirations as a free man. [Emphasis added.]

The record shows many more references to membership under the Act. For instance, in Historique des relations du travail dans l’industrie de la construction au Québec (1990) by the Commission de la construction du Québec, it was stated (at p. 6):

[translation] The legislator ensures, among other things, the workers’ freedom of choice regarding union membership and prohibits any discrimination in hiring on the basis of that membership. For that reason, Bill 290 contains the necessary provisions to bring about mandatory unionization and will thereby enable unions to increase their membership rapidly. [Emphasis added.]

At p. 11, it was stated:

[translation] Moreover, mandatory union membership is established since “every employee must, as a condition of the maintenance of his employment, become and remain a member in good standing of one or the other of the union associations” (s. 7.01). [Emphasis added.]

At p. 528 of the mis en cause’s record, the Cliche Commission report (at p. 24) is again quoted:

[translation] After this legislation is passed, . . . every employee must join the union association of his choice and remain a member thereof. [Emphasis added.]

As stated, I disagree that s. 30 and those that follow it in the Act imply a freedom to join a union or not; rather, membership in one of the unions is obligatory. Furthermore, membership has meaning. Membership is about sharing values, joining to pursue goals in common, expressing views reflecting the position of a particular group in society. It is worth quoting again Boivin and Guilbault, supra, briefly, at pp. 87-89. They write:

[translation] The new ideological orientation of the various union organizations in Quebec can no doubt best be understood through the type of relationships maintained by each central labour body with the government and through the type of criticisms directed to the government.

(a) The FTQ

As a result, although this central labour body had partially espoused the ideological language of the CSN and the CEQ during a certain period of time, the election of the Parti québécois government would establish beyond any doubt that the FTQ was far from having radical goals on a sociopolitical level. The FTQ’s current political discourse is found in the same perspective as the social democracy which the PQ leans toward, although there are no formal ties between the two organizations.

(b) The CSN and the CEQ

Although it may not be quite accurate to associate these two central labour bodies on an ideological level, they nonetheless have enough similarities to be the subject of a common analysis.

Moreover, although it is fairly easy to understand the type of economic regime that the CSN and the CEQ do not want (capitalism), it is however much more difficult to identify the type of society they do want. In both cases, mention is frequently made of a certain “democratic socialism”, but since they still refuse to participate actively in creating a political party, the concrete expression of this socialism has not yet been defined. There is thus a large gap between words and action for these two central labour bodies, as the affiliated labour organizations continue to put into practice (and very effectively in the public sector, where most of their members are recruited) the principles of North American business unionism.

(c) The CSD

Because its existence is based on a systematic opposition to the CSN’s ideological radicalism, it is easier to define what the CSD’s ideology is not than what it is.

This refusal to blatantly condemn the capitalist system must not however lead us to regard the CSD affiliates as company unions. Although the CSD is not trying to destroy the capitalist system in which it exists, it nevertheless wants to change it profoundly by seeking the collective advancement of workers while remaining completely independent of political parties.

. . . It endeavours to establish a greater democracy in the workplace. The program put forward by the central labour organization thus deals with, among other things, “changes in business operations through the sociotechnical approach, enriching job duties through new forms of work organization, improving work stations through ergonomics, etc.”

It is because of the collective force produced by membership that unions can be a potent force in public debate, that they can influence Parliament and the legislatures in their functions, that they can bargain effectively. This force must be constituted democratically to conform to s. 2(d). LeBel J. states at para. 165 that the legislative system in Quebec reflects, on the surface, a “union shop” approach. However, for a “union shop” to exist, there must be a properly constituted union. This Court in Lavigne discussed the role of unions and stressed their democratic nature. In particular, in describing the general structure of labour relations, La Forest J. emphasized (at p. 325) that it involves “democratically run bodies” and “certification of a union when a majority of employees choose to be represented by that union” which contemplates “majoritarian decision‑making”. In the present case, I fail to see how the precondition to a “union shop” exists; in other words, I fail to see how the legislative scheme in Quebec falls within the general structure of labour relations as discussed previously by this Court.

This case is one that shows how interrelated Charter rights and values can be. It is not necessary to have more independent evidence of the ideological views of the specific unions involved in this case. This is not novel since such was the case in Lavigne. I disagree with LeBel J.’s views at para. 227 of his reasons and would affirm that it is in fact sufficient that adherence is required to a scheme advocating state-imposed compulsory membership which affects freedom of conscience and expression, as well as liberty and mobility interests, for it to have a negative impact on the right to work, because such adherence itself is a form of ideological coercion. Ideological constraint exists in particular where membership numbers are used to promote ideological agendas and, as noted in Lavigne, at p. 322, this is so even where there is no evidence that the union is coercing its members to believe in what it promotes. After discussing the use of union dues for actual workplace expenditures, La Forest J. stated, at p. 330:

When, however, the Union purports to express itself in respect to matters reflecting aspects of Lavigne’s identity and membership in the community that go beyond his bargaining unit and its immediate concerns, his claim to the protection of the Charter cannot as easily be dismissed. In regard to these broader matters, his claim is not to absolute isolation but to be free to make his own choices, unfettered by the opinion of those he works with, as to what associations, if any, he will be associated with outside the workplace. [Emphasis added.]

He further stated, at p. 332:

In my view, it is more consistent with the generous approach to be applied to the interpretation of rights under the Charter to hold that the freedom of association of an individual member of a bargaining unit will be violated when he or she is compelled to contribute to causes, ideological or otherwise, that are beyond the immediate concerns of the bargaining unit. [Emphasis added.]

In the present case, workers objected to being forced to join a union and objected generally to the compulsory unionization scheme, which is, in my view, ideological in nature.

The approach I advocate to the interpretation of the right is consistent in particular with the International Covenant on Economic, Social and Cultural Rights. It provides that:

Article 6. 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. [Emphasis added.]

This provision was noted by this Court in Canadian Egg Marketing Agency, supra, where discussing the importance of s. 6 of the Charter, Iacobucci J. and I stated, at para. 60:

The freedom guaranteed in s. 6 embodies a concern for the dignity of the individual. Sections 6(2)(b) and 6(3)(a) advance this purpose by guaranteeing a measure of autonomy in terms of personal mobility, and by forbidding the state from undermining this mobility and autonomy through discriminatory treatment based on place of residence, past or present. The freedom to pursue a livelihood is essential to self-fulfilment as well as survival. Section 6 is meant to give effect to the basic human right, closely related to equality, that individuals should be able to participate in the economy without being subject to legislation which discriminates primarily on the basis of attributes related to mobility in pursuit of their livelihood. [Emphasis added.]

This sentiment builds upon the reasoning of Dickson C.J. (dissenting) in Alberta Reference, supra, where he 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. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self respect.

This is a case where the freedom not to associate is markedly infringed. I respectfully disagree with LeBel J. when he advocates deference to the choices of government on giving content to the notions of “self-actualization” (para. 210) and “democracy” (paras. 228 and 229). I disagree with his view that the present matter “lie[s] largely beyond the area of expertise of courts” (para. 239). In my opinion, though problems may have been acute in this area, not all options are open to government. This is a clear situation of government coercion, the result of which mandates that workers in the construction industry in Quebec group together in a few unions which are specified and approved by government. The fact that there are five unions from which workers can choose in no way negates this infringement for it remains government-mandated group affiliation. Self-realization of the worker is violated in many ways. He or she must unionize. Within the prescribed regime, democracy is further restricted by limited choice. There is no guarantee that a majority of voters will exercise their right. A default provision can determine the outcome of elections. Those voting for minority associations may be left out of future negotiations.

The vast majority of Canadians must work for a living and, as such, working is a compelled fact of life; however, in the present situation, the appellants are not arguing that being forced to work with a particular group or to participate in employment-related activities violates s. 2(d). This is not a case where workers dispute the payment of mandated union dues; the restrictions in this case are much more severe than that in Lavigne. The Rand formula mandates payment of union dues for the betterment of all workers; in this case, the workers are being forced to join a union. As argued by the appellants, being forced by the government to join one of five specified unions differs drastically from being forced to pay union dues. The appellants state (factum, at para. 24):

The objection to union membership can be anchored in profound moral, religious or political convictions and it is implicit in Canadian law that such convictions are to be respected.

I agree with this assertion. Lavigne focussed on the actual activities of the union in question and the purpose for which union dues were used. This situation, on the other hand, even if it is not based on the actual views held by the five unions, comprises a form of ideological conformity.

As I have said, it is not necessary to make a conclusive determination of whether these liberty interests are separate indices of a s. 2(d) infringement or whether they are merely subcategories of ideological conformity since, in this case, ideological conformity, which was explicitly accepted by both La Forest and McLachlin JJ. in Lavigne, exists. Workers may feel strongly about joining a union for various reasons, but whether they are moral, religious or political, these beliefs and convictions must be pushed aside if one wishes to work in the construction industry in Quebec. They are the only workers affected in this way. When considering freedom not to associate in light of other Charter values, including freedom of conscience and expression, liberty, mobility and the right to work, I cannot help but find that governmental mandatory union association infringes this important Charter right.

As I have said, ideological conformity is engaged in particular because the members of the associations necessarily participate in and indirectly support a system of forced association and state control over work opportunity. This is a situation whereby the democratic rights of workers are taken away. Being forced to accept and participate in a system that severely limits the democratic principle in the area of labour relations is a form of coercion that cannot be segregated totally from ideological conformity. If Parliament provided that a person must belong to a specific political party to work in the public service of Canada, the situation would be analogous. Some would argue that one does not have to believe, simply that one has to belong; as stated at para. 16, I believe there would still be clear ideological conformity.

Since ideological conformity is part of the broader test to which I subscribe, I conclude that the challenged statutory provisions infringe the negative right which forms part of s. 2(d).

I do not believe that this conclusion is inconsistent with previous jurisprudence. For example, the Rand formula differs from the case at bar because it does not negate the democratic principle; in that case, a majority of workers choose accreditation and approve the collective agreement. Workers can still choose to work in a non-unionized environment. The ultimate forced association is then justified by the majority principle and the underlying need to have a system of protection of workers that is effective. There is also a distinction to be made with the requirements of professional associations such as medical associations and law societies, where the need for protection of the public may require a forced association which is justified under s. 1 of the Charter. In this case, the provisions are not based on the protection of the public by way of assuring the competency of workers. To receive certification, a worker must be a member of one of the five chosen unions; to become a member, he or she must have been a resident of Quebec in the previous year, have worked a set number of hours in that year and must be under 50 years of age. Without having met these requirements, a worker is unable to work in Quebec regardless of his or her actual competence or experience in his or her chosen trade. The conditions related to forced association have nothing to do with the protection of the public. As stated by Judge Bonin of the Court of Québec, [translation] “[t]he certificate’s main purpose was to maintain hiring priority”. As such, a s. 1 justification is required. Before considering s. 1, however, I turn next to the examination of the positive right which is also part of s. 2(d).

Section 2(d) -- The Positive Right

As previously discussed, the appellants argue that s. 30, which establishes the conditions under which a competency card can be obtained, and the regional quota requirements limiting the right to be placed on the union lists are unconstitutional. As such, even if there was no infringement of the right not to associate, there would still be a need to consider whether there is a breach of the positive right to associate. This has not been dealt with by LeBel J., who takes another view of the purpose and effect of s. 30 of the Act.

I have mentioned that, pursuant to s. 30, construction workers can only be placed on the employer’s list and join a union pursuant to s. 32 if they were a resident of Quebec in the previous year, worked 300 hours in that year and were under 50 years of age. The Commission de la construction du Québec forwards a card to the workers on this list (s. 36). No employer may use the services of a person in the construction industry unless that person holds one of these cards (s. 39). Therefore, if the s. 30 requirements are not met, a person may not join one of the five unions and, as a result, cannot work in Quebec. In addition, as acknowledged by the Commission de la construction du Québec, at para. 24 of their intervener’s factum, at the material time, there were regional quotas in place which also limited the number of workers in each predetermined region within the province. For persons living in and outside the province of Quebec, their ability to join one of the unions and thereby work in the construction industry is severely restricted by these arbitrary requirements. For example, a person who had lived in Quebec all of his life but was not a resident in the previous year, because he was attending school or working elsewhere in the country, would be excluded. The same may be said for a person who has never left the province but simply did not work in the industry in the previous year or a person who wishes to train and start working in the industry for the first time. In the latter case, even if he held an apprentice competency certificate or an occupation competency certificate, which has its own barriers as will be discussed, he cannot join the union until he has worked 300 hours or the equivalent thereof while in training. These barriers to association are even more pronounced for those persons who did not reside in the province of Quebec in the previous year.

Section 30 of the Act refers to three types of competency certificates: the journeyman competency certificate, the occupation competency certificate and the apprentice competency certificate. Sections 2 and 2.1 of the Regulation respecting the issuance of competency certificates, (1987) 119 O.G. II, 1471, govern the issuance of an apprentice competency certificate. Aside from other requirements, at the material time and at present, s. 2.1 provides that a maximum number of these certificates may be granted in any given year. This quota is only expanded in cases where there is an insufficient number of workers in a region; in those cases, certificates may be granted to those who meet the requirements, one of which is being a resident of the region in question (s. 3). As with the apprentice competency certificate, the occupation competency certificates are granted only within the parameters of a quota. One cannot receive an occupation competency certificate without having completed a course approved by the Commission; however, the Commission decides how many positions shall be available in these courses based on the number of workers required per region (ss. 4 and 4.1). As such, both the apprentice competency certificate and the occupation competency certificate can be refused based on regional quotas. For a person entering the industry, it therefore means that his or her ability to get a competency certificate, which is a condition precedent for union membership pursuant to s. 30 of the Act, could be denied merely because a government-designated quota has been reached.

The journeyman competency certificate differs slightly. Pursuant to s. 1 of the Regulation respecting the issuance of competency certificates, a journeyman competency certificate is issued to the holder of a qualification certificate or attestation of experience pursuant to the Regulation respecting the vocational training and qualification of manpower in the construction industry, R.R.Q. 1981, c. F-5, r. 3. This Regulation defines the qualification certificate as “a certificate issued by the Department attesting to the level of qualification acquired by the holder in a trade governed by the Act” and an attestation of experience as “a document issued by exception by the Department proving that the holder has plyed a trade in whole or in part”. Section 7 of this Regulation states that a qualification certificate may be granted to anyone who has completed apprenticeship in conformity with this Regulation or anyone who can prove he or she has gained experience by working in the trade equal to the number of periods in Schedule B of the Regulation. Turning first to the completion of apprenticeship, which would apply to newcomers to these trades, s. 16 of the Regulation discusses the requirements for admission to apprenticeship and states that amongst other requirements, the person must hold a classification certificate under the Regulation respecting the placement of employees in the construction industry, R.R.Q. 1981, c. R-20, r. 10. This latter Regulation provides that a classification certificate is issued to anyone meeting the requirement of having worked in the industry for a certain number of hours in the preceding five calendar years (s. 6). As a result, this certificate may be granted if an experienced person has worked in the industry for a certain number of hours in the past five years; however, this must also be considered in light of s. 30 provisions which continue to mandate that, to join the union and become an employee, a person must have worked at least 300 hours in the industry in the preceding calendar year. For those from outside the province, the possibilities are even bleaker. Section 10 provides that a special classification certificate may be issued to an employee domiciled outside Quebec if he or she previously obtains a guarantee of employment from an employer registered with the Board. Since s. 10 requires that a person outside Quebec obtain employment prior to being granted a certificate of qualification, the requirements of s. 30 must have already been met and a competency card must have been issued to the worker in his or her case; otherwise, the employer would be in violation of s. 39 of the Act.

In fact, a person from outside Quebec cannot get a qualification certificate without employment and, as such, cannot get a journeyman competency certificate without employment; he or she cannot get employment without holding one of the three types of competency cards. Although there are no quota requirements applicable to the journeyman competency certificate, it is unlikely, if ever, that a person from outside Quebec will hold one of these cards and, as such, he or she will be required to hold an apprentice competency certificate, or occupation competency certificate, which will not occur if the regional quotas are filled. Therefore, even if workers have met the requirements stated in s. 30, they may not receive a competency card, join the union or be permitted to work.

In summary, there are severe restrictions on the right of a person to join one of the five chosen unions in order to work in the construction industry in Quebec. Even if the conditions imposed by s. 30 of the Act were permissible limitations on freedom of association, the regional quotas would still need to be justified under s. 1. They unduly infringe the ability of workers to join a union, which is a prerequisite for working in the construction industry in Quebec. As such, they are an infringement of the s. 2(d) freedom of association.

Section 1: Is the Infringement of s. 2(d) Justifiable?

In determining whether this infringement can be justified by s. 1, this Court must again take into consideration Charter values including liberty, freedom of expression, the right to work and mobility rights. For the government to justify infringing a Charter right, it must prove on a balance of probabilities that the objective of the impugned legislation is pressing and substantial. It must then show that the infringement is proportionate. In other words, there must be a rational connection between the objective in question and the measures adopted. These measures must not be arbitrary, unfair or based on irrational considerations. The means should impair as little as possible the freedom in question. There must also be proportionality between the objective and the effect of the measures (Oakes, supra).

The mis en cause submits that it is in the public interest to have structured collective bargaining. In discussing the purpose of the legislation, the mis en cause submits that the objective of s. 30 of the Act is to establish the degree of representativeness of the associations in question for collective bargaining purposes (factum, at para. 72). It notes that these are an integral part of a labour relations regime put in place to ensure industrial peace. Consistent with the above argument, it is clear from the mis en cause’s oral submissions that the only purpose of the imposed association is collective bargaining and that this is both a non-protected right and an activity that is in the interest of the workers. In my view, it is not so much the activity undertaken by the association that is relevant in determining whether or not the legislative objective is pressing and substantial; it is the purpose of the Act itself and of the requirement that workers join one of five specified unions in order to participate in the industry in question.

The mis en cause provides this Court with a historical perspective and argues that nothing short of this overall regime works in this industry in Quebec. LeBel J. agrees and acknowledges that s. 30 was merely adopted to determine which unions will enrol the members and will thereby be given representative status. His justification for these findings is based on documents and events that predate the Charter. Proving necessity requires a context based on present realities and circumstances. As such, it would be a rare case, in my view, where what was justified in the past when no Charter values were involved would be determinative. This is consistent with this Court’s decision in Big M Drug Mart, supra, where it was stated that it is not sufficient to consider the objective of the legislation prior to the coming into force of the Charter. This Court must consider the objective of the legislation as it stands today. At a minimum, the mis en cause should have given evidence of the actual functioning of the system, the participation of workers in the limited democratic process provided, and the reasons that justify infringement of the democratic right and extreme restriction of the positive right of association.

The mis en cause does not discuss the s. 30 requirements which must be met in order to work in Quebec, or the regional quotas. I accept that it is in the public interest to have structured collective bargaining and to provide for competency requirements; these are no doubt pressing and substantial objectives. But I have difficulty accepting that these are the true objectives of the impugned provisions. The legislation brings into play restrictions on the admission to the industry, cancellation of the ability to have a non-unionized business, restrictions on bargaining rights, imposition of regional quotas and impingement of regional mobility. The mis en cause has not demonstrated that there is a logical relationship between its stated objectives and these restrictions. Even if I did accept the stated objectives and found a link to exist, the mis en cause would fail to meet the requirements of the minimal impairment branch of the proportionality tests.

Regarding the relationship between forced association and the objective stated, the mis en cause submits that it is essential to collective bargaining in this area to limit the number of actors in this industry. This is an argument based on the history of labour relations in Quebec. However, as stated above, the mis en cause has failed to show that permitting structured collective bargaining is the true purpose of these provisions as drafted. Further, any justification based on competency is untenable. The actual requirements of s. 30 and the regional quotas have little if anything to do with the professional competence of workers in the construction industry. This was noted by Judge Bonin who stated that “[t]he certificate’s main purpose was to maintain hiring priority”. Being a resident of Quebec in the previous year, having worked a set number of hours in that year, and being less than 50 years old, do not verify competence. The same may be said for the regional quotas and control over regional mobility within the province. As such, I find there is no rational connection between the objective and the measures taken.

Minimal impairment is also an important consideration in this case. Despite any public interest objective that may be said to exist, this Court must still consider if the individual worker is minimally affected by the obligation to join one of five specific associations and the additional requirements which must be met in order to join these associations. Trudel J. stated that if there was an infringement of s. 2(d), any restriction is minimal; but she does not explain this finding beyond stating that every employee is free to choose which association he or she must join and affirming that the potential worker may also voice his or her dissent at all union meetings or votes without sanction (pp. 930-31). She does not discuss the fundamental importance of ideological conformity as described in these reasons. She did not discuss the specific provisions in s. 30, nor the Regulations. Her view seems to be that the “competency” requirements per se are not related to freedom of association. I disagree. In this case, they are related to freedom of association because one must meet these requirements to join the union (s. 32). In my view, any justification must deal with the terms of the regime and its effects. The mis en cause must show that the actual scheme is justified as a fair limitation on the Charter right affected.

If one views the purpose of the legislation as ensuring the competency of construction workers, neither the limitation of the “freedom to associate” nor the limitation of the “freedom from association” are minimally impairing. As discussed above, s. 30 and the regional quotas have little or nothing at all to do with competence and, as such, they certainly cannot be viewed as minimal impairments of s. 2(d).

Further, when considering the public interest nature of collective bargaining, I fail to see how s. 30 and the regional quotas minimally impair the positive and negative components of the freedom of association. While recognizing the importance of collective bargaining in the public interest, if this was in fact the objective of these provisions, there is no evidence that it need result in government control over admission to the work force based on the factors discussed above or result in a denial of the democratic principle. As was shown by the factual situation in Lavigne, there are other choices that a government can make which support collective bargaining. The imposition of a Rand formula, for instance, would allow for collective bargaining to continue without the requirement that workers actually join a union. Furthermore, with respect to a means to protect the negative right, had there been no problem with the positive right in this case, the government could possibly have instituted a clause allowing those who did not wish to join a union to simply abstain while continuing to pay union dues to the representative union in the majority or to a collective ‘pot’ to be divided equally among all five representative unions.

Given the above conclusions, it is unnecessary to consider the deleterious effects of the measures chosen.

I would allow the appeal with costs, strike down ss. 30 and 32 of the Act and s. 23 of the Regulation respecting the election of a representative association by the employees of the construction industry, and suspend the declaration of invalidity for 18 months to permit the legislature to consider amendments to its legislation.

The following are the reasons delivered by

L’Heureux-Dubé J. -- In this appeal, the appellants challenge the constitutionality of the legislation which governs labour relations in the construction industry in Quebec, the Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry, R.S.Q., c. R-20 (the “Act”). My colleague LeBel J. reaches the conclusion that the Act is constitutional and hence would dismiss the appeal. I agree with this result but I reach it by a different route.

My colleague LeBel J. makes an extensive review of the troubled history of labour relations in the Quebec construction industry and of the legislative history of the Act to which I subscribe entirely. As I mentioned in Delisle v. Canada (Deputy Attorney General), 1999 649 (SCC), [1999] 2 S.C.R. 989, at para. 6:

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. [Emphasis in original.]

The appellants allege that the Act violates s. 2(d) of the Canadian Charter of Rights and Freedoms since the Act forces employees in the construction industry to belong to a union and, in so doing, infringes the “right not to associate” which, in their view, is protected by s. 2(d). In a detailed discussion of Lavigne v. Ontario Public Service Employees Union, 1991 68 (SCC), [1991] 2 S.C.R. 211, and of the diverse views expressed therein by the seven members of that Court concerning the “right not to associate”, my colleague LeBel J. finds that the majority of the Court concluded that s. 2(d) protects the “right not to associate”. He adopts a narrow scope for that right, which he deciphers from those various opinions. On this view, the Act would not violate s. 2(d), had the Act been found to coerce Quebec construction industry workers to belong to a representative association, a finding LeBel J. does not make in any event.

LeBel J. argues at para. 189 that in the opinion of a majority of the Court in Lavigne, “a right not to associate existed as a necessary component of the guarantee of freedom of association under s. 2(d) of the Charter”. I respectfully disagree. My own analysis of the plural and divergent opinions in Lavigne drives me to a different conclusion, particularly since the point was discussed in answer to an argument advanced by the appellant Lavigne, was only peripheral to the issue in that case and did not dictate the result. The Court split evenly (3-3) for and against the alleged “right not to associate” and McLachlin J. (now Chief Justice) did not pronounce on this issue, which, as she said, “is not necessary for my purposes to resolve” (p. 343). She went on to discuss that point “[a]ssuming that a right not to associate exists” (p. 346 (emphasis added)). The most that can be said is that a slim majority expressed a preference for a “right not to associate” protected under s. 2(d), assuming that such a right exists, of a very narrow scope described in the words of McLachlin J. as “freedom from coerced ideological conformity” (p. 344). My colleague LeBel J. adopts this narrow scope of the right in the present case.

In these circumstances, I find that Lavigne is neither authoritative nor persuasive on the issue of the protection under s. 2(d) of a “right not to associate” and I feel free to adhere to the views of Wilson J. in Lavigne on this point, reasons with which Cory J. and I concurred. Subsequent decisions of our Court on the scope of s. 2(d) did not revisit the issue of the alleged protected “right not to associate” under s. 2(d): see for example Canadian Egg Marketing Agency v. Richardson, 1997 17020 (SCC), [1998] 3 S.C.R. 157; Delisle, supra.

Wilson J. made an extensive analysis of the alleged protected “right not to associate” in Lavigne. As I did then, I now adopt her reasons, which show that s. 2(d) does not incorporate the “two sides of a bilateral freedom”, to use the expression of La Forest J. in Lavigne (p. 319). However prima facie intellectually seductive and “a matter of simple logic” this negative counterpart of s. 2(d)’s right to associate may be, such reasoning was rejected in R. v. Turpin, 1989 98 (SCC), [1989] 1 S.C.R. 1296: see Lavigne, at pp. 258-59, per Wilson J. The negative right is nowhere articulated in the Charter, as my colleague LeBel J. points out at para. 193 of his reasons. It is antithetical to the purpose and scope of the protected right of association. It does not sit well with the structure of the Charter. It would trivialize the Charter since the recognition of such a right would have serious consequences, which would oblige the courts to adopt severe limitations to differentiate between genuine and constitutionally insignificant violations of s. 2(d): see [Merry v. Manitoba and Manitoba Medical Association (1989), 1989 7322 (MB QB)](https://www.canlii.org/en/mb/