Sometimes judges get it wrong. Even when they sit on the highest court of the land.
The nature of the common law is that decisions which are poorly written (a generous excuse for decisions which are poorly decided) still have binding authority, especially when made by the Supreme Court of Canada.
The interpretation of freedom of association under s. 2(d) of the Charter has undergone considerable change over the years. Courts generally applied a restrictive approach towards this right, until the 2007 decision in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia (“B.C. Health“), where the court effectively pushed back against the province’s attempt to override unionization rights in the health sector.
The implications of appearing to provide the right to collective bargaining in this decision created significant waves across the bar. This enthusiasm proved short-lived, as the Court subsequently released a decision in 2011 in Ontario (Attorney General) v. Fraser (“Fraser“), which scaled back the interpretation of B.C. Health. The Court that s. 2(d) did not provide a right to unionize or collective bargaining (except for in a “derivative” sense). They upheld the use of agricultural associations under the Agricultural Employees Protection Act, created after the Court’s decision in Dunmore v. Ontario (Attorney General).
This week, everything we thought we knew about labour law in Canada and s. 2(d) changed with the Court’s decision in Mounted Police Association of Ontario v. Canada (Attorney General) (“Mounted Police“), indicating that the RCMP have a right to meaningful collective bargaining. Strangely enough, a very similar issue appeared before the Court 15 years ago in Delisle v. Canada (Deputy Attorney General), which came to a different conclusion that the exclusion of the RCMP from Public Service Labour Relations Act was constitutional.
The Court is allowed to change its mind. Judicial flexibility is one of the key hallmarks of independence. But when the law and interpretation of the constitution shifts so drastically, it also leads to some very creative legal writing.
Its not entirely the Court’s fault. Ask 9 judges to rule on something, and you might get 10 different opinions. Or, ask 7 judges to interpret s. 2(d) in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) (“PIPC“) and you will get 5 separate decisions. Alternative arguments are the hallmark of a dedicated litigator, so it’s no surprise that alternative reasoning should litter the landscape of the common law.
The sole dissent in Mounted Police was Justice Rothstein, who was the same judge who had the courage in Fraser to point out how the court had erred in B.C. Health. As I have noted here before, the Court based its decision in B.C. Health in part on international labour law, but referred to the wrong convention. There is no way to mince words around this, that the Court got this citation and interpretation of international law incorrect.
Other features of Mounted Police are open for dispute around its interpretation of existing case law. The majority attempted to justify its decision by indicating at para 74 that the holdings in both B.C. Health and Fraser were limited to the legislative schemes which were at issue. They display considerable intellectual honesty by conceding at para 77 that use of terminology in Fraser “unnecessarily complicate the analysis” when looking at s. 2(d) rights. Unfortunately the clarity of what the Court actually meant in both B.C. Health and Fraser has only become apparent years later in Mounted Police.
For this reason, Justice Rothstein provides a very sharp and pointed dissent, emphasizing the importance of judicial deference to the legislature, even in constitutional matters,
 Courts must be especially cautious when dealing with questions of socio-economic policy. Just as the government and legislature must respect the courts’ expertise as judicial bodies, so too must courts appreciate that they are not best placed to make determinations as to which specific social or economic policy choice is most appropriate. The evaluation and implementation of social and economic policy require flexibility and fine-tuning. Courts should not expand Charter rights in such a way as to prevent governments from responding to new information or changing social and economic conditions.
The majority justified its departure from its own previous, and relatively recent decisions, by using a purposive approach to constitutional interpretation. They employed the categorization employed by Chief Justice Dickson’s dissent in the Reference re Public Service Employee Relations Act (“Alberta Reference”). B.C. Health signaled a marked departure from both PIPC and the Alberta Reference by providing greater purpose to s. 2(d). However, the issue with the Court’s more recent jurisdiction on s. 2(d) is not so much about whether a purposive approach should be employed, but rather what the purpose and content of s. 2(d) is.
The Ontario Court of Appeal in Fraser interpreted B.C. Health as constitutionalizing the Wagner model of labour relations. On a practical reading, this certain appears to be what the decision states, despite assertions to the contrary at para 91. The Supreme Court in Fraser held that the Court of Appeal’s interpretation was a mistake, and no particular model of labour relations is guaranteed by s. 2(d).
At para 95 of Mounted Police the Court appears to maintain this position, indicating that the Wagner model is not the only way of ensuring meaningful collective bargaining. The majority left it open to parliament at para 137 to explore what options outside of the Wagner model might be available to it for the RCMP. Aside from the newly-formed and untested designated school board model, created under the School Boards Collective Bargaining Act, it’s unclear which alternatives are actually feasible.
Whatever model is employed, the Court was clear that s. 2(d) guarantees a right to collective bargaining, which is understood as a process and not an outcome. The majority in Fraser at para 51 had interpreted B.C. Health as only protecting “collective representations,” and having these representations considered in good faith. The distinction between this and a right to collective bargaining has been much of the consternation around Fraser since its release. The majority in Mounted Police commendably dispensed with some of the wordy terminology employed in historic s. 2(d) litigation,
 …To the extent the term “derivative right” suggests that the right to a meaningful process of collective bargaining only applies where the guarantee under s. 2(d) is otherwise frustrated, use of that term should be avoided. Furthermore, any suggestion that an aspect of a Charter right may somehow be secondary or subservient to other aspects of that right is out of keeping with the purposive approach to s. 2 (d).
Under the new analysis, s. 2(d) is understood to protect the following (para 66):
(1) the right to join with others and form associations;
(2) the right to join with others in the pursuit of other constitutional rights; and
(3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.
The upside is that the majority’s analysis of s. 2(d) in Mounted Police is far clearer and comprehensible than B.C. Health and Fraser. The decision actually seems to make sense as a comprehensive inquiry into the content of s. 2(d), even if Justice Rothstein’s critique of creative reasoning to explain the backdrop of the case law is not entirely without merit. Labour law students will look at these earlier decisions as a necessary pre-requisite to understanding the purposive development of s. 2(d), but for practical applications will hopefully have the luxury of largely ignoring it.
Labour law, as we now know it, can now be summarized as follows:
 …the s. 2 (d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests.
Now that’s a sentiment I’d certainly cognitively associate with freely.