Canada: SCC Orders Parliament To Reconsider RCMP Labour Relations

Until last Friday, the Royal Canadian Mounted Police was Canada's only police force that was legislatively prohibited from unionizing. On January 16, 2015, the Supreme Court of Canada ruled in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, that the exclusion of RCMP members from the definition of "employee" under the Public Service Labour Relations Act (Canada) [PSLRA] and the Staff Relations Representative Program ("SRRP") infringed on RCMP members' freedom of association under section 2(d) of the Charter of Rights and Freedoms. This decision overrules the Court's previous decision in Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989.

The Court held that, although the SRRP purported to provide a scheme of labour relations that met the requirements of s 2(d), the SRRP is an organization that RCMP members did not choose, do not control and requires them to work within a structure that is part of the RCMP management organization. As such, it does not provide the meaningful and independent choice of process for collective bargaining that is necessary to meet the purposes of s 2(d). The Court further held that the exclusion of RCMP members from the collective bargaining scheme under the PSLRA could not be justified under s 1 of the Charter.

Despite the Court's finding of unconstitutionality regarding the PSLRA and the SRRP, the Court did not go so far as to say that the RCMP must be permitted to unionize under the PSLRA. In keeping with its ruling that s 2(d) guarantees a process and not a specific outcome, the Court allowed that "Parliament remains free to enact any labour relations model it considers appropriate to address the specific context in which members of the RCMP discharge their duties, within the constitutional limits imposed by the guarantee enshrined in s. 2 (d) and s. 1 of the Charter."

The Court granted Parliament 12 months to address its decision. We will report on Parliament's measures when they are announced.

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