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Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313

 

 

IN THE MATTER OF A REFERENCE under section 27(1) of the Judicature Act, being chapter J‑1 of the Revised Statutes of Alberta, 1980;

 

AND IN THE MATTER OF the validity of compulsory arbitration provisions found in the Public Service Employee Relations Act, the Labour Relations Act, and the Police Officers Collective Bargaining Act, being chapters P‑33, L‑1.1 and P‑12.05 of the Revised Statutes of Alberta, 1980 respectively;

 

AND IN THE MATTER OF the exclusion of certain employees from units for collective bargaining

 

between

 

Alberta Union of Provincial Employees, Canadian Union of Public Employees and Alberta International Fire Fighters Association                                                             Appellants

 

and

 

Attorney General of Manitoba                                                     Intervener for the appellants

 

v.

 

Attorney General for Alberta                                                       Respondent


and

 

Attorney General of Canada, Attorney General for Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of British Columbia, Attorney General of Prince Edward Island, Attorney General for Saskatchewan and Attorney General of Newfoundland            Interveners for the respondent

 

indexed as: reference re public service employee relations act (alta.)

 

File No.: 19234.

 

1985: June 27, 28; 1987: April 9.

 

Present: Dickson C.J. and Beetz, McIntyre, Chouinard*,              Wilson, Le Dain and La Forest JJ.

 

*Chouinard J. took no part in the judgment.

 

on appeal from the court of appeal for alberta

 


Constitutional law ‑‑ Charter of Rights  ‑‑ Freedom of association ‑‑ Scope of protection in labour relations context ‑‑ Provincial legislation prohibiting strikes and lockouts ‑‑ Legislation providing for arbitration ‑‑ Whether provincial legislation violated s. 2 (d) of the Charter  ‑‑ If so, whether such violation justifiable under s. 1  of the Charter  ‑‑ Public Service Employee Relations Act, R.S.A. 1980, c. P‑33, ss. 48, 49, 50, 55, 93, 94 ‑‑ Labour Relations Act, R.S.A. 1980 (Supp.), c. L‑1.1, ss. 117.1, 117.2, 117.3, 117.8 ‑‑ Police Officers Collective Bargaining Act, S.A. 1983, c. P‑12.05, ss. 2(2), 3, 9, 10, 15.

 

The Lieutenant Governor in Council of Alberta, in accordance with s. 27(1) of the Judicature Act of that province, referred to the Alberta Court of Appeal several constitutional questions which raised two main issues: (1) whether the provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve impasses in collective bargaining, were inconsistent with the Canadian Charter of Rights and Freedoms ; and (2) whether the provisions of the Acts relating to the conduct of the arbitration and which limit the arbitrability of certain items and require the arbitration board to consider certain factors in making the arbitration award were inconsistent with the Charter . The first Act applied to public service employees, the second to firefighters and hospital employees and the third to police officers. The majority of the Court of Appeal of Alberta answered the first issue in the negative and declined to answer the second issue. This appeal is to determine whether the Alberta legislation violates the guarantee of freedom of association in s. 2 (d) of the Charter  and, if so, whether such violation can be justified under s. 1 .

 

Held (Dickson C.J. and Wilson J. dissenting): The appeal should be dismissed.

 


Per Beetz, Le Dain and La Forest JJ.: The challenged provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act were not inconsistent with the Charter . The constitutional guarantee of freedom of association in s. 2 (d) of the  Charter  does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike. In considering the meaning that must be given to freedom of association in s. 2 (d) of the Charter , it is essential to keep in mind that this concept must be applied to a wide range of associations or organizations of a political, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued. It is in this larger perspective, and not simply with regard to the perceived requirements of a trade union, however important they may be, that one must consider the implications of extending a constitutional guarantee, under the concept of freedom of association, to the right to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

 

In considering whether it is reasonable to ascribe such a sweeping intention to the Charter , the premise that without such additional constitutional protection the guarantee of freedom of association would be a meaningless and empty one must be rejected. Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion. These afford a wide scope for protected activity in association. Moreover, the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted. That is indicated by its express recognition and protection in labour relations legislation. It is a freedom that has been suppressed in varying degrees from time to time by totalitarian regimes.

 


What is in issue here is not the importance of freedom of association in this sense but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection is sought*‑‑the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer‑‑are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise. It is surprising that, in an area in which this Court has affirmed a principle of judicial restraint in the review of administrative action, this Court should be considering the substitution of its judgment for that of the Legislature by constitutionalizing in general and abstract terms rights which the Legislature has found it necessary to define and qualify in various ways according to the particular field of labour relations involved. The resulting necessity of applying s. 1  of the Charter  to a review of particular legislation in this field demonstrates the extent to which the Court becomes involved in a review of legislative policy for which it is really not fitted.

 


Per McIntyre J.: The freedom of association in s. 2 (d) of the Charter  did not give constitutional protection to the right of a trade union to strike as an incident to collective bargaining. Freedom of association under the Charter  means the freedom to engage collectively in those activities which are constitutionally protected for each individual. It means also the freedom to associate for the purposes of activities which are lawful when performed alone. Freedom of association, however, does not vest independent rights in the group. People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. The group can exercise only the constitutional rights of its members on behalf of those members. It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association. Therefore, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual. This definition fully realizes the purpose of freedom of association which is to ensure that various goals may be pursued in common as well as individually. When this definition of freedom of association is applied, it is clear that freedom of association does not guarantee the right to strike. Since the right to strike is not independently protected under the Charter , it can receive protection under freedom of association only if it is an activity which is permitted by law to an individual.

 

Further, read in the context of the whole Charter , s. 2 (d) cannot support an interpretation of freedom of association which could include a right to strike. Although strikes are commonplace in Canada and have been for many years, the framers of the Constitution did not include a specific reference to the right to strike in the Charter . This omission, taken with the fact that the overwhelming preoccupation of the Charter  is with individual, political, and democratic rights with conspicuous inattention to economic and property rights, speaks strongly against any implication of a right to strike.

 

Finally, it must be recognized that the right to strike accorded by legislation throughout Canada is of relatively recent vintage. It cannot be said that at this time it has achieved status as a fundamental right which should be implied in the absence of specific reference in the Charter .

 


Consequently, the provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act which prohibited the use of strikes and lockouts were not inconsistent with the provisions of the Charter  since the Charter  does not guarantee a right to strike. The provisions of the Acts which related to the conduct of arbitration were also not inconsistent with the Charter , since the Charter  does not guarantee a specific form of dispute resolution as a substitute for the right to strike.

 

Per Dickson C.J. and Wilson J. (dissenting): The purpose of the constitutional guarantee of freedom of association in s. 2 (d) of the Charter  is to recognize the profoundly social nature of human endeavours and to protect the individual from state‑enforced isolation in the pursuit of his or her ends. While s. 2(d), at a minimum, guarantees the liberty of persons to be in association or belong to an organization, it must extend beyond a concern for associational status in order to give effective protection to the interests to which the constitutional guarantee is directed and must protect the pursuit of the activities for which the association was formed. What freedom of association seeks to protect, however, is not associational activities qua particular activities, but the freedom of individuals to interact with, support and be supported by, their fellow humans in the varied activities in which they choose to engage. But this is not an unlimited constitutional licence for all group activity. The mere fact that an activity is capable of being carried out by several people together, as well as individually, does not mean that the activity acquires constitutional protection from legislative prohibition or regulation. The overarching consideration remains whether a legislative enactment or administrative action interferes with the freedom of persons to join and act with others in common pursuits. The legislative purpose which will render legislation invalid is the attempt to preclude associational conduct because of its concerted or associational nature.

 


In the context of labour relations, the guarantee of freedom of association in s. 2 (d) of the Charter  includes not only the freedom to form and join associations but also the freedom to bargain collectively and to strike. The role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers, and the capacity to bargain collectively has long been recognized as one of the integral and primary functions of associations of working people. It remains vital to the capacity of individual employees to participate in ensuring equitable and humane working conditions. Under our existing system of industrial relations, the effective constitutional protection of the associational interests of employees in the collective bargaining process also requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1  of the Charter . Indeed, the right of workers to strike is an essential element in the principle of collective bargaining. This is not to say that s. 2 (d) of the Charter  entrenches for all time the existing system of labour relations. The area of industrial relations is subject to significant legislative regulation. The point is that this regulation cannot define the scope of the underlying freedom.

 


In the present case, the three statutes prohibited strikes and defined a strike as a cessation of work or refusal to work by two or more persons acting in combination or in concert or in accordance with a common understanding. There is no doubt that the Alberta legislation was aimed at foreclosing a particular collective activity because of its associational nature. The very nature of a strike is to influence an employer by joint action which would be ineffective if it were carried out by an individual. Therefore, s. 93 of the Public Service Employee Relations Act, s. 117.1(2) of the Labour Relations Act and s. 3(1) of the Police Officers Collective Bargaining Act, which directly abridged the freedom of employees to strike, infringed the guarantee of freedom of association in s. 2 (d) of the Charter .

 

The limits on freedom of association imposed by these provisions were not justifiable under s. 1  of the Charter . The protection of the government from the political pressure of strike action from their employees was not an objective of sufficient importance for the purpose of s. 1  for limiting freedom of association through legislative prohibition of freedom to strike. It has not been shown that all public service employees have a substantial bargaining advantage on account of their employer's governmental status. Nor has it been shown that any political pressure exerted on the government during strikes was of an unusual or peculiarly detrimental nature.

 


The protection of essential services is a government objective of sufficient importance for the purpose of s. 1 , but the government did not demonstrate that this objective justified the limit on freedom of association imposed by the abrogation of the right to strike. The essential quality of police officers and firefighters was obvious and self‑evident, and did not have to be proven by evidence. Thus, the Legislature's decision to prevent interruption in police protection and firefighting was rationally connected to the objective of protecting essential services. But the prohibition of the right to strike of all hospital workers and public service employees was too drastic a measure for achieving the object of protecting essential services. Indeed, without some evidentiary basis, it was neither obvious nor self‑evident that all those employees performed services "whose interruption would endanger the life, personal safety or health of the whole or part of the population". Section 93 of the Public Service Employee Relations Act and s. 117.1(2) of the Labour Relations Act, in so far as it pertains to the hospital employees under s. 117.1(1)(b), were too wide to be justified by relating to essential services for the purpose of s. 1.

 

Further, to impair as little as possible the freedom of association of those affected by a legislative prohibition to strike, such prohibition must also be accompanied by a mechanism for dispute resolution by a third party which would adequately safeguard workers' interest. In the present reference, the arbitration system provided by the Acts was not an adequate replacement for the employees' freedom to strike. While the provisions which required the arbitrator to consider the fiscal policies of the government and the wages and benefits of private and public unionized and non‑unionized employees did not compromise the adequacy of the arbitration procedure, the exclusion of certain subjects from the arbitration process in the Police Officers Collective Bargaining Act and the Public Service Employee Relations Act did compromise the effectiveness of the process as a means of ensuring equal bargaining power in the absence of freedom to strike. Serious doubt is cast upon the fairness and effectiveness of an arbitration scheme where matters which would normally be bargainable are excluded from arbitration. It may be necessary in some circumstances for a government employer to maintain absolute control over aspects of employment through exclusion of certain subjects from arbitration, but the presumption must be against such exclusion to ensure that the effectiveness of an arbitration scheme as a substitute for freedom to strike is not compromised. Here, the government has not satisfied the onus upon it to demonstrate such necessity.

 


Finally, none of the arbitration schemes in the Acts provided a right to refer a dispute to arbitration. Rather, a discretionary power is placed in a Minister or an administrative board to establish an arbitration board if it is deemed appropriate. Such a discretionary power was an unjustified interference with the effectiveness of the arbitration procedure in promoting equality of bargaining power between the parties.

 

In sum, the provisions relating to the arbitration schemes did not themselves limit freedom of association. These provisions, however, with the exception of those requiring the arbitrator to consider certain factors in making the arbitration award, contributed to the inadequacy of the arbitration scheme as a replacement for the freedom to strike, and therefore to the failure of s. 93 of the Public Service Employee Relations Act, s. 117.1(2) of the Labour Relations Act and s. 3(1) of the Police Officers Collective Bargaining Act to be justified under s. 1 .

 

Cases Cited

 

By McIntyre J.

 


Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Collymore v. Attorney‑General, [1970] A.C. 538; Dolphin Delivery Ltd. v. Retail, Wholesale & Department Store Union, Local 580 (1984), 10 D.L.R. (4th) 198, aff'd on other grounds, [1986] 2 S.C.R. 573; Public Service Alliance of Canada v. The Queen, [1984] 2 F.C. 562, aff'd [1984] 2 F.C. 889; Re Prime and Manitoba Labour Board (1983), 3 D.L.R. (4th) 74 (Man. Q.B.), rev'd on other grounds (1984), 8 D.L.R. (4th) 641 (Man. C.A.); Halifax Police Officers and NCO's Association v. City of Halifax (1984), 11 C.R.R. 358; Roberts v. United States Jaycees, 468 U.S. 609 (1984); Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 and 955 and Government of Saskatchewan (1985), 19 D.L.R. (4th) 609; Black v. Law Society of Alberta, [1986] 3 W.W.R. 590; Re Service Employees' International Union, Local 204 and Broadway Manor Nursing Home (1983), 44 O.R. (2d) 392; Canadian Pacific Railway Co. v. Zambri, [1962] S.C.R. 609; Canadian Air Line Pilots' Ass'n and Eastern Provincial Airways Ltd. (1983), 5 CLRBR (NS) 368; McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718.

 

By Dickson C.J. (dissenting)

 


Re Service Employees' International Union, Local 204 and Broadway Manor Nursing Home (1983), 44 O.R. (2d) 392; Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 and 955 and Government of Saskatchewan (1985), 19 D.L.R. (4th) 609; Collymore v. Attorney‑General, [1970] A.C. 538, aff'g (1967), 12 W.I.R. 5; Dolphin Delivery Ltd. v. Retail, Wholesale & Department Store Union, Local 580 (1984), 10 D.L.R. (4th) 198, aff'd on other grounds, [1986] 2 S.C.R. 573; Public Service Alliance of Canada v. The Queen, [1984] 2 F.C. 889; Newfoundland Association of Public Employees v. The Queen in Right of Newfoundland (1985), 14 C.R.R. 193; Re Prime and Manitoba Labour Board (1983), 3 D.L.R. (4th) 74 (Man. Q.B.), rev'd on other grounds (1984), 8 D.L.R. (4th) 641 (Man. C.A.); Halifax Police Officers and NCO's Association v. City of Halifax (1984), 11 C.R.R. 358; Re Chung and Amalgamated Clothing and Textile Workers' Union (1986), 54 O.R. (2d) 650;  Hunter v. Southam Inc., [1984] 2 S.C.R. 145; N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Black v. Law Society of Alberta, [1986] 3 W.W.R. 590; Healy v. James, 408 U.S. 169 (1972); Baird v. State Bar of Arizona, 401 U.S. 1 (1971); NAACP v. Button, 371 U.S. 415 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (1971), aff'd 404 U.S. 802 (1971); Thomas v. Collins, 323 U.S. 516 (1945); International Union, U.A.W.A. v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949); United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964); School Committee of the Town of Westerly v. Westerly Teachers Ass'n, 299 A.2d 441 (1973); R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Re Alberta Union of Provincial Employees and the Crown in Right of Alberta (1980), 120 D.L.R. (3d) 590; Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Crofter Hand Woven Harris Tweed Co. v. Veitch, [1942] 1 All E.R. 142; Perrault v. Gauthier (1898), 28 S.C.R. 241; Canadian Pacific Railway Co. v. Zambri, [1962] S.C.R. 609; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; R. v. Oakes, [1986] 1 S.C.R. 103;  McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Alberta Union of Provincial Employees v. The Crown in Right of Alberta, P.S.E.R.B. (Alta.), Nos. 140‑005‑502, 140‑013‑502, 140‑017‑502, November 24, 1982, unreported; Alberta Union of Provincial Employees v. The Crown in Right of Alberta, P.S.E.R.B. (Alta.), Nos. 140‑003‑502, 140‑015‑502, 140‑019‑502, 140‑021‑502, 140‑023‑502, November 12, 1982, unreported.

 

Statutes and Regulations Cited

 

Canada Labour Code, R.S.C. 1970, c. L‑1 as amended, s. 107(2).

 

Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), (b), (c), (d), 6(2) (b), (4) , 16  to 25 , 27 , 29 , 33 .

 

Constitution Act, 1867, ss. 93 , 133 .

 

Constitution Act, 1982 .

 

Constitution of France, preamble.

 

Constitution of Italy, Art. 40.

 

Constitution of Japan, Art. 28.


Constitution of the United States, First Amendment.

 

Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 18 (1948), art. 1  to 11 .

 

Industrial Relations Act, R.S.N.B. 1973, c. I‑4 as amended, s. 1(2).

 

International Covenant on Civil and Political Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), art. 22.

 

International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1966), art. 8.

 

Judicature Act, R.S.A. 1980, c. J‑1, s. 27(1).

 

Labour Act, R.S.P.E.I. 1974, c. L‑1 as amended, s. 8(2).

 

Labour Code, R.S.B.C. 1979, c. 212 as amended, s. 1(2).

 

Labour Code, R.S.Q. 1977, c. C‑27 as amended, ss. 109.1, 110, 110.1.

 

Labour Relations Act, R.S.A. 1980 (Supp.), c. L‑1.1, ss. 1(1)(u), (2), 117.1 [en. 1983, c. 34, s. 2(28)], 117.2 s <(en. idem], 117.3 [en. idem], 117.8 [en. idem], 155.

 

Labour Relations Act, R.S.O. 1980, c. 228 as amended, ss. 1(2), 73.

 

Labour Relations Act, S.M. 1972, c. 75 as amended, ss. 2(1), 11.

 

Labour Relations Act, 1977, S.N. 1977, c. 64 as amended, s. 2(2).

 

Police Officers Collective Bargaining Act, S.A. 1983, c. P‑12.05, ss. 1(m), 2(1), (2), 3, 9, 10, 15, 46.

 

Public Service Employee Relations Act, R.S.A. 1980, c. P‑33, ss. 1(o), (q), 48, 49 [am. 1983, c. 96, s. 6s <), 50, 55 [rep. & subs. 1983, c. 34, s. 5(7)], 93 [am. 1983, c. 34, s. 5(10)], 94, 95.

 

Trade Union Act, R.S.S. 1978, c. T‑17 as amended, s. 2 (f).

 

Trade Union Act, S.N.S. 1972, c. 19 as amended, s. 13.

 

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

 

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APPEAL from a judgment of the Alberta Court of Appeal (1984), 16 D.L.R. (4th) 359, [1985] 2 W.W.R. 289, 35 Alta. L.R. (2d) 124, 57 A.R. 268, 85 CLLC 14,027, on a reference made pursuant to s. 27(1) of the Alberta Judicature Act. Appeal dismissed, Dickson C.J. and Wilson J. dissenting.

 

Timothy J. Christian, for the appellant the Alberta Union of Provincial Employees.

 

Sheila J. Greckol and June M. Ross, for the appellant the Canadian Union of Public Employees.

 

Barrie C. Chivers, for the appellant the Alberta International Fire Fighters Association.

 

Roderick A. McLennan, Q.C., Nolan Steed and Brian R. Burrows, for the respondent.


V. E. Toews and V. J. Matthews Lemieux, for the intervener the Attorney General of Manitoba.

 

E. A. Bowie, Q.C., for the intervener the Attorney General of Canada.

 

Blenus Wright, Q.C., and John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.

 

Réal A. Forest and Gilles Grenier, for the intervener the Attorney General of Quebec.

 

Alison Scott and R. Endres, for the intervener the Attorney General of Nova Scotia.

 

E. Robert A. Edwards, Q.C., for the intervener the Attorney General of British Columbia.

 

Ralph C. Thompson, for the intervener the Attorney General of Prince Edward Island.

 

M. C. Crane and B. G. Welsh, for the intervener the Attorney General for Saskatchewan.

 

Deborah E. Fry, for the intervener the Attorney General of Newfoundland.

 

 


The reasons of Dickson C.J. and Wilson J. were delivered by

 

1.                The Chief Justice (dissenting)‑‑This appeal concerns the interpretation of "freedom of association" as guaranteed in s. 2 (d) of the Canadian Charter of Rights and Freedoms  in the labour relations context. The central issues raised are (1) whether legislation enacted by the province of Alberta prohibiting strikes infringes s. 2 (d) of the Charter ; and (2) if so, whether and under what circumstances legislative limits on the freedom of association are reasonable and demonstrably justified in a free and democratic society for the purposes of s. 1  of the Charter .

 

                                                                     I

 

The Reference‑‑Constitutional Questions

 

2.                The Lieutenant Governor in Council of the province of Alberta referred certain questions to the Court of Appeal of Alberta for an advisory opinion pursuant to s. 27(1) of the Judicature Act, R.S.A. 1980, c. J‑1:

 

1.  Are the provisions of the Public Service             Employee Relations Act that provide compulsory        arbitration as a mechanism for resolution of       disputes and prohibit the use of lockouts and        strikes, in particular, sections 49, 50 , 93              and 94  thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 


2.  Are the provisions of the Labour Relations Act that provide compulsory arbitration as a        mechanism for resolution of disputes and           prohibit the use of lockouts and strikes, in        particular, sections 117.1, 117.2 and 117.3        thereof, inconsistent with the Constitution        Act, 1982 , and if so, in what particular or             particulars, and to what extent?

 

3.  Are the provisions of the Police Officers             Collective Bargaining Act that provide for        compulsory arbitration as a mechanism for the resolution of disputes and prohibit the use of        lockouts and strikes, in particular, sections         3, 9, and 10 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

4.  Are the provisions of the Public Service             Employee Relations Act that relate to the        conduct of arbitration, in particular sections        48 and 55 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

5.  Are the provisions of the Labour Relations Act that relate to the conduct of arbitration, in        particular section 117.8 thereof, inconsistent      with the Constitution Act, 1982 , and if so, in        what particular or particulars, and to what            extent?

 

6.  Are the provisions of the Police Officers             Collective Bargaining Act that relate to the        conduct of arbitration, in particular sections        2(2) and 15 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

7.  Does the Constitution Act, 1982 , limit the           right of the Crown to exclude any one or more        of the following classes of its employees from    units for collective bargaining:

 


a) an employee who exercises managerial                                       functions;

 

b) an employee who is employed in a                                                confidential capacity in matters relating                                                                                             to labour relations;

 

c) an employee who is employed in a capacity                                             that is essential to the effective                       functioning of the Legislature, the                                                  Executive or the Judiciary;

 

d) an employee whose interests as a member of                                         a unit for collective bargaining could                                                                                           conflict with his duties as an employee?

 

3.                A majority of the Court of Appeal of Alberta answered questions 1 to 3 in the negative and did not answer the remaining questions: (1984), 16 D.L.R. (4th) 359, [1985] 2 W.W.R. 289, 35 Alta. L.R. (2d) 124, 57 A.R. 268, 85 CLLC 14,027. The Alberta Union of Provincial Employees, the Canadian Union of Public Employees and the Alberta International Fire Fighters Association appealed to this Court. The Attorney General of Manitoba intervened in support of the appellants. The Attorney General of Canada and Attorneys General of each of the other provinces except New Brunswick intervened in support of the Attorney General for Alberta.

 

                                                                    II


Relevant Statutory and Constitutional Provisions

 

4.                The provisions in question in the Public Service Employee Relations Act, R.S.A. 1980, c. P‑33, as amended by S.A. 1983, c. 34 and c. 96 (hereinafter Public Service Act), apply to public service employees in Alberta; in the Labour Relations Act, R.S.A. 1980 (Supp.), c. L‑1.1, as amended by S.A. 1983, c. 34, to firefighters and hospital employees; and in the Police Officers Collective Bargaining Act, S.A. 1983, c. P‑12.05 (hereinafter Police Officers Act), to police officers.

 

5.                Constitutional questions 1, 2 and 3 of this Reference concern the constitutionality of prohibiting the use of strikes and replacing them with compulsory arbitration.

 

6.                The scheme of each statute is similar. Though the definition of "strike" varies slightly between the Acts, it is common to all that a strike is a cessation of work, a refusal to work or a refusal to continue to work by two or more persons acting in combination or in concert or in accordance with a common understanding (see: Public Service Act, s. 1(q); Labour Relations Act, s. 1(1)(u); Police Officers Act, s. 1(m)). Each of the Acts prohibits strikes and makes it an offence to strike or promote a strike (see Public Service Act, ss. 93 and 95; Labour Relations Act, ss. 117.1(2), 117.1(4) and 155; Police Officers Act, ss. 3(1) and 46).

 


7.                Each of the statutes includes an arbitration scheme for resolving disputes which arise in the collective bargaining process. If a dispute cannot be resolved, either the employer or the bargaining agent or both may request that an arbitration board be established (Public Service Act, s. 49; Labour Relations Act, s. 117.2; Police Officers Act, s. 9).

 

8.                In the Public Service Act, upon request for the establishment of an arbitration board, the Public Service Employee Relations Board may direct the parties to continue collective bargaining, appoint a mediator, or establish an arbitration board depending on its view of the circumstances (s. 50). Under the Labour Relations Act, s. 117.3, and the Police Officers Act, s. 10, the Minister, on receipt of a request for the establishment of an arbitration board, may (1) direct the parties to continue collective bargaining and may prescribe the procedure or conditions under which collective bargaining is to take place if he or she considers it appropriate, or (2) if satisfied that the dispute is appropriate to refer to an arbitration board, establish an arbitration board.

 

9.                The provisions at issue in questions 4, 5, and 6 of this Reference relate primarily to the arbitrability of certain items and the factors appropriate for consideration by an arbitration board.

 

10.              In the Public Service Act, ss. 48 and 55 provide:

 

48(1) An arbitration board may only consider, and an arbitral award may only deal with, those matters that may be included in a collective agreement.

 

(2) Notwithstanding subsection (1), none of the following matters may be referred to an arbitration board and provisions in respect of the following matters shall not be contained in the arbitral award of an arbitration board:

 


(a) the organization of work, the assignment of duties and the determination of the number of employees of an employer;

 

(b) the systems of job evaluation and the allocation of individual jobs and positions within the systems;

 

(c) selection, appointment, promotion, training or transfer;

 

(d) pensions.

 

55 To ensure that wages and benefits are fair and reasonable to the employees and employer and are in the best interest of the public, the arbitration board

 

(a) shall consider, for the period with respect to which the award will apply, the following:

 

(i) wages and benefits in private and public and unionized and non‑unionized employment;

 

(ii) the continuity and stability of private and public employment, including

 

(A) employment levels and incidence of             layoffs,

 

(B) incidence of employment at less than           normal working hours, and

 

(C) opportunity for employment;

 


(iii) any fiscal policies that may be declared from time to time in writing by the Provincial Treasurer for the purposes of this Act;

 

and

 

(b) may consider, for the period with respect to which the award will apply, the following:

 

(i) the terms and conditions of employment in similar occupations outside the employer's employment taking into account any geographic, industrial or other variations that the board considers relevant;

 

(ii) the need to maintain appropriate relationships in terms and conditions of employment between different classification levels within an occupation and between occupations in the employer's employment;

 

(iii) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered;

 

(iv) any other factor that it considers relevant to the matter in dispute.

 

11.              Section 117.8 of the Labour Relations Act is identical to s. 55 of the Public Service Act except in so far as it refers to a "compulsory arbitration board" rather than an "arbitration board".

 


12.              Section 15 of the Police Officers Act is also identical to s. 55 of the Public Service Act except in so far as it refers to an "interest arbitration board" rather than an "arbitration board".

 

13.              Question 6 of this Reference refers to s. 2(2) of the Police Officers Act. This section is unique. A similar provision does not appear in any of the other Acts. Section 2  reads:

 

2(1) All police officers, except the chief constable and deputy chief constables, have the right

 

(a) to be members of a police association and to participate in its lawful activities, and

 

(b) to bargain collectively with the municipality to which they are appointed through a bargaining agent,

 

except that no police officer shall remain or become a member of a trade union or of an organization that is affiliated, directly or indirectly, with a trade union.

 

(2) Notwithstanding subsection (1), if an application by a local authority within the meaning of the Special Forces Pension Act to bring its police officers under that Act has been granted, there shall be no right to bargain collectively for pension benefits.

 

Question 7 does not specifically refer to the legislation under review. It is concerned, in a general way, with categories of exclusion from units for collective bargaining, and if it is to be answered, it must be answered in the abstract.

 


14.              The following provisions of the Charter  are relevant to this appeal.

 

2. Everyone has the following fundamental                    freedoms:

 

(a) freedom of conscience and religion;

 

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

 

(c) freedom of peaceful assembly; and

 

(d) freedom of association. [Emphasis added.]

 

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

 

                                                                    III

 

Judgment of the Alberta Court of Appeal

 

15.              The majority of the Court of Appeal of Alberta (Kerans J.A., McGillivray C.J.A., D. C. McDonald J. (ad hoc), and Stevenson J.A. concurring) answered questions 1 to 3 of the Reference in the negative, held that no answer was necessary for questions 4 to 6, and that question 7 could not be answered. Belzil J.A., dissenting in part, answered the first six questions in the negative, and question 7 in the affirmative.


16.              Kerans J.A. characterized the ultimate question posed in the Reference as whether the imposition of compulsory arbitration in place of strikes and lockouts has interfered with the freedom of association of the workers involved. He held it did not. According to the majority, the provisions of the Charter  must be interpreted in a broad and liberal manner, consistent with the prescriptions of Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and in defining a Charter  right the court need not concern itself with the difficulties that may arise if the right is absolute. Such concerns are more properly dealt with under s. 33  or s. 1  of the Charter . Interpretation should not, however, be extreme or extravagant.

 

17.              Applying these principles to the present Reference, the majority concluded that statutory restrictions on strike activity were not an infringement of s. 2 (d) of the Charter . Kerans J.A. wrote that a measure of restraint should be exercised in Charter  interpretation; courts should not interpret freedom of association as providing Charter  protection to "all actions by all groups to carry out all group purposes". Moreover, the majority was not persuaded that the prohibition of strikes did in fact limit the freedom of association of public sector employees.

 

18.              Kerans J.A. went on to consider the argument that the "right to organize should be extended ... to include the right to strike in order to give vitality to the right of workers to organize for their mutual benefit". For the purposes of the appeal, Kerans J.A. left open the validity of this proposition, but held that even if it were the appropriate legal standard, the imposition of compulsory arbitration had not been proved in fact to have been detrimental to the vitality of the unions in question. Thus, according to Kerans J.A., the legislative schemes did not interfere with meaningful and effective collective bargaining.


19.              The majority declined to answer questions 4 to 6 since the negative answer provided for questions 1 to 3 made it unnecessary to consider the adequacy of the particular statutory arbitration schemes as a replacement for strike action. The majority held that question 7 could not be answered in the abstract because any answer would be dependent on the facts of each particular case.

 

20.              Belzil J.A., in separate reasons, answered the first three questions in a similar way to the majority but came to his answers by a different route. According to him, freedom of association in the Charter  means that "two or more persons may in concert with each other do what they please provided they do not harm others or transgress such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". He characterized strike activity as "the ultimate weapon of coercion of labour" in the collective bargaining process and found it "unthinkable that a charter for the equal protection of the rights and freedoms of all citizens should guarantee to one citizen an inviolable right to harm another, or enlarge the freedom of one citizen to the detriment of the freedom of the other". Accordingly, he found the right to strike to be outside the ambit of the Charter  and answered questions 1 through 3 in the negative.

 


21.              According to Belzil J.A., questions 4 to 6 were also to be answered in the negative since in his view, the Charter  did not impose any restriction on the Legislature in specifying what an arbitrator shall or may consider in compulsory arbitration. Belzil J.A. answered question 7 in the affirmative. According to him: "Since collective bargaining by itself, and without resort to strike action, does not cause harm to anyone, any limit on the right of any of the persons in any of the classes mentioned in ss. (a), (b), (c), and (d) of Q. 7, to associate with others in units for collective bargaining is on its face an infringement of the freedom of association guaranteed to each of them by the Charter , unless the limit is justified under s. 1". Thus, in Belzil J.A.'s view, collective bargaining is within the domain of the Charter  though strike activity is not.

 

                                                                   IV

 

Freedom of Association and s. 2(d) of the Charter

 

22.              Freedom of association is the freedom to combine together for the pursuit of common purposes or the advancement of common causes. It is one of the fundamental freedoms guaranteed by the Charter , a sine qua non of any free and democratic society, protecting individuals from the vulnerability of isolation and ensuring the potential of effective participation in society. In every area of human endeavour and throughout history individuals have formed associations for the pursuit of common interests and aspirations. Through association individuals are able to ensure that they have a voice in shaping the circumstances integral to their needs, rights and freedoms.

 

23.              Freedom of association is the cornerstone of modern labour relations. Historically, workers have combined to overcome the inherent inequalities of bargaining power in the employment relationship and to protect themselves from unfair, unsafe, or exploitative working conditions. As the United States Supreme Court stated in N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at p. 33:

 


Long ago we stated the reason for labor organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; . . .

 

The "necessities of the situation" go beyond, of course, the fairness of wages and remunerative concerns, and extend to matters such as health and safety in the work place, hours of work, sexual equality, and other aspects of work fundamental to the dignity and personal liberty of employees.

 

24.              The question in the present case is to what extent freedom of association, as guaranteed by s. 2 (d) of the  Charter , protects the freedom of workers to act in concert, and to bargain and withdraw their services collectively.

 

1. The Authorities

 

25.              Four important jurisprudential sources warrant review. First, an extensive jurisprudence has developed in Canada on the scope of constitutional protection of freedom of association. Second, the Judicial Committee of the Privy Council has addressed the issue. Third, there are a number of United States cases on freedom of association, some of which have been decided in respect to labour relations. And, fourth, freedom of association in the labour relations context has received considerable attention under international law. It is instructive to examine the Privy Council case on freedom of association before reviewing the Canadian jurisprudence because the former has been a point of departure for many of the decisions in Canadian courts under s. 2 (d) of the Charter , and is relied upon heavily by the respondent.

 


26.              In assessing the relevant authorities, it is important to keep three considerations in mind. First, are trade unions accorded any constitutional protection at all?

 

27.              Second, what approach is taken to the nature of freedom of association? More specifically, has the relevant tribunal adopted what I shall refer to as a `constitutive' definition of freedom of association whereby freedom of association entails simply the freedom to combine together but does not extend to the freedom to engage in the activities for which the association was formed? Alternatively, has a wider definition been adopted to the effect that freedom of association embodies both the freedom to join together and the freedom to pursue collective activities? In this appeal, the respondent adopts the former view while the appellants adopt the latter.

 

28.              Third, if the wider definition is adopted, what is the scope of activities protected? Not all activities in pursuit of a collective purpose are constitutionally shielded simply by virtue of the fact that they are done in association. The constitutional principle in forming the appropriate scope of freedom of association, therefore, must be examined to uncover the limitations imposed in different jurisdictions on associational freedom.

 

(i)              The Judicial Committee of the Privy Council

 

29.              The leading case from the Privy Council is Collymore v. Attorney‑General, [1970] A.C. 538. The issue in Collymore was whether the Industrial Stabilisation Act 1965 of Trinidad and Tobago offended freedom of association as guaranteed by the Constitution of Trinidad and Tobago. Section 1 of the Constitution provides:


It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, ... (j) freedom of association and assembly; . . .

 

Section 2 , in so far as it is relevant, states:

 

Subject to the provisions of sections 3, 4 and 5 of this Constitution, no law shall abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared . . . .

 

Under s. 4, Parliament may pass special laws during a public emergency, and under s. 5 Parliament may enact laws which conflict with ss. 1  and 2 , subject to certain specified safeguards.

 

30.              Section 34 of the Industrial Stabilisation Act 1965 prohibited workers from participating in a strike in connection with any trade dispute unless, the dispute having been reported to the Minister of Labour, the Minister has not referred it to the Industrial Court set up under the Act. The appellants were employees of Texaco Trinidad, Inc. and members of the Oilfield Workers' Trade Union. They sought a declaration in the High Court of Trinidad that the Act was ultra vires the Parliament of Trinidad and Tobago on the ground that it was inconsistent with the constitutional guarantee of freedom of association. Their application was denied.

 

31.              The appellants appealed to the Court of Appeal and the appeal was dismissed: Collymore v. Attorney‑General (1967), 12 W.I.R. 5. Upon an extensive review of the history of legal regulation of strikes, Wooding C.J. articulated a limited definition of freedom of association (at p. 15):

 


In my judgment, then, freedom of association means no more than freedom to enter into consensual arrangements to promote the common‑interest objects of the associating group. The objects may be any of many. They may be religious or social, political or philosophical, economic or professional, educational or cultural, sporting or charitable. But the freedom to associate confers neither right nor licence for a course of conduct or for the commission of acts which in the view of Parliament are inimical to the peace, order and good government of the country.

 

What is or is not inimical to the peace, order and good government of the country is not for the courts to decide.

 

32.              Similarly, Phillips J.A. found " `this right' [to strike], if it may properly be so called, is something that is in its nature very different from the well‑known basic rights or liberties of the subject which derive in England from the `common law'..." (p. 29) and "a logical distinction falls clearly to be drawn between freedom of association strictly so called and freedom to engage in any particular activity of an association" (p. 31). Fraser J.A. held that whether freedom of association included the right to strike depended on whether it was a common law right. He found it was not: "The right to indulge in a concerted stoppage of work which alone can constitute a strike is no more than a statutorily implied exemption from criminal and civil consequences limited in scope to action taken in furtherance or contemplation of a trade dispute" (p. 48).

 

33.              On appeal to the Privy Council, Lord Donovan, speaking for the Court, agreed with Wooding C.J. that freedom of association does not embody the freedom to pursue the objects of an association and cited with approval the passage quoted above. Accordingly, the appeal was dismissed.

 


34.              While the Collymore case provides a relevant perspective on the meaning of freedom of association, its applicability to the Charter  is undermined by the different nature of the constitutional documents. The Constitution of Trinidad and Tobago is more similar in character and function to the Canadian Bill of Rights than to the Charter , accepting, as it does, a "frozen rights" approach. It recognizes and declares pre‑existing rights and freedoms and is not a source of new constitutional protections. It is for this reason that the courts in Collymore were so concerned with ascertaining whether or not the freedom to strike existed at common law prior to the introduction of statutory reform. As elaborated below, the Charter  ushers in a new era in the protection of fundamental freedoms. We need not ground protection for freedom of association in pre‑existing freedoms.

 

(ii) Canadian Case Law

 

35.              Canadian jurisprudence on the nature and scope of freedom of association is divided. On the one hand, the British Columbia Court of Appeal and the Federal Court of Appeal have endorsed a constitutive definition of freedom of association, concluding that collective bargaining and strike activity are not protected by freedom of association. This approach accords with the Collymore case. On the other hand, the Ontario Divisional Court, and the Saskatchewan Court of Appeal have adopted broader definitions, holding that freedom of association includes the freedom to pursue common purposes and to engage in collective activities, and is not merely the freedom to form and join associations.

 


36.              In the British Columbia case, Dolphin Delivery Ltd. v. Retail, Wholesale & Department Store Union, Local 580 (1984), 10 D.L.R. (4th) 198 (B.C.C.A.), the issue was whether an interlocutory injunction enjoining picketing by the respondent was in breach of the Charter 's guarantees of freedom of expression and freedom of association. The case was appealed to this Court but only on the freedom of expression issue: [1986] 2 S.C.R. 573. On the freedom of association issue the majority of the Court of Appeal (Esson and Taggart, JJ.A.), relying on the Collymore case, held that "freedom to associate carries with it no constitutional protection of the purposes of the association or means of achieving those purposes" (p. 209). Esson J.A. stated (at pp. 207‑08):

 

The freedom [of association] is that of the individual (i.e., in the words of s. 2 , of "everyone"). It is the freedom to unite, to combine, to enter into union, to create and maintain an organization of persons with a common purpose. One of the classes of association guaranteed by s. 2  is undoubtedly the trade union. Everyone has the right to join a trade union and to pursue, with the other members, the collective interests of the membership. It does not follow that the Charter  guarantees the objects and purposes of the union, or the means by which those can be achieved.

 

The majority concluded that the Charter 's guarantee of freedom of association does not affect laws which limit or control picketing.

 

37.              Dolphin Delivery and Collymore were followed by the Federal Court of Appeal in Public Service Alliance of Canada v. The Queen, [1984] 2 F.C. 889 (hereinafter PSAC) (on appeal to this Court, reasons released concurrently, [1987] 1 S.C.R. 424). The decision of the Court of Appeal is summarized in detail in this Court's reasons in the case. In brief, the Court of Appeal decided that the Public Sector Compensation Restraint Act, S.C. 1980‑81‑82‑83, c. 122, deprived public servants of the right to bargain collectively but that, in doing so, it did not impinge on the Charter 's guarantee of freedom of association. According to Mahoney J. (with whom Hugessen J. concurred), at p. 895:

 


The right of freedom of association guaranteed by the Charter  is the right to enter into consensual arrangements. It protects neither the objects of the association nor the means of attaining those objects.

 

                                                                    ...

 

I do not think it desirable to attempt to catalogue the rights and immunities inherent in a trade union's guaranteed freedom of association. Clearly, collective bargaining is, or should be, the primary means by which organized labour expects to attain its principal object: the economic betterment of its membership. However fundamental, it remains a means and, as such, the right to bargain collectively is not guaranteed by paragraph 2 (d) of the Charter , which guarantees freedom of association.

 

Marceau J. agreed with Mahoney J. and his reliance on Dolphin Delivery and added (at p. 897): "I fail to see on the basis of which rule of construction, however liberal it may be, one can be able to give to the words `freedom of association' a meaning broad enough to include the right to strike".

 

38.              The trial divisions of a number of provinces have adopted the reasoning in Collymore, Dolphin Delivery and PSAC in interpreting s. 2 (d) of the Charter . See Newfoundland Association of Public Employees v. The Queen in Right of Newfoundland (1985), 14 C.R.R. 193 (Nfld. S.C.T.D.); Re Prime and Manitoba Labour Board (1983), 3 D.L.R. (4th) 74 (Man. Q.B.), rev'd on other grounds (1984), 8 D.L.R. (4th) 641 (Man. C.A.); Halifax Police Officers and NCO's Association v. City of Halifax (1984), 11 C.R.R. 358 (N.S.S.C.T.D.)

 


39.              In contrast to these decisions are the Ontario and Saskatchewan cases. Re Service Employees' International Union, Local 204 and Broadway Manor Nursing Home (1983), 44 O.R. (2d) 392 (hereinafter Broadway Manor) concerned an application for judicial review before the Divisional Court of the Ontario High Court of Justice raising the issue of the validity of the Inflation Restraint Act, 1982, S.O. 1982, c. 55. The Labour Relations Board had interpreted s. 13 of that Act as continuing in force, beyond the normal date of termination, collective agreements of public sector employees. Galligan J. disposed of the application on the ground that the Labour Relations Board misconstrued the Act, though he addressed the question whether s. 13 infringed freedom of association "in deference to the substantial argument presented on it, and in view of the fact that my interpretation of s. 13 may not be accepted by others" (p. 406). O'Leary and Smith JJ. were of the view that the Board had correctly interpreted the Act, and disposed of the application on the Charter  issue.

 

40.              The Divisional Court was unanimous in rejecting the view of freedom of association embodied in Collymore. All three judges were of the view that the guarantee of freedom of association in s. 2 (d) of the Charter  extended to the activities of associations, and was not limited merely to the joining and formation of associations. Galligan J. explicitly rejected the interpretation of freedom of association in Collymore, as inconsistent with "a large and liberal construction". He stated, at p. 409:

 

But I think that freedom of association if it is to be a meaningful freedom must include freedom to engage in conduct which is reasonably consonant with the lawful objects of an association. And I think a lawful object is any object which is not prohibited by law....

 


The purpose of an association of workers in a union is clear ‑‑ it is to advance their common interests. If they are not free to take such lawful steps that they see as reasonable to advance those interests, including bargaining and striking, then as a practical matter their association is a barren and useless thing. I cannot imagine that the Charter  was ever intended to guarantee the freedom of association without also guaranteeing the freedom to do that for which the association is intended. I have no hesitation in concluding that in guaranteeing workers' freedom of association the Charter  also guarantees at the very least their freedom to organize, to choose their own union, to bargain and to strike.

 

O'Leary J. said, at p. 445:

 

But is the right to strike included in the expression "freedom of association"? The ability to strike, in the absence of some kind of binding conciliation or arbitration, is the only substantial economic weapon available to employees. The right to organize and bargain collectively is only an illusion if the right to strike does not go with it. The main reason that the right to organize and bargain collectively is assured employees is that they may effectively bargain with their employer. To take away an employee's ability to strike so seriously detracts from the benefits of the right to organize and bargain collectively as to make those rights virtually meaningless. If the right to organize and bargain collectively is to have significant value then the right to strike must also be a right included in the expression "freedom of association", and I conclude that it is.

 

According to Smith J., at p. 463: "The freedom to associate as used in the Charter  not being on its face a limited one, includes the freedom to organize, to bargain collectively and, as a necessary corollary, to strike".

 

41.              The Broadway Manor case was recently cited with apparent approval by a different panel of the Ontario Divisional Court (Southey, Griffiths and Saunders JJ.) for the proposition that freedom of association includes the right to bargain collectively: Re Chung and Amalgamated Clothing and Textile Workers' Union (1986), 54 O.R. (2d) 650.

 


42.              In Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 and 955 and Government of Saskatchewan (1985), 19 D.L.R. (4th) 609 (hereinafter the Dairy Workers case) a majority of the Saskatchewan Court of Appeal rejected the interpretation of freedom of association in Collymore, Dolphin Delivery, and PSAC, and came to conclusions similar to those of the Divisional Court in Broadway Manor. The Dairy Workers case is on appeal to this Court and reasons are being released concurrently, [1987] 1 S.C.R. 460.

 

43.              The issue was whether The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1 (Bill No. 44), which prohibited strikes and lockouts in the dairy industry for a certain period, violated s. 2 (d) of the Charter . The majority found it did (Bayda C.J.S. and Cameron J.A.), Brownridge J.A. dissenting. Both members of the majority emphasized the necessary connection between associating for the purpose of collective bargaining and the freedom to bargain collectively and strike. Chief Justice Bayda rejected in strong terms the reasoning in Collymore, (pp. 624‑26) and concluded that (1) freedom of association is the freedom of an individual "to perform in association without governmental interference any act that he is free to perform alone", and (2) "where an act by definition is incapable of individual performance, [an individual] is free to perform the act in association provided the mental component of the act is not to inflict harm" (p. 620). Since an employee is free as an individual to refuse to work, refusal to work by employees in concert is protected by freedom of association. With regard to the second element of freedom of association, the mental element of a strike is to compel an employer to agree to terms and conditions of employment, not to inflict injury. Therefore, a person is free to associate in this manner, and accordingly the prohibition of strike activity in the Act violated freedom of association.

 


44.              Cameron J.A. reached the same conclusion. It was his opinion that, though the weight of authority suggested strike activity was not protected by s. 2 (d) of the Charter , "the emerging framework of principle governing Charter  interpretation rather points to its inclusion, especially if we are to be faithful to the call to give these rights and freedoms a `generous interpretation . . . suitable to give to individuals the full measure' of them" (p. 645). He stated that, if freedom of association protected freedom to form trade unions for the purpose of bargaining, then it must protect freedom to bargain collectively and to strike (pp. 643‑44, 647). On this ground Cameron J.A. found freedom of association was abridged by the Act.

 

45.              Brownridge J.A., dissenting, followed the British Columbia Court of Appeal's decision in Dolphin Delivery and accordingly held that freedom of association did not protect strike activities.

 

46.              More recently, in Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta. C.A.), (application for leave to appeal to this Court granted June 12, 1986, [1986] 1 S.C.R. x), Kerans J.A. has provided further clarification of his approach to freedom of association. This case did not involve a trade union, but rather the associational freedom of lawyers attempting to create an interprovincial law firm. Kerans J.A. adopted the following interpretation (at p. 612):

 

...the special status given to the freedom of association in Canada reflects our tradition about the importance for a free and democratic society of non‑governmental organization. In my view, the freedom includes the freedom to associate with others in exercise of Charter ‑protected rights and also those other rights which‑‑in Canada‑‑are thought so fundamental as not to need formal expression: to marry, for example, or to establish a home and a family, pursue an education, or gain a livelihood.

 


In upholding the freedom of lawyers to pursue a livelihood through association under s. 2 (d), Kerans J.A. emphasized that the pursuit of a livelihood has been accepted as "an appropriate and vital human ambition", that the relationship was between two humans and that it was not "merely commercial". Thus, according to Kerans J.A., the activities of association warrant constitutional protection if they are related to fundamental human rights and needs.

 

(iii) United States Jurisprudence

 

47.              To understand the United States case law on the freedom of association, one must be aware of the special nature of the constitutional protection of that freedom. Two features, in particular, distinguish the United States Bill of Rights from the Canadian Charter vis‑à‑vis freedom of association.

 

48.              First, freedom of association is not explicitly protected in the United States Constitution, as it is in the Charter . Instead, it has been implied by the judiciary as a necessary derivative of the First Amendment's protection of freedom of speech, "the right of the people to peaceably assemble," and freedom to petition. See, e.g., Healy v. James, 408 U.S. 169 (1972); Baird v. State Bar of Arizona, 401 U.S. 1 (1971); NAACP v. Button, 371 U.S. 415 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). The general principle, as developed in the First Amendment jurisprudence of the Supreme Court, is that of freedom "to engage in association for the advancement of beliefs and ideas": NAACP v. Alabama ex rel. Patterson, at p. 460. The limited associational purposes protected in the United States are therefore faithful to the derivation of freedom of association from the particular rights and freedoms delineated in the First Amendment.

 


49.              A second important difference between the United States Constitution and the Charter  is the absence, in the former, of a provision such as s. 1. The balancing of the protection of rights and freedoms with the larger interests of the community, therefore, must be done in the context of defining the right or freedom itself. Whereas a Canadian court could endorse constitutional protection for strike activity, for example, under s. 2 (d) of the Charter  and yet still uphold certain limits on the freedom to strike under s. 1, this approach is not open to courts in the United States. Accordingly, one would expect a more limited approach to the delineation of the freedom itself. It is with these two caveats in mind that we turn to an appraisal of the United States position.

 

50.              In the context of this appeal, it is important to note that the United States case law supports in general an approach to the implied freedom of association that protects the activities as well as the formation of an association. As Professor L. H. Tribe states in American Constitutional Law (1978), at p. 703, the First Amendment protects "the concerted pursuit of ends that would represent fundamental rights in the context of purely individual activity".

 

51.              Similarly in Healy v. James, supra, the court emphasized the need to protect the integral activities of an association as a necessary component of freedom of association. In that case the court held that denial by a state college of official recognition to a group of students who wished to form a local chapter of Students for a Democratic Society (S.D.S.) violated First Amendment protection of freedom of association. In coming to its decision, the court stated at pp. 181‑82:

 


...the organization's ability to participate in the intellectual give and take of campus debate, and to pursue its stated purposes, is limited by denial of access to the customary media for communicating with the administration, faculty members, and other students. [Emphasis added.]

 

Denial of official recognition made it impossible for the organization to engage in the activities necessary to fulfil its purposes and, accordingly, the denial was unconstitutional.

 

52.              Trade unions have also been afforded protection by the First Amendment. Courts have held that the First Amendment includes the "right to organize collectively and to select representatives for the purposes of engaging in collective bargaining": United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (D. D.C. 1971), at p. 883, aff'd 404 U.S. 802 (1971); Thomas v. Collins, 323 U.S. 516 (1945); N.L.R.B. v. Jones & Laughlin Steel Corp., supra; International Union, U.A.W.A. v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949). This right has been deemed "fundamental" by the Supreme Court: N.L.R.B. v. Jones & Laughlin Steel Corp. The First Amendment also protects the activities of trade unions in respect of securing legal representation for their members: United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964).

 

53.              Although trade unions and some of their integral activities are considered by the courts to fall within the protection of the First Amendment, freedom to strike does not appear to be unequivocally protected. As the United States Supreme Court stated in International Union, U.A.W.A. v. Wisconsin Employment Relations Board, supra, at p. 259:

 


The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for the lawful purposes of collective bargaining . . . .

 

54.              In a similar vein, in United Federation of Postal Clerks v. Blount, supra, constitutional protection for the right of public employees to strike was rejected. In so doing, the court acknowledged the importance of strikes in the private sector as a means of equalizing bargaining power, but felt that this rationale did not extend to public employees given their potential ability to influence political decisions through strike action.

 

55.              In my view, these decisions illustrate an internal balancing of the implied freedom of association with the public interest at the point of definition of the freedom itself. The cases in which a line was drawn to exclude strike activity from the scope of constitutionally protected associational activities are indicative of the strength of the countervailing concerns (i.e., the public interest) which would find recognition under the Charter  in s. 1 rather than in defining the scope of s. 2 (d). When this balancing phenomenon is considered in conjunction with the implied or derivative status of freedom of association, the hesitation of courts to extend freedom of association to include the right to strike in the public sector is understandable.

 


56.              In summary, my understanding of the United States authorities on freedom of association and its application in the context of labour relations is this: Freedom of association is implicitly guaranteed by the First Amendment and protects the concerted pursuit of ends which are explicitly protected by the First Amendment, namely speech, assembly and petition; in the trade union context, the First Amendment's freedom of association protects the right to organize and select representatives for collective bargaining; it also protects the activities of trade unions in respect of securing legal representation for their members; nevertheless, freedom to strike in the public sector is not protected by the implied freedom of association in the First Amendment.

 

(iv) International Law

 

57.              International law provides a fertile source of insight into the nature and scope of the freedom of association of workers. Since the close of the Second World War, the protection of the fundamental rights and freedoms of groups and individuals has become a matter of international concern. A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens. The Charter  conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law‑‑declarations, covenants, conventions, judicial and quasi‑judicial decisions of international tribunals, customary norms‑‑must, in my opinion, be relevant and persuasive sources for interpretation of the Charter 's provisions.

 


58.              In particular, the similarity between the policies and provisions of the Charter  and those of international human rights documents attaches considerable relevance to interpretations of those documents by adjudicative bodies, in much the same way that decisions of the United States courts under the Bill of Rights, or decisions of the courts of other jurisdictions are relevant and may be persuasive. The relevance of these documents in Charter  interpretation extends beyond the standards developed by adjudicative bodies under the documents to the documents themselves. As the Canadian judiciary approaches the often general and open textured language of the Charter , "the more detailed textual provisions of the treaties may aid in supplying content to such imprecise concepts as the right to life, freedom of association, and even the right to counsel". J. Claydon, "International Human Rights Law and the Interpretation of the Canadian Charter of Rights and Freedoms " (1982), 4 Supreme Court L.R. 287, at p. 293.

 

59.              Furthermore, Canada is a party to a number of international human rights Conventions which contain provisions similar or identical to those in the Charter . Canada has thus obliged itself internationally to ensure within its borders the protection of certain fundamental rights and freedoms which are also contained in the Charter . The general principles of constitutional interpretation require that these international obligations be a relevant and persuasive factor in Charter  interpretation. As this Court stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, interpretation of the Charter  must be "aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter 's protection". The content of Canada's international human rights obligations is, in my view, an important indicia of the meaning of "the full benefit of the Charter 's protection". I believe that the Charter  should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

 


60.              In short, though I do not believe the judiciary is bound by the norms of international law in interpreting the Charter , these norms provide a relevant and persuasive source for interpretation of the provisions of the Charter , especially when they arise out of Canada's international obligations under human rights conventions.

 

(a)             The United Nations Covenants on Human Rights

 

61.              In an effort to make more specific the broad principles agreed to under the United Nations Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), two human rights covenants were adopted unanimously by the United Nations General Assembly on December 16, 1966: the U.N. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6316 (1966), and the U.N. International Covenant on Civil and Political Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966). Canada acceded to both Covenants on May 19, 1976 and they came into effect on August 19, 1976. Prior to accession the Federal Government obtained the agreement of the provinces, all of whom undertook to take measures for implementation of the Covenants in their respective jurisdictions. See generally, International Covenant on Economic, Social and Cultural Rights: Report of Canada on Articles 10 to 12 (1982), at pp. 1‑8.

 

62.              Both of the Covenants contain explicit provisions relating to freedom of association and trade unions. Article 8 of the U.N. International Covenant on Economic, Social and Cultural Rights provides the following:

 

                                                              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;

 

(b) The right of trade unions to establish          national federations or confederations and      the right of the latter to form or join         international trade‑union organizations;

 

(c) The right of trade unions to function freely      subject to no limitations other than those      prescribed by law and which are necessary in      a democratic society in the interests of        national security of public order or for the      protection of the rights and freedoms of        others;

 

(d) The right to strike, provided that it is        exercised in conformity with the laws of the      particular country.

 

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.

 

3. Nothing in this article shall authorize States Parties to the International Labour Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

 


63.              Article 8(1)(c) extends protection to trade union activities by protecting their right "to function freely". Moreover, explicit reference to strike activity is found in Article 8(1)(d). According to it, Canada has undertaken internationally to ensure "The right to strike, provided that it is exercised in conformity with the laws of the particular country". This qualification that the right must be exercised in conformity with domestic law does not, in my view, allow for legislative abrogation of the right though it would appear to allow for regulation of the right: see Re Alberta Union of Provincial Employees and the Crown in Right of Alberta (1980), 120 D.L.R. (3d) 590 (Alta. Q.B.), at p. 597. Article 8(2) provides that the rights in Article 8 can be restricted in respect of members of the armed forces, police, or those involved in the administration of the State. This provision, however, is subject to the non‑derogation clause, Article 8(3).

 

64.              The relevant provisions of the U.N. International Covenant on Civil and Political Rights are found in Article 22 of that document. They are as follows:

 

                                                             Article 22

 

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

 

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

 

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

 


Article 22 provides for "freedom of association with others, including the right to form and join trade unions for the protection of [the individual's] interests". Restrictions are justified in certain circumstances under Article 22(2). The third section of Article 22, like Article 8(3) of the International Covenant on Economic, Social and Cultural Rights, makes it clear that the article is not to be interpreted as authorizing legislative measures that would prejudice the guarantees of International Labour Organization Convention No. 87 to which I shall now turn.

 

(b)             International Labour Organization (I.L.O.)                 Convention No. 87

 

65.              As a specialized agency of the United Nations, with representatives of labour, management, and government, the I.L.O. is concerned with safeguarding fair and humane conditions of employment. In the present appeal, it is important to consider the Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 18 (1948), which was ratified by Canada in 1972 and came into force on March 23, 1972. As of December 31, 1984, 97 states had ratified it. The relevant provisions of Convention No. 87 include the following:

 

                                PART I. FREEDOM OF ASSOCIATION

 

                                                               Article l

 

Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions.

 

                                                              Article 2 


Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

 

                                                              Article 3

 

1. Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes.

 

2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

 

                                                              Article 4

 

Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority.

 

                                                              Article 5

 

Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers.

 

                                                              Article 6

 

The provisions of articles 2 , 3  and 4  hereof apply to federations and confederations of workers' and employers' organisations.

 


                                                              Article 7

 

The acquisition of legal personality by workers' and employers' organisations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of articles 2 , 3  and 4  hereof.

 

                                                              Article 8

 

1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.

 

2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.

 

                                                              Article 9

 

1. The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined in national laws or regulations.

 

2. In accordance with the principle set forth in paragraph 8 of Article 19 of the Constitution of the International Labour Organisation the ratification of this Convention by any Member shall not be deemed to affect any existing law, award, custom or agreement in virtue of which members of the armed forces or the police enjoy any right guaranteed by this Convention.

 

                                                             Article 10

 

In this Convention the term `organisation' means any organisation of workers or of employers for furthering and defending the interests of workers or of employers.


                 PART II. PROTECTION OF THE RIGHT TO ORGANISE

 

                                                             Article 11

 

Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.

 

66.              These provisions have been interpreted by various I.L.O. bodies including: the Committee on Freedom of Association, established by the Governing Body in 1950‑51 to examine complaints of violations of trade union rights; the Committee of Experts, which assesses government reports on the application of I.L.O. standards and conventions in member states; and Commissions of Inquiry, appointed by the Governing Body to investigate particular complaints of non‑compliance by member‑states. (See generally, N. Valticos, International Labour Law (1979).)

 

67.              Interpretations of conventions are only authoritative under the I.L.O. Constitution if rendered by the International Court of Justice (and tribunals under Article 37(2) in lieu thereof) or, it would appear, by Commissions of Inquiry where the dispute is not referred to the Court: see E. Osieke, "The Exercise of the Judicial Function with Respect to the International Labour Organization" (1974‑75), 47 Brit. Y.B. Int'l L. 315. The decisions of the Committee on Freedom of Association and the Committee of Experts are not binding though, as M. Forde points out, the former "comprise the cornerstone of the international law on trade union freedom and collective bargaining": "The European Convention on Human Rights and Labor Law" (1983), 31 Am. J. Comp. L. 301, at p. 302.

 


68.              The general principle to emerge from interpretations of Convention No. 87 by these decision‑making bodies is that freedom to form and organize unions, even in the public sector, must include freedom to pursue the essential activities of unions, such as collective bargaining and strikes, subject to reasonable limits. A Commission of Inquiry, appointed to investigate a complaint against Greece, held that strike activity is implicitly protected by Convention No. 87: I.L.O. Official Bulletin: Special Supplement, vol. LIV, No. 2, 1971. The Committee of Experts has reached the same conclusion in its deliberations, pointing out that prohibitions on the right to strike may, unless certain conditions are met, violate Convention No. 87:

 

214. In the opinion of the Committee, the principle whereby the right to strike may be limited or prohibited in the public service or in essential services, whether public, semi‑public or private, would become meaningless if the legislation defined the public service or essential services too broadly. As the Committee has already mentioned in previous general surveys, the prohibition should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Moreover, if strikes are restricted or prohibited in the public service or in essential services, appropriate guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset by adequate impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties. Such awards, once rendered, should be rapidly and fully implemented.

 

(Freedom of Association and Collective Bargaining: General Survey by the Committee of Experts on the Application of Conventions and Recommendations, Report III (Part 4(B)), International Labour Conference, 69th Session, Geneva, International Labour Office, 1983, at p. 66.)

 


69.              These same principles are manifest in the reports of the Freedom of Association Committee of the Governing Body. In a recent summary of principles established by the Freedom of Association Committee in its decisions, the following paragraphs appear:

 

416. A general prohibition of strikes seriously limits the means available to trade unions to further and defend the interests of their members (Article 10 of Convention No. 87) and the right to organise their activities (Article 3).

 

417. Where legislation directly or indirectly places an absolute prohibition on strikes the Committee has endorsed the opinion of the Committee of Experts on the Application of Conventions and Recommendations that such a prohibition may constitute an important restriction of the potential activities of trade unions, which would not be in conformity with the generally recognised principles of freedom of association.

 

 

 

386. Referring to its recommendation that restrictions on the right to strike would be acceptable if accompanied by conciliation and arbitration procedures, the Committee has made it clear that this recommendation does not refer to the absolute prohibition of the right to strike but to the restriction of that right in essential services or in the public service, in relation to which adequate guarantees should be provided to safeguard the workers' interests.

 

387. The substitution by legislative means of compulsory arbitration for the right to strike as a means of resolving labour disputes can only be justified in respect of essential services in the strict sense of the term (i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population).

 


(Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the I.L.O., 3rd. ed., Geneva, International Labour Office, 1985).

 

70.              These principles were recently applied in relation to a number of complaints originating in Canada, in particular, in Alberta, Ontario and Newfoundland. A number of the provisions impugned as being in violation of Convention No. 87 are the subject of this Reference. It is helpful, in the present context, to look at the Freedom of Association Committee's conclusions and recommendations on the provisions relating to prohibitions on strike activity. These conclusions and recommendations were approved unanimously by the I.L.O.'s Governing Body.

 

71.              The complaint (Case No. 1247) was launched by the Canadian Labour Congress on behalf of the Alberta Union of Provincial Employees against the Government of Canada (Alberta). In discussing s. 93 of the Public Service Act, which bans strike activity of provincial government employees, the Committee summarized the principles applicable to complaints about infringements of Convention No. 87 as follows:

 


131.  The Committee recalls that it has been called to examine the strike ban in a previous case submitted against the Government of Canada/Alberta (Case No. 893, most recently examined in the 204th Report, paras. 121 to 134, approved by the Governing Body at its 214th Session (November 1980).). In that case the Committee recalled that the right to strike, recognised as deriving from Article 3 of the Convention, is an essential means by which workers may defend their occupational interests. It also recalled that, if limitations on strike action are to be applied by legislation, a distinction should be made between publicly‑owned undertakings which are genuinely essential, i.e. those which supply services whose interruption would endanger the life, personal safety or health of the whole or part of the population, and those which are not essential in the strict sense of the term. The Governing Body, on the Committee's recommendation, drew the attention of the Government to this principle and suggested to the Government that it consider the possibility of introducing an amendment to the Public Service Employee Relations Act in order to confine the prohibition of strikes to services which are essential in the strict sense of the term. In the present case, the Committee would again draw attention to its previous conclusions on section 93 of the Act.

 

(I.L.O. Official Bulletin, vol. LXVIII, Series B, No. 3, 1985, pp. 34‑35.)

 

The Committee reached similar conclusions in respect of s. 117.1 of the Labour Relations Act:

 

132. Linked to this question of restrictions on the right to strike is one of the specific written allegations, namely that an amendment contained in Bill 44 to section 117.1 of the Labour Relations Act prohibits the right to strike of all hospital employees. The Committee notes that this broad exclusion covers kitchen help, janitors, gardeners, etc. but that the Government told the representative of the Director‑General that only small groups were affected by section 117.1 and that this question was, in any event, being challenged in the Alberta Court of Appeal and the Canadian Supreme Court. Given that this provision is not sufficiently specific as regards the important qualification of "essential employee", the Committee refers to the principle set out in the above paragraph concerning circumstances in which recourse to strike action may be prohibited. It requests the Government to re‑examine section 117.1 so as to confine the prohibition of strikes to services which are essential in the strict sense of the term.

 

(I.L.O. Official Bulletin, supra, p. 35.)

 

(c) Summary of International Law

 


72.              The most salient feature of the human rights documents discussed above in the context of this case is the close relationship in each of them between the concept of freedom of association and the organization and activities of labour unions. As a party to these human rights documents, Canada is cognizant of the importance of freedom of association to trade unionism, and has undertaken as a binding international obligation to protect to some extent the associational freedoms of workers within Canada. Both of the U.N. human rights Covenants contain explicit protection of the formation and activities of trade unions subject to reasonable limits. Moreover, there is a clear consensus amongst the I.L.O. adjudicative bodies that Convention No. 87 goes beyond merely protecting the formation of labour unions and provides protection of their essential activities ‑‑ that is of collective bargaining and the freedom to strike.

 

2. The Meaning of s. 2 (d)

 

73.              At the outset, it should be noted that, contrary to submissions by the respondent and some of the interveners in support, the purpose of s. 2  of the Charter  must extend beyond merely protecting rights which already existed at the time of the Charter 's entrenchment. This point was made clear in Big M Drug Mart Ltd., supra. In that case the appellant submitted that "freedom of religion" in the Charter  had the same meaning as that given it by this Court under the Canadian Bill of Rights in Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651. The Court rejected this argument (at pp. 342‑44):

 

The basis of the majority's interpretation in Robertson and Rosetanni, supra, is the fact that the language of the Canadian Bill of Rights is merely declaratory: by s. 1 of the Canadian Bill of Rights, certain existing freedoms are "recognized and declared", including freedom of religion.

 

                                                                    ...

 


It is not necessary to reopen the issue of the meaning of freedom of religion under the Canadian Bill of Rights, because whatever the situation under that document, it is certain that the Canadian Charter of Rights and Freedoms  does not simply "recognize and declare" existing rights as they were circumscribed by legislation current at the time of the Charter 's entrenchment. The language of the Charter  is imperative. It avoids any reference to existing or continuing rights . . . . I agree with the submission of the respondent that the Charter  is intended to set a standard upon which present as well as future legislation is to be tested. Therefore the meaning of the concept of freedom of conscience and religion is not to be determined solely by the degree to which that right was enjoyed by Canadians prior to the proclamation of the Charter .

 

It is clear from Big M Drug Mart Ltd., that the meaning of a provision of the Charter  is not to be determined solely on the basis of pre‑existing rights or freedoms. In the present appeal, therefore, whether or not a right or freedom to strike existed prior to the Charter , by virtue of the common law or otherwise is not determinative of the meaning of s. 2 (d) of the Charter .

 

74.              Similarly, the scope of the Charter 's provisions is not to be confined by the fact of legislative regulation in a particular subject area. In argument, counsel for the respondent seemed to suggest that if freedom of association were interpreted to include strike activity, this would "constitutionalize" a statutory right. His argument appeared to be premised on the proposition that, because the `right to strike' was a subject of legislative regulation prior to the Charter 's entrenchment, it followed that strike activity could not be a matter for constitutional protection after entrenchment of the Charter . While it may be true that the Charter  was not framed for the purpose of guaranteeing rights conferred by legislative enactment, the view that certain rights and freedoms cannot be protected by the Charter 's provisions because they are the subject of statutory regulation is premised on a fundamental misconception about the nature of judicial review under a written constitution.

 


75.              The Constitution is supreme law. Its provisions are not to be circumscribed by what the Legislature has done in the past, but, rather, the activities of the Legislature‑‑past, present and future‑‑must be consistent with the principles set down in the Constitution. As stated in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 745:

 

The Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental and certain prescriptions restrictive of the powers of the legislature and government. It is, as s. 52  of the Constitution Act, 1982  declares, the "supreme law" of the nation, unalterable by the normal legislative process and unsuffering of laws inconsistent with it.

 

76.              This is not to say, however, that the legislative regulation of collective bargaining and strikes is entirely irrelevant to the manner in which a constitutional freedom to strike may be given effect in particular circumstances: see, on this point, my reasons in the Dairy Workers case, released concurrently. But the present case does not involve a challenge to the general labour law of Alberta which permits strike activity, subject to regulation. This appeal concerns the substitution of an entirely different mechanism for resolving labour disputes for particular employees, and one which does not merely regulate the freedom to strike but abrogates it entirely.

 


77.              One further preliminary consideration deserves mention. Section 2  of the Charter  protects fundamental "freedoms" as opposed to "rights". Although these two terms are sometimes used interchangeably, a conceptual distinction between the two is often drawn. "Rights" are said to impose a corresponding duty or obligation on another party to ensure the protection of the right in question whereas "freedoms" are said to involve simply an absence of interference or constraint. This conceptual approach to the nature of "freedoms" may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms (e.g., regulations limiting the monopolization of the press may be required to ensure freedom of expression and freedom of the press). Nonetheless, for the purposes of this appeal, we need not determine whether "freedom" may impose affirmative duties on the state, because we are faced with a situation where overt government action in the form of legislation is alleged to interfere with the exercise of freedom of association. We are not concerned in this case with any request for affirmative state action.

 

78.              A wide variety of alternative interpretations of freedom of association has been advanced in the jurisprudence summarized above and in argument before this Court.

 

79.              At one extreme is a purely constitutive definition whereby freedom of association entails only a freedom to belong to or form an association. On this view, the constitutional guarantee does not extend beyond protecting the individual's status as a member of an association. It would not protect his or her associational actions.

 

80.              In the trade union context, then, a constitutive definition would find a prima facie violation of s. 2 (d) of the Charter  in legislation such as s. 2(1) of the Police Officers Act which prohibits membership in any organization affiliated with a trade union. But it could find no violation of s. 2 (d) in respect of legislation which prohibited a concerted refusal to work. Indeed, a wide variety of trade union activities, ranging from the organization of social activities for its members, to the establishment of union pension plans, to the discussion of collective bargaining strategy, could be prohibited by the state without infringing s. 2 (d).


81.              The essentially formal nature of a constitutive approach to freedom of association is equally apparent when one considers other types of associational activity in our society. While the constitutive approach might find a possible violation of s. 2 (d) in a legislative enactment which prohibited marriage for certain classes of people, it would hold inoffensive an enactment which precluded the same people from engaging in the activities integral to a marriage, such as cohabiting and raising children together. If freedom of association only protects the joining together of persons for common purposes, but not the pursuit of the very activities for which the association was formed, then the freedom is indeed legalistic, ungenerous, indeed vapid.

 

82.              In my view, while it is unquestionable that s. 2 (d), at a minimum, guarantees the liberty of persons to be in association or belong to an organization, it must extend beyond a concern for associational status to give effective protection to the interests to which the constitutional guarantee is directed. In this respect, it is important to consider the purposive approach to constitutional interpretation mandated by this Court in R. v. Big M Drug Mart Ltd., supra, at p. 344:

 

This Court has already, in some measure set out the basic approach to be taken in interpreting the Charter . In  Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter  was a purposive one. 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 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] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts. [Emphasis added.]

 

83.              A second approach, the derivative approach, prevalent in the United States, embodies a somewhat more generous definition of freedom of association than the formal, constitutive approach. In the Canadian context, it is suggested by some that associational action which relates specifically to one of the other freedoms enumerated in s. 2  is constitutionally protected, but other associational activity is not.

 

84.              I am unable, however, to accept that freedom of association should be interpreted so restrictively. Section 2 (d) of the Charter  provides an explicit and independent guarantee of freedom of association. In this respect it stands in marked contrast to the First Amendment to the American Constitution. The derivative approach would, in my view, largely make surplusage of s. 2 (d). The associational or collective dimensions of s. 2 (a) and (b) have already been recognized by this Court in R. v. Big M Drug Mart Ltd., supra, without resort to s. 2 (d). The associational aspect of s. 2 (c) clearly finds adequate protection in the very expression of a freedom of peaceful assembly. What is to be learnt from the United States jurisprudence is not that freedom of association must be restricted to associational activities involving independent constitutional rights, but rather, that the express conferral of a freedom of association is unnecessary if all that is intended is to give effect to the collective enjoyment of other individual freedoms.

 


85.              I am also unimpressed with the argument that the inclusion of s. 2 (d) with freedoms of a "political" nature requires a narrow or restrictive interpretation of freedom of association. I am unable to regard s. 2  as embodying purely political freedoms. Paragraph (a), which protects freedom of conscience and religion is quite clearly not exclusively political in nature. It would, moreover, be unsatisfactory to overlook our Constitution's history of giving special recognition to collectivities or communities of interest other than the government and political parties. Sections 93  and 133  of the Constitution Act, 1867  and ss. 16 ‑24, 25, 27 and 29 of the Charter , dealing variously with denominational schools, language rights, aboriginal rights, and our multicultural heritage implicitly embody an awareness of the importance of various collectivities in the pursuit of educational, linguistic, cultural and social as well as political ends. Just as the individual is incapable of resisting political domination without the support of persons with similar values, so too is he or she, in isolation, incapable of resisting domination, over the long term, in many other aspects of life.

 

86.              Freedom of association is protected in s. 2 (d) under the rubric of "fundamental" freedoms. In my view, the "fundamental" nature of freedom of association relates to the central importance to the individual of his or her interaction with fellow human beings. The purpose of the constitutional guarantee of freedom of association is, I believe, to recognize the profoundly social nature of human endeavours and to protect the individual from state‑enforced isolation in the pursuit of his or her ends. In the famous words of Alexis de Tocqueville in Democracy in America (1945), vol. 1, at p. 196:

 


The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears ... almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.

 

As social beings, our freedom to act with others is a primary condition of community life, human progress and civilized society. Through association, individuals have been able to participate in determining and controlling the immediate circumstances of their lives, and the rules, mores and principles which govern the communities in which they live. As John Stuart Mill stated, "if public spirit, generous sentiments, or true justice and equality are desired, association, not isolation, of interests, is the school in which these excellences are nurtured". (Principles of Political Economy (1893), vol. 2, at p. 352.)

 

87.              Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association has always been the means through which political, cultural and racial minorities, religious groups and workers have sought to attain their purposes and fulfil their aspirations; it has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict. T. I. Emerson, "Freedom of Association and Freedom of Expression" (1964), 74 Yale L.J. 1 at p. 1, states that:

 

More and more the individual, in order to realize his own capacities or to stand up to the institutionalized forces that surround him, has found it imperative to join with others of like mind in pursuit of common objectives.

 


88.              What freedom of association seeks to protect is not associational activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage. But this is not an unlimited constitutional license for all group activity. The mere fact that an activity is capable of being carried out by several people together, as well as individually, does not mean that the activity acquires constitutional protection from legislative prohibition or regulation.

 

89.              I believe that Bayda C.J.S. was right in holding that s. 2 (d) normally embraces the liberty to do collectively that which one is permitted to do as an individual, a proposition which one American writer, Reena Raggi perceives to be the cornerstone of freedom of association:

 

The basic principle for which recognition will be sought in the formulation of an independent constitutional right of association is that whatever action a person can pursue as an individual, freedom of association must ensure he can pursue with others. Only such a principle assures man that, in his struggle to be independent of government control, he will not be crippled simply because on occasion he strives to achieve that independence with the help of others.

 

("An Independent Right to Freedom of Association" (1977), 12 Harv. C.R.‑C.L.L. Rev. 1, at p. 15.)

 


However, it is not in my view correct to regard this proposition as the exclusive touchstone for determining the presence or absence of a violation of s. 2 (d). Certainly, if a legislature permits an individual to enjoy an activity which it forecloses to a collectivity, it may properly be inferred that the legislature intended to prohibit the collective activity because of its collective or associational aspect. Conversely, one may infer from a legislative proscription which applies equally to individuals and groups that the purpose of the legislation was a bona fide prohibition of a particular activity because of detrimental qualities inhering in the activity (e.g., criminal conduct), and not merely because of the fact that the activity might sometimes be done in association. The proposition articulated by Bayda C.J.S. is therefore a useful test of legislative purpose in some circumstances. There will, however, be occasions when no analogy involving individuals can be found for associational activity, or when a comparison between groups and individuals fails to capture the essence of a possible violation of associational rights. This is precisely the situation in this case. There is no individual equivalent to a strike. The refusal to work by one individual does not parallel a collective refusal to work. The latter is qualitatively rather than quantitatively different. The overarching consideration remains whether a legislative enactment or administrative action interferes with the freedom of persons to join and act with others in common pursuits. The legislative purpose which will render legislation invalid is the attempt to preclude associational conduct because of its concerted or associational nature.

 

90.              I wish to refer to one further concern. It has been suggested that associational activity for the pursuit of economic ends should not be accorded constitutional protection. If by this it is meant that something as fundamental as a person's livelihood or dignity in the workplace is beyond the scope of constitutional protection, I cannot agree. If, on the other hand, it is meant that concerns of an exclusively pecuniary nature are excluded from such protection, such an argument would merit careful consideration. In the present case, however, we are concerned with interests which go far beyond those of a merely pecuniary nature.

 


91.              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. In exploring the personal meaning of employment, Professor David M. Beatty, in his article "Labour is Not a Commodity", in Studies in Contract Law (1980), has described it as follows, at p. 324:

 

As a vehicle which admits a person to the status of a contributing, productive, member of society, employment is seen as providing recognition of the individual's being engaged in something worthwhile. It gives the individual a sense of significance. By realizing our capabilities and contributing in ways society determines to be useful, employment comes to represent the means by which most members of our community can lay claim to an equal right of respect and of concern from others. It is this institution through which most of us secure much of our self‑respect and self‑esteem.

 

92.              The role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers. The capacity to bargain collectively has long been recognized as one of the integral and primary functions of associations of working people. While trade unions also fulfil other important social, political and charitable functions, collective bargaining remains vital to the capacity of individual employees to participate in ensuring fair wages, health and safety protections, and equitable and humane working conditions. As Professor Paul Weiler explains in Reconcilable Differences: New Directions in Canadian Labour Law (1980), at p. 31:


An apt way of putting it is to say that good collective bargaining tries to subject the employment relationship and the work environment to the "rule of law". Many theorists of industrial relations believe that this function of protecting the employee from the abuse of managerial power, thereby enhancing the dignity of the worker as a person, is the primary value of collective bargaining, one which entitles the institution to positive encouragement from the law.

 

93.              Professor Weiler goes on to characterize collective bargaining as "intrinsically valuable as an experience in self‑government" (p. 33), and writes at p. 32:

 

...collective bargaining is the most significant occasion upon which most of these workers ever participate in making social decisions about matters that are salient to their daily lives. That is the essence of collective bargaining.

 

A similar rationale for endorsing collective bargaining was advanced in the Woods Task Force Report on Canadian Industrial Relations (1968), at p. 96:

 

296. One of the most cherished hopes of those who originally championed the concept of collective bargaining was that it would introduce into the work place some of the basic features of the political democracy that was becoming the hallmark of most of the western world. Traditionally referred to as industrial democracy, it can be described as the substitution of the rule of law for the rule of men in the work place.

 

94.              Closely related to collective bargaining, at least in our existing industrial relations context, is the freedom to strike. A. W. R. Carrothers, E. E. Palmer and W. B. Rayner, Collective Bargaining Law in Canada (2nd ed. 1986), describe the requisites of an effective system of collective bargaining as follows at p. 4:

 


What are the requirements of an effective system of collective bargaining? From the point of view of employees, such a system requires that they be free to engage in three kinds of activity: to form themselves into associations, to engage employers in bargaining with the associations, and to invoke meaningful economic sanctions in support of the bargaining.

 

95.              The Woods Task Force Report at p. 129 identifies the work stoppage as the essential ingredient in collective bargaining:

 

408. Strikes and lockouts are an indispensable part of the Canadian industrial relations system and are likely to remain so in our present socio‑economic‑political society.

 

At page 138 the Report continues:

 

431. Collective bargaining is the mechanism through which labour and management seek to accommodate their differences, frequently without strife, sometimes through it, and occasionally without success. As imperfect an instrument as it may be , there is no viable substitute in a free society.

 

At page 175 the Report notes that the acceptance of collective bargaining carries with it a recognition of the right to invoke the economic sanction of the strike. And at page 176, it is said, "The strike has become a part of the whole democratic system".

 


96.              The importance to collective bargaining of the ultimate threat of a strike has also been recognized in the cases. Lord Wright noted in Crofter Hand Woven Harris Tweed Co. v. Veitch, [1942] 1 All E.R. 142 (H.L.), at pp. 158‑59, "The right of workmen to strike is an essential element in the principle of collective bargaining". As the editors of Kahn‑Freund's Labour and the Law (3rd ed. 1983), point out in respect of this comment: "If the workers could not, in the last resort, collectively refuse to work, they could not bargain collectively" (p. 292). See also: Broadway Manor; Dairy Workers case; Blount, per Wright J. The necessity and lawfulness of strikes has also been acknowledged by this Court: Perrault v. Gauthier (1898), 28 S.C.R. 241, at p. 256; Canadian Pacific Railway Co. v. Zambri, [1962] S.C.R. 609, at pp. 618 and 621.

 

97.              I am satisfied, in sum, that whether or not freedom of association generally extends to protecting associational activity for the pursuit of exclusively pecuniary ends‑‑a question on which I express no opinion‑‑collective bargaining protects important employee interests which cannot be characterized as merely pecuniary in nature. Under our existing system of industrial relations, effective constitutional protection of the associational interests of employees in the collective bargaining process requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1  of the Charter .

 

3. Application to the Alberta Legislation

 


98.              All three enactments prohibit strikes and, as earlier stated, define a strike as a cessation of work or refusal to work by two or more persons acting in combination or in concert or in accordance with a common understanding. What is precluded is a collective refusal to work at the conclusion of a collective agreement. There can be no doubt that the legislation is aimed at foreclosing a particular collective activity because of its associational nature. The very nature of a strike, and its raison d'être, is to influence an employer by joint action which would be ineffective if it were carried out by an individual. Professor Harry Arthurs refers, correctly in my respectful opinion, to the "notion of collective action" as "the critical factor" in the definition of "strike": "The Right to Strike in Ontario and the Common Law Provinces of Canada", in the Proceedings of the Fourth International Symposium on Comparative Law (1967), at p. 187. It is precisely the individual's interest in joining and acting with others to maximize his or her potential that is protected by s. 2 (d) of the Charter .

 

99.              Section 93 of the Public Service Act reads as follows:

 

93(1) No person or trade union shall cause or attempt to cause a strike by the persons to whom this Act applies.

 

(2) No person to whom this Act applies shall strike or consent to a strike.

 

100.            Section 117.1(2) of the Labour Relations Act states:

 

117.1(1) ...

 

(2) No employee to whom this Division applies shall strike.

 

Section 3(1) of the Police Officers Act provides:

 

3(1) Notwithstanding section 2, no police officer, bargaining agent or person acting on behalf of a bargaining agent shall strike, cause a strike or threaten to cause a strike.

 

These provisions directly abridge the freedom of employees to strike and thereby infringe the guarantee of freedom of association in s. 2 (d) of the Charter .

 

                                                                    V

 


Section 1

 

101.            The respondent submits that even if any of the legislative provisions at issue in this appeal violates freedom of association as guaranteed by s. 2 (d) of the Charter , it can be upheld under s. 1  of the Charter . For ease of reference I repeat s. 1:

 

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

 

No question arises as to whether the limits on strike activity and collective bargaining in the legislation in question are "prescribed by law", as the legislation is duly enacted by a properly constituted legislature.

 

102.            It is necessary, however, to determine whether the limits imposed by the provisions in question are "reasonable" and "demonstrably justified in a free and democratic society". Previous cases in this Court have established a number of principles for a s. 1 inquiry. In making a determination under s. 1, a court must be cognizant of an important contextual factor: the application of s. 1 arises in the context of a violation of a constitutionally guaranteed right or freedom. Justice Wilson expressed this principle in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 218:

 


It seems to me that it is important to bear in mind that the rights and freedoms set out in the Charter  are fundamental to the political structure of Canada and are guaranteed by the Charter  as part of the supreme law of our nation. I think that in determining whether a particular limitation is a reasonable limit prescribed by law which can be "demonstrably justified in a free and democratic society" it is important to remember that the courts are conducting this inquiry in light of a commitment to uphold the rights and freedoms set out in the other sections of the Charter .

 

The onus of demonstrating that a limit on a right or freedom should be upheld under s. 1 is on the party seeking to uphold the limit. The standard of proof is the preponderance of probabilities and, as a general rule, evidence is required to meet this standard: see R. v. Oakes, [1986] 1 S.C.R. 103, and authorities therein.

 

103.            The constituent elements of any s. 1 inquiry are as follows. First, the legislative objective, in pursuit of which the measures in question are implemented, must be sufficiently significant to warrant overriding a constitutionally guaranteed right: it must be related to "concerns which are pressing and substantial in a free and democratic society". Second, the means chosen to advance such an objective must be reasonable and demonstrably justified in a free and democratic society. This requirement of proportionality of means to ends normally has three aspects: a) there must be a rational connection between the measures and the objective they are to serve; b) the measures should impair as little as possible the right or freedom in question; and, c) the deleterious effects of the measures must be justifiable in light of the objective which they are to serve. See Oakes, and authorities cited therein.

 


104.            As I understand the respondent's submissions, there are two objectives which the legislation in issue in this Reference is designed to achieve: 1) protection of essential services and 2) protection of government from political pressure through strike action. The question is whether either or both of these are "of sufficient importance to warrant overriding a constitutionally guaranteed right or freedom" (Big M Drug Mart Ltd., supra, at p. 352) or, in other words, whether they relate to "pressing and substantial concerns" (Oakes, at pp. 138‑39). The proportionality of the measures in relation to the objectives must then be assessed.

 

105.            I observe at the outset that the analysis below is limited to assessing the justifications advanced by the province for its legislative action. It is the actual objectives of the Alberta Legislature and not some other legitimate but hypothetical objectives for passing the particular statutes in question that must be scrutinized. It may be that other rationales will be advanced in future cases. The Court has not been asked, in this case, to determine whether economic harm to third parties can justify the abrogation of the freedom to strike. Nor has it been asked to determine whether a universally applicable substitute for the confrontational strike/lockout paradigm of present‑day industrial relations would be acceptable. It might be that some alternative scheme, be it a novel one of worker participation in employer decisions through ownership or otherwise, or a more familiar one, such as arbitration, would be acceptable. The Constitution does not freeze into place an existing formula of industrial relations.

 

1. The Protection of Essential Services

 


106.            The protection of services which are truly essential is in my view a legislative objective of sufficient importance for the purpose of s. 1  of the Charter . It is, however, necessary to define "essential services" in a manner consistent with the justificatory standards set out in s. 1. The logic of s. 1 in the present circumstances requires that an essential service be one the interruption of which would threaten serious harm to the general public or to a part of the population. In the context of an argument relating to harm of a non‑economic nature I find the decisions of the Freedom of Association Committee of the I.L.O. to be helpful and persuasive. These decisions have consistently defined an essential service as a service "whose interruption would endanger the life, personal safety or health of the whole or part of the population" (Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the I.L.O., supra). In my view, and without attempting an exhaustive list, persons essential to the maintenance and administration of the rule of law and national security would also be included within the ambit of essential services. Mere inconvenience to members of the public does not fall within the ambit of the essential services justification for abrogating the freedom to strike.

 

107.            Having decided that the protection of essential services is an objective of sufficient importance, it is necessary for the respondent to demonstrate proportionality between the measures adopted and the objective. Four classes of employees are covered by the Acts: public service employees (Public Service Act); firefighters and employees of employers who operate approved hospitals under the Hospitals Act (Labour Relations Act); and police officers (Police Officers Act). The government must, as a first step, prove, on a balance of probabilities, that these employees are "essential"; otherwise the abrogation of their freedom to strike would be over‑inclusive and unjustified under s. 1.

 


108.            Counsel for the Attorney General for Alberta did not adduce any evidence on this point. He submitted only that essential services must not be interrupted and that, though some of the employees covered by the Acts are not essential, "they are so closely linked to those providing essential services as to make it reasonable that they should be treated in the same way". In Oakes, this Court acknowledged that the extent of evidentiary submissions required under s. 1 would vary according to the nature of the case (at p. 138):

 

Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit ... I should add, however, that there may be cases where certain elements of the s. 1 analysis are obvious or self‑evident.

 

109.            The essentiality of police officers and firefighters is, in my view, obvious and self‑evident, and does not have to be proven by evidence. Interruption in police protection and firefighting would clearly endanger life, personal safety and health. Therefore, I believe the Legislature's decision to prevent such interruptions is rationally connected to the objective of protecting essential services.

 

110.            The situation with respect to employees of employers who operate approved hospitals under the Hospitals Act is quite different. Prohibiting the right to strike across the board in hospital employment is too drastic a measure for achieving the object of protecting essential services. It is neither obvious nor self‑evident that all bargaining units in hospitals represent workers who provide essential services, or that those who do not provide essential services are "so closely linked" to those who do as to justify similar treatment. As pointed out above, the Freedom of Association Committee of the I.L.O. expressed concern about the overinclusiveness of s. 117.1 of the Labour Relations Act:

 


132. The Committee notes that this broad exclusion covers kitchen help, janitors, gardeners, etc. ... Given that this provision is not sufficiently specific as regards the important qualification of "essential employee", the Committee refers to the principle ... concerning circumstances in which recourse to strike action may be prohibited. It requests the Government to re‑examine section 117.1 so as to confine the prohibition of strikes to services which are essential in the strict sense of the term.

 

111.            Counsel for the Attorney General has not provided any evidence or information from which it can be concluded on a preponderance of probabilities that services will be interrupted whenever strike activity is undertaken by any of the bargaining units in a hospital. While it may be obvious or self‑evident that strikes by certain hospital employees, such as nurses or doctors, would be inimical to the hospital's ability to dispense proper health care, the same cannot be said for all hospital workers without some evidentiary basis. For this reason, I do not believe it can be maintained that the employees covered by s. 117.1 of the Labour Relations Act are all "essential". The provision is too wide to be justified as relating to essential services for the purpose of s. 1.

 

112.            The Public Service Act is, in my opinion, a victim of the same defect. The Act applies to employees who are employed by employers described in s. 1(o):

 

"employer" means

 

(i) the Crown in right of Alberta, or

 

(ii) a corporation, commission, board council or other body, all or a majority of whose members or directors

 

(A) are designated by an Act of the Legislature,

 


(B) can be appointed or designated either by the Lieutenant Governor in Council or by a Minister of the Crown in right of Alberta or partly by the Lieutenant Governor in Council and partly by a Minister of the Crown in right of Alberta, whether the power of appointment or designation is exercised or not or is only partially exercised, or

 

(C) are in part designated by an Act of the Legislature and in part can be appointed or designated either by the Lieutenant Governor in Council or by a Minister of the Crown in right of Alberta or partly by the Lieutenant Governor in Council and partly by a Minister of the Crown in right of Alberta, whether the power of appointment or designation is exercised or not or is only partially exercised; . . .

 

To deny all the employees covered by this provision the freedom to strike is, in my view, too drastic a means for securing the purpose of protecting essential services. It is neither obvious nor self‑evident that all the employees covered by the Public Service Act perform essential services. No evidence was adduced by counsel for the Attorney General on this point. The onus upon the Government of Alberta has not, in my view, been satisfied. To conclude, the limit on freedom of association of public servants imposed by the abrogation of the right to strike in the Public Service Act is not justified under s. 1  of the Charter  on the basis of the essential services argument.

 

2.               Protection of the Government from Political                Pressure Argument

 


113.            As mentioned above, the respondent advances a second argument for justification under s. 1, namely, that the legislation is necessary to protect the government from the political pressure of strike action by its employees. In other words, even if public servants are not truly essential, the fact that they are employees of the government is sufficient reason for denying them the freedom to strike. I do not find this argument convincing. The respondent has not submitted any evidence from which it can be concluded that collective bargaining and strike activity in the public sector have or will cause undue political pressure on government. Indeed, all across Canada, collective bargaining and freedom to strike have played an important role in public sector labour relations. A survey of Public Service Collective Bargaining Legislation in Canada, prepared by the Alberta Department of Labour and filed by the respondent in the Court of Appeal, indicates that Nova Scotia and Ontario are the only other jurisdictions in Canada which purport to impose a blanket prohibition on public sector strikes. In commenting on the introduction of a full‑scale collective bargaining scheme at the federal level in the 1960's, Professor Harry Arthurs states in "Collective Bargaining in the Public Service of Canada: Bold Experiment or Act of Folly" (1969), 67 Mich. L. Rev. 971, at p. 974:

 

...one potentially formidable obstacle to federal recognition of the collective bargaining rights of public employees was simply not present in Canada in the mid‑1960's. The traditional belief‑‑or myth‑‑that collective bargaining is somehow intrinsically incompatible with the dignity and functions of a sovereign state had been subverted by years of practical experience with labor relations on the private sector model in governmental and quasi‑governmental employment.

 


114.            Furthermore, academic debate on the question of sovereignty has occurred primarily in the United States, where a fundamentally different constitutional system prevails: see, for example, Harry H. Wellington and Ralph K. Winter Jr., "The Limits of Collective Bargaining in Public Employment" (1969), 78 Yale L.J. 1107; W. B. Cunningham, "Public Employment, Collective Bargaining and the Conventional Wisdom: Canada and U.S.A." (1966), 21 Ind. Rel. 406. A number of the academic authorities cited by the respondent in fact support collective bargaining and freedom to strike in the public sector (see for example, Morley Gunderson (ed.), Collective Bargaining in the Essential and Public Service Sectors (1975), at p. viii). I find difficult the conclusion that all strike activity by government employees would exert undue political pressure on the government. The dissenting words of Roberts C.J. of the Rhode Island Supreme Court at pp. 448‑49 in School Committee of the Town of Westerly v. Westerly Teachers Ass'n, 299 A.2d 441 (1973), are helpful in this respect:

 

...I cannot agree that every strike by public employees necessarily threatens the public welfare and governmental paralysis ... The fact is that in many instances strikes by private employees pose the far more serious threat to the public interest than would many of those engaged in by public employees ... In short, it appears to me that to deny all public employees the right to strike because they are employed in the public sector would be arbitrary and unreasonable.

 

115.            In my opinion, the fact of government employment is not a sufficient reason for the purpose of s. 1 for limiting freedom of association through legislative prohibition of freedom to strike. It has not been shown that all public service employees have a substantial bargaining advantage on account of their employer's governmental status. Nor has it been shown that any political pressure exerted on the government during strikes is of an unusual or peculiarly detrimental nature.

 

3.               Arbitration as a Substitute for Freedom to Strike

 


116.            As noted above, the provisions relating to police officers and firefighters meet the first test of proportionality: there is a rational connection between prohibiting freedom to strike in these services and the legislative objective of protecting essential services. It is helpful to consider, therefore, whether the measures adopted impair as little as possible the freedom of association of those affected. Clearly, if the freedom to strike were denied and no effective and fair means for resolving bargaining disputes were put in its place, employees would be denied any input at all in ensuring fair and decent working conditions, and labour relations law would be skewed entirely to the advantage of the employer. It is for this reason that legislative prohibition of freedom to strike must be accompanied by a mechanism for dispute resolution by a third party. I agree with the Alberta International Fire Fighters Association at p. 22 of its factum that "It is generally accepted that employers and employees should be on an equal footing in terms of their positions in strike situations or at compulsory arbitration where the right to strike is withdrawn". The purpose of such a mechanism is to ensure that the loss in bargaining power through legislative prohibition of strikes is balanced by access to a system which is capable of resolving in a fair, effective and expeditious manner disputes which arise between employees and employers.

 

117.            As noted above, the purpose of the prohibitions of strike activity of police officers and firefighters is to prevent interruptions in essential services. If prohibition of strikes is to be the least drastic means of achieving this purpose it must, in my view, be accompanied by adequate guarantees for safeguarding workers' interests. Any system of conciliation or arbitration must be fair and effective or, in the words of the I.L.O. Committee on Freedom of Association "adequate, impartial and speedy ... in which the parties can take part at every stage": Case No. 1247, I.L.O. Official Bulletin, supra, at p. 36.

 

118.            The contentious issues in respect to the legislative provisions concerning arbitration are as follows:

 

(i) they require the arbitrator to consider certain      items;

 

(ii) they limit the arbitrability of certain items;       and

 


(iii) they place discretion in the hands of a            minister or agency of the government to            decide whether or not a dispute will go to         arbitration.

 

I will deal with each of these in turn.

 

(i)              The Arbitrator Must Consider Certain Items

 

119.            Under the Public Service Act, the Labour Relations Act and the Police Officers Act arbitrators are required to consider (i) the fiscal policies of the government as declared by the Provincial Treasurer in writing (s. 55(a)(iii) of the Public Service Act; s. 117.8(a)(iii) of the Labour Relations Act; s. 15(a)(iii) of the Police Officers Act); and (ii) wages and benefits in private and public unionized and non‑unionized employment (s. 55(a)(i) of the Public Service Act; s. 117.8(a)(i) of the Labour Relations Act; s. 15(a)(i) of the Police Officers Act). Counsel for the appellant Alberta International Fire Fighters Association, submits that these provisions offend the obligation of the government to provide fair and adequate safeguards for employees as a substitute for the freedom to strike. The respondent submits that it is not unreasonable for the government to desire that the matters listed be considered by arbitration tribunals. The question, however, is not the desirability or lack thereof of arbitration tribunals considering the enumerated factors but, rather, whether requiring arbitrators to consider these matters detracts from the fairness and effectiveness of the arbitration procedure.

 


120.            The appellants submit that the sections of the Public Service Act, the Labour Relations Act and the Police Officers Act which require government fiscal policy to be taken into account favour the government employer and, thereby, compromise the fairness of the arbitration system. I disagree. In my view the fiscal policy of the government is a measure of the employer's ability to pay, and there is nothing improper in requiring the arbitrator to consider it. The arbitrator is not bound by the statute to take the stated fiscal policy as the conclusive measure of the employer's ability to pay, and it would be open to the unions to make submissions requesting that the arbitrator depart from the fiscal policy.

 

121.            Turning to s. 55(a)(i) of the Public Service Act, s. 117.8(a)(i) of the Labour Relations Act, and s. 15(a)(i) of the Police Officers Act, which require that arbitrators consider the wages and benefits of private and public unionized and non‑unionized employees, I do not believe these sections compromise the adequacy of the arbitration system. As Professor K. P. Swan has stated (in The Search for Meaningful Criteria in Interest Arbitration, Reprint Series No. 41, Industrial Relations Centre, Queen's University, 1978) at p. 11: "Fairness remains an essentially relative concept, and it therefore depends directly upon the identification of fair comparisons if it is to be meaningful". Under ss. 55(a)(i), 117.8(a)(i) and 15(a)(i) the arbitrator is required to consider, presumably for the sake of comparison, the wages of unionized, non‑unionized, public sector and private sector employees. The appellant, Alberta International Fire Fighters Association, implies that ss. 55(a)(i), 117.8(a)(i) and 15(a)(i) mandate an unfair comparison; one that "is bound to result in lowering the wages of the unionized employees". I do not agree. A requirement to establish as broad a comparative base as possible does not, in my view, compromise the fairness of the arbitration, or disadvantage the employees concerned.

 

(ii) Limiting the Arbitrability of Certain Items


122.            Section 48(2) of the Public Service Act establishes that certain matters cannot be referred to arbitration or contained in an arbitral award. These matters are generally arbitrable in other labour relations contexts, as is implied by the fact that s. 48(2) operates notwithstanding s. 48(1). Section 2(2) of the Police Officers Act denies, under certain circumstances, the right of police officers to bargain collectively for pension benefits. Counsel for the Attorney General submits these provisions satisfy s. 1  of the Charter  on the grounds that: 1) the matters referred to in s. 48(2)(a), (b), and (c) are traditionally not the subject of collective agreements because they must be under the absolute control of management; 2) pension benefits are the subject of other legislation and cannot, therefore, be bargainable or set by arbitration; and 3) the subjects referred to in s. 48 of the Public Service Act are not of obvious vital concern to the employee. Counsel for the Alberta Union of Provincial Employees points out that the matters covered by s. 48 of the Public Service Act (and s. 2(2) of the Police Officers Act) are common and usual subjects of arbitration, or strike activity in labour relations. As well, counsel rejects the respondent's assertion that the enumerated matters are not ones important to the employees as a collectivity. The Public Service Employee Relations Board, in a number of recent decisions on the arbitrability of items under s. 48(2) of the Act, has held that matters such as the scheduling of normal hours of work and equal pay for work of equal value are not arbitrable under the Act: Alberta Union of Provincial Employees v. The Crown in Right of Alberta, November 24, 1982, unreported; Alberta Union of Provincial Employees v. The Crown in Right of Alberta, November 12, 1982, unreported.

 


123.            As noted above, an arbitration system must be fair and effective if it is to be adequate in restoring to employees the bargaining power they are denied through prohibition of strike activity. In my opinion, the exclusion of these subjects from the arbitration process compromises the effectiveness of the process as a means of ensuring equal bargaining power in the absence of freedom to strike. Serious doubt is cast upon the fairness and effectiveness of an arbitration scheme where matters which would normally be bargainable are excluded from arbitration. "Given that without some binding mechanism for dispute resolution, meaningful collective bargaining is very unlikely, it seems more reasonable to ensure that the scope of arbitrability is as wide as the scope of bargainability if the bargaining process is to work at all": K. P. Swan, "Safety Belt or Strait‑Jacket? Restrictions on the Scope of Public Sector Collective Bargaining", in Essays in Collective Bargaining and Industrial Democracy (1983), at p. 36.

 

124.            It may be necessary in some circumstances for a government employer to maintain absolute control over aspects of employment through exclusion of certain subjects from arbitration. The presumption, however, must be against such exclusion to ensure the effectiveness of an arbitration scheme as a substitute for freedom to strike is not compromised. In the present case, the government has not satisfied the onus upon it to demonstrate such necessity.

 

(iii)            The Absence of a Right to go to Arbitration

 


125.            None of the arbitration schemes in the Acts in question in this Reference provides a right to refer a dispute to arbitration. Rather, a discretionary power is placed in a Minister or an administrative board to establish an arbitration board if deemed appropriate: see above, s. 50 of the Public Service Act, s. 117.3 of the Labour Relations Act, and s. 10 of the Police Officers Act. Under s. 50 of the Public Service Act the Public Service Employee Relations Board can direct the parties to continue collective bargaining or appoint a mediator instead of establishing an arbitration board. Under s. 117.3 of the Labour Relations Act and s. 10 of the Police Officers Act the Minister can direct the parties to continue collective bargaining and can prescribe the procedures or conditions under which it is to take place.

 

126.            The respondent makes no submissions in respect of these provisions. In the absence of argument or evidence demonstrative of why such government involvement is necessary in the arbitration process, I believe the legal capacity of a Minister or administrative board to determine when and under what circumstances a dispute is to reach arbitration compromises the fairness and effectiveness of compulsory arbitration as a substitute for the freedom to strike. In effect, under the Labour Relations Act and Police Officers Act the employer‑‑i.e., the executive branch of government‑‑has absolute authority to determine at what point a dispute should go to arbitration. Such authority considerably undermines the balance of power between employer and employee which the arbitration scheme is designed to promote. Under previous legislation either party had an absolute right to remit the matter to an arbitration board. In the present legislation they do not, and counsel for the respondent has not provided any reasons for this alteration. The discretionary power of a Minister or administrative board to determine whether or not a dispute goes to arbitration is, in my view, an unjustified compromise of the effectiveness of the arbitration procedure in promoting equality of bargaining power between the parties.

 

4. Conclusions Regarding s. 1

 

127.            The analysis under s. 1 can be summarized as follows:

 


128.            1. The limit on freedom of association as guaranteed by s. 2 (d) of the Charter  imposed by s. 93 of the Public Service Act is not justified under s. 1  of the Charter . It is over‑inclusive in respect of those to whom it applies, and the Act's arbitration system is not an adequate replacement for the employees' freedom to strike.

 

129.            2. The limit on freedom of association as guaranteed by s. 2 (d) of the Charter  imposed by s. 117.1 of the Labour Relations Act is not justified under s. 1  of the Charter . It is over‑inclusive in its application to hospital employees, and the Act's arbitration system is not an adequate replacement for the employees' freedom to strike.

 

130.            3. The limit on freedom of association as guaranteed by s. 2 (d) of the Charter  imposed by s. 3 of the Police Officers Act is not justified under s. 1  of the Charter . The Act's arbitration system is not an adequate replacement for the employees' freedom to strike.

 

                                                                   VI

 

Conclusion

 

131.            The constitutional questions should be answered as follows:

 

1.  Are the provisions of the Public Service             Employee Relations Act that provide compulsory        arbitration as a mechanism for resolution of       disputes and prohibit the use of lockouts and        strikes, in particular, sections 49, 50, 93             and 94 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 


Answer: Section 93 limits freedom of association as guaranteed in s. 2 (d) of the Charter . This limit is not justified under s. 1  of the Charter  because the Act is over‑inclusive in its application to employees whose services are not essential, and because the arbitration scheme envisaged in ss. 48, 49, 50 and 55 is not an adequate replacement for the freedom to strike.

 

132.            Sections 49 and 50 do not themselves limit freedom of association. However, the absence of a right to refer a dispute to arbitration, which flows from these sections, contributes to the inadequacy of the arbitration scheme as a replacement for the freedom to strike, and therefore to the failure of s. 93 to be justified under s. 1  of the Charter .

 

133.            Section 94 does not violate s. 2 (d) of the Charter  as it is not directed at associational activity.

 

2. Are the provisions of the Labour Relations Act   that provide compulsory arbitration as a        mechanism for resolution of disputes and           prohibit the use of lockouts and strikes, in        particular, sections 117.1, 117.2 and 117.3        thereof, inconsistent with the Constitution Act,        1982 , and if so, in what particular or                     particulars, and to what extent?

 

Answer: Section 117.1(2) limits freedom of association as guaranteed in s. 2 (d) of the Charter . This limit is not justified under s. 1  of the Charter  because, in so far as it pertains to all hospital employees under s. 117.1(1) (b), the Act is over‑inclusive in its application to employees whose services are not essential, and because the arbitration scheme envisaged in ss. 117.2, 117.3 and 117.8 is not an adequate replacement for the freedom to strike.


134.            Sections 117.2 and 117.3 do not themselves limit freedom of association. However, the absence of a right to refer a dispute to arbitration, which flows from these sections, contributes to the inadequacy of the arbitration scheme as a replacement for the freedom to strike, and therefore to the failure of s. 117.1(2) to be justified under s. 1 .

 

135.            If the arbitration scheme were adequate, s. 117.1(2) would be justifiable as a reasonable limitation on the freedom of association of the firefighters described in s. 117(1)(a).

 

3. Are the provisions of the Police Officers               Collective Bargaining Act that provide for        compulsory arbitration as a mechanism for the resolution of disputes and prohibit the use of        lockouts and strikes, in particular, sections 3,     9, and 10 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

Answer: Section 3(1) limits freedom of association as guaranteed in s. 2 (d) of the Charter . This limit is not justified under s. 1  of the Charter  because the arbitration scheme envisaged in ss. 9 , 10  and 15  is not an adequate replacement for the freedom to strike.

 

136.            Sections 9 and 10 do not themselves limit freedom of association. However, the absence of a right to refer a dispute to arbitration, which flows from these sections, contributes to the inadequacy of the arbitration scheme as a replacement for the freedom to strike and, therefore, to the failure of s. 3(1) to be justified under s. 1  of the Charter .

 


137.            If the arbitration scheme were adequate, s. 3(1) would be justifiable as a reasonable limitation on the freedom of association of police officers.

 

4. Are the provisions of the Public Service               Employee Relations Act that relate to the        conduct of arbitration, in particular sections        48 and 55 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

Answer: Those provisions do not themselves violate freedom of association. However s. 48(2), by unreasonably limiting the subject matter of arbitration contributes to the inadequacy of the arbitration system put in place of the freedom to strike and therefore to the failure of the limitation on freedom of association in s. 93 to be justified under s. 1  of the Charter . Section 55 neither violates freedom of association nor contributes to the inadequacy of the arbitration scheme.

 

5. Are the provisions of the Labour Relations Act   that relate to the conduct of arbitration, in        particular section 117.8 thereof, inconsistent      with the Constitution Act, 1982 , and if so, in        what particular or particulars, and to what            extent.

 

Answer: Section 117.8 does not violate freedom of association. Nor does it contribute to the inadequacy of the arbitration system contained in the Act.

 

6. Are the provisions of the Police Officers               Collective Bargaining Act that relate to the        conduct of arbitration, in particular sections        2(2) and 15 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 


Answer: Section 2(2) limits freedom of association as guaranteed in s. 2(d) of the Charter by prohibiting collective bargaining. This limit is not justified under s. 1  of the Charter .

 

138.            Section 15 does not violate freedom of association. Nor does it contribute to the inadequacy of the arbitration system contained in the Act.

 

7. Does the Constitution Act, 1982 , limit the right    of the Crown to exclude any one or more of the        following classes of its employees from units      for collective bargaining:

 

a) an employee who exercises managerial                       functions;

 

b) an employee who is employed in a confidential                capacity in matters relating to labour                     relations;

 

c) an employee who is employed in a capacity                  that is essential to the effective                         functioning of the Legislature, the Executive                or the Judiciary;

 

                          d) an employee whose interests as a member of a                unit for collective bargaining could conflict                with his duties as an employee?

 


139.            The Court, on a Reference procedure, need not answer a question that is too vague to admit of a satisfactory answer: see, e.g., McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704, at pp. 707‑15 and cases cited therein. Accordingly, I agree with Kerans J.A., speaking for the majority in the Court of Appeal:

 

It remains only to deal with the question, if we can, in abstract terms. In that regard, I detected little or no disagreement amongst counsel. On the one hand, it seemed self‑evident to counsel that a law which forbids somebody to join a union which, in the absence of that law, he could join, limits his freedom of association even in a limited sense because it limits his freedom of expression. On the other hand, the categories mentioned in the question seem to strive to describe employees who, because of the nature of their work, would have a very direct, significant, and immediate conflict between duties owed to fellow members of the unit (assuming that the unit organization demands some measure of solidarity) and the special duties owed to the employer. There was no serious argument offered against the proposition that an exclusion is justified in a free and democratic society if it could be demonstrated that there is a significant conflict of duty on the part of the employees, because, I suppose, the collective‑bargaining system as we know otherwise could not work. But, even this statement requires a review of that system under s. 1  which no intervenant undertook or expressed any interest in our undertaking. The real dispute seems to be whether in fact there is, for a given employee under the categories in the legislation, a significant conflict of duty. That, of course, is a fact‑issue which we cannot decide, nor are we asked to. In the end, it is impossible to offer any meaningful answer to the question and respectfully I decline to offer any further answer.

 

Question 7 should not be answered.

 

140.            The appeal should be allowed.

 

The judgment of Beetz, Le Dain and La Forest JJ. was delivered by

 


141.            Le Dain J.‑‑The background, the issues and the relevant authority and considerations in this appeal are fully set out in the reasons for judgment of the Chief Justice and Justice McIntyre. I agree with McIntyre J. that the constitutional guarantee of freedom of association in s. 2 (d) of the Canadian Charter of Rights and Freedoms  does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike, and accordingly I would dismiss the appeal and answer the constitutional questions in the manner proposed by him. I wish to indicate, if only briefly, the general considerations that lead me to this conclusion.

 

142.            In considering the meaning that must be given to freedom of association in s. 2 (d) of the Charter  it is essential to keep in mind that this concept must be applied to a wide range of associations or organizations of a political, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued. It is in this larger perspective, and not simply with regard to the perceived requirements of a trade union, however important they may be, that one must consider the implications of extending a constitutional guarantee, under the concept of freedom of association, to the right to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

 

143.            In considering whether it is reasonable to ascribe such a sweeping intention to the Charter  I reject the premise that without such additional constitutional protection the guarantee of freedom of association would be a meaningless and empty one. Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion. These afford a wide scope for protected activity in association. Moreover, the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted. That is indicated by its express recognition and protection in labour relations legislation. It is a freedom that has been suppressed in varying degrees from time to time by totalitarian regimes.

 


144.            What is in issue here is not the importance of freedom of association in this sense, which is the one I ascribe to s. 2 (d) of the Charter , but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection is sought**‑‑the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer‑‑are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise. It is surprising that in an area in which this Court has affirmed a principle of judicial restraint in the review of administrative action we should be considering the substitution of our judgment for that of the Legislature by constitutionalizing in general and abstract terms rights which the Legislature has found it necessary to define and qualify in various ways according to the particular field of labour relations involved. The resulting necessity of applying s. 1  of the Charter  to a review of particular legislation in this field demonstrates in my respectful opinion the extent to which the Court becomes involved in a review of legislative policy for which it is really not fitted.

 

 

The following are the reasons delivered by

 


145.            McIntyre J.‑‑I have read the reasons for judgment prepared in this appeal by the Chief Justice. He has set out in convenient form the facts involved, the constitutional questions referred to the Alberta Court of Appeal by the Lieutenant Governor in Council of the province of Alberta, and the relevant statutory and constitutional provisions bearing on the matters raised. He has in addition summarized the judgments rendered in the Alberta Court of Appeal (1984), 16 D.L.R. (4th) 359, [1985] 2 W.W.R. 289, 35 Alta. L.R. (2d) 124, 57 A.R. 268, 85 CLLC 14,027. It will not be necessary for me to deal further with those matters.

 

146.            The question raised in this appeal, stated in its simplest terms, is whether the Canadian Charter of Rights and Freedoms  gives constitutional protection to the right of a trade union to strike as an incident to collective bargaining. The issue is not whether strike action is an important activity, nor whether it should be protected at law. The importance of strikes in our present system of labour relations is beyond question and each provincial legislature and the federal Parliament has enacted legislation which recognizes a general right to strike. The question for resolution in this appeal is whether such a right is guaranteed by the Charter . If this right is found in the Charter , a subsidiary question must be addressed: is the legislation in issue nevertheless "demonstrably justified" under s. 1  of the Charter ? Since it is my conclusion that the Charter  does not guarantee the right to strike, I need not consider this subsidiary question.

 

147.            The appellants do not contend that the right to strike is specifically mentioned in the Charter . The sole basis of their submission is that this right is a necessary incident to the exercise by a trade union of the freedom of association guaranteed by s. 2 (d) of the Charter . The resolution of this appeal turns then on the meaning of freedom of association in the Charter .

 

Freedom of Association and s. 2 (d) of the Charter 

 


148.            Freedom of association is one of the most fundamental rights in a free society. The freedom to mingle, live and work with others gives meaning and value to the lives of individuals and makes organized society possible. The value of freedom of association as a unifying and liberating force can be seen in the fact that historically the conqueror, seeking to control foreign peoples, invariably strikes first at freedom of association in order to eliminate effective opposition. Meetings are forbidden, curfews are enforced, trade and commerce is suppressed, and rigid controls are imposed to isolate and thus debilitate the individual. Conversely, with the restoration of national sovereignty the democratic state moves at once to remove restrictions on freedom of association.

 

149.            It is clear that the importance of freedom of association was recognized by Canadian law prior to the Charter . It is equally clear that prior to the Charter  a provincial Legislature or Parliament acting within its jurisdiction could regulate and control strikes and collective bargaining. The Charter  has reaffirmed the historical importance of freedom of association and guaranteed it as an independent right. The courts must now define the range or scope of this right and its relation to other rights, both those grounded in the Charter  and those existing at law without Charter  protection.

 

150.            In approaching this task, it must be recognized that the Charter  should receive a broad and generous construction consistent with its general purpose, (see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155). In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, this Court dealt in some detail with the considerations which should govern an inquiry into the meaning of the rights and freedoms guaranteed by the Charter . At page 344, Dickson J. (now C.J.) speaking for the majority, said:


This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter . In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter  was a purposive one. 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 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] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts. [Emphasis added.]

 

151.            It follows that while a liberal and not overly legalistic approach should be taken to constitutional interpretation, the Charter  should not be regarded as an empty vessel to be filled with whatever meaning we might wish from time to time. The interpretation of the Charter , as of all constitutional documents, is constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society.

 

The Value of Freedom of Association

 


152.            The starting point of the process of interpretation is an inquiry into the purpose or value of the right at issue. While freedom of association like most other fundamental rights has no single purpose or value, at its core rests a rather simple proposition: the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others. "Man, as Aristotle observed, is a `social animal, formed by nature for living with others', associating with his fellows both to satisfy his desire for social intercourse and to realize common purposes." (L. J. MacFarlane, The Theory and Practice of Human Rights (1985), p. 82.) This thought was echoed in the familiar words of Alexis de Tocqueville:

 

The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.

 

(Democracy in America (1945), vol. l, at p. 196.)

 

153.            The increasing complexity of modern society, which has diminished the power of the individual to act alone, has greatly increased the importance of freedom of association. In the words of Professor T. I. Emerson in "Freedom of Association and Freedom of Expression" (1964), 74 Yale L.J. 1, at p. 1:

 

Freedom of association has always been a vital feature of American society. In modern times it has assumed even greater importance. More and more the individual, in order to realize his own capacities or to stand up to the institutionalized forces that surround him, has found it imperative to join with others of like mind in pursuit of common objectives.

 

A similar point was made by C. Wilfred Jenks, a former Director‑General of the I.L.O. (Human Rights and International Labour Standards (1960), at p. 49):

 


In an age of interdependence and large‑scale organisation, in which the individual counts for so little unless he acts in co‑operation with his fellows, freedom of association has become the cornerstone of civil liberties and social and economic rights alike. It has long been the bulwark of religious freedom and political liberty; it has increasingly become a necessary condition of economic and social freedom for the ordinary citizen.

 

154.            Our society supports a multiplicity of organized groups, clubs and associations which further many different objectives, religious, political, educational, scientific, recreational, and charitable. This exercise of freedom of association serves more than the individual interest, advances more than the individual cause; it promotes general social goals. Of particular importance is the indispensable role played by freedom of association in the functioning of democracy. Paul Cavalluzzo said in "Freedom of Association and the Right to Bargain Collectively" in Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms  (1986), at pp. 199‑200:

 

Secondly, [freedom of association] is an effective check on state action and power. In many ways freedom of association is the most important fundamental freedom because it is the one human right which clearly distinguishes a totalitarian state from a democratic one. In a totalitarian system, the state cannot tolerate group activity because of the powerful check it might have on state power.

 

Associations serve to educate their members in the operation of democratic institutions. As de Tocqueville noted, supra, vol. II, at p. 116:

 


...[individuals] cannot belong to these associations for any length of time without finding out how order is maintained among a large number of men and by what contrivance they are made to advance, harmoniously and methodically, to the same object. Thus they learn to surrender their own will to that of all the rest and to make their own exertions subordinate to the common impulse, things which it is not less necessary to know in civil than in political associations. Political associations may therefore be considered as large free schools, where all the members of the community go to learn the general theory of association.

 

 

 

Associations also make possible the effective expression of political views and thus influence the formation of governmental and social policy. As Professor G. Abernathy observed in The Right of Assembly and Association (1961), at p. 242:

 

...probably the most obvious service rendered by the institution of association is influencing governmental policy. Concerted action or pressure on governmental agencies has a far greater chance of success than does the sporadic pressure of numerous individuals acting separately.

 

Freedom of association then serves the interest of the individual, strengthens the general social order, and supports the healthy functioning of democratic government.

 


155.            In considering the constitutional position of freedom of association, it must be recognized that while it advances many group interests and, of course, cannot be exercised alone, it is nonetheless a freedom belonging to the individual and not to the group formed through its exercise. While some provisions in the Constitution involve groups, such as s. 93  of the Constitution Act, 1867  protecting denominational schools, and s. 25  of the Charter  referring to existing aboriginal rights, the remaining rights and freedoms are individual rights; they are not concerned with the group as distinct from its members. The group or organization is simply a device adopted by individuals to achieve a fuller realization of individual rights and aspirations. People, by merely combining together, cannot create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. Freedom of association cannot therefore vest independent rights in the group.

 

156.            Many of the scholarly writers on this subject have recognized and stated this proposition. Clyde W. Summers in "Freedom of Association and Compulsory Unionism in Sweden and the United States" (1964), 112 U. Pa. L. Rev. 647, at p. 647, said:

 

Although commonly asserted by the organization, freedom of association is not simply a collective right vested in the organization for its benefit. Freedom of association is an individual right vested in the individual to enable him to enlarge his personal freedom. Its function is not merely to grant power to groups, but to enrich the individual's participation in the democratic process by his acting through those groups. [Emphasis added.]

 

Professor Emerson, supra, at p. 4, stated:

 

...a theory of association must begin with the individual. In a society governed by democratic principles it is the individual who is the ultimate concern of the social order. His interests and rights are paramount. Association is an extension of individual freedom. It is a method of making more effective, of giving greater depth and scope to, the individual's needs, aspirations and liberties.

 

and Reena Raggi in the article "An Independent Right to Freedom of Association" (1977), 12 Harv. C.R.‑C.L.L. Rev. 1, stated the position clearly, at pp. 15‑16:

 

This notion that an association is no more than the sum of its individual members seems essential in a society in which it is "the individual who is the ultimate concern of the social order." In such a society it would hardly seem possible that an abstract entity such as an association should enjoy rights apart from and indeed greater than its individual members; to hold otherwise would contradict the equality of opportunity which is at the heart of this argument for freedom of association.


157.            The recognition of this principle in the case at bar is of great significance. The only basis on which it is contended that the Charter  enshrines a right to strike is that of freedom of association. Collective bargaining is a group concern, a group activity, but the group can exercise only the constitutional rights of its individual members on behalf of those members. If the right asserted is not found in the Charter  for the individual, it cannot be implied for the group merely by the fact of association. It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association.

 

The Scope of Freedom of Association in s. 2 (d)

 

158.            Various theories have been advanced to define freedom of association guaranteed by the Constitution. They range from the very restrictive to the virtually unlimited. To begin with, it has been said that freedom of association is limited to a right to associate with others in common pursuits or for certain purposes. Neither the objects nor the actions of the group are protected by freedom of association. This was the approach adopted in Collymore v. Attorney‑General, [1970] A.C. 538. The facts of the case have been stated by the Chief Justice and need no repetition here. In its reasons, the Judicial Committee approved the words of Sir Hugh Wooding C.J., of the Court of Appeal of Trinidad and Tobago, which defined freedom of association in these terms, at p. 547:

 

...freedom of association means no more than freedom to enter into consensual arrangements to promote the common‑interest objects of the associating group. The objects may be any of many. They may be religious or social, political or philosophical, economic or professional, educational or cultural, sporting or charitable. But the freedom to associate confers neither right nor licence for a course of conduct or for the commission of acts which in the view of Parliament are inimical to the peace, order and good government of the country.


159.            This approach was followed in Dolphin Delivery Ltd. v. Retail, Wholesale & Department Store Union, Local 580 (1984), 10 D.L.R. (4th) 198, (affirmed by this Court on different grounds, [1986] 2 S.C.R. 573), where Esson J.A., speaking for the British Columbia Court of Appeal on this issue, said, at p. 209:

 

The freedom must be intended to protect the right of `everyone' to associate as they please, and to form associations of all kinds, from political parties to hobby clubs. Some will have objects and will be in favour of means of achieving those objects, which the framers of the Charter  cannot have intended to protect. The freedom to associate carries with it no constitutional protection of the purposes of the association, or means of achieving those purposes.

 

160.            The same approach was followed in Public Service Alliance of Canada v. The Queen (PSAC judgment delivered concurrently, [1987] 1 S.C.R. 424), both at trial, [1984] 2 F.C. 562, and on appeal, [1984] 2 F.C. 889. Other cases which have followed the Collymore approach include: Re Prime and Manitoba Labour Board (1983), 3 D.L.R. (4th) 74 (Man. Q.B.), rev'd on other grounds (1984), 8 D.L.R. (4th) 641 (Man. C.A.); and Halifax Police Officers and NCO's Association v. City of Halifax (1984), 11 C.R.R. 358 (N.S.S.C.T.D.)

 

161.            A second approach provides that freedom of association guarantees the collective exercise of constitutional rights or, in other words, the freedom to engage collectively in those activities which are constitutionally protected for each individual. This theory has been adopted in the United States to define the scope of freedom of association under the American Constitution. Professor L. H. Tribe in his treatise, American Constitutional Law (1978), describes the American position, as follows, at p. 702:

 


...[freedom of association] is a right to join with others to pursue goals independently protected by the first amendment‑‑such as political advocacy, litigation (regarded as a form of advocacy), or religious worship.

 

Further, in Roberts v. United States Jaycees, 468 U.S. 609 (1984), Brennan J., writing for the majority of the United States Supreme Court, said, at p. 618:

 

...the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment‑‑speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.

 

162.            It will be seen that this approach guarantees not only the right to associate but as well the right to pursue those objects of association which by their nature have constitutional protection.

 

163.            A third approach postulates that freedom of association stands for the principle that an individual is entitled to do in concert with others that which he may lawfully do alone, and conversely, that individuals and organizations have no right to do in concert what is unlawful when done individually. This approach is supported by Professor Emerson, supra, where he states, at p. 4:

 

...as a starting point, an association should be entitled to do whatever an individual can do; conversely, conduct prohibited to an individual by a state can also be prohibited to an association.

 


A similar view has been expressed by the American scholar, Reena Raggi, supra, pp. 15‑16, and by Bayda C.J.S. in Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 and 955 and Government of Saskatchewan (1985), 19 D.L.R. (4th) 609 (the Dairy Workers case), at p. 619:

 

Where an act is capable of being performed by a person alone or in association, then only if a person acting alone is forbidden to perform the act, is the person acting in association forbidden.

 

164.            A fourth approach would constitutionally protect collective activities which may be said to be fundamental to our culture and traditions and which by common assent are deserving of protection. This approach was proposed by Kerans J.A. in Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta. C.A.) The court held in that case that legislative restrictions against partnerships for the practice of law between Alberta solicitors and non‑resident solicitors violated freedom of association. Speaking for himself, Kerans J.A., stated, at p. 612:

 

In my view, the freedom [of association] includes the freedom to associate with others in the exercise of Charter ‑protected rights and also those other rights which‑‑in Canada‑‑are thought so fundamental as not to need formal expression: to marry, for example, or to establish a home and family, pursue an education or gain a livelihood. [Emphasis added.]

 

165.            A fifth approach rests on the proposition that freedom of association, under s. 2 (d) of the Charter , extends constitutional protection to all activities which are essential to the lawful goals of an association. This approach was advanced in Re Service Employees' International Union, Local 204 and Broadway Manor Nursing Home (1983), 44 O.R. (2d) 392 by the Ontario Divisional Court. The court held that freedom of association included the freedom to bargain collectively and to strike, since, in its view, these activities were essential to the objects of a trade union and without them the association would be emasculated. Galligan J. said, at p. 409:


But I think that freedom of association if it is to be a meaningful freedom must include freedom to engage in conduct which is reasonably consonant with the lawful objects of an association. And I think a lawful object is any object which is not prohibited by law.

 

And Smith J. said, at p. 463:

 

It follows, and it is trite to say I suppose, that the freedom to associate carries with it the freedom to meet to pursue the lawful objects and activities essential to the association's purposes, being in this instance the well‑being, economic or otherwise, of its members.

 

166.            The sixth and final approach so far isolated in the cases, and by far the most sweeping, would extend the protection of s. 2 (d) of the Charter  to all acts done in association, subject only to limitation under s. l of the Charter . This is the position suggested by Bayda C.J.S. in the Dairy Workers case, supra. He said in his reasons for judgment, at pp. 620‑21:

 

To summarize, a person asserting the freedom of association under para. 2 (d) is free (apart from s. l of the Charter ) to perform in association without governmental interference any act that he is free to perform alone. Where an act by definition is incapable of individual performance, he is free to perform the act in association provided the mental component of the act is not to inflict harm. Such then is the "unregulated area" (to use Professor Lederman's expression) relative to the freedom of association. Such is the "sphere of activity within which the law (has guaranteed) to leave me alone", to use the words of the author of Salmond on Jurisprudence with an interpolation from s. 1  of the Charter . [Emphasis added.]

 


167.            In presenting these six formulations of the concept of freedom of association, I do not mean to suggest that they are the only ones which might be developed. They do, however, embrace generally the concepts and arguments advanced before the Court. In examining these formulations, I will consider them within the context of the Charter , the pre‑existing law of Canada, and the circumstances in which freedom of association is asserted.

 

168.            As to the pre‑existing law in Canada, it is sufficient to say that freedom of association is not a new right or freedom. It existed in Canada long before the Charter  was adopted and was recognized as a basic right. It consisted in the liberty of two or more persons to associate together provided that they did not infringe a specific rule of common law or statute by having either an unlawful object or by pursuing their object by unlawful means (see Halsbury's Laws of England (3rd ed. 1954), vol. 7, at pp. 195‑96; O. Hood Phillips and Paul Jackson, Constitutional and Administrative Law (6th ed. 1978), at p. 503). It may be observed as well that freedom of association was recognized and applied in relation to trade unions. The law of Canada and of each province has long recognized that trade unions could, and did, exist as lawful associations with rights and obligations fixed by law and that individuals had the right to belong to, and participate in, the activities of trade unions (see Collective Bargaining Law in Canada (2nd ed. 1986), A. W. R. Carrothers, E. E. Palmer and W. B. Rayner, at pp. 1‑108).

 


169.            Freedom of association was acknowledged and accepted as part of our social and legal fabric. The Charter  upon its adoption guaranteed freedom of association as a free‑standing right in s. 2 (d). I do not seek to limit the effect of that guarantee to the law as it stood before adoption. I do, however, suggest that the Charter  guarantee, which by itself does not in any way define freedom of association, must be construed with reference to the constitutional text and to the nature, history, traditions, and social philosophies of our society. This approach makes relevant consideration of the pre‑Charter  situation and the nature and scope of the rights and obligations the law had ascribed to associations, in this case trade unions, before the adoption of the Charter .

 

170.            Turning to the various approaches which have been briefly described above, I would conclude that both the fifth approach (which postulates that freedom of association constitutionally protects all activities which are essential to the lawful goals of an association) and the sixth (which postulates that freedom of association constitutionally protects all activities carried out in association, subject only to reasonable limitation under s. l of the Charter ) are unacceptable definitions of freedom of association.

 

171.            The fifth approach rejects the individual nature of freedom of association. To accept it would be to accord an independent constitutional status to the aims, purposes, and activities of the association, and thereby confer greater constitutional rights upon members of the association than upon non‑members. It would extend Charter  protection to all the activities of an association which are essential to its lawful objects or goals, but, it would not extend an equivalent right to individuals. The Charter  does not give, nor was it ever intended to give, constitutional protection to all the acts of an individual which are essential to his or her personal goals or objectives. If Charter protection is given to an association for its lawful acts and objects, then the Charter ‑protected rights of the association would exceed those of the individual merely by virtue of the fact of association. The unacceptability of such an approach is clearly demonstrated by Peter Gall in "Freedom of Association and Trade Unions: A Double‑Edged Constitutional Sword" in Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms  (1986), at p. 247:

 


A brief example illustrates this point. One of our levels of government may decide to ban the ownership of guns. This would not infringe any individual right under the Charter . But if some individuals have combined to form a gun club, does the Charter 's protection of freedom of association mean that the principal activity of the gun club, namely the ownership and use of guns, is now constitutionally protected? One is quickly forced to the conclusion that it does not. The Charter  does not protect the right to bear arms, regardless of whether that activity is carried out by an individual or by an association. The mere fact that it is the principal activity of the gun club does not give it a constitutional status. I doubt whether there would be much, if any, disagreement on this point. Thus, by referring to this hypothetical situation we see that the principal activities of associations are not necessarily protected under the concept of freedom of association.

 

172.            The sixth approach, in my opinion, must be rejected as well, for the reasons expressed in respect of the fifth. It would in even more sweeping terms elevate activities to constitutional status merely because they were performed in association. For obvious reasons, the Charter  does not give constitutional protection to all activities performed by individuals. There is, for instance, no Charter  protection for the ownership of property, for general commercial activity, or for a host of other lawful activities. And yet, if the sixth approach were adopted, these same activities would receive protection if they were performed by a group rather than by an individual. In my view, such a proposition cannot be accepted. There is simply no justification for according Charter  protection to an activity merely because it is performed by more than one person. This was recognized by Paul Cavalluzzo, supra, at pp. 202‑03:

 

The problem with this [the sixth] approach is that it sanctifies conduct because it is engaged in by more than one citizen. Although the state is given the opportunity to justify interference under section l, why should there be constitutional value in numbers? Surely, more is required to reach the threshold of attaining constitutional protection. Freedom of association is not a fundamental freedom because there is some inherent value in group activity. Not all individual expressions are protected by freedom of expression at the threshold stage. Likewise, not all associational conduct is protected by freedom of association.

 


173.            I am also of the view that the fourth approach, which postulates that freedom of association embraces those collective activities which have attained a fundamental status in our society because they are deeply rooted in our culture, traditions, and history, is an unacceptable definition. By focusing on the activity or the conduct itself, this fourth approach ignores the fundamental purpose of the right. The purpose of freedom of association is to ensure that various goals may be pursued in common as well as individually. Freedom of association is not concerned with the particular activities or goals themselves; it is concerned with how activities or goals may be pursued. While activities such as establishing a home, pursuing an education, or gaining a livelihood are important if not fundamental activities, their importance is not a consequence of their potential collective nature. Their importance flows from the structure and organization of our society and they are as important when pursued individually as they are when pursued collectively. Even institutions such as marriage and the family, which by their nature are collective, do not fall easily or completely under the rubric of freedom of association. For instance, freedom of association would have no bearing on the legal consequences of marriage, such as the control or ownership of matrimonial property. This is not to say that fundamental institutions, such as marriage, will never receive the protection of the Charter . The institution of marriage, for example, might well be protected by freedom of association in combination with other rights and freedoms. Freedom of association alone, however, is not concerned with conduct; its purpose is to guarantee that activities and goals may be pursued in common. When this purpose is considered, it is clear that s. 2 (d) of the Charter  cannot be interpreted as guaranteeing specific acts or goals, whether or not they are fundamental in our society.

 


174.            Of the remaining approaches, it must surely be accepted that the concept of freedom of association includes at least the right to join with others in lawful, common pursuits and to establish and maintain organizations and associations as set out in the first approach. This is essentially the freedom of association enjoyed prior to the adoption of the Charter . It is, I believe, equally clear that, in accordance with the second approach, freedom of association should guarantee the collective exercise of constitutional rights. Individual rights protected by the Constitution do not lose that protection when exercised in common with others. People must be free to engage collectively in those activities which are constitutionally protected for each individual. This second definition of freedom of association embraces the purposes and values of the freedoms which were identified earlier. For instance, the indispensable role played by freedom of association in the democratic process is fully protected by guaranteeing the collective exercise of freedom of expression. Group advocacy, which is at the heart of all political parties and special interest groups, would be protected under this definition. As well, group expression directed at educating or informing the public would be protected from government interference (see the judgment of this Court in Dolphin Delivery, supra). Indeed, virtually every group activity which is important to the functioning of democracy would be protected by guaranteeing that freedom of expression can be exercised in association with others. Furthermore, religious groups would receive protection if their activities constituted the collective exercise of freedom of religion. Thus, the principal purposes or values of freedom of association would be realized by interpreting s. 2 (d) as protecting the collective exercise of the rights enumerated in the Charter .

 



175.            One enters upon more controversial ground when considering the third approach which provides that whatever action an individual can lawfully pursue as an individual, freedom of association ensures he can pursue with others. Conversely, individuals and organizations have no constitutional right to do in concert what is unlawful when done alone. This approach is broader than the second, since constitutional protection attaches to all group acts which can be lawfully performed by an individual, whether or not the individual has a constitutional right to perform them. It is true, of course, that in this approach the range of Charter ‑protected activity could be reduced by legislation, because the Legislature has the power to declare what is and what is not lawful activity for the individual. The Legislature, however, would not be able to attack directly the associational character of the activity, since it would be constitutionally bound to treat groups and individuals alike. A simple example illustrates this point: golf is a lawful but not constitutionally protected activity. Under the third approach, the Legislature could prohibit golf entirely. However, the Legislature could not constitutionally provide that golf could be played in pairs but in no greater number, for this would infringe the Charter  guarantee of freedom of association. This contrasts with the second approach, which would provide no protection against such legislation, because golf is not a constitutionally protected activity for the individual. Thus, the range of group activity protected by the third approach is greater than that of the second, but the greater range is to some extent illusory because of the power of the Legislature to say what is and what is not lawful activity for the individual. This approach, in my view, is an acceptable interpretation of freedom of association under the Charter . It is clear that, unlike the fifth and sixth approaches, this definition of freedom of association does not provide greater constitutional rights for groups than for individuals; it simply ensures that they are treated alike. If the state chooses to prohibit everyone from engaging in an activity and that activity is not protected under the Constitution, freedom of association will not afford any protection to groups engaging in the activity. Freedom of association as an independent right comes into play under this formulation when the state has permitted an individual to engage in an activity and yet forbidden the group from doing so. Moreover, unlike the fourth approach, the inquiry is firmly focussed on the fundamental purpose of freedom of association, namely, to permit the collective pursuit of common goals. As noted by the Chief Justice, at p. 367, "if a legislature permits an individual to enjoy an activity which it forecloses to a collectivity, it may properly be inferred that the legislature intended to prohibit the collective activity because of its collective or associational aspect. Conversely, one may infer from a legislative proscription which applies equally to individuals and groups that the purpose of the legislation was a bona fide prohibition of a particular activity because of detrimental qualities inhering in the activity (e.g., criminal conduct), and not merely because of the fact that the activity might sometimes be done in association." Finally, this approach fully realizes the value or purpose of association. Activities which the state permits an individual to pursue may be pursued in a group. Associations engaged in scientific, educational, recreational, and charitable pursuits would receive protection even though these activities or pursuits may not be independently protected by the Charter , provided these activities are not forbidden at law to individuals. The objective of guaranteeing the freedom of individuals to unite in organizations of their choice for the pursuit of objects of their choice would be achieved.

 


176.            It follows from this discussion that I interpret freedom of association in s. 2 (d) of the Charter  to mean that Charter  protection will attach to the exercise in association of such rights as have Charter  protection when exercised by the individual. Furthermore, freedom of association means the freedom to associate for the purposes of activities which are lawful when performed alone. But, since the fact of association will not by itself confer additional rights on individuals, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.

 

177.            When this definition of freedom of association is applied, it is clear that it does not guarantee the right to strike. Since the right to strike is not independently protected under the Charter , it can receive protection under freedom of association only if it is an activity which is permitted by law to an individual. Accepting this conclusion, the appellants argue that freedom of association must guarantee the right to strike because individuals may lawfully refuse to work. This position, however, is untenable for two reasons. First, it is not correct to say that it is lawful for an individual employee to cease work during the currency of his contract of employment. Belzil J.A., in the Alberta Court of Appeal, in the case at bar, dealt with this point in these words:

 

The argument falters on the premise that cessation of work by one person is lawful. The rationale advanced for that premise is that the courts will not compel a servant to fulfil his contract of service, therefore cessation of work by a servant is lawful. While it is true that the courts will not compel a servant to fulfil his contract of service, the servant is nevertheless bound in law by his contract and may be ordered to pay damages for the unlawful breach of it. It cannot be said that his cessation of work is lawful.

 


The second reason is simply that there is no analogy whatever between the cessation of work by a single employee and a strike conducted in accordance with modern labour legislation. The individual has, by reason of the cessation of work, either breached or terminated his contract of employment. It is true that the law will not compel the specific performance of the contract by ordering him back to work as this would reduce "the employee to a state tantamount to slavery" (I. Christie, Employment Law in Canada (1980), p. 268). But, this is markedly different from a lawful strike. An employee who ceases work does not contemplate a return to work, while employees on strike always contemplate a return to work. In recognition of this fact, the law does not regard a strike as either a breach of contract or a termination of employment. Every province and the federal Parliament has enacted legislation which preserves the employer‑employee relationship during a strike (see Canada Labour Code, R.S.C. 1970, c. L‑1, as amended, s. 107(2); Labour Relations Act, R.S.A. 1980 (Supp.), c. L‑1.1, as amended, s. 1(2); Labour Code, R.S.B.C. 1979, c. 212, as amended, s. 1(2); The Labour Relations Act, S.M. 1972, c. 75, as amended, s. 2(1); Industrial Relations Act, R.S.N.B. 1973, c. I‑4, as amended, s. 1(2); The Labour Relations Act, 1977, S.N. 1977, c. 64, as amended, s. 2(2); The Trade Union Act, S.N.S. 1972, c. 19, as amended, s. 13; Labour Relations Act, R.S.O. 1980, c. 228, as amended, s. 1(2); Labour Act, R.S.P.E.I. 1974, c. L‑1, as amended, s. 8(2); Labour Code, R.S.Q. 1977, c. C‑27, as amended, s. 110; and The Trade Union Act, R.S.S. 1978, c. T‑17, as amended s. 2 (f); and see Canadian Pacific Railway Co. v. Zambri, [1962] S.C.R. 609). Moreover, many statutes provide employees with reinstatement rights following a strike (Ontario, Labour Relations Act, s. 73; Quebec, Labour Code, s. 110.1; Manitoba, The Labour Relations Act, s. 11; and see Canadian Air Line Pilots' Ass'n and Eastern Provincial Airways Ltd. (1983), 5 CLRBR (NS) 368) and in the province of Quebec the employer is expressly prohibited from replacing employees who are lawfully on strike (s. 109.1).

 

178.            Modern labour relations legislation has so radically altered the legal relationship between employees and employers in unionized industries that no analogy may be drawn between the lawful actions of individual employees in ceasing to work and the lawful actions of union members in engaging in a strike. As Laskin C.J. stated in McGavin Toastmaster Ltd. v. Ainscough, [1976] l S.C.R. 718, at p. 725:

 


The reality is, and has been for many years now throughout Canada, that individual relationships as between employer and employee have meaning only at the hiring stage and even then there are qualifications which arise by reason of union security clauses in collective agreements. The common law as it applies to individual employment contracts is no longer relevant to employer‑employee relations governed by a collective agreement which, as the one involved here, deals with discharge, termination of employment, severance pay and a host of other matters that have been negotiated between union and company as the principal parties thereto.

 

It is apparent, in my view, that interpreting freedom of association to mean that every individual is free to do with others that which he is lawfully entitled to do alone would not entail guaranteeing the right to strike. I am supported in this conclusion by the Chief Justice, who states at p. 367 in his judgment, "There is no individual equivalent to a strike. The refusal to work by one individual does not parallel a collective refusal to work. The latter is qualitatively rather than quantitatively different." Restrictions on strikes are not aimed at and do not interfere with the collective or associational character of trade unions. It is therefore my conclusion that the concept of freedom of association does not extend to the constitutional guarantee of a right to strike. This conclusion is entirely consistent with the general approach of the Charter  which accords rights and freedoms to the individual but, with a few exceptions noted earlier, does not confer group rights. It is also to be observed that the Charter , with the possible exception of s. 6(2) (b) (right to earn a livelihood in any province) and s. 6(4) , does not concern itself with economic rights. Since trade unions are not one of the groups specifically mentioned by the Charter , and are overwhelmingly, though not exclusively, concerned with the economic interests of their members, it would run counter to the overall structure and approach of the Charter  to accord by implication special constitutional rights to trade unions.

 


179.            Labour relations and the development of the body of law which has grown up around that subject have been for many years one of the major preoccupations of legislators, economic and social writers, and the general public. Strikes are commonplace in Canada and have been for many years. The framers of the Constitution must be presumed to have been aware of these facts. Indeed, questions of collective bargaining and a right to strike were discussed in the Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (Issue No. 43, pp. 68‑79, January 22, 1981). It is apparent from the deliberations of the Committee that the right to strike was understood to be separate and distinct from the right to bargain collectively. And, while a resolution was proposed for the inclusion of a specific right to bargain collectively, no resolution was proposed for the inclusion of the right to strike. This affords strong support for the proposition that the inclusion of a right to strike was not intended.

 

180.            Specific reference to the right to strike appears in the constitutions of France (in the preamble of the Constitution of the Vth Republic of 1958) and Italy (Article 40). Further, in Japan (Article 28) the rights of trade unions are specifically guaranteed. The framers of the Constitution must be presumed to have been aware of these constitutional provisions. The omission of similar provisions in the Charter , taken with the fact that the overwhelming preoccupation of the Charter  is with individual, political, and democratic rights with conspicuous inattention to economic and property rights, speaks strongly against any implication of a right to strike. Accordingly, if s. 2 (d) is read in the context of the whole Charter , it cannot, in my opinion, support an interpretation of freedom of association which could include a right to strike.

 


181.            Furthermore, it must be recognized that the right to strike accorded by legislation throughout Canada is of relatively recent vintage. It is truly the product of this century and, in its modern form, is in reality the product of the latter half of this century. It cannot be said that it has become so much a part of our social and historical traditions that it has acquired the status of an immutable, fundamental right, firmly embedded in our traditions, our political and social philosophy. There is then no basis, as suggested in the fourth approach to freedom of association, for implying a constitutional right to strike. It may well be said that labour relations have become a matter of fundamental importance in our society, but every incident of that general topic has not. The right to strike as an element of labour relations has always been the subject of legislative control. It has been abrogated from time to time in special circumstances and is the subject of legal regulation and control in all Canadian jurisdictions. In my view, it cannot be said that at this time it has achieved status as a fundamental right which should be implied in the absence of specific reference in the Charter .

 



182.            While I have reached a conclusion and expressed the view that the Charter  upon its face cannot support an implication of a right to strike, there is as well, in my view, a sound reason grounded in social policy against any such implication. Labour law, as we have seen, is a fundamentally important as well as an extremely sensitive subject. It is based upon a political and economic compromise between organized labour‑‑a very powerful socio‑economic force‑‑on the one hand, and the employers of labour‑‑an equally powerful socio‑economic force‑‑on the other. The balance between the two forces is delicate and the public‑at‑large depends for its security and welfare upon the maintenance of that balance. One group concedes certain interests in exchange for concessions from the other. There is clearly no correct balance which may be struck giving permanent satisfaction to the two groups, as well as securing the public interest. The whole process is inherently dynamic and unstable. Care must be taken then in considering whether constitutional protection should be given to one aspect of this dynamic and evolving process while leaving the others subject to the social pressures of the day. Great changes‑‑economic, social, and industrial‑‑are afoot, not only in Canada and in North America, but as well in other parts of the world. Changes in the Canadian national economy, the decline in resource‑based as well as heavy industries, the changing patterns of international trade and industry, have resulted in great pressure to reassess the traditional approaches to economic and industrial questions, including questions of labour law and policy. In such countries as Sweden (Prof. Dr. Axel Adlercreutz, Sweden, in International Encyclopaedia for Labour Law and Industrial Relations (1985), vol. 9, ed.‑in‑chief Prof. Dr. R. Blanpain) and West Germany (Prof. Dr. Th. Ramm, Federal Republic of Germany in International Encyclo‑ paedia for Labour Law and Industrial Relations (1979), vol. 5) different directions in labour relations have been taken. It has been said that these changes have led to increased efficiency and job satisfaction. Whatever the result of such steps, however, it is obvious that the immediate direction of labour policy is unclear. It is, however, clear that labour policy can only be developed step by step with, in this country, the Provinces playing their "classic federal role as laboratories for legal experimentation with our industrial relations ailments" (Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (1980), at p. 11). The fulfilment of this role in the past has resulted in the growth and development of the body of labour law which now prevails in Canada. The fluid and constantly changing conditions of modern society demand that it continue. To intervene in that dynamic process at this early stage of Charter development by implying constitutional protection for a right to strike would, in my view, give to one of the contending forces an economic weapon removed from and made immune, subject to s. 1, to legislative control which could go far towards freezing the development of labour relations and curtailing that process of evolution necessary to meet the changing circumstances of a modern society in a modern world. This, I repeat, is not to say that a right to strike does not exist at law or that it should be abolished. It merely means that at this stage of our Charter development such a right should not have constitutional status which would impair the process of future development in legislative hands. Of particular interest in this connection are the words of Peter Gall in his article, supra, at p. 248, where he said:

 

Collective bargaining is extremely important in our society and has been for some time now. But will it always be so? Can we confidently predict that 50 or even 20 years from now collective bargaining will still be the primary activity of trade unions? Or will we have adopted some other technique for setting terms and conditions of employment, such as full‑scale interest arbitration or greater reliance on legislated standards. If we cannot reject this out of hand, and I do not think we can, then we must seriously question whether collective bargaining is the kind of activity that warrants constitutional status. The Charter  enshrines the fundamental principles of individual liberty. The activities of man may change over time, but these principles remain constant. Collective bargaining does not have this same timeless quality, and, accordingly, we should be leery of giving it constitutional protection under the concept of freedom of association. If the drafters had intended to enshrine collective bargaining constitutionally, it would have been a simple matter to do so explicitly. The fact that it was not done explicitly indicates that this was not intended.

 


183.            To constitutionalize a particular feature of labour relations by entrenching a right to strike would have other adverse effects. Our experience with labour relations has shown that the courts, as a general rule, are not the best arbiters of disputes which arise from time to time. Labour legislation has recognized this fact and has created other procedures and other tribunals for the more expeditious and efficient settlement of labour problems. Problems arising in labour matters frequently involve more than legal questions. Political, social, and economic questions frequently dominate in labour disputes. The legislative creation of conciliation officers, conciliation boards, labour relations boards, and labour dispute‑resolving tribunals, has gone far in meeting needs not attainable in the court system. The nature of labour disputes and grievances and the other problems arising in labour matters dictates that special procedures outside the ordinary court system must be employed in their resolution. Judges do not have the expert knowledge always helpful and sometimes necessary in the resolution of labour problems. The courts will generally not be furnished in labour cases, if past experience is to guide us, with an evidentiary base upon which full resolution of the dispute may be made. In my view, it is scarcely contested that specialized labour tribunals are better suited than courts for resolving labour problems, except for the resolution of purely legal questions. If the right to strike is constitutionalized, then its application, its extent, and any questions of its legality, become matters of law. This would inevitably throw the courts back into the field of labour relations and much of the value of specialized labour tribunals would be lost. This point has been commented upon by Professor J. M. Weiler in an article "The Regulation of Strikes and Picketing Under the Charter " in Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms  (1986), at pp. 226‑27:

 

The doctrine of exclusive representation is but one of hundreds of critical policy choices made by our legislatures in the evolution of the current system of collective bargaining law in Canada. Others include restrictions of employer and employee free speech, prohibition of strikes during the term of a collective agreement, compulsory grievance arbitration, and 72 hours' notice before a strike or lockout. All these ingredients of collective bargaining law could be attacked as unjustified restrictions of collective bargaining rights. There are examples in many other jurisdictions in Canada and in other democratic industrialized countries where these restrictive aspects of collective bargaining law do not exist. How will a judge determine whether these meet the standards of a free and democratic society?

 


I won't belabour this point any further. I believe our current system of collective bargaining law regulating the relations between workers and employers is too complicated and sophisticated a field to be put under the scrutiny of a judge in a contest between two litigants arguing vague notions such as "reasonable" and "justifiable" in a free and democratic society. I have no confidence that our adversary court system is capable of arriving at a proper balance between the competing political, democratic and economic interests that are the stuff of labour legislation.

 

If collective bargaining were constitutionalized under section 2 (d), my worry is that judges might be flooded with arguments from litigants who are unhappy with the current tilt in the balance of power between unions, employers, and individual employees in collective bargaining legislation. These litigants will challenge a particular aspect of collective bargaining law, citing vague arguments of democratic, associational, economic, or political rights that will only serve to confuse the judge. Other parties whose interests will be affected by the decision may not receive intervenor status or may not even be aware of the case. It is unlikely that the necessary evidential base to decide the policy issue will be provided. When we consider that collective bargaining law is polycentric in nature, adjustments to the delicate industrial relations balance in one part of the system might have unanticipated and unfortunate effects in another.

 

The lessons of the evolution of our labour law regime in the past 50 years display very clearly that the legislatures are far better equipped than the courts to strike the appropriate balance between the interests of the individual employee, the union, the employer and the public. For 20 years the direction of labour law reform in Canada has been to limit excessive judicial review of specialized labour boards because of the problems that result from absentee management by the judges. At the same time, more original jurisdiction has been provided to labour boards to regulate economic disputes between workers and their employers. For the same reasons that the courts have been increasingly excluded from the role of umpiring collective bargaining disputes, they should not be re‑entering the mainstream of labour law development in their capacity as interpreters of concepts such as "freedom of association" in section 2 (d) of the Charter . The courtroom is not the place to be developing collective bargaining policy.

 


In summary, my concerns about interpreting freedom of association in section 2 (d) to "constitutionalize collective bargaining" go beyond the problems that this would present for industrial relations in Canada. I am concerned that if the courts interpret the Charter  to include rights that are not expressly provided for and thus are even more difficult to define as to value and scope, they will be overloaded with litigation under section l and two opposite, but equally unhappy, scenarios may result. Some judges might interpret section 1 so aggressively as to initiate the process of remaking large chunks of Canadian law. This might cause the legislators to retaliate by invoking the override provisions in section 33  of the Charter . Alternatively, the courts might take the opposite tack by giving the legislatures too broad an ambit under section 1. In either case, the result might be the trivialization of the rights that were expressly intended to be protected in provisions such as section 2 (d). Where the Charter  is ambiguous as to the extent to which a certain right or freedom is protected, the better approach is for our courts to proceed very cautiously: first, by interpreting section 2  so as to give a limited application to the rights allegedly implicitly protected; then by providing a more searching scrutiny within section 1 of those rights that have expressly been protected in section 2 .

 


184.            A further problem will arise from constitutionalizing the right to strike. In every case where a strike occurs and relief is sought in the courts, the question of the application of s. 1  of the Charter  may be raised to determine whether some attempt to control the right may be permitted. This has occurred in the case at bar. The section 1 inquiry involves the reconsideration by a court of the balance struck by the Legislature in the development of labour policy. The Court is called upon to determine, as a matter of constitutional law, which government services are essential and whether the alternative of arbitration is adequate compensation for the loss of a right to strike. In the PSAC case, the Court must decide whether mere postponement of collective bargaining is a reasonable limit, given the Government's substantial interest in reducing inflation and the growth in government expenses. In the Dairy Workers case, the Court is asked to decide whether the harm caused to dairy farmers through a closure of the dairies is of sufficient importance to justify prohibiting strike action and lockouts. None of these issues is amenable to principled resolution. There are no clearly correct answers to these questions. They are of a nature peculiarly apposite to the functions of the Legislature. However, if the right to strike is found in the Charter , it will be the courts which time and time again will have to resolve these questions, relying only on the evidence and arguments presented by the parties, despite the social implications of each decision. This is a legislative function into which the courts should not intrude. It has been said that the courts, because of the Charter , will have to enter the legislative sphere. Where rights are specifically guaranteed in the Charter , this may on occasion be true. But where no specific right is found in the Charter  and the only support for its constitutional guarantee is an implication, the courts should refrain from intrusion into the field of legislation. That is the function of the freely‑elected Legislatures and Parliament.

 

185.            I would, therefore, dismiss the appeal and answer the constitutional questions, as follows:

 

1.  Are the provisions of the Public Service             Employee Relations Act that provide compulsory        arbitration as a mechanism for resolution of       disputes and prohibit the use of lockouts and        strikes, in particular, sections 49, 50, 93             and 94 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

Answer: The provisions of the Public Service Employee Relations Act which prohibit the use of strikes and lockouts are not inconsistent with the provisions of the Constitution Act, 1982 , since the Constitution Act, 1982  does not guarantee a right to strike.

 

2.   Are the provisions of the Labour Relations Act             that provide compulsory arbitration as a        mechanism for resolution of disputes and           prohibit the use of lockouts and strikes, in        particular, sections 117.1, 117.2 and 117.3        thereof, inconsistent with the Constitution        Act, 1982 , and if so, in what particular or             particulars, and to what extent?

 

Answer: The provisions of the Labour Relations Act which prohibit the use of strikes and lockouts are not inconsistent with the provisions of the Constitution Act, 1982 , since the Constitution Act, 1982  does not guarantee a right to strike.


3.  Are the provisions of the Police Officers             Collective Bargaining Act that provide for        compulsory arbitration as a mechanism for the resolution of disputes and prohibit the use of        lockouts and strikes, in particular, sections         3, 9, and 10 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

Answer: The provisions of the Police Officers Collective Bargaining Act which prohibit the use of strikes and lockouts are not inconsistent with the provisions of the Constitution Act, 1982 , since the Constitution Act, 1982  does not guarantee a right to strike.

 

4.  Are the provisions of the Public Service             Employee Relations Act that relate to the        conduct of arbitration, in particular sections        48 and 55 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

Answer: The provisions of the Public Service Employee Relations Act which relate to the conduct of arbitration are not inconsistent with the provisions of the Constitution Act, 1982 , since the Constitution Act, 1982  does not guarantee a specific form of dispute resolution as a substitute for the right to strike.

 

5.  Are the provisions of the Labour Relations Act that relate to the conduct of arbitration, in        particular section 117.8 thereof, inconsistent      with the Constitution Act, 1982 , and if so, in        what particular or particulars, and to what            extent?

 


Answer: The provisions of the Labour Relations Act which relate to the conduct of arbitration are not inconsistent with the provisions of the Constitution Act, 1982 , since the Constitution Act, 1982  does not guarantee a specific form of dispute resolution as a substitute for the right to strike.

 

6.  Are the provisions of the Police Officers             Collective Bargaining Act that relate to the        conduct of arbitration, in particular sections        2(2) and 15 thereof, inconsistent with the        Constitution Act, 1982 , and if so, in what            particular or particulars, and to what extent?

 

Answer: The provisions of the Police Officers Collective Bargaining Act which relate to the conduct of arbitration are not inconsistent with the provisions of the Constitution Act, 1982 , since the Constitution Act, 1982  does not guarantee a specific form of dispute resolution as a substitute for the right to strike.

 

7.  Does the Constitution Act, 1982 , limit the           right of the Crown to exclude any one or more        of the following classes of its employees from    units for collective bargaining:

 

a) an employee who exercises managerial                       functions;

 

b) an employee who is employed in a                           confidential capacity in matters relating                  to labour relations;

 

c) an employee who is employed in a capacity                  that is essential to the effective                         functioning of the Legislature, the                        Executive or the Judiciary;

 


             d) an employee whose interests as a member of                  a unit for collective bargaining could                     conflict with his duties as an employee?

 

Answer: I prefer not to answer this question, for the reasons given by the Chief Justice.

 

Appeal dismissed, Dickson C.J. and Wilson J. dissenting.

 

Solicitor for the appellant the Alberta Union of Provincial Employees: Timothy J. Christian, Edmonton.

 

Solicitors for the appellant the Canadian Union of Public Employees: Sheila J. Greckol, Edmonton; June M. Ross, Edmonton.

 

Solicitor for the appellant the Alberta International Fire Fighters Association: Barrie C. Chivers, Edmonton.

 

Solicitors for the respondent: McLennan Ross, Edmonton; the Department of the Attorney General, Edmonton.

 

Solicitor for the intervener the Attorney General of Manitoba: The Department of the Attorney General, Winnipeg.

 

Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.

 


Solicitor for the intervener the Attorney General for Ontario: Archie Campbell, Toronto.

 

Solicitors for the intervener the Attorney General of Quebec: Réal A. Forest and Gilles Grenier, Ste‑Foy.

 

Solicitor for the intervener the Attorney General of Nova Scotia: The Department of the Attorney General, Halifax.

 

Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.

 

Solicitor for the intervener the Attorney General of Prince Edward Island: Ralph C. Thompson, Charlottetown.

 

Solicitor for the intervener the Attorney General for Saskatchewan: Serge Kujawa, Regina.

 

Solicitor for the intervener the Attorney General of Newfoundland: The Department of Justice, St. John's.

 

 

 



* See Erratum [1987] 2 S.C.R. iv.

** See Erratum [1987] 2 S.C.R. iv.

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