Honourable senators, I would like to thank the Government Representative in the Senate for tabling the Charter statement. I read it through very quickly, so I will not venture that the suggestion I am going to make to you today will fully cover everything I would have liked to cover, because I did that in a rush.
There is something in it that I want to draw to the attention of honourable senators. This legislation is serious legislation because it curtails a right that has been recognized and entrenched in the Charter and widely interpreted by Supreme Court decisions through the years. Sections 2 (b) and 2 (d) of the Charter speak to the right to freedom of association that has been interpreted by the courts to include the right to strike.
The previous legislation that this chamber was invited to adopt in 2011, as honourable senators will know, was challenged in court, in 2015. That is the Ontario Superior Court decision of 2016 between the Canadian Union of Postal Workers and Her Majesty in right of Canada and Canada Post Corporation.
The court, in its lengthy decision — in fact it’s 45 pages — identified clearly the legal process to follow, to come to the conclusion, if the infringement on the right of freedom of association and right to strike has been validly limited by Parliament.
In the case of the legislation of 2011, the court came to the conclusion that it was not. And the court, quite clearly, repeated or restated the test to be applied to come to the legally valid conclusion that the limit on the right to strike is legally justified.
I would like to read to you paragraphs 195 and 196 of that decision:
Section 1 of the Charter provides that 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.
What does it say? It says that the measures addressed in section 2 of the Charter, the right to freedom of association and the right to strike, are not absolute. They can be limited in certain circumstances whereby such reasonable limits are prescribed by law.
The court continues, and I will read:
The operation of those limits is set out in the Oakes test, which provides that a rights-infringing government measure will be justified under the Charter if its objectives are pressing and substantial, if the measures devised to achieve those pressing and substantial objectives are rationally connected to those objectives, if the rights-infringing measures minimally impair the infringed right —
That is, the right to strike.
— and if the salutary effects of the rights-infringing measures are not outweighed by the deleterious effect of those measures on the protected right.
In other words, there is a three-level test to apply. When I read the Charter statement that the honourable Government Representative has tabled, I was expecting — maybe naively — that legal reasoning would be well explained in the Charter statement. That is, the Minister of Justice would have gone through each of the steps and answered clearly how the bill satisfies those three questions that are included in the Oakes test. That’s what a law student would read, primarily, in that document.
I understand the dynamics of the bill, the way the Government Representative has explained, and I’m sure that the government, in drafting the legislation, has certainly taken into account the criteria that have been well explained in the decision of 2016 of the Ontario Superior Court, especially one very important element of that decision, which is paragraph 2.11. To me, it is the key issue of what we have to get as an answer. I will read:
How do those considerations impact the section 1 analysis to be applied? In this case, unlike another case, there is an arbitration mechanism, the FOS process mandated by the act in the event that collective bargaining would be unsuccessful. FES requires us to consider whether OFS was an adequate, impartial and effective alternative mechanism —
And the key question is this:
— whether it balanced the union’s loss of bargaining power that resulted from the abrogation of the right to strike.
What is collective bargaining? It’s two parties, the employer and the employees, and the system provides balance between the two in the negotiation. The employer has the right to lock out; the employees have the right to strike. Each one is in a balanced relationship. If you tilt the balance of one of the parties by removing the right to strike, in principle you automatically favour the other party, the employers. So when you devise the legislation, you have to make sure that you re-establish that balance, that you don’t tilt that balance to the point whereby you give all the marbles to the employer. This is the essential question that, in my opinion, we have to get answered when being asked to vote on this legislation.
Again, honourable senators, I apologize, I didn’t have time to go through all of the other decisions of the Supreme Court in the short time since that has been submitted to us. However, as far as my previous knowledge of the issue — I remember the debate in 2011 in this chamber well — I stood up and I raised those issues. I voted against the 2011 legislation because, in my opinion — and, of course, I was confirmed in my opinion by the decision of the Ontario Superior Court — but if the government wants us to vote for this legislation, the government has to satisfy us that the criteria that have been identified in the decision of the Supreme Court are fully answered.
Again, I say that with the greatest of respect for the Government Representative. To me, the Charter statement that has been provided doesn’t satisfy all the aspects of the elements that have been identified by the court and that might be included in the bill.
We are at second reading stage. I’m not saying that the bill doesn’t satisfy them, but certainly the Charter statement provided — I have the impression it was put together very quickly — doesn’t, in my opinion, satisfy those aspects of the course to be run to be sure that this legislation is constitutionally sound. When we have the Committee of the Whole, I hope that witnesses will be able to answer those aspects of the question that are essential, honourable senators, to vote in good conscience that this bill is constitutionally sound and we are not tilting the balance in favour of the employer at the expense of the rights of the employees.
Honourable senators, that’s what I wanted to suggest to you at this stage of second reading.
Senator Lankin: Will the honourable senator take a question?
Senator Joyal: As many as I can, senator.
Senator Lankin: Thank you very much. May I just begin with a comment to say that I think you are absolutely right in the issue you have zeroed in on. I also agree that the Charter statement we have received doesn’t address that. Just for information, for those listening to the Senate, when we refer to in Chapter 20.11 FOS, that’s “final offer selection” versus what we see with the set of criteria set out.
I asked Professor Hebdon — who Senator Duffy referred to — for a quick opinion on this piece of legislation. He points out the very point you made about the balance. He says this strikes a much better balance, but even at that it will probably have to be eventually determined by the courts whether or not the right balance has been struck to protect rights.
Having said that, at the end of the day, isn’t it about getting to a collective agreement that is going to serve the purposes of the parties and the purposes of Canadians? After all, this is a public service that we’re talking about. On reviewing the legislation — not the Charter issues per se because we will certainly be doing that — do you feel the government has made an effort different from the 2011 legislation that both chambers face to find and strike that balance?
Senator Joyal: Thank you for your question. Again, senators, as a lawyer I always hesitate to give an opinion when I didn’t have the opportunity to look into all of the aspects. However, I will venture an opinion in relation to your question.
The first one is about essential services. I have heard comments about that. Again, the decision of the Ontario Superior Court of 2016, at paragraph 206, referred to that concept of essential services, which reads:
The very definition of “essential services” under the impugned legislation required basic judgments to be made about —
— and I underline this:
. . . when life, health, safety or environmental concerns inter alia required an essential service designation. The impugned legislation in SFL permitted these fundamental questions to be answered unilaterally by the employer with no access to an effective dispute resolution mechanism for reviewing contested designations.
In other words, the court takes a very procedural aspect. If you are to invoke essential services, generally, this is not enough. You have to prove the impact on life, health, safety, and environmental concerns. Those are the essential criteria. There might be others. I don’t deny that. But those are the essential elements.
To answer your question more directly, the difference between this legislation and 2011 — I noticed it and the Government Representative has pointed out at paragraph 11, page 6 of the bill, paragraph 11(3) — when the bill contained the guiding principles for which the mediator-arbitrator will have to pay attention. And I have noticed, although I have not been involved in the negotiations, that many of those aspects are the objects of discussion and request from the union. I heard it on the radio last week, especially to ensure equality, clause 11(3)(b), “to ensure that the employees receive equal pay for work of equal value.” I remember hearing of women working for the postal service saying they were underpaid and we do the same job as our male counterparts. I understand that those are essential elements of the negotiations.
In other words, the parties will find themselves at the table with a specific mandate of the mediator to take very specifically into account some elements on which the union wants to get concessions because that is the bargaining process. You want to obtain something in return.
I understand the dynamics of the legislation are different from the one in 2011 but, as I said earlier on, the operation of the whole of the legislation, tilting the balance in favour of the employers in principle because the union loses the right to strike has to be answered fully. This answer the Government Representative gave is just a part of it. And that’s why we need to hear from the parties at Committee of the Whole to satisfy ourselves that we understand how this legislation is being distinguished from the dynamics that were included in the legislation this house was invited to adopt in 2011.
I hope I have answered your question, honourable senator.