Court File No. 35424
(A-268-U)
(T-50-09)
IN THE SUPREME COURT OF CANADA
(APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN:
ROBERT MEREDITH and BRIAN ROACH
(representing all members of the Royal Canadian Mounted Police)
Appellants
(Respondents by Appeal)
-andATTORNEY GENERAL OF CANADA
Respondent
(Appellant by Appeal)
ATTORNEY GENERAL OF SASKATCHEWAN
ATTORNEY GENERAL OF BRITISH COLUMBIA
ATTORNEY GENERAL OF ONTARIO
ATTORNEY GENERAL OF ALBERTA
CANADIAN LABOUR CONGRESS
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 675
PUBLIC SERVICE ALLIANCE OF CANADA
CONFEDERATION DES SYNDICATS NATIONAUX AND UNION OF CANADIAN
CORRECTION OFFICERS
Interveners
FACTUM OF THE ATTORNEY GENERAL OF ALBERTA
(pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
Roderick Wiltshire
Alberta Justice and Solicitor General
Constitutional Law
4th FIr., 9833 -109 Street
Edmonton, AB T5K 2E8
Telephone: (780) 422-7145
Fax: (780) 425-0307
E-mail: [email protected]
Counsel for the Intervener, the
Attorney General of Alberta
Henry S. Brown, Q.c.
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
P.O. Box 466, Stn "D"
Ottawa, ON KIP IC3
Telephone: (613) 233-1781
Fax: (613) 788-3433
E-mail: henry.bro\[email protected]
Agent for the Intervener, the
Attorney General of Alberta
TO:
THE REGISTRAR
AND TO:
Christopher Rootham
Nelligan O'Brien Payne LLP
1500 - 50 O'Connor Street
Ottawa, ON KIP 6L2
Telephone: (613) 231-8311
Fax: (613) 788-3664
E-mail: [email protected]
Counsel for the Appellant, Robert Meredith
Christopher Rootham
Nelligan O'Brien Payne LLP
1500 - 50 O'Connor Street
Ottawa, ON KIP 6L2
Telephone: (613) 231-8311
Fax: (613) 788-3664
E-mail: [email protected]
Counsel for the Appellant, Brian Roach
Peter Southey
Attorney General of Canada
The Exchange Tower, Box 36
Suite 3400, 130 King Street West
Toronto, ON M5X 1K6
Telephone: (416) 973-2240
Fax: (416) 973-0809
E-mail: Peter.Southeyial.justice.gc.ca
Counsel for the Attorney General
of Canada
Christopher M. Rupar
Attorney General of Canada
50 O'Connor Street, Suite 50, Rm 557
Ottawa, ON KIP 6L2
Telephone: (613) 670-6290
Fax: (613) 954-1920
E-mail: Christopher.Ruparial.justice.gc.ca
Agent for the Attorney General of Canada
Graeme G. Mitchell, Q.C.
Attorney General for Saskatchewan
820 - 1874 Scarth Street
Regina, SK S4P 4B3
Telephone: (306) 787-8385
Fax: (306) 787-9111
E-mail: [email protected]
Counsel for the Attorney General
of Saskatchwan
Henry S. Brown, Q.C.
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
P.O. Box 466, Stn "D"
Ottawa, ON KIP 1C3
Telephone: (613) 233-1781
Fax: (613) 788-3433
E-mail: [email protected]
Agent for the Attorney General
of Saskatchewan
Jonathan G. Penner
Attorney General of British Columbia
1001 Douglas Street, 6th Fir.
Victoria, B.C. V8W 917
Telephone: (250) 952-0122
Fax: (250) 356-9154
E-mail: [email protected]
Counsel for the Attorney General
of British Columbia
Robert E. Houston, Q.c.
Burke-Robertson
Suite 200, 441 MacLaren Street
Ottawa, ON K2P 2H3
Telephone: (613) 236-9665
Fax: (613) 235-4430
E-mail: [email protected]
Agent for the Attorney General
of British Columbia
Robin K. Basn
Attorney General of Ontario
Constitutional Law Branch
4th FIr., 720 Bay Street
Toronto, ON M5G 2Kl
Telephone: (416) 326-4476
Fax: (416) 326-4015
E-mail: [email protected]
Counsel for the Attorney General
of Ontario
Robert E. Houston, Q.C.
Burke-Robertson
Suite 200, 441 MacLaren Street
Ottawa, ON K2P 2H3
Telephone: (613) 236-9665
Fax: (613) 235-4430
E-mail: [email protected]
Agent for the Attorney General
of Ontario
Steven Barrett
Sack Goldblatt Mitchell LLP
Suite 1100, 20 Dundas Street West
Toronto, ON M5G 2G8
Telephone: (416) 979-6070
Fax: (416) 591-7333
E-mail: [email protected]
Counsel for the Canadian Labour Congress
Colleen Bauman
Sack Goldblatt Mitchell LLP
500 - 30 Metcalfe Street
Ottawa, ON KIP 5L4
Telephone: (613) 235-5327
Fax: (613) 235-3041
[email protected]
Agent for the Canadian Labour Congress
Fay Faraday
860 Manning Avenue
Toronto, ON M6G 2W8
Telephone: (416) 389-4399
Fax: (416) 776-3147
E-mail: [email protected]
Counsel for the Professional Institute
of the Public Services of Canada
Colleen Bauman
Sack Goldblatt Mitchell LLP
500 - 30 Metcalfe Street
Ottawa, ON KIP 5L4
Telephone: (613) 235-5327
Fax: (613) 235-3041
Agent for the Professional Institute
of the Public Services of Canada
Annick Desjardins
Syndicat canadien de la function publique
Bureau 7100
565, boulevard Cremazie Est
Montreal, Quebec H2M 2V9
Telephone: (514) 384-9681, ext. 254
Fax: (514) 384-9680
E-mail: [email protected]
Counsel for the Canadian Union of
Public Employees, Local 675
Andrew Raven
Raven, Cameron, Ballantyne & Yazbeck LLP
1600 - 220 Laurier Avenue West
Ottawa, ON KIP 5Z9
Telephone: (613) 567-2901
Fax: (613) 567-2921
E-mail: araveial.ravenlaw.com
Benoit Laurin
Laroche Martin
2100 boulevard de Maisonneuve Est
Bureau 501
Montreal, Quebec, H2K 4S 1
Telephone: (514) 529-4901
Fax: (514) 529-4932
E-mail: [email protected]
Counsel for Confederation des syndicats
nationaux and Union of Canadian
Correctional Officers
Pierre Landry
Noel & Associes
111, rue Champlain
Gatineau, Quebec, J8X 3Rl
Telephone: (819) 771-7393
Fax: (819) 771-5397
E-mail: [email protected]
Agent for Confederation des syndicats
nationaux and Union of Canadian
Correctional Officers
TABLE OF CONTENTS
Page No.
PART I-The Facts
1
PART II - Questions in Issue
4
PART III - Argument
a) Derivative Rights
b) The Appellants' Claim to Political Access and Engagement
4
4
7
PART IV - Costs
9
PART V - Order Sought
9
PART VI - Table of Authorities
10
1
PART I-THE FACTS
1. In Fraser v. Ontario a majority of this Court held that the Charter's guarantee of freedom of
association implies "a derivative right to collective bargaining, understood in the sense of a
process that allows employees to make representations and have them considered in good
faith by employers, who in tum must engage in a process of meaningful discussion.") This
derivative right is impaired only if government action renders meaningful discussion of
employees' workplace concerns impossible: "what 2(d) protects is the right to associate to
achieve collective goals. Laws or government action that make it impossible to achieve
collective goals have the effect of limiting freedom of association, by making it pointless.,,2
[Emphasis in the original]
2. The Appellants argue that this impossibility standard is a departure from our usual criteria for
determining whether a Charter right or freedom is infringed: "No other Charter right or
freedom has a test of impossibility, and such a test is "inconsistent with our basic
understanding of the Charter."
If the government interferes with a claimant's freedom of
speech, the test is not "has the government made it impossible for me to speak"; the test is
whether the state has interfered with the freedom (and if so, whether the interference is
justified in s.1 ).,,3
3. The answer to the Appellants' question is found in the idea that collective bargaining in the
sense described in Fraser is a derivative right. The relationship between a derived right and
the freedom that supports it is indirect. Derived rights are an exception to a general principle,
as they impose obligations that guaranteed freedoms do not normally impose. More must be
established if such a right is to be derived from a protected freedom, and that is why
claimants who seek to impose obligations on government or others that do not generally flow
from a protected freedom must demonstrate that they cannot otherwise exercise the freedom
in a meaningful way.
4. Derivative rights are exceptional consequences of protected freedoms because freedoms
normally require only that governments not interfere with their exercise, and do not normally
I Fraser v. Ontario (Attorney General), 2011 SCC 20; 2011 CarswellOnt 2695, at paragraph 54. [Appellants'
Authorities, Volume I, TAB 20]
2 Fraser, at paragraph. 46 (See, generally, paragraphs 42 through 48.)
3 Appellants' Factum, paragraph 46.
2
impose obligations on others: "It is because of the very nature of freedom that s.2 generally
imposes a negative obligation on the government and not a positive obligation of protection
or assistance.,,4 Exceptions to this general principle do not arise when effective exercise the
freedom at issue is possible in the absence of the assistance claimed.
5. Moreover, a derived right may be found to exist only after consideration of the correlative
obligations it would impose. While exercise of a fundamental freedom may be ineffective or
meaningless in the absence of a claimed derivative right, this is not alone sufficient to
establish the right. The obligations a derived right would impose may give rise to "collateral
considerations" inconsistent with the right, which may prevent its recognition. 5
6. In this case the Appellants do not simply assert a derivative right to good faith consideration
of their concerns by government acting as employer, but seek to expand that derivative right
to include special access and engagement in the political process, as a precondition of valid
legislation.
This new derived obligation must be considered afresh, to determine if it is
properly grounded in the Appellants' freedom of association.
7. The Appellants argue that their right to meaningful and good faith consultation on significant
workplace issues is infringed by a Treasury Board decision (that is, a decision of a federal
Cabinet committee) to restrict pay increases across the federal public service and a resulting
cut in scheduled RCMP pay increases, and by the Expenditure Restraint Act ("ERA"), which
enacted those decisions into law.
8. According to the Appellants,6 neither of these was preceded by consultation with RCMP
members, through the Pay Councilor otherwise.
The National Executive of RCMP
members' Staff Relations Representatives and the Pay Council met with the Minister of
Public safety (twice) and the President of the Treasury Board between the Budget and tabling
of the ERA in the House of Commons. "At no time during these meetings was any
government official willing to discuss changing the decision announced on December 12,
2008 rolling back the scheduled wage increase for RCMP members, or changing any
Delisle c. Canada (Sous-procureur general), [1999] 2 S.C.R. 989; 1999 CarswellQue 2840 per Bastarache J., at
paragraph. 26. [Alberta's Authorities, TAB 2]
Criminal Lawyers Association v. Ontario (Ministry of Public Safety & Security), 2010 SCC 23; 2010 CarswellOnt
3964, [Alberta's Authorities, TAB 11
6 We do not doubt the accuracy of this aspect of the Appellants' account of the facts, but have not yet seen the
Respondent's Factum and do not know if the Appellants' account is disputed.
4
3
provision of the ERA. These meetings were not consultations or negotiations: they were a
lobbying effort." 7
9. This aspect of the Appellants' claim is exceptional because, as the majority put it in Health
Services, "Legislators are not bound to consult with affected parties before passing
legislation."s
The Appellants' claim seeks to impose an obligation on Ministers of the
Crown to consult them as employees affected by legislation that implements budgetary
policy, and to "negotiate" its provisions, as a precondition to valid legislation.
This
derivative right would not merely require the government acting as an employer to consider
affected employees' concerns in good faith, but would impose an obligation on elected
officials performing a legislative function to seek consensus with employees on proposed
legislation. Opportunities to lobby government, as are shared by other interested individuals
and groups, are not enough.
10. The Appellants' attempt to Impose obligations on lawmakers, and to thus expand the
derivative right recognized in Fraser and Dunmore, fails because:
•
Protected freedoms, including our freedom of association, do not normally imply that
others must assist in their exercise, and do not imply that lawmakers must consult
anyone in particular on a matters of public policy or negotiate whether and how it is
to be implemented in legislation;
•
The Appellants' freedom to associate in pursuit of workplace goals is not meaningless
in the absence of the obligation that the Appellants would impose on lawmakers. The
Appellants have the same claim to political access and engagement that others
affected by legislation do, which cannot be said to be meaningless; and
•
Our political institntions and traditions are not consistent with any special legal rights
to political access and engagement for interested groups and individuals, or for the
Appellants in particular.
Appellants' Factnm, paragraph 31. (See, generally, paragraphs 27-31.)
Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; 2007
CarswelIBC 1289, at paragraph 157 .. [Appellants' Authorities, Volume I, TAB 171
7
8
4
PART II - QUESTIONS IN ISSUE
11. The Attorney General of Alberta says that there is no derivative right to political access and
engagement such as is claimed by the Appellants. While there are other aspects to the
Appellants' argument, we leave consideration of those issues to others.
PART III - ARGUMENT
a)
Derivative Rights and Obligations
12. This Court first identified a "derivative right" in those terms in Criminal Lawyers
Association v. Ontario (Ministry of Public Safety & Security). 9 The CLA sought disclosure
under access to information legislation of records relating to a police investigation into a
judicial finding that the rights of two accused had been violated by abusive conduct by police
and Crown officials. The CLA challenged the government's refusal to disclose the records,
alleging interference with its freedom of expression. The majority held:
5
Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees
freedom of expression, but it does not guarantee access to all documents in
government hands. Access to documents in government hands is constitutionally
protected only where it is shown to be a necessary precondition of meaningful
expression, does not encroach on protected privileges, and is compatible with the
frmction of the institution concerned.
30
The first question to be addressed is whether s. 2(b) protects access to
information and, if so, in what circumstances. For the reasons that follow, we
conclude that section 2(b) guarantees freedom of expression, not access to
information. Access is a derivative right which may arise where it is a necessary
precondition of meaningful expression on the functioning of government."
13. The majority reached this conclusion through consideration of the extent to which access to
government information furthers the purposes of s.2(b) of the Charter, concluding that it
does not further those purposes unless the information is necessary for meaningful public
discussion of government activity. The majority says that freedom of expression does not
generally entitle people to access to government infonnation because information that is not
essential to meaningful public commentary lacks expressive content:
Criminal Lawyers Association v. Ontario (Ministry ofPublic Safety & Security), 20 I 0 SCC 23; 2010 CarswellOnt
3964. [Alberta's Authorities, TAB 1]
9
5
To demonstrate that there is expressive content in accessing such documents, the
claimant must establish that the denial of access effectively precludes meaningful
commentary. (Paragraph 33)
The fIrst inquiry into expressive content asks whether the demand for access to
information furthers the purposes of s. 2(b). In the case of demands for government
documents, the relevant s. 2(b) purpose is usually the furtherance of discussion on
matters of public importance. . .. To show that access would further the purposes of
s. 2(b), the claimant must establish that access is necessary for the meaningful
exercise of free expression on matters of public or political interest. ... Not every
demand for government information serves this purpose. Thus the jurisprudence
holds that there is no general right of access to information. (Paragraphs 34-36)
14. It is unclear what it means to say that access to information has or lacks expressive content.
Commentary on public affairs has expressive content and furthers s.2(b)' s purposes
regardless of the source of the information it uses or would use. Expression is generally
protected from state interference regardless of whether it is judged necessary to meaningful
public discussion of government; it cannot be that commentary on, e.g., the police report on
the investigation at issue in CLA would not be protected by s.2(b), if the documents were
otherwise and lawfully available to the CLA. (This concern is an illustration of the concerns
raised by the Appellants in the passage we quoted at paragraph 2, above.)
15. There is an unstated premise in the majority's analysis: an obligation to disclose information
in government hands arises only if meaningful commentary is otherwise impossible because
protected freedoms do not normally imply that governments or others must assist in their
exercIse. This requirement is rooted in s.2(b)' s character as a protected freedom, and follows
from it.
16. The majority goes on to hold that, if denial of access to information in government hands
precludes meaningful public discussion and criticism on matters of public interest, a prima
facie case for disclosure exists. "[T]he claimant must go on to show that the protection is not
removed by countervailing considerations inconsistent with production"lO rooted in
recognised privileges and the need for privacy in the proper functioning of the affected
institutions.
17. By way of example, the majority in CLA considers the relation between access to courts and
freedom expression:
10
Criminal Lawyers' Association, Para.38.
6
40
It may also be that a particular government function is incompatible with
access to certain documents. For example, it might be argued that while the open
court principle requires that court hearings and judgments be open and available for
public scrutiny and comment, memos and notes leading to a judicial decision are not
subject to public access. This would impair the proper functioning of the court by
preventing full and frank deliberation and discussion at the pre-judgment stage. The
principle of Cabinet confidence for internal government discussions offers another
example. The historic function of a particular institution may assist in determining the
bounds of institutional confidentiality, as discussed in Montreal (City), at para. 22. In
that case, this Court acknowledged that certain government functions and activities
require privacy (para. 76). This applies to demands for access to information in
government hands. Certain types of documents may remain exempt from disclosure
because disclosure would impact the proper functioning of affected institutions.
18. The Court's concern in CLA was the effect that a derivative right to access to information
would have on the privacy required by government institutions. Analogous considerations
apply to the Appellants' claim to impose an obligation on members of the federal Cabinet to
consult them and negotiate legislative provisions as a prerequisite to their validity. We say
below that our political institutions and processes are inconsistent with a duty imposed on
legislators to engage the Appellants or other people or groups affected by legislation in the
way the Appellants demand.
19. In sum, "countervailing considerations" at odds with recognition of a derivative right are
relevant to a determination of whether the underlying freedom has been infringed at all.
These considerations do not serve to justify a restriction of a fundamental freedom, but are
instead part of an inquiry into whether the obligations that a derivative right would impose
are supported by the freedom on which they are said to be based. People who seek to impose
obligations that do not generally flow from a protected freedom must show that the freedom
is rendered meaningless in the absence of the derivative right they claim, and must show that
the obligations they would impose are consistent with the history and function of the
institutions they would affect.
7
b)
The Appellants' Claim to Political Access and Engagement
20. The particular obligation the Appellants seek to impose - on legislators, to consult them and
negotiate the substance of legislation as a precondition of its validity - must first be
recognized as an exceptional consequence of a protected freedom and must be considered in
light of its implications for lawmakers and legislation. Their claim is an exception to a
specific instance of a more general principle: not only does the Appellants' freedom of
association not generally impose obligations on others to assist, co-operate or engage their
collective pursuit of their common interests, legislators are not, in particular, obliged to
consult or negotiate with affected parties before passing legislation.
21. As a result, the Appellants cannot simply generalize their derivative right to their employer's
good faith consideration of their concerns to include as well a right to special political access
and engagement. The right they now claim is exceptional for an additional reason, which
does not arise for employers generally - legislators under our system of government are free
to decide who they will consult and how.
The Appellants' present claim is therefore
differently-related to their freedom of association than is their recognized derivative claims
against government acting as their employer, and must be considered on its specific merits.
We say:
a. Association for the purpose of influencing the legislative process and the content of
legislation is not rendered meaningless in the absence of a right to special access and
consideration of the Appellants' position on wages or other workplace issues; and
b. Different countervailing considerations arise, because the Appellants would affect
institutions that are distinct (although perhaps not readily separable from)
governments acting as employers. The obligations the Appellants would impose on
lawmakers in favour of groups affected by legislation are inconsistent with our
political institutions and traditions.
22. First, the Appellants' association for the purpose of influencing the content of legislation that
affects them is not meaningless in the absence of the derivative right they claim. The Court
is being asked to conclude that attempts by affected groups and individuals to influence
lawmakers are meaningless if lawmakers are not obliged to meet them and negotiate the
8
content of proposed legislation. We do not believe this conclusion is reasonable or even
available.
23. Even if it were the case that attempts to influence the legislative process are meaningless in
the absence of the right the Appellants claim, that right cannot be extended to all who might
properly claim it, without doing violence to the political process foreseen by our
constitutional order. Public sector employees are not the only people or groups who may be
significantly affected by legislative decisions that allocate government resources, who might
favour one allocation over others. If political association in pursuit of these shared interests
is meaningless in the absence of a derivative right to political access and engagement, that
right may equally be claimed by other affected groups. Whether the Appellants seek special
access to the legislative process for groups of people affected by legislation generally, or
very special access for themselves alone, these claims raise not merely a practical problem,
but a difficulty in principle.
24. Our political order foresees public elections and proceedings in Parliament and the
legislatures, and does not foresee legal guarantees of access or influence for interested groups
or individuals. While our courts were rightly identified in CLA as institutions where free
public access to their proceedings is presupposed by our traditions - a trial that is not public
is for us almost a contradiction in terms - the traditions and practice of our legislative process
are contrary to the derivative right the Appellants assert.
People who are less directly
affected by legislation are not members of a second and lower political class.
25. Further, the constitutional obligations the Appellants would impose on legislators imply that
failure or neglect to consult regarding proposed legislation and negotiate its provisions must
be reviewed by our courts and, if found to be deficient, justified under s.l of the Charter.
There is no basis whatsoever in our system of government for an idea that the govermnent is
obliged, when called upon, to justify legislators' decisions regarding the conduct of their
discussions regarding matters of public policy and its enactment in legislation. While it may
be prudent for legislators to consult affected persons on proposed measures, in an effort to
9
ensure alternatives to proposed measures are properly considered, no such right to political
access and influence exists.ll
26. The Attorney General therefore says that the Appellants' freedom to associate in support of
their shared goals does not support a derivative right to special access and influence on
lawmakers' development of legislation.
PART IV - COSTS
27. The Attorney General does not seek costs and asks that no costs be ordered against him.
PART V - ORDER SOUGHT
28. The Appellants' attempt to impose an obligation on legislators to provide them special access
and influence in the legislative process as a precondition of valid legislation is not properly
founded in their freedom to associate in pursuit of common goals. The Attorney General of
Alberta asks that this aspect of their claim be rej ected.
Respectfully submitted, February 4, 2014.
Rod Wiltshire
For the Attorney General of Alberta
11 Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27; 2007
CarswellBC 1289, at paragraph 157 .. [Appellants' Authorities, Volume I, TAB 171
10
PART VI
LIST OF AUTHORITIES
1. Criminal Lawyers Association v. Ontario (Ministry ofPublic Safety & Security), 2010
SCC 23; 2010 CarswellOnt 3964
2. Delisle c. Canada (Sous-procureur general), [1999]2 S.C.R. 989; 1999 Carswell Que
2840
3. Fraser v. Ontario (Attorney General), 2011 SCC 20; 2011 CarswellOnt 2695
4. Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia,
2007 SCC 27; 2007 CarswellBC 1289
OTT_LAWl410871711