Mounted Police Association of Ontario v. British Columbia Mounted Police, 2015 SCC 1

SUPREME COURT OF CANADA Citation: Mounted Police Association of Ontario v.

Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 Date: 20150116 Docket: 34948 Between: Mounted Police Association of Ontario and British Columbia Mounted Police Professional Association, on their own behalf and on behalf of all members and employees of the Royal Canadian Mounted Police Appellants and Attorney General of Canada Respondent - and - Attorney General of Ontario, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of Alberta, Association des membres de la Police Montée du Québec Inc., Mounted Police Members’ Legal Fund, Confédération des syndicats nationaux, Canadian Police Association, Canadian Labour Congress, Canadian Civil Liberties Association, Public Service Alliance of Canada and British Columbia Civil Liberties Association Interveners Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.

Joint Reasons for Judgment: (paras. 1 to 158) Dissenting Reasons: (paras. 159 to 270) McLachlin C.J. and LeBel J. (Abella, Cromwell, Karakatsanis and Wagner JJ. concurring) Rothstein J.

mounted police association of ontario v. canada (attorney general), 2015 SCC 1, [2015] 1 S.C.R. 3 Mounted Police Association of Ontario and British Columbia Mounted Police Professional Association, on their own behalf and on behalf of all members and employees of the Royal Canadian Mounted Police Appellants v.

Attorney General of Canada Respondent and Attorney General of Ontario, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of Alberta, Association des membres de la Police Montée du Québec Inc., Mounted Police Members’ Legal Fund, Confédération des syndicats nationaux, Canadian Police Association, Canadian Labour Congress, Canadian Civil Liberties Association, Public Service Alliance of Canada and British Columbia Civil Liberties Association Interveners Indexed as: Mounted Police Association of Ontario v.

Canada (Attorney General) 2015 SCC 1 File No.: 34948. 2014: February 18; 2015: January 16.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Freedom of association — Right to collective bargaining — Scope of constitutional protection — Private associations of RCMP members challenging constitutionality of legislation excluding RCMP members from public service labour relations regime and imposing non-unionized regime — Legislatively imposed regime not independent from management and not providing for employee choice of association or input into selection of collective goals — Whether impugned legislation substantially interferes with right to meaningful process of collective bargaining and thereby infringes constitutional guarantee of freedom of association — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 2(d) — Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, s. 96 — Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (1) “employee” (d).

RCMP members are not permitted to unionize or engage in collective bargaining. They have been excluded from the labour relations regime governing the federal public service since collective bargaining was first introduced in the federal public service, first, under the Public Service Staff Relations Act (“ PSSRA ”) and now under the Public Service Labour Relations Act (“ PSLRA ”). Instead, members of the RCMP are subject to a non-unionized labour relations scheme.

At the time of the hearing of this appeal, that scheme was imposed upon them by s. 96 of the Royal Canadian Mounted Police Regulations, 1988 (“ RCMP Regulations ”), since repealed and replaced by the substantially similar s. 56 of the Royal Canadian Mounted Police Regulations, 2014 , SOR/2014-281. The core component of the current RCMP labour relations regime is the Staff Relations Representative Program (“SRRP”). The SRRP is the primary mechanism through which RCMP members can raise labour relations issues (excluding wages), and the only

form of employee representation recognized by management. The SRRP is governed by a National Executive Committee and is staffedby member representatives from various RCMP divisions and regions elected for a two-year term by both regular and civilian membersof the RCMP. Two of its representatives act as the formal point of contact with the national management of the RCMP. The aim of theprogram is that, at each level of the hierarchy, members’ representatives and management consult on human resources initiatives andpolicies, with the understanding that the final word always rests with management.

A little over 15 years ago, the Court held that the exclusion of RCMP members from collective bargaining under thePSLRA’s predecessor legislation did not infringe s. 2(

d) of the Charter: Delisle v. Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R. 989. That case did not involve a direct challenge to the sufficiency of the entire RCMP labour relations scheme. Since that decision was rendered, the RCMP labour relations regime has undergone a number of changes that have increased theindependence afforded to the SRRP, but none of those changes has substantially altered its purpose, place or function within the RCMPchain of command.

In May 2006, a constitutional challenge was initiated by two private associations of RCMP members whose goal is torepresent RCMP members in Ontario and British Columbia on work-related issues, but who have never been recognized for the purposeof collective bargaining or consultation on workplace issues by RCMP management or the federal government. They sought adeclaration that the combined effect of the exclusion of RCMP members from the application of the PSLRA and the imposition of theSRRP as a labour relations regime unjustifiably infringes members’ freedom of association.

A judge of the Ontario Superior Court ofJustice concluded that s. 96 of the RCMP Regulations, which imposed the SRRP as a labour relations regime, substantially interferedwith freedom of association and could not be justified under s. 1 of the Charter. However, the judge also held that the exclusion ofRCMP members from the federal public service labour relations regime did not infringe s. 2(

d) of the Charter. The Court of Appealallowed the Attorney General of Canada’s appeal and held that the current RCMP labour relations scheme does not breach s. 2(

d) of theCharter. Held (Rothstein J. dissenting): The appeal should be allowed.

Section 96 of the RCMP Regulations, which was in effect atthe time of the hearing of this appeal, infringed s. 2(

d) of the Charter. Similarly, para. (

d) of the definition of “employee” in s. 2(1) ofthe PSLRA infringes s. 2(d). Neither infringement is justified under s. 1 of the Charter. Had s. 96 of the RCMP Regulations not beenrepealed, it would have been declared to be of no force or effect. The offending provision of the PSLRA is of no force and effect pursuantto s. 52 of the Constitution Act, 1982. This declaration of invalidity is suspended for a period of 12 months. Per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.: The s. 2(

d) guarantee of freedom ofassociation protects a meaningful process of collective bargaining that provides employees with a degree of choice and independencesufficient to enable them to determine and pursue their collective interests. However, the current labour relations regime denies RCMPmembers that choice, and imposes on them a scheme that does not permit them to identify and advance their workplace concerns freefrom management’s influence.

Section 2(

d) protects three classes of activities: (1) the right to join with others and form associations; (2) the right to joinwith others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power andstrength of other groups or entities. Viewed purposively, s. 2(

d) guarantees the right of employees to meaningfully associate in thepursuit of collective workplace goals. This guarantee includes a right to collective bargaining. Collective bargaining is a necessaryprecondition to the meaningful exercise of the constitutional guarantee of freedom of association. It is not a derivative right protectedonly if state action makes it effectively impossible to associate for workplace matters. That said, however, the right to collectivebargaining is one that guarantees a process rather than an outcome or a particular model of labour relations.

The government cannot enact laws or impose a labour relations process that substantially interferes with the right ofemployees to associate for the purpose of meaningfully pursuing collective workplace goals. Just as a ban on employee associationimpairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningfulcollective negotiations on workplace matters. Similarly, a process of collective bargaining will not be meaningful if it denies employeesthe power to pursue their goals.

Whatever the nature of the restriction, the ultimate question to be determined is whether the measuresdisrupt the balance between employees and employer that s. 2(

d) seeks to achieve, so as to substantially interfere with meaningfulcollective bargaining. A meaningful process of collective bargaining is a process that provides employees with a degree of choice andindependence sufficient to enable them to determine their collective interests and meaningfully pursue them. But choice andindependence are not absolute: they are limited by the context of collective bargaining.

The degree of choice required by the Charter for collective bargaining purposes is one that enables employees to haveeffective input into the selection of the collective goals to be advanced by their association. Moreover, accountability to the members ofthe association plays an important role in assessing whether employee choice is present to a sufficient degree in any given labourrelations scheme. A scheme that holds representatives accountable to the employees who chose them ensures that the association workstowards the purposes for which the employees joined together.

In the same vein, the degree of independence required by the Charter for collective bargaining purposes is one that ensuresthat the activities of the association are aligned with the interests of its members. Although the function of collective bargaining is notserved by a process which is dominated by or under the influence of management, like choice, independence in the collective bargainingcontext is not absolute. The degree of independence required is one that permits the activities of the association to be aligned with theinterests of its members.

What is required to permit meaningful collective bargaining varies with the industry culture and workplace in question. Aswith all s. 2(

d) inquiries, the required analysis is contextual. Choice and independence do not require adversarial labour relations;nothing in the Charter prevents an employee association from engaging willingly with an employer in different, less adversarial andmore cooperative ways. However, whatever the labour relations model, the Charter does not permit choice and independence to beeroded such that there is substantial interference with a meaningful process of collective bargaining.

This is not a case of a complete denial of the constitutional right to associate. Rather, it is a case of substantial interference with the right to associate for the purpose of addressing workplace goals through a meaningful process of collective bargaining, free from employer control. The flaws in the SRRP process do not permit meaningful collective bargaining, and are inconsistent with s. 2(

d) of the Charter . That process fails to respect RCMP members’ freedom of association in both its purpose and its effects.

Section 96 of the RCMP Regulations imposed the SRRP on RCMP members for the purpose of preventing collective bargaining through an independent association. Not only are members represented by an organization they did not choose and do not control, they must work within a structure that is part of the management organization of the RCMP and thus lacks independence from management. The SRRP process fails to achieve the balance between employees and employer that is essential to meaningful collective bargaining, and leaves members in a disadvantaged, vulnerable position. The SRRP also infringes s. 2 (

d) in its effects. The relevant inquiry is directed at whether RCMP members can genuinely advance their own interests through the SRRP, without interference by RCMP management. On the record here, they cannot. Simply put, the SRRP is not an association in any meaningful sense, nor a form of exercise of the right to freedom of association. It is simply an internal human relations scheme imposed on RCMP members by management. The element of employee choice is almost entirely missing and the structure has no independence from management. The second issue raised by the present constitutional challenge concerns the exclusion of RCMP members from the application of the PSLRA by para. (

d) of the definition of “employee” in s. 2(1) . This Court, in Delisle , held that the exclusion of the RCMP from the PSSRA , the PSLRA ’s predecessor legislation, did not violate s. 2(

d) of the Charter . Overturning precedents of this Court is not a step to be lightly taken. However, Delisle was decided before this Court’s shift to a purposive and generous approach to labour relations and Delisle considered a different question and narrower aspects of the labour relations regime than those at issue here. It follows that the result in Delisle must be revisited. The purpose of para. (

d) of the definition of “employee” in s. 2(1) of the PSLRA , viewed in its historical context, violates s. 2(

d) of the Charter . The PSSRA and, later, the PSLRA established the general framework for labour relations and collective bargaining in the federal public sector. A class of employees, the members of the RCMP, has, since the initial enactment of this regime, been excluded from its application in order to prevent them from exercising their associational rights under s. 2 ( d ). The purpose of excluding a specific class of employees from the labour relations regime in order to deny them the exercise of their freedom of association impermissibly breaches the constitutional rights of the affected employees.

Section 2(

d) gives Parliament much leeway in devising a scheme of collective bargaining that satisfies the special demands of the RCMP. Beyond this, s. 1 of the Charter provides additional room to tailor a labour relations regime to achieve pressing and substantial objectives, provided it can show that these are justified. In the present case, the infringement of the guarantee of freedom of association cannot be justified under s. 1 of the Charter .

Although the government’s objective of maintaining an independent and objective police force constitutes a pressing and substantial objective, the infringing measures are not rationally connected to their objective. First, it is not apparent how the exclusion of RCMP members from a statutorily protected collective bargaining process ensures the neutrality, stability or even reliability of the Force. Second, it is not established that permitting meaningful collective bargaining for RCMP members would disrupt the stability of the police force or affect the public’s perception of its neutrality.

While this conclusion is sufficient to dispose of the s. 1 analysis, denying RCMP members any meaningful process of collective bargaining is also more restrictive than necessary to maintain the Force’s neutrality, stability and reliability. The RCMP is the only police force in Canada without a collective agreement to regulate the working conditions of its officers. It has not been shown how or why the RCMP is materially different from the police forces that have the benefit of collective bargaining regimes that provide basic bargaining protections.

A material difference between the forces having not been shown, it is clear that total exclusion of RCMP members from meaningful collective bargaining cannot be minimally impairing. Having found that s. 96 of the RCMP Regulations and para. (

d) of the definition of “employee” in s. 2(1) of the PSLRA infringe the freedom guaranteed to RCMP members under s. 2(

d) of the Charter , and that these provisions cannot be saved under s. 1 , the appropriate remedy is to strike down the offending provision of the PSLRA under s. 52 of the Constitution Act, 1982 . This declaration of invalidity is suspended for a period of 12 months. We would similarly strike down s. 96 of the RCMP Regulations were it not repealed. This conclusion does not mean that Parliament must include the RCMP in the PSLRA scheme.

Section 2(

d) of the Charter does not mandate a particular model of labour relations. Should it see fit to do so, Parliament remains free to enact any labour relations model it considers appropriate to address the specific context in which members of the RCMP discharge their duties, within the constitutional limits imposed by the guarantee enshrined in s. 2(

d) and s. 1 of the Charter . Per Rothstein J. (dissenting): The language used by the majority creates greater rights, and imposes greater restrictions on the government, than either a plain or generous reading of s. 2(

d) of the Charter can logically provide. The

interpretation of a Charter right must be principled and must not be so divorced from the text of the provision as to depart from the foundation of the right. When, in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia , 2007 SCC 27 , [2007] 2 S.C.R. 391, and Ontario (Attorney General) v. Fraser , 2011 SCC 20 , [2011] 2 S.C.R. 3, this Court recognized a derivative right to collective bargaining stemming from the purpose of s. 2(

d) of the Charter , it extended constitutional rights beyond what had previously been accepted. Now, less than four years after Fraser was decided, the majority further expands freedom of association and retreats from the effective impossibility test stated in that case. It also enshrines an adversarial model of labour relations as a Charter right, reversing this Court’s findings in Health Services and in Fraser that s. 2 (

d) does not guarantee a particular model of collective bargaining or a particular outcome.

Section 2(

d) of the Charter protects the right to associate to make collective representations and to have employers consider those representations in good faith. The majority in Fraser unambiguously held that the test to find an infringement of s. 2 (

d) in the labour relations context is whether the impugned law or state action has the effect of making it impossible to act collectively to achieve

workplace goals. The language in Fraser does not support the majority’s revised — and lowered — s. 2 (

d) standard. There is no doubt that the majority in Fraser firmly established a high threshold for infringement of the derivative right to collective bargaining. Fairness and certainty require that where settled law exists, courts must apply it to determine the result in a particular case. They may not identify a desired result and then search for a novel legal

interpretation to bring that result about. The essential feature of a labour relations regime that allows employees to exercise their constitutional right to make meaningful collective representations on their workplace goals is representativeness. Representativeness is the constitutional imperative required in order to ensure that s. 2 (

d) rights are protected in the collective bargaining context and it is only where legislation impairs the right of employees to have their interests advanced honestly and fairly that legislation will be constitutionally deficient. Neither the choice of the organization representing employees for bargaining purposes nor the independence of that association are necessary to ensure that meaningful collective bargaining can occur.

Choice and independence are central to Wagner- style labour relations and, by selecting choice and independence as constitutional requirements for meaningful collective bargaining, the majority mandates an adversarial model of labour relations and precludes others which may be just as or more effective in contributing to meaningful collective bargaining. A statutorily designated bargaining model can ensure that employees’ interests will be effectively represented to management even where the employees do not choose their individual representatives or the system in which this representation takes place.

Section 2(

d) requires that the voice with which employees communicate with their employer as a collective be representative of their interests. Provided that the spokespersons through whom employees make representations to their employer have a duty to represent the interests of all employees and that there is a means to hold those representatives to account, the workers’ constitutional right to make collective representations and to have their collective representations considered in good faith is met.

Representativeness is what Fraser mandates and there is no justification to embark upon the imposition of unnecessary constitutional constraints. As with choice, the notion of independence is not an inherent aspect of collective bargaining. Where concerns are raised with respect to the independence of a legislatively prescribed employee association, the relevant question is not whether the association or process is independent in the sense that it segregates employees from management, but whether the process prevents employees, such as RCMP members, from associating to advance their collective workplace goals.

To reiterate, the touchstone is representativeness. So long as employees have recourse to ensure that their views are put forward to management and that their representatives are working in their interests, the labour relations process will not be dominated by management and employees will have the means to work towards their collective workplace goals. Any representative who limits representation based on what management permits or who places their own employment interests above the interests of all employees will be held accountable for his or her own actions.

In the case at bar, the context of a national police force led to the adoption of a statutory collaborative labour relations model, the SRRP. The correct standard against which the SRRP should be evaluated is whether the process renders meaningful collective bargaining effectively impossible. Whether the Fraser -mandated effective impossibility test or the majority’s new substantial interference test is applied, it is clear that the SRRP does not infringe s. 2(

d) of the Charter . That Parliament chose a collaborative model like the SRRP as a means of facilitating employer-employee engagement for the national police force does not mean that that model has rendered it effectively impossible for RCMP members to achieve collective workplace goals. Although RCMP members did not choose their associational framework for bargaining purposes, they are able to democratically elect their representatives and those representatives have a statutory duty to represent employee interests. They can be replaced if they fail to uphold that duty.

Management also has a constitutional obligation to consider in good faith the representations made on behalf of RCMP members. In short, the evidence before this Court is that Staff Relations Representatives fairly advance employee interests to RCMP management and thus the SRRP meets the constitutional requirement of representativeness mandated under this Court’s

interpretation of s. 2( d ). The purpose of excluding RCMP members from the PSLRA is not to interfere with collective bargaining, but is driven by a legitimate concern that the model imposed under that legislation is ill suited to the national police force. The evolution in the legal understanding of s. 2 (

d) since Delisle bears no relation to the majority’s finding in that case as to the purpose of the exclusion of RCMP members from the PSLRA ’s predecessor legislation, and thus cannot be used to support revisiting the issues settled in Delisle . Although Delisle was decided before Health Services and Fraser ushered in a more expansive approach to labour relations, the jurisprudential developments since do not allow this Court to conclude that the purpose of the exclusion is to deny RCMP members’ associational rights.

In fact, changes to the SRRP since Delisle have reinforced the understanding that the program’s goal is to enhance representation of the interests of RCMP members without the imposition of an adversarial model. Even if Delisle had been incorrectly decided and the purpose of the exclusion contained in the PSSRA in 1967 was to deny RCMP members meaningful collective bargaining, it does not follow that this continues to be the purpose of para. (

d) of the definition of “employee” in s. 2(1) of the PSLRA today. By 2003, when the PSSRA was replaced by the PSLRA , the RCMP labour relations scheme was considerably changed from that which existed in 1967. The decision to continue the exclusion was made with the knowledge that doing so did not deny members collective bargaining rights. These individuals were subject to a parallel labour relations regime — the SRRP. To ignore the significantly different context in which the exclusion of RCMP members was re-enacted in the PSLRA disregards the current legislative reality. Had para. (

d) of the definition of “employee” in s. 2(1) of the PSLRA been found to breach s. 2(

d) of the Charter , it would nonetheless constitute a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society and would therefore be justified under s. 1 of the Charter . Parliament is entitled to address concerns that an adversarial RCMP members’ association might order its members to refuse to intervene in certain circumstances involving the labour disputes of others or that belonging to such associations could inhibit members from responding to such situations impartially. The RCMP is materially different from other Canadian police forces.

The government must be permitted to organize the Force’s labour relations in view of its distinctive and essential role as our national police force. Cases Cited

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Armonk, N.Y.: M. E. Sharpe, 2000, 21. MacDowell, Laurel Sefton. “Company Unionism in Canada, 1915-1948”, in Bruce E. Kaufman and Daphne Gottlieb Taras, eds.,Nonunion Employee Representation: History, Contemporary Practice, and Policy. Armonk, N.Y.: M. E. Sharpe, 2000, 96. MacKay, Robin. “The Royal Canadian Mounted Police and Unionization”. Library of Parliament, Parliamentary Research Branch, Lawand Government Division, September 3, 2003. Middleton, J. P. A Study Report on Police Associations. Ottawa: RCMP, 1974.

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Section 2(b)”, in Ryder Gilliland, ed., The Charter at Thirty. Toronto: Canada Law Book, 2012, 1. Taras, Daphne. “Reconciling Differences Differently: Employee Voice in Public Policymaking and Workplace Governance” (2007), 28Comp. Lab. L. & Pol’y J. 167. Taras, Daphne Gottlieb. “Why Nonunion Representation Is Legal in Canada” (1997), 52 Relat. ind. 763. United States. National Labor Relations Board. Legislative History of the National Labor Relations Act 1935, vol. 1. Washington,D.C.: The Board, 1949. Verge, Pierre, Gilles Trudeau et Guylaine Vallée. Le droit du travail par ses sources. Montréal: Thémis, 2006.

Walzer, Michael. “The Concept of Civil Society”, in Michael Walzer, ed., Toward a Global Civil Society. Providence, R.I.: BerghahnBooks, 1995, 7. Wellington, Harry H. Labor and the Legal Process. New Haven, Conn.: Yale University Press, 1968. APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Rosenberg and Juriansz JJ.A.), 2012 ONCA 363, 111O.R. (3d) 268, 292 O.A.C. 202, 350 D.L.R. (4th) 261, 260 C.R.R. (2d) 242, 220 L.A.C. (4th) 107, [2012] O.J.

No. 2420 (QL), 2012CarswellOnt 6781 (WL Can.), setting aside a decision of MacDonnell J., (ON SC), 96 O.R. (3d) 20, 188 C.R.R. (2d)225, 2009 CLLC ¶220-027, , [2009] O.J. No. 1352 (QL), 2009 CarswellOnt 1780 (WL Can.). Appeal allowed,Rothstein J. dissenting. Laura C. Young and Patric Senson, for the appellants. Peter Southey, Donnaree Nygard and Kathryn Hucal, for the respondent. Robin K. Basu and Michael Dunn, for the intervener the Attorney General of Ontario. Jonathan Penner, Keith Evans and Karen Horsman, for the intervener the Attorney General of British Columbia. Graeme G.

Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan. Roderick S. Wiltshire, for the intervener the Attorney General of Alberta. James R. K. Duggan and Alexander H. Duggan, for the intervener Association des membres de la Police Montée du Québec

Inc. John D. R. Craig and Christopher D. Pigott, for the intervener the Mounted Police Members’ Legal Fund. Benoit Laurin and Éric Lévesque, for the intervener Confédération des syndicats nationaux. Ian J. Roland and Michael Fenrick, for the intervener the Canadian Police Association. Steven Barrett and Ethan Poskanzer, for the intervener the Canadian Labour Congress. Ranjan K. Agarwal and Ashley L. Paterson, for the intervener the Canadian Civil Liberties Association. Andrew Raven, Andrew Astritis and Morgan Rowe, for the intervener the Public Service Alliance of Canada. Lindsay M.

Lyster, for the intervener the British Columbia Civil Liberties Association. The judgment of McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ. was delivered by The Chief Justice and LeBel J. — I. Introduction [1] In this appeal, we must decide whether excluding members of the Royal Canadian Mounted Police (“RCMP”) fromcollective bargaining under the Public Service Labour Relations Act, enacted by the Public Service Modernization Act, S.C. 2003, c. 22,s. 2 (“PSLRA”), and imposing a non-unionized labour relations regime violates the guarantee of freedom of association in s. 2(

d) of theCanadian Charter of Rights and Freedoms. This requires us to review the nature and

interpretation of the right guaranteed by s. 2(

d) ofthe Charter, and to clarify the scope of the constitutional protection of collective bargaining recognized in Health Services and Support— Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, and Ontario (Attorney General) v.Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3. [2] RCMP members are not permitted to unionize or engage in collective bargaining. They have been excluded fromthe PSLRA and its predecessor statute since collective bargaining was first introduced in the federal public service in the late 1960s.

Instead, there exists a non-unionized labour relations regime with three core components. First, members can advance their workplaceconcerns through the Staff Relations Representative Program (“SRRP”). Second, members’ concerns regarding pay and benefits arecommunicated to management through the RCMP Pay Council process.

Third, RCMP members have created the Mounted PoliceMembers’ Legal Fund (“Legal Fund”), a not-for-profit corporation funded through membership dues, which provides legal assistance toRCMP members for employment-related issues. [3] A little over 15 years ago, this Court held that exclusion of RCMP members from collective bargaining under thePSLRA’s predecessor legislation did not infringe s. 2(d): Delisle v. Canada (Deputy Attorney General), (SCC), [1999]2 S.C.R. 989. On this appeal we are asked to reconsider that decision as it relates to the PSLRA.

Unlike this appeal, however, Delisle didnot involve a direct challenge to the sufficiency of the SRRP: Delisle, at para. 34. [4] This case was heard together with a related appeal, brought by two Staff Relations Representatives (“SRRs”) onbehalf of all members of the RCMP, challenging the constitutionality of federal wage restraint legislation: Meredith v. Canada (AttorneyGeneral), 2015 SCC 2, [2015] 1 S.C.R. 125. While the factual background of both appeals overlap, they raise different legal issues.

Meredith addresses the question of whether a piece of legislation and its implementation unconstitutionally interfered with the existingRCMP labour relations scheme, but does not challenge that scheme as a whole as constitutionally deficient under s. 2(d). The presentappeal is directed at the constitutionality of the scheme comprising both the PSLRA exclusion and the SRRP process. [5] We conclude that the s. 2(

d) guarantee of freedom of association protects a meaningful process of collectivebargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue theircollective interests. The current RCMP labour relations regime denies RCMP members that choice, and imposes on them a scheme thatdoes not permit them to identify and advance their workplace concerns free from management’s influence. Accordingly, we allow theappeal and find that s. 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (“RCMP Regulations”),[1] which wasin effect at the time of the hearing of this appeal, is inconsistent with s. 2(

d) of the Charter. We also find that the exclusion of RCMPmembers from collective bargaining under para. (

d) of the definition of “employee” in s. 2(1) of the PSLRA infringes s. 2(

d) of theCharter. Neither infringement is justified under s. 1 of the Charter. II. The Parties [6] The appellants are voluntary, private associations of RCMP members organized at the initiative of members. TheMounted Police Association of Ontario (“MPAO”) is a non-profit corporation registered in Ontario, formed in 1998 from anamalgamation of two predecessor groups. It represents RCMP members in the National Division (the National Capital Region),Headquarters (RCMP national office in Ottawa) and “O” Division (Ontario, outside the National Capital Region).

The British ColumbiaMounted Police Professional Association (“BCMPPA”) is a non-profit society incorporated in British Columbia in 1994. Its membersare principally drawn from “E” Division (British Columbia). A similar organization, the Association des membres de la Police Montéedu Québec Inc., intervenes in this appeal. It represents the majority of members of “C” Division (Quebec) as well as French-speakingmembers across Canada. [7] The goal of all three associations is to represent RCMP members on work-related issues. The associations engagein political lobbying, educational efforts, and social activities.

They provide advice and assistance to their members in discipline andgrievance matters. Their operations are funded through membership dues, and the associations have no full-time staff. None of theassociations has ever been recognized for the purpose of collective bargaining or consultation on workplace issues by RCMP

management or the federal government. [ 8 ] The respondent, the Attorney General of Canada, joined by a number of provincial Attorneys General, opposes the appellants’ contention that the current labour relations scheme violates the guarantee of freedom of association under s. 2(

d) of the Charter . III. The Current Process [ 9 ] The labour relations system currently in place at the RCMP is composed of three bodies: the SRRP, the Pay Council and the Legal Fund. The core component of the scheme is the SRRP. [ 10 ] The SRRP is the primary mechanism through which RCMP members can raise labour relations issues (excluding wages), and the only form of employee representation recognized by management. The program is the result of consultations that took place as early as 1974. It was formalized in s. 96 of the RCMP Regulations : 96.

(1) The Force shall have a Division Staff Relations Representative Program to provide for representation of the interests of all members with respect to staff relations matters.

(2) The Division Staff Relations Representative Program shall be carried out by the division staff relations representatives of the members of the divisions and zones who elect them. [ 11 ] The SRRP process is amplified by the RCMP Staff Relations Representative Program Constitution (“SRRP Constitution”), unilaterally adopted by the SRRP, and by an agreement between the National Executive Committee of the SRRP and the RCMP Commissioner addressing matters such as the composition of the program (the “Agreement”).

The SRRP Constitution states the purpose of the program is to “promote mutually beneficial relations between Force management and the wider membership” (s. 2). To this end, the SRRP seeks to provide RCMP members “with fair and equitable representation in staff relations matters and to facilitate their participation in the development and implementation of Force policies and programs” ( ibid. ). [ 12 ] The SRRP was designed to resolve issues at the lowest possible level within the RCMP hierarchy.

The aim is that at each level (divisional, regional and national), members’ representatives and management consult on human resources initiatives and policies, with the understanding that the final word always rests with management. [ 13 ] Both the current and former RCMP regulations ( s. 96 , RCMP Regulations ; s. 56 , RCMP Regulations, 2014 ) provide for SRRP staffing by elected representatives known as the Staff Relations Representatives or SRRs. Thirty-four SRRs are elected by both regular and civilian members of the RCMP for a two-year term and serve in this capacity full-time.

Additionally, 150 part-time sub- representatives are elected but continue to perform their regular duties while acting as representatives. [ 14 ] The SRRP is organized regionally and divisionally (generally corresponding to a province or territory) to align with the RCMP’s nation-wide structure. The National Caucus is the collective body of elected SRRs. Regional Caucuses comprise all SRRs in a region, while Divisional Caucuses comprise all SRRs and sub-representatives in a province or territory.

Regional and Divisional Caucuses provide the formal point of contact between membership and regional and divisional management. [ 15 ] The National Executive Committee (“NEC”) is the governing body of the SRRP, as well as the presiding body of the National Caucus. The National Caucus elects two SRRs to fulfill a three-year term as full-time members of the NEC. In addition, one SRR is elected to the NEC by each of the five Regional Caucuses for a one-year term.

The two full-time members of the NEC are the formal point of contact for the National Caucus with the national management of the RCMP (Commissioner, senior management, and the Minister of Public Safety and Emergency Preparedness). As such, they attend meetings of the RCMP’s Senior Executive Committee, where strategic decisions are made. [ 16 ] To fully understand the SRRP’s role and function, it is necessary, as the application judge and the Court of Appeal did, to take a step back and review the history of labour relations at the RCMP and the origins of the SRRP.

As we shall see, the SRRP has undergone a number of changes since its inception. None of them, however, has substantially altered its purpose, place or function within the RCMP chain of command. A. Origins of the Staff Relations Representative Program [ 17 ] RCMP members were forbidden from unionizing for much of the last century. From 1918 to 1974, all associational activities were prohibited on pain of instant dismissal, by virtue of Orders in Council P.C. 1918-2213 and later P.C. 174/1981 (1945).

This policy was believed to be necessary to preserve the loyalty of RCMP members and their obedience to superior orders, which could have been disturbed by allegiance to fellow workers: Delisle , at paras. 92-96 , per Cory and Iacobucci JJ., dissenting. [ 18 ] Collective bargaining in the federal public service in Canada was implemented in 1967, with the adoption of the Public Service Staff Relations Act , S.C. 1966-67, c. 72 (“ PSSRA ”). Members of the RCMP were excluded from bargaining under that Act, as they continue to be excluded under the PSLRA .

Prior to the enactment of the PSSRA in 1967, a committee struck by the government to examine whether and how to implement collective bargaining in the federal public service had expressed concerns related to loyalty and obedience within the Force. The concerns were of the same nature as the ones which had led to Orders in Council prohibiting all associational activities by RCMP members.

In what is known as the Heeney Report, the committee recommended excluding RCMP members from the labour relations regime proposed by it: Report of the Preparatory Committee on Collective Bargaining in the Public Service (1965), at p. 27; Delisle , at paras. 97-98 , per Cory and Iacobucci JJ., dissenting. The Woods Report of 1968, however, recommended that federal law enforcement officials have the right to organize and engage in collective bargaining, subject to certain limitations ( Canadian Industrial Relations: The Report of the Task Force on Labour Relations (1969), at para. 440).

[19] Later, in the early 1970s, dissatisfaction within the RCMP led members to take steps towards the formation of amembers’ association to advance their interests (J. F. Hardy and A. Ponak, “Staff Relations in the Royal Canadian Mounted Police”(1983), 12 J. Collective Negotiations 87, at pp. 89-90). An exploratory committee was established in 1972 in the hopes of establishingan association, and, by early 1974, well-attended meetings to consider forming an association were being held in Montréal, Toronto,Ottawa, Vancouver, and smaller centres (SRR Challenge 2000 Review: Final Report (January 2003), at pp. 10-11).

In or around thesame time, RCMP management began to show greater openness to members’ concerns. The then-Commissioner began a series of annualmeetings with members’ representatives from each division. It is worth noting that those “representatives” were in some cases electedby the members, but in most cases, were simply appointed by their commanding officers and mandated to attend meetings in addition totheir other full-time duties.

Consultation occurred, but no agreement was reached on the issues that were raised. [20] In May 1974, newly appointed RCMP Commissioner Maurice Jean Nadon met with representatives of RCMPmembers and proposed a plan to formalize labour relations within the RCMP. A referendum was held on the plan, and it was approvedby members in all divisions except “C” Division (Quebec), where it was rejected.

The Division Staff Relations Representative Program(“DSRRP”) was, accordingly, implemented by Commissioner’s Standing Order, which formed the program’s legal basis from 1974 to2003 (Commissioner’s Standing Orders (Division Staff Relations Representative Program) (repealed by Commissioner’s StandingOrders Repealing the Commissioner’s Standing Orders (Division Staff Relations Representatives Program), SOR/2003-325)). Itfeatured full-time, elected representatives and it was to be funded by Divisional Commanding Officers from within divisional budgets.

The DSRRP was led by a program director appointed by the RCMP Commissioner. [21] The program was progressively implemented within the RCMP. In 1987, a joint committee composed ofmanagement representatives and Division Staff Relations Representatives (“DSRRs”) was formed to review the program. It concludedthat many features of the labour relations plan proposed by the Commissioner in 1974 had never been formally implemented, and werein fact unknown to many RCMP members. At the recommendation of the committee, a

chapter dedicated to the DSRRP was theninserted in the RCMP administration manual as a first step towards the program’s formal recognition. B. The SRR Challenge 2000 Review [22] In 1999, a review of the inadequacies and shortcomings of the DSRRP was undertaken, partly in response to theconstitutional challenge in Delisle. The SRR Challenge 2000 Review was the first review of the program to be undertaken at theinitiative of the DSRRs.

The Caucus of the DSRRP approached the Commissioner to discuss three key principles: independence andaccountability; consultation and efficiency; and exclusive agency and caucus discipline (SRR Challenge 2000 Review: Final Report, atpp. 29-32). [23] The SRR Challenge 2000 Review triggered two changes to the functioning of the program (whose name waschanged to the SRRP and whose members are known as SRRs). The first change was the adoption by the SRRs of the SRRPConstitution as a governance scheme to replace Commissioner’s Standing Orders that had until that time governed the program.

TheConstitution formalized matters such as the purpose of the program, its composition and its organization. The second change was theexecution of the Agreement by the RCMP Commissioner and the NEC of the SRRP. Both changes were implemented in 2002. [24] As a result of these changes, the Government of Canada repealed the redundant Commissioner’s Standing Orders(Division Staff Relations Representative Program). However, some Commissioner’s Standing Orders and provisions of the RCMPadministrative manual remained in place, to cover matters not addressed by the SRRP Constitution. For instance, s. 3(

b) of theCommissioner’s Standing Orders (Representation), 1997, SOR/97-399, still limits the member representatives’ rights to representmembers in grievances, proceedings, preparations or appeals under the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, wherethat representation “could impair the efficiency, administration or good government of the Force”. [25] Undoubtedly, the SRR Challenge 2000 Review increased the independence afforded to the SRRP. Pursuant to theAgreement, the NEC now names the SRR Program Director. It also administers its annual budget.

However, the reform left the SRRPlargely unchanged with respect to its role within the RCMP chain of command. IV. The Present Constitutional Challenge [26] The current challenge to the SRRP and PSLRA was commenced in May 2006. The appellants’ application was heardin the Ontario Superior Court of Justice by MacDonnell J., who rendered his decision before this Court’s judgment in Fraser: (2009), (ON SC), 96 O.R. (3d) 20. Applying the then-existing framework, he concluded that s. 96 of the RCMP Regulationssubstantially interfered with freedom of association because (

i) the SRRP is not an independent association formed or chosen bymembers of the RCMP, and (ii) the interaction between the SRRP and management could not reasonably be described as a process ofcollective bargaining. [27] The Court of Appeal for Ontario (Doherty, Rosenberg and Juriansz JJ.A.), in a decision rendered after this Court’sdecision in Fraser, reversed MacDonnell J.’s decision: 2012 ONCA 363, 111 O.R. (3d) 268. The court, per Juriansz J.A., focused onFraser’s description of collective bargaining as a “derivative right” (para. 109, citing Ontario (Public Safety and Security) v.

CriminalLawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815) and concluded that “a positive obligation to engage in good faith collectivebargaining will only be imposed on an employer when it is effectively impossible for the workers to act collectively to achieveworkplace goals” (para. 111). [28] The Court of Appeal held that it is not “effectively impossible” for RCMP members to meaningfully exercise their s.2(

d) right (para. 121) because of (1) the existence of voluntary associations such as the appellants; (2) the members’ Legal Fund, whichassists members; and (3) the SRRP. The Court of Appeal recognized that the SRRP was “created by regulation”, was “not institutionallyindependent”, and did not allow members of the RCMP to choose “a bargaining agent in a Wagner labour regime” (para. 128). Itnevertheless concluded that RCMP members could act collectively through the SRRP to pursue workplace issues in a meaningful way.Accordingly, it held that the current labour relations scheme does not breach s. 2(

d) of the Charter. V. Issues

[29] On February 20, 2013, the Chief Justice stated the following constitutional questions: 1. Does s. 96 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, infringe s. 2(

d) of the Canadian Charter ofRights and Freedoms? 2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic societyunder s. 1 of the Canadian Charter of Rights and Freedoms? 3. Does para. (

d) of the definition of “employee” at s. 2(1) of Public Service Labour Relations Act, S.C. 2003, c. 22, infringe s. 2(

d) ofthe Canadian Charter of Rights and Freedoms? 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic societyunder s. 1 of the Canadian Charter of Rights and Freedoms? VI. Analysis A. Evolution of

Section 2(

d) Jurisprudence Toward a Purposive and Contextual Approach [30] The jurisprudence on freedom of association under s. 2(

d) of the Charter — which developed mainly with respect tolabour relations (J. Fudge, “Freedom of Association”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (5thed. 2013), 527, at pp. 527-28) — falls into two broad periods. The first period is marked by a restrictive approach to freedom ofassociation. The second period gradually adopts a generous and purposive approach to the guarantee. [31] In what has come to be known as the Labour Trilogy, a majority of this Court held that s. 2(

d) does not protect theright to bargain collectively or the right to strike: Reference re Public Service Employee Relations Act (Alta.), (SCC),[1987] 1 S.C.R. 313 (the “Alberta Reference”); PSAC v. Canada, (SCC), [1987] 1 S.C.R. 424; and RWDSU v.Saskatchewan, (SCC), [1987] 1 S.C.R. 460. [32] The reasoning is set out most fully in the three opinions issued in the Alberta Reference. There Le Dain J., in briefreasons supported by Beetz and La Forest JJ., endorsed an

interpretation of s. 2(

d) that would protect “the freedom to work for theestablishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty orreprisal” (p. 391). However, he described collective bargaining and the right to strike as “modern rights” created by statute, and hencenot protected by s. 2(d) (ibid.). [33] McIntyre J. reached the same conclusion, but for somewhat different reasons.

In his view, freedom of associationrested on the following proposition: “. . . the attainment of individual goals, through the exercise of individual rights, is generallyimpossible without the aid and cooperation of others” (p. 395). Accordingly, McIntyre J. held that freedom of association protected aright to engage collectively in those activities which are constitutionally protected for each individual: The only basis on which it is contended that the Charter enshrines a right to strike is that of freedom of association.

Collectivebargaining is a group concern, a group activity, but the group can exercise only the constitutional rights of its individual members onbehalf of those members. If the right asserted is not found in the Charter for the individual, it cannot be implied for the group merely bythe fact of association.

It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact ofassociation. [pp. 398-99] [34] After reviewing six possible approaches to the scope of s. 2(d), McIntyre J. concluded that freedom of associationencompassed the right to form and join associations, the right to exercise other constitutional freedoms collectively, and the right to do inconcert with others what an individual may lawfully do alone (p. 409).

On the particular question before the Court, he found that anindividual could not lawfully refuse to work, and that there was no individual equivalent of a strike conducted in accordance with labourlegislation (p. 410). Accordingly, he concluded that the right to strike was not protected (p. 412). [35] Dickson C.J., dissenting (Wilson J. concurring), would have allowed the appeal. He identified three possibleapproaches to s. 2(d). The first, which he termed the “constitutive” approach, protects the freedom to belong to or form an association (p.362).

The second, the “derivative” approach, goes beyond the constitutive approach to protect associational activity that relatesspecifically to other constitutional freedoms enumerated in s. 2 (p. 364). Dickson C.J. rejected these alternatives as too restrictive andopted for a third approach. In his view, a purposive approach to freedom of association was needed. He identified the purpose and scopeof s. 2(

d) as follows, at pp. 365-66: The purpose of the constitutional guarantee of freedom of association is, I believe, to recognize the profoundly social nature of humanendeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends. . . . . . . As social beings, our freedom to act with others is a primary condition of community life, human progress and civilized society.

Throughassociation, individuals have been able to participate in determining and controlling the immediate circumstances of their lives, and therules, mores and principles which govern the communities in which they live. . . . Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of somelarger 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 enabledthose who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom theirinterests interact and, perhaps, conflict. . . . . . .

What freedom of association seeks to protect is not association activities qua particular activities, but the freedom of individuals tointeract with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage. [36] Dickson C.J. recognized as a starting point that s. 2(

d) protected the right to do collectively what one may do as anindividual. But he would also have held that the Charter protected some collective activities that have no true individual equivalents,including the right to strike. [37] The approach to freedom of association endorsed by the majority in the Labour Trilogy was affirmed three yearslater in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), (SCC), [1990] 2S.C.R. 367 (“PIPSC”). In that case, the Public Service Act, R.S.N.W.T. 1974, c.

P-13, subjected the employees’ choice of bargainingagent to approval by the legislature of the Northwest Territories. Like the present appeal, PIPSC involved a challenge to a labourrelations scheme that imposed a framework for collective bargaining on a group of public service employees, limiting their ability torepresent themselves through a freely chosen association. But the association itself remained entirely independent from management (p.408). [38] The seven judges who heard the case wrote five separate opinions. The majority agreed with Sopinka J. whoconcluded that s. 2(

d) protected only the ability to form and join unions, but did not protect the right to collective bargaining. Famously,he outlined four principles concerning the scope of s. 2(

d) drawn from the Alberta Reference, at p. 402: . . . first, that s. 2(

d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(

d) does not protect anactivity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(

d) protects theexercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(

d) protects the exercise in associationof the lawful rights of individuals. [39] Sopinka J.’s disposition of the case was supported by Dickson C.J., La Forest J. and L’Heureux-Dubé J., but onlyL’Heureux-Dubé J. endorsed the third and fourth propositions as limiting principles under s. 2(d). Dickson C.J. and La Forest J. eachfound that the appeal could be resolved by application of the Labour Trilogy’s conclusion that s. 2(

d) did not protect collectivebargaining, without deciding the broader question of its scope. [40] Cory J. (Wilson and Gonthier JJ. concurring), dissented on the scope of freedom of association. In his view, freedomof association permits individuals to work together for the purpose of achieving common goals. This freedom is fundamental to a freeand democratic society and extends into the workplace. He succinctly stated one aspect of freedom of association in the workplace: Whenever people labour to earn their daily bread, the right to associate will be of tremendous significance.

Wages and workingconditions will always be of vital importance to an employee. It follows that for an employee the right to choose the group or associationthat will negotiate on his or her behalf with regard to those wages and working conditions is of fundamental importance. The associationwill play a very significant role in almost every aspect of the employee’s life at work, acting as advisor, as spokesperson in negotiations,and as a shield against wrongful acts of the employer. If collective bargaining is to function properly, employees must have confidence intheir representative.

That confidence will be lost if the individual employee is unable to choose the association. [Emphasis added; p.380.] [41] To recap, and notwithstanding noteworthy dissents, the majority of this Court in this early period maintained anarrow view of freedom of association, which protected only the bare formation of the association and the collective exercise ofindividual freedoms. This view prevailed for some time. Outside the labour relations context, the same approach was applied inCanadian Egg Marketing Agency v. Richardson, (SCC), [1998] 3 S.C.R. 157.

And in the labour relations context,this approach resulted in the majority of this Court holding that the exclusion of RCMP members from the PSSRA did not violate s. 2(d)in the 1999 case of Delisle. [42] Parallel to these cases, the Court considered the “negative” aspect of freedom of association — the freedom not toassociate: Lavigne v. Ontario Public Service Employees Union, (SCC), [1991] 2 S.C.R. 211; R. v. Advance Cutting &Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; affirmed in Bernard v. Canada (Attorney General), 2014 SCC 13, [2014] 1 S.C.R. 227.

But, Lavigne and Advance Cutting are significant because they applied a purposive approach to s. 2(d). In Lavigne, at p. 318, La ForestJ. suggested that, in keeping with democratic ideals, the guarantee of freedom of association should be interpreted as protecting “theindividual’s potential for self-fulfillment and realization as surely as voluntary association will develop it”. (See also Lavigne, at p. 344,per McLachlin J.; and Advance Cutting, at paras. 15-17, per Bastarache J., and at paras. 170-71, per LeBel J.) Both judgmentsemphasized the importance of a purposive

interpretation of s. 2(d). [43] These cases marked the beginning of a more generous, purposive approach to s. 2(d) — an approach that wasresoundingly affirmed in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016. In that case, agriculturalworkers challenged their exclusion from the collective bargaining regime created by the Ontario Labour Relations Act, 1995, S.O. 1995,c. 1, Sch. A. Bastarache J., for the majority, began his analysis with a review of the existing case law, concluding that Sopinka J.’s fourprinciples could not capture all of the potential scope of s. 2(d).

Justice Bastarache wrote, at para. 16: In my view, while the four-part test for freedom of association sheds light on this concept, it does not capture the full range of activitiesprotected by s. 2(d). In particular, there will be occasions where a given activity does not fall within the third and fourth rules set forth bySopinka J. in PIPSC, supra, but where the state has nevertheless prohibited that activity solely because of its associational nature.

Theseoccasions will involve activities which (1) are not protected under any other constitutional freedom, and (2) cannot, for one reason oranother, be understood as the lawful activities of individuals. [44] This renewed focus on the collective aspect of freedom of association and on its purposive

interpretation led to theexpress recognition of a s. 2(

d) right to collective bargaining in Health Services. All seven judges who heard that appeal agreed that apurposive

interpretation of s. 2(

d) required constitutional protection for the right of employees to engage in a process of collectivebargaining:

Based on the principles developed in Dunmore and in this historical and international perspective, the constitutional right to collectivebargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common toreach shared goals related to workplace issues and terms of employment. (Para. 89, per McLachlin C.J. and LeBel J.; see also para. 174, per Deschamps J.) [45] Finally, in Fraser, this Court reaffirmed that s. 2(

d) confers the right to a process of collective bargaining, understoodas meaningful association in pursuit of workplace goals. This process includes the employees’ rights to join together, to make collectiverepresentations to the employer, and to have those representations considered in good faith: What s. 2(

d) guarantees in the labour relations context is a meaningful process. A process which permits an employer not even toconsider employee representations is not a meaningful process. . . . Without such a process, the purpose of associating in pursuit ofworkplace goals would be defeated, resulting in a significant impairment of the exercise of the right to freedom of association. One wayto interfere with free association in pursuit of workplace goals is to ban employee associations. Another way, just as effective, is to setup a system that makes it impossible to have meaningful negotiations on workplace matters. [para. 42] [46] In

summary, after an initial period of reluctance to embrace the full import of the freedom of association guarantee inthe field of labour relations, the jurisprudence has evolved to affirm a generous approach to that guarantee. This approach is centred onthe purpose of encouraging the individual’s self-fulfillment and the collective realization of human goals, consistent with democraticvalues, as informed by “the historical origins of the concepts enshrined” in s. 2(d): R. v. Big M Drug Mart Ltd., (SCC),[1985] 1 S.C.R. 295, at p. 344. B. Defining the Scope of the

Section 2(

d) Guarantee

(1) A Purposive, Generous and Contextual Approach [47] As is the case with other Charter rights, the jurisprudence establishes that s. 2(

d) must be interpreted in a purposiveand generous fashion, having regard to “the larger objects of the Charter . . ., to the language chosen to articulate the . . . freedom, to thehistorical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedomswith which it is associated within the text of the Charter”: Big M Drug Mart, at p. 344. In a phrase, in order to determine whether arestriction on the right to associate violates s. 2(

d) by offending its purpose, we must look at the associational activity in question in itsfull context and history. Neither the text of s. 2(

d) nor general principles of Charter

interpretation support a narrow reading of freedomof association. [48] This interpretative approach to freedom of association is consistent with the approach to other basic rights connectedwith human activities and needs. The scope of freedom of religion, for example, is derived from its history and the range of activities towhich it applies — holding, proclaiming and transmitting beliefs in the bosom of a secular state (R. Moon, “Freedom of Conscience andReligion”, in Mendes and Beaulac, 339).

Similarly, the scope of freedom of expression is defined by the different forms it takes and thedifferent interests it protects — including, notably, “the quest for truth, self-fulfillment, and an embracing marketplace of ideas”:Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para. 171, per Rothstein J. for the Court;see also R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697, at p. 766; P. B. Schabas, “The Ups and Downs of Freedom ofExpression —

Section 2(b)”, in R. Gilliland, ed., The Charter at Thirty (2012), 1; H. Brun, G. Tremblay and E. Brouillet, Droitconstitutionnel (5th ed. 2008), at p. 1060. An activity-based contextual approach is equally essential for freedom of association. Freedom of association, like the other s. 2 freedoms — freedom of expression, conscience and religion, and peaceful assembly —protects rights fundamental to Canada’s liberal democratic society. [49] Freedom of association is not derivative of these other rights.

It stands as an independent right with independentcontent, essential to the development and maintenance of the vibrant civil society upon which our democracy rests. [50] The purposes underlying Charter rights and freedoms may be framed at varying levels of abstraction. At thebroadest level, a purposive

interpretation must be consistent with the “larger objects of the Charter”, including “basic beliefs abouthuman worth and dignity” and the maintenance of “a free and democratic political system”: Big M Drug Mart, at pp. 344 and 346; seealso Health Services, at para. 81. At the same time, however, while Charter rights and freedoms should be given a broad and liberalinterpretation, a purposive analysis also requires courts to consider the most concrete purpose or set of purposes that underlies the rightor freedom in question, based on its history and full context. That is the task to which we now turn with respect to s. 2(d).

(2) The Content of

Section 2(

d) Protection [51] In his dissenting reasons in the Alberta Reference, Dickson C.J. identified three possible approaches to theinterpretation of s. 2(d) — constitutive, derivative and purposive. We conclude that s. 2(

d) protects each of the aspects of freedom ofassociation with which these approaches are concerned. [52] The narrowest approach, the “constitutive”, would protect only the bare right to belong to or form an association. The state would thus be prohibited from interfering with individuals meeting or forming associations, but would be permitted to interferewith the activities pursued by the associations people form.

This protection, while narrow, is not trivial; history is replete with examplesof states that have banned associations or prevented people from associating, either absolutely or in terms of restrictions on the number ofpeople who can associate for a particular purpose. [53] The “derivative” approach would protect not only the right to associate, but also the right to associational activitythat specifically relates to other constitutional freedoms.

This approach prevails in the United States, where freedom of association isrecognized insofar as it supports other constitutional rights, like freedom of religion and the political rights. Beyond this, however,associational activities would not be constitutionally protected.

[ 54 ] The purposive approach, adopted by Dickson C.J. in the Alberta Reference , defines the content of s. 2(

d) by reference to the purpose of the guarantee of freedom of association: “. . . 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” ( Alberta Reference , at p. 365). The object of Dickson C.J.’s words is a concrete one, not an abstract expression of a desire for a better life. Elab

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