Postal Services Resumption and Continuation Bill
Third Reading—Debate
November 26, 2018
The Honorable Senator Marc Gold:
Honourable senators, I rise to speak to Bill C-89. I have decided to vote in favour of the bill. Allow me to explain why.
It’s not because I’m anti-union or against the workers, because that’s not the case. It’s not because I preferred a legislated solution to a negotiated solution. I’m a chartered mediator, I was teaching mediation and arbitration at the Faculty of Law at McGill University when I was appointed to the Senate. I grew up in a family whose father was a labour mediator and a well-respected and well-known arbitrator. I know that a negotiated solution is the best solution.
I’m voting in favour of Bill C-89 for the following reason. After reading the bill and listening to the debates and the questions asked in this chamber, I don’t think it would be appropriate for me, in my constitutional role as senator, to refuse to pass this bill.
The constitutionality of the bill has been much discussed both in the public debate and in this chamber. Opponents of the bill claim that it violates the Charter guarantees of both freedom of association and freedom of expression and cannot be justified under section 1 of the Charter. The government, in its Charter statement, defends the bill as consistent with the Charter.
I think there are reasonable arguments on both sides. Having analyzed the bill and read the relevant case law, the constitutional law professor in me is inclined to conclude that the bill likely would be upheld by the courts as constitutional. But I’m not here as a law professor, I’m not here as a lawyer pleading a case before you and I’m not here as a judge seized with reaching a definitive conclusion one way or the other.
I’m here as a parliamentarian confronted with a piece of legislation where questions have been raised about its constitutionality. I’m here as a senator appointed to provide independent and critical review of government legislation that is brought to this chamber for consideration.
As I’ve argued in this chamber on other occasions, most recently in connection with Bill C-46, involving the impaired driving law, our constitutional role as legislators — and unelected legislators at that — is fundamentally different from that of lawyers, judges, law professors or activists.
In my view, when there are reasonable and credible arguments in support of the constitutionality of proposed legislation, the Senate should be very hesitant to invoke the Constitution as a reason for refusing to pass the bill. In my respectful opinion, this is very much the case here.
Now, I’m so tempted to quote chapter and verse from jurisprudence and the case law, and if others do it, that’s fine. I just want, as briefly as I can, to summarize the principles and questions that the courts have raised when confronted with legislation that restricts collective bargaining or the right to strike. In the interest of time, I will restrict myself to the issue of freedom of association.
You’ve already heard that, in a trilogy of cases, the Supreme Court clearly established that the right to bargain collectively and the right to strike are included in the freedom of association guaranteed by section 2(d) of the Charter. As the court stated in one of those cases, the test is:
. . . whether the legislative interference amounts to a substantial interference with . . . collective bargaining.
Not all interference with collective bargaining or with negotiated agreements will be held to infringe the Charter. For example, as Senator Harder pointed out, in one of the trilogy, the Meredith case, the Supreme Court held that the rollback of scheduled wage increases for RCMP members — without any prior consultation, I should add — did not infringe section 2(d) of the Charter.
The court has provided some examples of what would constitute an infringement. In the Health Services case, decided in 2007, a majority of the court wrote:
Laws or state actions that prevent or deny meaningful discussion and consultation about significant workplace issues between employees and their employer may interfere with the activity of collective bargaining, as may laws that unilaterally nullify negotiated terms on significant workplace issues in existing collective agreements.
In the Saskatchewan Federation of Labour case, already referred to in this chamber, the court held that:
Legislation that limits the right to strike or restricts the union’s certification process would infringe section 2(d) and have to be justified under section 1.
In another of the trilogy, the Mounted Police Association of Ontario case, the Supreme Court said that:
. . . the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2 (d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining.
In light of all this, the question is: Does Bill C-89 infringe freedom of association?
In this chamber, Senator Joyal suggested that it does, and the only question was whether it would be justified under section 1. In this, he relies upon the 2016 decision of the Ontario Superior Court that Senator Harder referred to earlier.
Senator Sinclair also argued that it does, objecting, amongst other things, to the fact that the government’s Charter statement did not even acknowledge there was an infringement of the Charter.
Now, they may be right, but as I read the Charter statement, the government seems to be making the case that the bill does not, in fact, infringe on freedom of association and, indeed, there is such a case to be made.
First, if we consider the examples provided by the Supreme Court in its decisions, which I cited, Bill C-89 can be distinguished in several material ways. As Senator Pratte and others have noted, the bill does not nullify existing terms of an agreement. It does not extinguish the right to strike going forward. It does not prevent meaningful discussions about working conditions.
On the contrary: it provides for a process of mediation arbitration for such discussions and one that is to be guided by many of the considerations — the so-called guiding principles — that the union has brought forward in its negotiations.
Now, of course, the bill orders the workers back to work. In this respect, it ends the strike. But is that enough to conclude that section 2(d) is infringed and that the balance between employer and employee has been disrupted?
Senator Sinclair, in his second reading speech, took the view it is sufficient. In his words, the bill gives the employer all the marbles. I think Senator Joyal made essentially the same point when he questioned Minister Hajdu.
Respectfully, I’m not persuaded that this is correct. All back-to-work legislation ends the strike. If that alone were the test, then all such legislation would automatically be held to infringe section 2(d), regardless of its terms. That’s not how the courts have approached the issue. That’s not how the Ontario Superior Court approached the issue when it was reviewing the legislation passed by the previous government in 2011.
As Senator Dean pointed out, we have to look at the terms of the legislation itself. When you examine Bill C-89, there are several elements that distinguish it from the 2011 legislation that was struck down by the Ontario court. These elements are set out in the Charter statement, they were underlined in Senator Harder’s second reading speech, they were noted by Minister Hajdu during the Committee of the Whole. They’ve been noted here again today by Senators Harder and Pratte. Therefore, I will not repeat them. It’s sufficient to say Bill C-89 strikes a very different balance between employers and employees, a much fairer balance, I should say, than did the 2011 act.
Honourable senators, in my view, there’s a credible argument that the bill does not in fact infringe the Charter guarantee of freedom of expression, notwithstanding that it does legislate the end of the strike. I’m not here to make that case, for even if the bill does infringe section 2(d) of the Charter, I believe a very strong case can be made that it would be upheld as a reasonable limit under section 1 of the Charter.
I’m going to spare you again what I wrote about the steps the court has outlined under section 1. By now, you know that and, in fact, Senator Harder laid it out very well. I refer you to his remarks for the various elements of the test. I think he’s correct in his analysis.
I believe, then, if I can jump to this point, that Bill C-89 would be upheld as constitutional by our courts. I readily acknowledge that a full analysis by a court would require evidence of facts, both legislative and adjudicative, that are not before us. This has been a preoccupation of many of us in the chamber, Senator Lankin and others, both raising the questions in here and doing a lot of work to try to get before us more facts and evidence.
Again, our role as parliamentarians is not to substitute ourselves for the courts. Courts are required to make a definitive and final ruling on the constitutionality of legislation. Our role as senators is different.
Our role is defined by constitutional law, constitutional conventions, practices and traditions. The elected members of Parliament are not our rivals. Our mandate is not to substitute our policy preferences for those of elected members of Parliament. We are also not independent members of a government think tank. As members of a complementary, unelected chamber of the Parliament of Canada, we have developed principles over time. What I mean is that there are certain questions we ask every time we study a bill. Does the bill violate the Constitution of Canada? Does it unjustly undermine one region over another? Does it violate the rights of minorities or the most vulnerable members of our society? Is the bill an abuse of power by a government that forms a majority in the House of Commons? Must it be held accountable?
In my opinion, the concerns about Bill C-89 aren’t sufficient to justify our refusal to adopt it.
Senators have a constitutional obligation to ensure that legislation respects our constitutional values. When legislation clearly violates the Constitution with regard to the division of powers, the Charter, or other constitutional principles, the Senate should refuse to pass it. Charter violations might be so blatant and arguments in support of the legislation so weak and fallacious that it is our duty to refuse to pass such legislation. However, as I suggested, that’s simply not the case here.
Senators also have a responsibility to ensure that legislation does not unreasonably burden minorities and vulnerable members of our society. The contention here, and rightly so, is that the current work structure at Canada Post unfairly burdens certain more vulnerable groups, including postal workers in Canada’s rural areas. However, the guiding principles for the mediator-arbitrator stated in the bill, principles that will inform the solution, do not impose an unreasonable burden on these workers. On the contrary, these principles protect their interests.
Honourable senators, we also have a responsibility to ensure the government does not abuse its power when it controls a majority in the House of Commons. In this respect, we have a responsibility to hold the government to account.
In a case like Bill C-89, it is ultimately the government and elected members of the house who have the responsibility to balance the competing interests at stake in a labour dispute such as the one before us. It is they who will be held politically accountable for their actions. I do not believe this is a case where our responsibility to “hold the government to account” is engaged sufficiently to refuse to pass this law.
I conclude where I began. Having read the bill and listened to the debates in this chamber, I have concluded it would be inappropriate for me, in the exercise of my constitutional role as a senator, to refuse to pass this bill. These are the reasons that have led me to decide to vote in favour of this bill. I encourage you to do the same.