OTTAWA—Supreme Court of Canada justices heard forceful arguments Tuesday that a ban forbidding Mounties to unionize is unconstitutional and has been used to suppress dissent within the ranks.

Three informal RCMP associations organized in Ontario, B.C. and Quebec, backed by civil liberties groups and large union groups like the Canadian Labour Congress and Quebec’s Confederation of National Trade Unions, argued the ban goes too far.

They cited cases of Mounties who were threatened with disciplinary action for speaking out and lobbying against the RCMP’s in-house staff relations representative program and expelled from its activities, and said the RCMP has a “history of anti-union animus.”

Those informal associations have about 2,000 Mounties as members. However, they have no bargaining power at all.

Overall, the RCMP’s 21,000 regular and civilian members are represented in the workplace by 34 staff relations representatives, who are elected and work with RCMP senior executives to resolve workplace issues. But they do not sit directly across from Treasury Board to negotiate pay, benefits or other issues as other public service unions do.

Fidteen years after the high court first upheld the RCMP’s unique management-employee system, several judges appeared open to re-examining the issue, in light of recent cases that have more clearly defined the freedom of association.

Justice Rosalie Abella suggested the government’s claim the program is enough suggests Mounties “have a choice, but it’s not linked to representing their workplace interests to their employer.”

Federal lawyer Peter Southey said the law does not ban anyone from joining the associations that have sprung up as a rival to the SRR program. “They can join any association they choose . . . it’s just that the representation of employees’ interests is done through the SRR program.”

Justice Thomas Cromwell replied: “It seems to me that it boils down to saying you can form a hockey team, but you can’t play hockey.”

Justice Louis LeBel told Southey: “You’re always coming back to this freedom to choose representatives, but they do not appear to have any freedom to choose this system which was essentially imposed on them and they cannot get out of it.”

After hearing more than four hours of legal argument, Chief Justice Beverley McLachlin said bluntly, “The issue I have . . . is that choosing a representative is not choosing an association. And in a very simplistic way (the Charter of Rights and Freedoms) Section 2(d) says everybody has freedom of association, not (freedom) to choose a representative to do any of those things. The law (under challenge) says you don’t get to choose your association — that’s my problem in a nutshell.”

Southey argued the RCMP system — first introduced in 1974 — meets a constitutional minimum of allowing members to elect representatives every two years who are able to bring concerns of members to RCMP management and expect they will be “considered in good faith.”

Allowing unions would radically change the dynamic of management-staff relations from “non-adversarial and collaborative” to one that could see Mounties conduct illegal job action or walkouts if their demands weren’t met, Southey warned.

But that was dismissed as baseless fear-mongering by lawyers for the Mounted Police Association of Ontario and for the Canadian Police Association, who said there is no evidence anywhere that illegal police strikes have occurred in Canada.

Lawyer Laura Young, representing the Mounted Police Association of Ontario, said all 254 other police services across Canada except the RCMP are unionized. The only strikes that ever occurred were legal under statutes that were later changed to outlaw police work stoppages. Since then, only reasonable job actions have been carried out, she said, such as wearing police ball caps or reducing speeding fines.

“This is a bit of a boogeyman that the Attorney General of Canada puts up, that the officers will withhold their services,” said lawyer Ian Roland, of the CPA. “They haven’t done that . . . . There is no risk with respect to police officers in any kind of sense of divided loyalty.”

Loading... Loading... Loading... Loading... Loading... Loading...

Justice Marshall Rothstein challenged Young and the lawyers who want the regulation banning unions struck down. “There could be conflicts as between the different associations, they may have different interests. They represent provincial structures, but there could be associations representing different ranks or different kinds of members of the RCMP.”

Abella called on those challenging the current system to recognize “there’s a difference between saying something is unconstitutional and saying something is ineffective . . . . Are we talking about here something that is so fundamentally impairing of the representational rights or are we talking about something that is just broken and needs to be fixed?

“It can’t be fixed,” argued Young, urging the court to declare it unconstitutional, although she did not propose an alternative.