Charter Statement - Bill C-89: An Act to provide for the resumption and continuation of postal services
Tabled in the House of Commons, November 23, 2018
The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-89, An Act to provide for the resumption and continuation of postal services for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-89 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Freedoms of association and expression
Bill C-89 would require an immediate end to work stoppages at Canada Post and the resumption and continuation of postal services. It would provide for the extension of the collective agreements of two bargaining units at Canada Post until new collective agreements are established. It would provide for the appointment of a mediator-arbitrator to attempt to resolve outstanding issues through mediation and, if mediation is unsuccessful, to arbitrate them based on certain guiding principles.
Bill C-89 potentially engages sections 2(b) and 2(d) of the Charter. Section 2(b) provides that everyone has freedom of thought, belief, opinion and expression and may encompass the act of withdrawing labour to express discontent over working conditions. Section 2(d) of the Charter provides that everyone has freedom of association and has been interpreted as preventing a “substantial interference” with the collective bargaining process. A meaningful collective bargaining process has been interpreted to include the ability of employees to strike in order to pursue a new collective agreement.
The following considerations support the consistency of Bill C-89 with the Charter. The resumption of postal services is important to the Canadian economy as a whole. The Bill will prevent the continuing and significant economic harms to small and medium-sized enterprises, online retailers, direct marketers, the employees of these organizations and others as a result of the strike. Resumption of postal services will also assist those who rely on mail as a vital form of communication and who are disproportionately impacted by the work stoppages – for example, those living in rural, Northern, and Indigenous communities, persons with disabilities, and elderly and economically vulnerable Canadians.
The Bill is introduced only following unsuccessful efforts to bring the collective bargaining process to a satisfactory conclusion for all parties. The Government has taken significant steps to promote the collective bargaining process by encouraging a negotiated resolution of the parties’ dispute. These steps include those set out in the Preamble of the Bill. The parties have been collective bargaining for approximately one year. Prior to the work stoppages, the Government appointed conciliators and mediators to assist the parties with their negotiation. Work stoppages have continued for over four weeks. During that time, the Government has appointed, and then re-appointed two additional times, a special mediator to assist the parties with their negotiation. The Government has also encouraged the parties to consider voluntary arbitration. The union has used its freedom to strike to pursue new collective agreements but the parties have so far been unable to conclude new collective agreements.
The Bill would continue to promote a negotiated resolution of the dispute. It would provide for the appointment of a mediator-arbitrator – either one jointly agreed to by the parties or one appointed by the Minister after seeking advice of the Chairperson of the Canada Industrial Relations Board. The mediator-arbitrator would first assist the parties in bringing about a collective agreement. Failing agreement, the mediator-arbitrator would arbitrate the items remaining in dispute, using an arbitration procedure selected by the mediator-arbitrator. The arbitration decision would establish terms of new collective agreements and would be guided by certain principles, which reflect a neutral balance of the interests at play. The Bill would not preclude the parties from entering into new collective agreements voluntarily at any point prior to the arbitration decision.
The Bill would extend existing collective agreements, facilitate continuing collective bargaining, and ensure the continuation of a service that, for some Canadian communities, is vital.
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