Thank you very much, Mr. Chair.
I will continue this thrilling analysis by Professor Barré, of Laval University, of the validity of the bill and its constitutional aspect. He was referring to the stated objective of the bill or its underlying objective. We believe this is quite important. Is it deemed to be constitutional? If passed, will this bill result in endless, costly legal battles for everyone?
Mr. Barré continues:
With respect to the stated objective, it is in no way necessary to determine the author's state of mind. In other words, the fact that the bill's sponsor states that "labour organizations play a valuable role in society, … defending the rights of workers … and ensuring that they have proper compensation for the work they do" does not mean that his bill might not have as its object the regulation of labour organizations. On the other hand, if such a problematic state of mind existed, it might be useful to seek to identify it.
According to Russ Hiebert, the member of Parliament who has sponsored Bill C-377, the Income Tax Act provides "substantial benefits" for labour organizations House of Commons Debates, Official Report, 41st Parliament, 1st Session, December 5, 2011, p. 3978). At second reading, on February 6, 2012, Mr. Hiebert added that "it is only right for the public to know how that money is being spent" (House of Commons Debates, Official Report, 41st Parliament, 1st Session, February 6, 2012, p. 4859). Also at second reading, after stating that "[t]he purpose of the bill is not about requiring disclosure to union members", he stated that the bill's purpose is rather "requiring disclosure to the general public because the public is providing a financial benefit through the tax system. The public has a right to know how the benefit they provide to labour organizations is being used" (House of Commons Debates, Official Report, 41st Parliament, 1st Session, March 13, 2012, p. 6221). It seems extremely doubtful that the existence of a mere tax deduction could operate to create an "interest", let alone a "right" (a legally protected interest) in the public to know the full extent of labour organizations' financial administration, or at least all of the financial information covered by Bill C-377.
Certainly, we must consider that in the case of colourable legislation, the "stated objective" can sometimes be set up against the "real objective". However, in this case, the real objective of the legislation is no more nor less than the stated objective. Here, the overlap is complete, and the two objectives amount to only one. Whether we look at the summary of the bill, the content, or the statements made in the House of Commons, the stated objective is to regulate labour organizations. That is clearly the dominant nature of Bill C-377. If any tax nature were to be attributed to this bill, it would without question have to be found that any such nature is purely incidental, and irrelevant for constitutional purposes (in French, "sans importance au regard de la qualification de la loi sur le plan constitutionnel").
We now need to determine whether Parliament may validly enact regulation of this nature, and then examine the extent of federal jurisdiction in relation to labour relations, and more particularly the ability of Parliament to legislation in relation to the institution referred to as "trade union" or "labour organization"....
The fundamental rules governing the division of powers in relation to labour relations are well known. Since the decision of the Judicial Committee of the Privy Council in London in Snider, labour relations are, as a rule, under the legislative jurisdiction of the provinces of Canada, based on section 92(13) concerning "Property and Civil Rights in the Province" ("la propriété et les droits civils dans la province") (see Toronto Electric Commissioners v. Snider, [1925] A.C. 396). In other words, the matter of "labour relations" falls within the class of subjects described as "Property and Civil Rights in the Province".
As an exception to that rule, however, Parliament may legislate in relation to labour relations in the sectors of the economy that fall under its legislative jurisdiction under section 91 or paragraphs (a), (b) and (c) of section 92(10) of the Constitution Act, 1867. That exception to the general rule was recognized in l955 in the Stevedoring case (Reference as to the Validity of The Industrial Relations and Disputes Investigations Act, [1955] S.C.R. 529). The power to regulate a particular economic activity necessarily implies the power to regulate labour relations in works, undertakings or businesses whose activity falls under its jurisdiction.
That is why we have the Canada Labour Code.
Labour relations in those works, undertakings or businesses is in this case a vital part ("aspect essentiel") of its operation (see Commission du salaire minimum v. Bell Telephone Co., [1966] S.C.R. 767). In other words, the matter "labour relations" may also fall within the classes of subjects that assign to Parliament the power to legislate in relation to certain sectors of the economy. Works, undertakings or businesses that operate in those sectors of the economy are in fact commonly referred to as "federal works, undertakings or businesses". The Supreme Court of Canada has held that federal jurisdiction in relation to labour relations essentially depends on Parliament's legislative authority over a particular economic activity: "[Federal] jurisdiction over labour matters depends on legislative authority over the operation, not over the person of the employer".
The question of the constitutional validity of Bill C-377 thus brings us, in the words of the Canada Labour Relations Board, to an "unexplored corner of labour relations" (see Finn v. Canadian Brotherhood of Railway, Transport and General Workers, 47 di 49, p. 65). The extent of federal jurisdiction in relation to labour relations in federal works, undertakings or businesses is relatively clearly defined. Bill C-377, however, raises the question of the limits of federal jurisdiction: does it authorize Parliament to legislate in relation to the "trade union" as an institution, not in its capacity as bargaining agent under an otherwise validly enacted system of collective bargaining?