Before I answer the question, I'll respectfully disagree, if I could, on what the Supreme Court actually said in MPAO. Yes, they dealt primarily with issues of employee choice and the autonomy and independence of the bargaining agent, because that was the issue that was before them. They made a lot of comments about meaningful interference on collective bargaining and they elaborated a sort of test and a number of principles for analysis of 2(d), but in the actual MPAO decision, of course, they weren't looking at a collective bargaining regime. They were looking at a regime where a group of employees was specifically excluded from collective bargaining, so therefore that is the issue they ultimately focused on.
In terms of your question about the means by which employee choice is determined, i.e., whether it's by a secret ballot vote or by way of membership cards signed without any intimidation or coercion, different Canadian jurisdictions, as you know, deal with that issue differently. In Quebec, “50% plus 1” membership cards are sufficient. In the federal jurisdiction until very recently, that was the way in which employee choice was determined. In other Canadian jurisdictions, there is a requirement for a mandatory certification vote. The courts have been very clear that both methods pass constitutional muster, and the charter has nothing to say about the preferences between one or the other.
Speaking from the labour movement's perspective, our view, as I'm sure you know, is that in these particular circumstances when employees are choosing a bargaining agent for themselves, a secret ballot vote tends, in all the empirical evidence, to demonstrate what a secret ballot vote essentially does. It provides a licence for employers, during the campaign up to that secret ballot vote, to behave in ways that are inherently intimidating and coercive toward the employees as they make their choice. Secret ballot votes are essentially a licence for employers to intimidate and coerce employees, and therefore—