Mr. Speaker, I move that the second report of the Standing Joint Committee on Scrutiny of Regulations presented on Tuesday, March 10, 1998 be concurred in.
Pursuant to its permanent order of reference, section 19 of the Statutory Instruments Act, the joint committee draws the attention of the Houses to sections 56 and 57 of the Royal Canadian Mounted Police regulations, 1988.
In early 1997 it was drawn to the attention of the joint committee that the Royal Canadian Mounted Police continues to apply section 57 of the Royal Canadian Mounted Police Regulations, 1988, notwithstanding that similar, though somewhat less all encompassing, restrictions on participation in political activities by other public servants was struck down by the Supreme Court of Canada in Osborne v Canada as contravening the Canadian Charter of Rights and Freedoms.
The force was requested to advise the committee whether it considers section 57 to be constitutionally valid, notwithstanding the Osborne decision. In the event that it did, it was to provide a detailed statement of reasons in support of that position.
The designated instruments officer for the RCMP initially explained that in view of the fact that the constitutionality of section 57 has been challenged before the Quebec Superior Court, “it would be inadvisable for the RCMP to bring this matter before committee at this point because it is sub judice”.
For reasons I will explain shortly, the committee did not accept this as a satisfactory reply and reiterated its request for a detailed statement of reasons in support of the constitutional validity of section 57 of the regulations.
In a letter dated March 12, 1997 the committee was informed that “the Attorney General of Canada is of the position that section 57 of the Royal Canadian Mounted Police Regulations, 1988, is not contrary to the Canadian Charter of Rights and Freedoms and that the 1991 decision of the Supreme Court of Canada in Osborne v Canada (Treasury Board) does not apply to the said section”, and that “The attorney general is prepared to make these same arguments and defend section 57 in an action before the Superior Court of Quebec”.
Despite the reference to arguments, it is clear that the RCMP has chosen to simply refer to conclusions reached by the Attorney General of Canada and no reasons have been put forward in support of these conclusions.
In light of this, your committee wrote to the Solicitor General of Canada asking him to provide the joint committee with a statement identifying the governmental objectives served by section 57 and explaining why a nearly absolute ban on all political activities is necessary to achieve these objectives.
The solicitor general was also advised that the committee might possibly object to the constitutional validity of section 56 of the regulations.
By letter dated April 9, 1997 the solicitor general explained that it is the government's view that the Osborne decision does not apply to the RCMP because it involved a challenge to subsections 33(1)(a) and (b) of the Public Service Employment Act which prohibited public servants hired under that act from engaging in work for or against a federal or provincial candidate or party.
On the other hand, sections 56 and 57 of the RCMP regulations deal with RCMP members who are engaged pursuant to the RCMP Act for the purposes of law enforcement and who, as a consequence of their duties, have broad powers of discretion which have an impact on the general population.
The question is not whether the Osborne decision applies as such to members of the RCMP but whether sections 56 and 57 contravene the charter of rights and freedoms. The factual distinctions mentioned by the minister are obvious. It should be equally clear, however, that the reasoning of the supreme court in the Osborne decision is relevant to a determination of whether or not sections 56 and 57 of the regulations contravene the charter.
Section 33 of the Public Service Employment Act and sections 56 and 57 of the Royal Canadian Mounted Police Regulations, 1988, are both intended to promote a similar governmental objective: political neutrality of the persons to whom they are directed so as to maintain public confidence in public institutions.
In his reply, the minister also stated that initiative RCMP/93-9-L, which has been included in the federal regulatory plan every year since 1993, is intended to indicate that the RCMP is studying the best means possible to maintain the needed political neutrality of the force, that political neutrality being the objective of sections 56 and 57.
The force is examining whether there are alternatives to the current scheme of sections 56 and 57 which could permit more flexibility while continuing to safeguard the political neutrality of the force.
This statement is apparently meant to suggest that the relevant regulatory initiative should not be construed as an admission that the restrictions set out in sections 56 and 57 go beyond what is necessary to ensure that there is no political partisanship in the performance of police functions and duties and that this initiative is no more than a study or an examination of possible alternatives.
In this regard the committee notes that a federal regulatory plan is an annual listing of the government's anticipated regulatory activity for the coming year and that initiative RCMP/93-9-L clearly states that the RCMP regulations 1998 will be amended to reflect the extent and the conditions under which members of the Royal Canadian Mounted Police will be permitted to engage in political activities.
Considering the nature of the federal regulatory plans and the language used to describe initiative RCMP/93-9-L, it appears to the committee that this initiative states a clear intention to amend the existing regulations rather than merely an intent to undertake a general study of possible alternatives. As such, this initiative must reflect an official finding that the current level of restrictions is not necessary in order to secure the objective of political neutrality.
The committee observes that it also drew the attention of the solicitor general to the fact that the legislation governing police forces in other jurisdictions either does not contain any expressed restrictions on police activities or, if it does, such restrictions are far less severe than those found in sections 56 and 57. The committee asked the solicitor general to explain why sections 56 and 57 should be regarded as essential to the preservation of the political neutrality of a federal police force when lesser restrictions are considered sufficient to preserve the political neutrality of provincial police forces such as the Ontario Provincial Police or the Sûreté du Québec.
As already mentioned, it appears that an action has been initiated in the superior court for the district of Montreal in which the constitutional validity of section 57 being is challenged. This led the RCMP to suggest that the question of the constitutional validity of section 57 should not be dealt with by the committee. The committee does not believe that the fact that an action challenging the validity is before the courts does or should preclude Parliament from considering the same question.
Parliament and the courts both have a responsibility to ensure the constitutionality of legislation. Indeed, since it is a fountain head of all legislation, it may be thought that the responsibility of Parliament in this regard is pre-eminent. If legislation is unconstitutional Parliament may in some instances provide a more timely and cost efficient forum for resolution of the matter than the courts. In any event, Parliament exercises a jurisdiction that is completely distinct from that of the courts and the joint committee does not accept that it should refrain from exercising its statutory mandate on behalf of Parliament because the validity of a particular regulation is also being considered by the court.
The joint committee has examined the question of whether sections 56 and 57 of the regulations conform to the Canadian Charter of Rights and Freedoms and concludes that these sections should be revoked on the ground that they do not conform to the charter. In addition, the committee objects to these provisions on the grounds that they amount to the exercise of a substantive legislative power that is properly the subject of direct parliamentary enactment and that they trespass unduly on rights and liberties.
The committee wishes to make it clear that some restrictions on political activities of members of the RCMP are unquestionably necessary to maintain public confidence in fair and impartial enforcement of laws by the force. It may even be the case that the existing restrictions are constitutionally appropriate at certain levels of the RCMP or as they apply to officers occupying certain positions. On the other hand, the member's committee simply cannot do otherwise than conclude that the existing restrictions, involving as they do a near complete ban on participation in political activities, go beyond what is required in most cases.
Having considered the relevant case law, the joint committee has formed the opinion that sections 56 and 57 are inconsistent with the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms and that the restrictions imposed by these sections cannot demonstrably be justified in a free and democratic society. In addition, these sections may infringe on the freedom of association guaranteed by section 2(d), and the right to be qualified as a candidate guaranteed by section 3 of the charter.
Section 2(d) of the charter guarantees freedom of association. Is this freedom contravened by section 56 of the regulations which prohibits any public display of political partisanship or by section 57, prohibition against working for or on behalf of a political party? Freedom of association has been defined as including the freedom to establish, belong to and maintain an association. In the Osborne decision, the supreme court observed that a prohibition against federal public servants working for or against any candidate or political party or standing as candidates appeared to constitute an infringement of section 2(d).
The situation in the present instance is similar. While it has been concluded that section 56 and 57 violate section 2(b) of the charter, there is also a strong case to be made that the provisions of the regulations in question infringe the freedom of association guaranteed by section 2(d).
The importance of governmental objectives that are served by sections 56 and 57 of the regulations cannot be denied. As the solicitor general wrote, political neutrality, which is the objective of the sections, is to ensure there is no political partisanship or perception of political partisanship in the performance of police duties and functions or law enforcement more generally.
In the Osborne case the supreme court had little difficulty in concluding that restrictions imposed on the political activities of public servants were clearly intended to further an important governmental objective, namely the preservation of neutrality of the public service. The same reasoning unquestionably applies in the case of sections 56 and 57.
The committee cannot but conclude that the prohibitions imposed by sections 56 and 57 of the regulations go beyond what is necessary to achieve the legitimate governmental objectives identified earlier. The provisions in question preclude a very wide range of political activities by members of the RCMP. For example, section 56 provides that a member shall not wear or display the emblem or insignia of any political party or display political partisanship in any other manner. This would, in effect, preclude a member from displaying a lawn sign in front of the member's home in support of a candidate in a municipal election, for example.
Section 57(1)(a) prohibits a member of the force from engaging in any work for, on behalf or against any person seeking election to the governing body of a municipality. Thus a member could not be seen to support a candidate in a municipal election who was campaigning for or against a particular local issue such as the widening of a bridge or the expansion of a shopping mall. Even an activity as innocuous and removed from the public eye as stuffing envelopes with campaign literature is prohibited.
In his letter of April 9, 1997, the solicitor general took pains to point out that he had not yet approved changes to sections 56 and 57 and that he had not submitted any such changes for the consideration of the governor in council. If the solicitor general had already approved changes to these sections and submitted them to the governor in council, there would be no need for the committee to recommend the revocation of sections 56 and 57. In that sense the minister is stating the obvious.
In view of the nature of the joint committee's objections to sections 56 and 57 of the Royal Canadian Mounted Police Regulations, 1988, in particular its belief that it is inappropriate for restrictions on freedoms and association as serious as those found in sections 56 and 57, to be enacted by way of regulation, the committee initially took the position that the disallowance of these sections by the House of Commons was the most suitable course of action.
Shortly before the committee was scheduled to consider a draft report containing a disallowance resolution, the solicitor general requested to appear before the joint committee. This appearance took place on April 24, 1997, almost a year ago. In the course of his testimony the minister reiterated that his position remained that sections 56 and 57 of the regulations are constitutional and do not infringe the charter of rights and freedoms:
If we look at the regulations strictly from a constitutional standpoint, they do meet the test and should not be revoked on the grounds that they are unconstitutional. If you are concerned that the regulations are overly restrictive compared to those of the Sûreté du Québec or the OPP, I assure you that we are working to bring them in line with the regulations of other police forces. However, we are not acting because the regulations are unconstitutional.
In light of the assurance that the current provisions would be revoked, the committee decided not to proceed with the disallowance of sections 56 and 57 of the Royal Canadian Mounted Police Regulations Act. Although a proposed revision was to be presented to the solicitor general in the fall, this did not occur.
The delay has led the committee to decide that this matter should be drawn to the attention of the Houses by means of this report. In particular, the committee wishes to highlight its recommendation that any limits on the constitutionally protected rights and freedoms ought to be decided by Parliament itself and not by a delegate in exercise of subordinate law making powers.
At the same time the immediate concern of the committee remains the continued existence of sections 56 and 57 of the regulations and should these provisions continue in existence much longer the committee is going to consider the possibility of invoking the disallowance procedure.
The committee wishes to make it very clear that is not impugning the legitimacy of the objectives of section 56 and 57 and it is not the role of the joint committee to define precisely which restrictions may be placed on the political activities of members of the RCMP so as to preserve the neutrality of the force while infringing the rights of members as little as is reasonably possible.
It is, however, the responsibility of the committee in cases where such measures are enacted in subordinate legislation to advise the Houses whether the means chosen to achieve certain objectives are proper and lawful. In this connection we would draw attention to the House that the RCMP has had amendments to the impugned provisions under consideration for at least five years and it is presumably in a position to propose to Parliament through the responsible minister a new, less all encompassing regime in an expeditious manner.
The committee recommends that sections 56 and 57 of the Royal Canadian Mounted Police Regulations, 1988 be revoked without further delay, which in practical terms conveyed to the solicitor general by letter means by April 4, 1998.
I urge the government to act by April 4, thereby avoiding the embarrassment and inconvenience which could occur when the committee recommends disallowance to the House.