REGS Committee Report

February 26, 1998

          The Standing Joint Committee for the Scrutiny of Regulations has the honour to present its

SECOND  REPORT

(Report No. 61 - Royal Canadian Mounted Police Regulations, 1988)

          Pursuant to its permanent Order of Reference, section 19 of the Statutory Instruments Act, R.S.C. 1985, c.S-22,  the Joint Committee draws the attention of the Houses to  sections 56 and 57 of the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, as amended by SOR/94-219. The text of these provisions is set out in the Appendix to this Report.

          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 were struck down by the Supreme Court of Canada in Osborne v. Canada as contravening the Canadian Charter of Rights and Freedoms.¹  The Force was requested to advise the Committee whether it considers section 57 to be constitutionally valid notwithstanding the Osborne decision and, in the event it did, 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 the Committee at this point because it is sub judice.” For reasons we will explain shortly, the Committee did not accept this was 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 that 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 also 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” to members of the RCMP but whether sections 56 and 57 contravene the Canadian 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, as would any other decision of the Supreme Court dealing with the application of 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 government 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 as a law enforcement body. Political neutrality, which is the objective of sections 56 and 57, is to ensure that there is no political partisanship, or perception of political partisanship, in the performance of police functions and duties, or in law enforcement, more generally. 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 there is no political partisanship in the performance of police functions and duties and that this initiative is no more than a study or examination of possible alternatives. In this regard, your Committee will simply note 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,1988 will be amended to reflect the extent and the conditions under which members of the Royal Canadian Mounted Police will be permitted to participate in political activities.” [emphasis added] Considering the nature of Federal Regulatory Plans and the language used to describe initiative RCMP/93-9-L, it appears to your 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.

          Finally, your 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 do not contain any express restrictions on political activities or, if they do, such restrictions are far less severe than those found in sections 56 and 57 of the Regulations. 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.

The sub judice convention

          As mentioned above, 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 is challenged. This led the RCMP to suggest that the question of the constitutional validity of section 57 should not be dealt with by your Committee. The Committee does not believe that the fact that an action challenging the validity of a law 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 the 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 a court.

Position of the Joint Committee

          The Joint Committee has examined the question of whether or not 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 (scrutiny criterion no. 2). In addition, objection may also be had 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 (scrutiny criterion no. 12) and that they trespass unduly on rights and liberties (scrutiny criterion no. 9). Your Committee wishes to make it clear that some restrictions on the political activities of members of the RCMP are unquestionably necessary to maintain public confidence in the 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, your 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 many cases.

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

          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 be demonstrably justified in a free and democratic society, as is required by section 1 of the Charter. 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.

Freedom of Expression

          It is clear that “freedom of expression” encompasses more than simply freedom of speech. The Supreme Court has held that prohibiting the carrying of placards and the distributing of pamphlets in an airport terminal constitutes an infringement of freedom of expression that cannot be justified under section 1 of the Charter.² In Irwin Toy Ltd. v. Quebec (Attorney General),³ the Supreme Court went so far as to indicate that parking a car would be an expressive activity protected under section 2(b) of the Charter if it were done with an expressive purpose such as to protest parking regulations. The Court defined “expression” as any activity that attempts to convey meaning.⁴

          Where government action is challenged under paragraph 2(b) of the Charter, the Supreme Court, in Irwin Toy, set out the  analysis to be followed. First, it must be ascertained whether the activity which the person challenging the governmental action wishes to pursue may properly be characterized as falling within freedom of expression. Where an activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Once it is determined that the activity in issue comes within the scope of freedom of expression, the next step is to determine whether the purpose or effect of the government action is to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee.⁵

          It seems self-evident to your Committee that most, if not all, of the activities prohibited by sections 56 and 57 of the Regulations fall squarely within the scope of activities protected by freedom of expression. Working on behalf of a candidate or a political party, or standing as a candidate in an election, are among the clearest examples of what has been termed “political speech”, and there is no doubt that “political speech is at the core of s.2(b) of the Charter.”⁶

          If the prohibited activities are determined to come within the scope of freedom of expression, it must then be determined whether the government action restricts freedom of expression, either in purpose or in effect. Here, the outright prohibition of expressions of political speech available to citizens generally is unquestionably a restriction on freedom of expression. Indeed, the precise purpose of the provisions in question is to place special limits on the freedom of expression of members of the RCMP. Such a conclusion is consistent with the decision of the Supreme Court in Osborne v. Canada, in which the restrictions on the political activities of public servants imposed by the federal Public Service Employment Act were found to infringe freedom of expression. The restrictions imposed by sections 56 and 57 of the regulations are even more restrictive than the provisions of the Public Service Employment Act which were before the Court in Osborne.

Freedom of Association

          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 the section 57 prohibition against working for or on behalf of or against any political party?

          Freedom of association has been defined as including “the freedom to establish, belong to and maintain an association”.⁷ 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) of the Charter independent of the contravention of section 2(b), although the Court did not see the need to consider the point any further, having already concluded that a violation of section 2(b) had been established. The situation in the present instance is similar. While it has been concluded that sections 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) of the Charter.

Democratic Rights

          The relevant portion of section 3 guarantees to every citizen of Canada the right to be qualified for membership in the House of Commons or in a legislative assembly. To the extent section 57(1)(c) can be said to disqualify members of the Force from candidacy for election to the House of Commons, the legislature of a province or the Council of the Yukon or Northwest Territories it may also contravene section 3 of the Charter.

Section 1 of the Charter

          Section 1 provides that Charter rights and freedoms are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” If it is concluded that the Regulations contravene the freedom of expression and freedom of association guaranteed by the Charter, the crucial question of whether these provisions are saved by section 1 must be answered. The limits contained in sections 56 and 57 are clearly “prescribed by law”, so that this element of section 1 is satisfied. It remains to ascertain whether these provisions impose reasonable limits that are demonstrably justified in a free and democratic society.

          In R. v. Oakes, the Supreme Court established two criteria to be applied in establishing whether a limit is reasonable and demonstrably justified in a free and democratic society:⁸

          (1)     The objective of the measures responsible for a limit on a Charter right or freedom must be of sufficient importance to override the constitutional protection. At a minimum the objective must relate to a pressing and substantial concern;

          (2)     The means chosen to carry out the objective must be proportional to the concern. This involves three elements:

                   (i)      the limit must be rationally connected to the objective, as opposed to being arbitrary, unfair or based on irrational considerations;

                   (ii)      the means chosen should impair the right or freedom in question as little as possible; and

                    (iii)     the objective must be proportional to the effects of the measures resulting in the limitation on the Charter right or freedom (The more severe the effect of a measure, the more important the objective must be).

Objective

          The importance of the governmental objectives that are served by sections 56 and 57 of the Regulations cannot be denied. To an even greater degree than is the case with the public service generally, there is a legitimate interest in preserving the impartiality of the RCMP. Members of the public must have confidence in the ability of the RCMP to carry out its law enforcement activities in a fair and impartial manner. As the Solicitor General wrote: “Political neutrality, which is the objective of sections 56 and 57, is to ensure that there is no political partisanship, or perception of political partisanship, in the performance of police functions and duties, or law enforcement, more generally.”

          While not mentioned by the Solicitor General, the Committee believes there is a further aspect to the governmental objective underlying section 56 and 57. This aspect may be characterized as the need to ensure the proper operation and administration of the RCMP. Where political activities are overt, members of the Force may feel compelled to conform to the partisan interests of those in more senior positions. Just as the enforcement of the law by the RCMP must reflect the principles of neutrality, impartiality and integrity, so to must the administration of the Force be seen to reflect these values.

          In Osborne, 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 the neutrality of the public service. The same reasoning unquestionably applies in the case of section 56 and 57 of the Regulations.

Means

          In Osborne, the Supreme Court stated that “It is beyond dispute that restricting partisan political activity is rationally connected to the objective of maintaining the neutrality of the public service.” There is no question that sections 56 and 57 of the Regulations are similarly connected to the objectives identified above, and nothing further need be said on the point.

          Turning to the second aspect of the “proportionality” test, however, your 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 preclude a member from displaying a lawn sign in front of the member’s home in support of a candidate in a municipal election.

          To take another example, section 57(1)(a) prohibits a member of the Force from engaging “in any work for, or on behalf of 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 in the member’s neighbourhood by expressing a view on that issue at a public meeting. Even an activity as innocuous and removed from the public eye as stuffing envelopes with campaign literature is prohibited.

          Minor exceptions to the prohibitions set out in section 57(1) are found in section 57(2). These confirm the right of members to privately support a political party, to privately express political opinions, to attend political meetings while off duty and to vote. Presumably, a member attending a political meeting while off duty is not allowed to express an opinion at the meeting. This would seemingly preclude even the wearing of a button, or asking a question if in doing so the member’s own opinion was revealed. Section 57(2) does little more than affirm that members retain freedom of thought and belief, as well as the right to vote.

          That these broad prohibitions go beyond what is necessary to achieve the identified governmental objectives becomes apparent when one compares sections 56 and 57 of the Regulations to the legislation governing police forces in other Canadian jurisdictions.⁹  As noted earlier, the laws governing the political activities of members of municipal police forces in Ontario, the Ontario Provincial Police and the Sûreté du Québec for instance, do not include an all-encompassing prohibition such as is found in sections 56 and 57.¹⁰ The fact that the provincial legislation allows greater participation in political activities strongly indicates that it is possible to be less restrictive and still achieve the objective which restrictions on political activities seek to achieve.

          Your Committee also takes into consideration the fact that as early as 1993, the government announced in its annual Federal Regulatory Plan that it was examining the possibility of amending the Regulations in order to “to afford members of the Royal Canadian Mounted Police the right to participate in the political process as candidates in federal, provincial and municipal elections” and to give members “greater freedom to participate in day to day activities of political parties.” As noted earlier, this same entry has appeared as an ongoing initiative in the Federal Regulatory Plan for 1994, 1995, and 1996. The entry in the 1997 Federal Regulatory Plan announces that the Regulations “will” be amended to allow greater participation in political activities by members of the Force. While not in itself conclusive, the fact that the relaxing of restrictions on political activities has been under consideration for at least the last five years strongly suggests that the government itself recognizes that the current provisions go beyond what is necessary to protect legitimate governmental interests and makes it all the more difficult to understand the position taken by the Attorney General of Canada that section 57 is constitutional.

          In his letter of April 9, 1997, the Solicitor General took pains to point out that he had “not yet approved changes in sections 56 and 57” and that he had not “submitted any such changes for the consideration of the Governor in Council”. Of course, had the Solicitor General approved changes to these sections and submitted them to the Governor in Council for enactment, there would have been no need for the Committee to recommend the revocation of sections 56 and 57. In that sense, the Minister is stating the obvious. As noted above, the inclusion of this initiative in a government document designed to provide early notice of the proposed regulatory initiatives and the subsequent preparation of detailed amendments may be taken to reflect the finding that the current restrictions are overly broad.  If the relaxing of the current restrictions were incompatible with the objective these restrictions are intended to promote, one would certainly expect this finding would have been reached well before now and the regulatory initiative abandoned.

          Moreover, it is your Committee’s understanding that there have been a number of occasions in the past on which senior management in the Force has permitted  members to run for, or indeed to hold, elected office. If sections 56 and 57 of the Regulations are valid, as is now argued by the Attorney General of Canada, it would follow that in granting such permissions, senior officers of the Force have unlawfully authorized contraventions of the Royal Canadian Mounted Police Regulations, 1988 by members of the Force. On the other hand, the fact that such permissions were granted may simply reflect the fact that the Commissioner formed the opinion that sections 56 and 57 are null and void on the ground they contravene the Charter, in which case it would have been legal for senior officers to grant these authorizations. At the very least, the fact that members of the Force were allowed to undertake activities prohibited by sections 56 and 57, whether legally or illegally, can be taken as an indication that even within the RCMP these prohibitions have at times been considered to be unnecessarily broad.

          Finally, inasmuch as section 56 and 57 are even more restrictive than the section of the Public Service Employment Act which the Supreme Court struck down in Osborne, it is difficult not to conclude that these provisions also fail the second element of the proportionality test under section 1 of the Charter. While it may be argued that the need for political neutrality is greater with respect to members of the RCMP than in the case of public servants generally, and that broader restrictions on members of the Force are therefore necessary, taken together the factors described above still lead to the conclusion that sections 56 and 57 cannot be said to represent the least drastic means of ensuring that impartiality is preserved.

          Subsequent to its decision in R. v. Oakes,¹¹ the Supreme Court has indicated that the “least drastic means” test is not entirely inflexible. Recognizing that it will almost always be possible to imagine a law that is slightly less restrictive than the one under attack, the Court has stated that the test truly amounts to whether the Charter protected right or freedom has been infringed as little as is reasonably possible.¹² Even so, there can be little doubt that sections 56 and 57 do not impair Charter protected freedoms as little as possible, and thus fail the this aspect of the “proportionality” test. Given this conclusion, it is unnecessary to examine the remaining aspect of the test, namely whether there exists a proper balance between the effects of sections 56 and 57 and the legislative objective it serves.¹³

          In summary, your Committee concludes that sections 56 and 57 of the Regulations contravene the freedom of expression guaranteed by section 2(b) of the Charter, the freedom of association guaranteed by section 2(d) of the Charter, and in all likelihood the rights relating to candidacy guaranteed by section 3 of the Charter. Sections 56 and 57 are not saved by section 1 of the Charter as reasonable limits prescribed by law that are demonstrably justified in a free and democratic society because the means chosen, namely a complete prohibition on all political activities, are not proportional to the governmental objectives the prohibition seeks to serve. In particular, these provisions are overly broad, and do not impair the guaranteed rights and freedoms as little as possible.

THE EXERCISE OF A SUBSTANTIVE LEGISLATIVE POWER THAT IS PROPERLY THE SUBJECT OF DIRECT PARLIAMENTARY ENACTMENT

          While it does not question the legitimacy and usefulness of regulations as a means of governance, the Joint Committee considers that there are matters which lie outside the proper sphere of delegated legislation. The Committee takes the view that the basic rights and liberties of Canadians are one such matter, and the imposition of limits on these rights and liberties is not an appropriate subject-matter for regulations, but should instead be dealt with by Parliament. Barring exceptional circumstances, regulation making powers should not be used to create rules that significantly restrict or alter the political and civil rights and freedoms of the citizen.

          Our constitutional order is meant to protect individual liberties while maintaining the ability of the government to govern. Parliamentarians have a special responsibility to decide when and to what extent the public good requires these liberties to be limited. It is not proper for such decisions to be made by the Executive on the advice of unaccountable officials. As a respected legal adviser to the Crown once said, “Publicity and freedom of discussion are probably the best safeguards against the abuse of power.”¹⁴ Your Committee is in full agreement with this view and firmly believes that significant limits or restrictions on individual rights and freedoms ought almost invariably to be established by an Act of Parliament that is, prior to its adoption, debated in Parliament. In this way, the proposed measures are brought to the notice of Canadians, who then have an opportunity to make representations to legislators. This approach recognizes that regulations, unlike Acts of Parliament, can be made “privately and without the benefit of public advice and criticism”¹⁵ and that the rules of parliamentary procedure provide important democratic safeguards that are absent from regulation-making.

          If individual rights and freedoms of certain citizens, whether they be police officers or some other group, are to be curtailed in order to promote valid government objectives, the necessary rules ought to be enacted by Act of Parliament after legislators have debated the merits of, and the propriety of, the means chosen to achieve those objectives. Your Committee wishes to emphasize that the legality of the provisions in question is not at issue here. Even if the Committee believed that sections 56 and 57 are in conformity with the Canadian Charter of Rights and Freedoms, it would still consider that they contravene its scrutiny criterion No. 12 in that they “amount to the exercise of a substantive legislative power that is properly the subject of direct parliamentary enactment.”

UNDUE TRESPASS ON RIGHTS AND LIBERTIES

          The reasons for which your Committee does not consider that sections 56 and 57 of the Regulations represent a reasonable limit on constitutionally protected rights and freedoms also support its conclusion that these sections unduly trespass on rights and liberties, and thus contravene the Committee’s scrutiny criterion No. 9.

          Simply stated, it is the scope of the prohibitions contained in these provisions that is a matter of concern. Sections 56 and 57 amount to a virtually complete ban on political activities by members of the RCMP. While it readily acknowledges that the importance of preserving the impartiality of the Force justifies the imposition of reasonable limits on the political activities that its members may engage in, it is inconceivable to your Committee that such a blanket prohibition is required to achieve this objective. Its constitutional implications aside, the overreaching character these prohibitions is, in the opinion of your Committee, sufficient to conclude that sections 56 and 57 unduly trespass on rights and liberties.

CONCLUSION

          In view of the nature of the Joint Committee’s objections to sections 56 and 57 of the Royal Canadian Mounted Police Regulations, 1988, and more particularly its belief that it is inappropriate for restrictions on freedoms of expression 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. In the course of his testimony, the Honourable Herb Gray reiterated that his position remained that sections 56 and 57 of the Regulations “are consitutional and do not infringe the Charter of Rights and Freedoms”. At the same time, the minister stated that “for practical and administrative reasons, it would be useful to update these regulations involving the political activity of RCMP members.” The Solicitor General indicated that he had requested the RCMP to “make a formal presentation to the minister of the day as early as next Fall”.  Later, in reply to a member of the Committee, the minister repeated that:

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.

          For sections 56 and 57 of the Regulations to be constitutional, they must impair constitutionally protected rights and freedoms as little as possible. This minimum impairment test was laid out by the Supreme Court of Canada in its Oakes decision. In asserting that sections 56 and 57 are constitutional, the Solicitor General must necessarily be taken to have been stating that these provisions meet the minimum impairment test and that they infringe Charter protected rights and freedoms as little as reasonably possible. Yet, at the same time, the Solicitor General suggested that sections 56 and 57 can, “for practical and administrative reasons”, be changed to bring them in line with the less restrictive  regulations of other police forces.  The inherent contradiction between these positions was never satisfactorily explained. For sections 56 and 57 to be constitutional, they must infringe protected rights and freedoms as little as reasonably possible and therefore cannot be amended without damaging the legitimate objective served by these restrictions. If sections 56 and 57 can be revised so as to lessen the restrictions on protected rights and freedoms which they impose, they obviously cannot be said to infringe protected rights and freedoms as little as reasonably possible and they must therefore be 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, 1988.  Although a proposed revision was to be presented to the Solicitor General in the Fall, this did not occur. The delay has led your 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 limitations on constitutionally protected rights and freedoms ought to be decided by Parliament itself and not by a delegate in the 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, your Committee may well wish to reconsider the possibility of invoking the disallowance procedure.

          The Committee wishes to make it very clear that is not impugning the legitimacy of the objectives that sections 56 and 57 are intended to further. Nor, it must be emphasized, is the Joint Committee taking the view that any restrictions on the political activities of members of the RCMP will constitute unjustifiable contraventions of rights and freedoms guaranteed by the Charter. Ensuring that the law is enforced in a politically impartial manner and that the RCMP is administered similarly are important and legitimate goals. Having said this, the means chosen to achieve these goals must still be reasonable and demonstrably justifiable in a free and democratic society.

          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 your Committee, in any case 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 simply note that the RCMP has had amendments to the impugned provisions under consideration for at least some five years, and is presumably in a position to propose to Parliament, through the responsible minister, a new, less all-encompassing regime in an expeditious manner.

          Your Committee recommends that sections 56 and 57 of the Royal Canadian Mounted Police Regulations, 1988 be revoked without delay, and that as soon as it is in a position to do so, the Government present to the Houses amendments to the Royal Canadian Mounted Police Act which would define the limits of permissible political participation by members of the Force in a manner consistent with the rights and freedoms guaranteed to all citizens by the Canadian Charter of Rights and Freedoms.

          A copy of the relevant Minutes of Proceedings and Evidence (Issue No. 6, First Session, Thirty-sixth Parliament) is tabled in the House of Commons.

Respectfully submitted,

1.             Osborne v. Canada, [1991] 2 S.C.R. 69

2.             Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139.

3.             1 S.C.R. 927.

4.             In the decision of the Supreme Court of Canada in Switzman v. Elbling, [1957] S.C.R. 285, Mr. Justice Abbot wrote that “the right of free expression of opinion and of criticism” is “essential to the working of a parliamentary democracy such as ours”. As Peter Hogg notes, “Canadian judges have always placed a high value on freedom of expression as an element of parliamentary democracy and have sought to protect it with the limited tools that were at their disposal before the adoption of the Charter of Rights.” [Constitutional Law of Canada], 3^rd edition (1992), p.961) Now of course, any such laws must also be consistent with the freedom of expression guaranteed by paragraph 2(b) of the Charter.

5.             It is not sufficient to show merely that a government action was not intended to restrict freedom of expression. Actions which have such an effect may also be unconstitutional. Even if the government’s purpose is not to control or restrict attempts to convey a meaning, the court must still decide whether the effect of a government action is to restrict free expression. A determination in this regard requires, according to the Court, reference to the following principles: “(1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.” [1989] 1 S.R.C. 927, 976.

6.             Hogg, supra, note 4.

7.             Professional Institute v. N.W.T., [1990] 2 S.C.R. 367, per Sopinka, J.

8.             [1986] 1 S.C.R. 103

9.             Reference to the legislation of other jurisdictions when determining what is the minimum impairment of rights necessary to achieve governmental objectives is consistent with the approach of the Supreme Court in Osborne (supra, note 1).

10.        See Ontario Regulation 554/91, Political Activities of Municipal Police Officers; Public Service Act, R.S.O. 1990, chap. P.47, as amended by S.O. 1993, c.38; Loi modifiant la Loi de police et d’autres dispositions législatives, S.Q. 1996, chapitre 73.

11.        Supra, note 8.

12.        See, for example, R. v. Edwards Books and Art, [1986] 2 S.C.R. 713; United States v. Cotroni, [1989] 1 S.C.R. 1469.

13.        Indeed, it has been suggested that this aspect of the proportionality test merely restates the requirement that a law pursue an objective that is sufficiently important to override a Charter protected right, and thus is entirely redundant (see Hogg, supra, note 4, p.883).

14.        Driedger, “The Enactment and Publication of Canadian Administrative Regulations”, (1969) 19 Administrative Law Review 129, p. 134.

15.        House of Commons, Special Committee on Statutory Instruments, Third Report, 1st Session, 28th Parliament, p.43.