A-48-04
2005 FCA 5
Public Service Alliance of Canada (Appellant)
v.
Her Majesty the Queen (Respondent)
Indexed as: Public Service Alliance of Canada v. Canada (F.C.A.)
Federal Court of Appeal, Décary, Sharlow and Malone JJ.A.--Ottawa, November 16, 2004 and January 6, 2005.
RCMP -- Whether Royal Canadian Mounted Police Act, s. 10 contravened by municipal policing agreements allowing municipalities to employ civilian support staff not appointed under Public Service Employment Act (PSEA) -- Who are civilian employees necessary for carrying out functions, duties of Force -- Duties of RCMP, as Canada's national police force, considered -- Duties of support staff -- Act, Regulations not supporting Crown's position work of Force under municipal agreement not "function, duty" as not part of core mandate -- Act, s. 10 need not be "read down" to be constitutional.
Public Service -- Labour Relations -- Union seeking declaration Royal Canadian Mounted Police Act, s. 10 violated by municipal policing agreements allowing municipalities to employ civilian support staff not appointed under PSEA and so not compelled to join union -- Policing agreements, work of support staff, explained -- Crown's argument s. 10 intended to allow for flexibility in making appointments, rejected -- Parliament's intention that services necessary for carrying out functions, duties of RCMP (apart from those of Force members) be provided by PSEA appointees -- Per Décary J.A. (dissenting): Court should be reluctant to interfere with executive governmental arrangements made on basis of sound political, economic, social considerations.
This was an appeal from a Federal Court judgment, granting the Crown's motion for summary judgment and dismissing an action for a declaration that Royal Canadian Mounted Police Act, section 10 is contravened by municipal policing agreements that allow municipalities to employ civilian support staff, not appointed under the Public Service Employment Act (PSEA) and accordingly not forced to join the union. At issue was the interpretation of section 10, which provides that civilians engaged to assist the Force shall be appointed under the PSEA. Those appointed under that statute as civilian RCMP employees fall under the collective bargaining agreement between Treasury Board and appellant. The union complained that under the municipal policing and agreements the Force has civilian employees who are not appointed under the PSEA. In order to resolve the debate, the Court had to determine who are the "civilian employees that are necessary for carrying out the functions and duties" of the RCMP as provided for by section 10. That in turn required a determination of the functions and duties of the Force as set forth in the RCMP Act and Regulations. The RCMP, as Canada's national police force, is responsible for the enforcement throughout Canada of federal statutes such as the Income Tax Act and the Security Offences Act. It is involved in the investigation of organized crime, provision of security to senior government officials, the collection and dissemination of information relating to criminal law administration through the Canadian Police Information Centre, and the operation of forensic laboratories. It does not, however, enforce the Canadian Criminal Code, provincial laws or municipal by-laws unless authorized to do so by the province or municipality and, under paragraph 17(c) of the RCMP Regulations, the Force cannot act unless a policing agreement meeting the requirements of RCMP Act, section 20 has been entered into.
Under the municipal policing agreements between the Government of Canada and Antigonish, Nova Scotia and Humboldt, Saskatchewan, the municipalities had to provide their own employees to support the work of the RCMP as a municipal police force while the Force had to provide its own support staff needed to discharge its federal mandate. These agreements were worded differently than were those with the provinces of Nova Scotia and Saskatchewan. Under the latter, it was clear that civilian RCMP employees were part of the federal public service, even when providing services related to provincial policing. At the Antigonish detachment, one of the three civilian clerks was not appointed under the PSEA while at Humbolt, one of the two clerks was not appointed under that Act. The support staff prepare files for officers who must attend at court, conduct background checks, conduct dispatching functions and maintain records on such matters as theft and stolen goods. The evidence revealed that the work of the municipal support employees was commingled with that of the federal government employees.
The Federal Court agreed with the Crown's position, that for section 10 purposes, the "functions and duties" of the Force include only activities falling within its "core mandate", meaning those duties that the Force had to discharge absent any provincial or municipal policing agreements. Thus, Criminal Code enforcement in the provinces and the enforcement of provincial and municipal laws under policing agreements, would not form part of the RCMP's core mandate.
Held (Décary J.A. dissenting), the appeal should be allowed.
Per Sharlow J.A. (Malone J.A. concurring): The conclusion arrived at by the Federal Court could not be agreed with. Nothing in the Act or Regulations supported the Crown's proposition that the work done by the Force under a municipal policing agreement was not a "function" or "duty" just because it was not part of the core mandate. The work was performed under the authority of the RCMP Act and paragraph 17(c) of the Regulations. Act, section 20 contemplates that the Force may act as a provincial or municipal police force. There was no constitutional basis for any other interpretation of section 10.
Constitution Act, 1867, subsection 92(14) notwithstanding, it was settled law that the organization and management of the Force, even when acting as a provincial police force, are within the sole legislative authority of Parliament. There was no necessity to "read down" section 10 for it to be constitutional. Apparently, neither Nova Scotia nor Saskatchewan had any constitutional concerns with respect to this litigation since they did not intervene although made aware of these proceedings.
The Crown's submission that the purpose of some 48 instances of federal legislation containing language similar to that of section 10 was to provide flexibility by identifying who has the power to make appointments to specified positions, was not accepted. There is very little flexibility in RCMP Act, section 10 or in any of the other similar provisions to which reference was made. The intention of Parliament in enacting section 10 was to require that services "necessary for carrying out the functions and duties" of the RCMP (apart from those performed by Force members) be provided by persons appointed under the PSEA.
The union was accordingly entitled to a declaration that section 10 had been contravened by the municipal policing agreements here at issue in so far as they allow persons not appointed under the PSEA to provide the RCMP services necessary to the discharge of the duties of the RCMP as a municipal police force.
Per Décary J.A. (dissenting): The Court was here dealing with executive arrangements, that is to say, between the federal government (as opposed to the RCMP) and a municipal government duly authorized by a provincial government. The Act contains no requirement as to the employment of civilian staff under such arrangements. In this matter of municipal police service, fundamentally within provincial jurisdiction, absent express statutory language, it should not be found that federal legislation dictates the terms under which provincial governments may enter into the agreements. The Court should be extremely reluctant to intervene in governmental decisions which, it was assumed, were made on the basis of sound political, economic or social considerations.
Furthermore, accepting the union's position would result in the Court having to redraft the agreements to, amongst other things, devise new cost calculation formulas.
statutes and regulations judicially
considered
Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 68.
| Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 92(14). |
| Controlled Drugs and Substances Act, S.C. 1996, c. 19. |
| Criminal Code, R.S.C., 1985, c. C-46. |
| Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1. |
| Migratory Birds Convention Act, 1994, S.C. 1994, c. 22. |
| Police Act, R.S.N.S. 1989, c. 348. |
| Police Act, 1990 (The), S.S. 1990-91, c. P-15.01. |
| Police Act, 1973 (The), S.A. 1973, c. 44. |
| Public Service Employment Act, R.S.C., 1985, c. P-33. |
| Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, ss. 3, 9 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 4), 10, 18, 20. |
| Royal Canadian Mounted Police Regulations, 1988, SOR/88-361, s. 17 (as am. by SOR/94-219, s. 5). |
| Security Offences Act, R.S.C., 1985, c. S. 7. |
cases judicially considered
applied:
O'Hara v. British Columbia, [1987] 2 S.C.R. 591; (1987), 45 D.L.R. (4th) 527; [1988] 1 W.W.R. 216; 19 B.C.L.R. (2d) 273; 38 C.C.C. (3d) 233; 80 N.R. 127; Alberta (Attorney General) v. Putnam, [1981] 2 S.C.R. 267; (1981), 28 A.R. 387; 123 D.L.R. (3d) 257; [1981] 6 W.W.R. 217; 62 C.C.C. (2d) 51; 37 N.R. 1.
APPEAL from a Federal Court decision ((2004), 244 F.T.R. 190, 2004 FC 13) granting summary judgment dismissing a union's action for a declaration that the Royal Canadian Mounted Police Act was violated by municipal policing agreements whereunder a few support staff positions were filled by non-union members. Appeal allowed.
appearances:
David Yazbeck for appellant.
Alain Préfontaine for respondent.
solicitors of record:
Raven, Allen, Cameron, Ballantyne & Yazbeck, LLP, Ottawa, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
[1]Sharlow J.A.: The Public Service Alliance of Canada appeals a judgment of the Federal Court dated January 8, 2004, reported as Public Service Alliance of Canada v. Canada (2004), 244 F.T.R. 190. The judgment was made on the Crown's motion for summary judgment, and dismissed an action by the Public Service Alliance of Canada for a declaration and other relief. The basis of the action is the contention of the Public Service Alliance of Canada that section 10 of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 (the RCMP Act), is contravened by municipal policing agreements that permit municipalities to employ civilian staff to provide support services to the RCMP. The facts are not in dispute, but the parties disagree on the interpretation of section 10 of the RCMP Act.
[2]The work of the RCMP may require the assistance of civilians, that is, individuals who are not members or officers of the RCMP. The appointment and employment of civilians by the RCMP is the subject of section 10 of the RCMP Act, which reads as follows:
10. (1) Subject to subsection (2), the civilian employees that are necessary for carrying out the functions and duties of the Force shall be appointed or employed under the Public Service Employment Act.
(2) The Commissioner may employ such number of temporary civilian employees at such remuneration and on such other terms and conditions as are prescribed by the Treasury Board, and may at any time dismiss or discharge any such employee.
[3]The Public Service Employment Act, R.S.C., 1985, c. P-33, governs the employment of most members of the federal public service. It contains, among other things, classification standards for federal public service positions, hiring procedures for merit-based competitions and other forms of appointment, and procedures for discipline, termination and dispute resolution.
[4]Subject to certain exceptions that are not relevant to this case, anyone who is appointed under the Public Service Employment Act as a civilian employee of the RCMP is subject to a collective bargaining agreement between the Treasury Board as the employer and the Public Service Alliance of Canada as bargaining agent for the employees.
[5]The Public Service Alliance of Canada contends that, under the municipal policing agreements in issue in this case, the RCMP uses the services of individuals who are not, but who should be, appointed under the Public Service Employment Act. The Crown disagrees with that contention. To resolve the debate, it is necessary to determine who are the civilian employees that are necessary for carrying out the functions and duties of the RCMP. That in turn requires a determination of the functions and duties of the RCMP, which depends upon the RCMP's governing legislation: the RCMP Act and the Royal Canadian Mounted Police Regulations, 1988, SOR/88-361 (the RCMP Regulations).
[6]The RCMP, the successor to the North-West Mounted Police established by an Act of Parliament over 130 years ago, is the police force for Canada. This follows from section 3 of the RCMP Act, which reads as follows:
3. There shall continue to be a police force for Canada, which shall consist of officers and other members and be known as the Royal Canadian Mounted Police.
[7]For the RCMP to operate effectively as a police force for Canada, the officers and certain other members of the RCMP must be authorized to act as peace officers throughout Canada. That is dealt with in section 9 [as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 4] of the RCMP Act, which reads:
9. Every officer and every person designated as a peace officer under subsection 7(1) is a peace officer in every part of Canada and has all the powers, authority, protection and privileges that a peace officer has by law until the officer or person is dismissed or discharged from the Force as provided in this Act, the regulations or the Commissioner's standing orders or until the appointment of the officer or person expires or is revoked.
[8]The duty of RCMP members who are peace officers is more specifically described in section 18 of the RCMP Act, which reads as follows:
18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;
(b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers;
(c) to perform all duties that may be lawfully performed by peace officers in relation to the escort and conveyance of convicts and other persons in custody to or from any courts, places of punishment or confinement, asylums or other places; and
(d) to perform such other duties and functions as are prescribed by the Governor in Council or the Commissioner.
[9]Section 18 of the RCMP Act is supplemented by section 17 [as am. by SOR/94-219, s. 5] of the RCMP Regulations, which reads as follows:
17. In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to
(a) enforce all Acts of Parliament and regulations made thereunder, and render such assistance to departments of the Government of Canada as the Minister may direct;
(b) maintain law and order in the Yukon Territory, the Northwest Territories and national parks and such other areas as the Minister may designate;
(c) maintain law and order in those provinces and municipalities with which the Minister has entered into an arrangement under section 20 of the Act and carry out such other duties as may be specified in those arrangements; and
(d) guard and protect such buildings, installations, dock yards and other property of Her Majesty in right of Canada as the Minister may designate.
[10]Paragraphs 17(a), (b) and (d) of the RCMP Regulations cover a wide range of policing functions that are federal in nature, in the sense that they encompass all of Canada and are governed by federal legislation. The RCMP's federal mandate includes the enforcement of federal statutes and the provision of service to federal government departments that administer statutes containing criminal sanctions, such as the Controlled Drugs and Substances Act, S.C. 1996, c. 19; the Security Offences Act, R.S.C., 1985, c. S-7; the Migratory Birds Convention Act, 1994, S.C. 1994, c. 22 and the Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1. The RCMP also undertakes a number of policing activities on a Canada-wide basis, such as the investigation of organized crime and counter-terrorism, the provision of security to senior government officials and foreign officials, the provision of security for international government events in Canada, the collection and dissemination of information relating to the administration of the criminal law (through, for example, the Canadian Police Information Centre), and the operation of forensic laboratories, identification services, and the Canadian Police College.
[11]The RCMP does not enforce provincial laws or municipal laws, nor does it enforce the Canadian Criminal Code, R.S.C., 1985, c. C-46, within a province, unless authorized by the province or a municipality to act as a provincial or municipal police force. That is because those aspects of police work are within the exclusive legislative authority of the provinces. Generally, any province or municipality that wishes to employ the RCMP as its provincial or municipal police force must be authorized to do so by provincial law (see, for example, the Police Act, R.S.N.S. 1989, c. 348, sections 10-17, and The Police Act, 1990, S.S. 1990-91, c. P-15.01, sections 18-36).
[12]By virtue of paragraph 17(c) of the RCMP Regulations, the RCMP cannot act as a provincial or municipal police force without the authority of a provincial or municipal policing agreement that meets the requirements of section 20 of the RCMP Act. Section 20 reads as follows:
20. (1) The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.
(2) The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein.
(3) The Minister may, with the approval of the Treasury Board, in any arrangement made under subsection (1) or (2), agree on and determine the amount of money to be paid by the province or municipality for the services of the Force.
(4) There may be included in any arrangement made under subsection (1) or (2) provision for the taking over by the Force of officers and other members of any provincial or municipal police force.
(5) The Minister shall cause to be laid before Parliament a copy of every arrangement made under subsection (1) or (2) within fifteen days after it is made or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.
[13]I turn now to the particular facts of this case. Provincial policing agreements are in force in Saskatchewan and Nova Scotia. In addition, municipal policing agreements are in force in Humboldt, Saskatchewan and Antigonish, Nova Scotia. Both of these municipal policing agreements are dated April 1, 1992 and have a term of 20 years. Under both agreements, the Government of Canada agrees to provide a "municipal police service" within the municipality, for which the municipality agrees to pay 70% of the cost or, if the municipality has a population of more than 15,000, 90% of the cost.
[14]The portions of the Humboldt and Antigonish municipal policing agreements that are relevant to this case are the same in both agreements, and read as follows:
| 2.1 a) Canada shall, subject to and in accordance with the terms and conditions of this Agreement, provide and maintain a Municipal Police Service within the Municipality for the term of this Agreement. |
- Canada is hereby authorized to provide the Municipal Police Service in accordance with this Agreement.
2.2 Those Members who form part of the Municipal Police Service shall
| a) perform the duties of peace officers; and |
| b) render such services as are necessary to |
| i) preserve the peace, protect life and property, prevent crime and offences against the laws of Canada and the Province, apprehend criminals, offenders and others who may be lawfully taken into custody; and |
| ii) execute all warrants and perform all duties and services in relation thereto that may, under the laws of Canada, the Province or the Municipality, be executed and performed by peace officers. |
. . .
2.4 The Municipality shall provide, without any cost to Canada, all necessary Support Staff; such Support Staff shall meet the job and other related requirements as determined by the Commissioner;
2.5 Where a Municipality provides Support Staff to Canada in support of provincial or federal policing, Canada shall pay the Municipality the salaries for any part of the Support Staff that is so employed.
2.6 Where the Municipality fails to provide the Support Staff required by subarticle 2.4, Canada may provide such Support Staff and charge the Municipality 100 per cent of all the costs of that support Staff.
[15]The term "Support Staff" (employés de soutien) is defined in the agreements as follows:
"Support Staff" means all of those persons who are employed by the Municipality, including clerks, stenographers, data processors, tele- communication operators, jail guards, matrons and janitors, who are required for the effective operation of the Municipal Police Service . . . .
[16]The term "Municipal Police Service" (Service de police municipal) is defined in the municipal policing agreements as follows:
. . . the aggregate of resources and Members employed by Canada to provide municipal police services in the Municipality under this agreement, but does not include those resources and Members employed primarily in
i) policing services of a national or international nature, such as forensic laboratories, the Canadian Police Information System, identification services and the Canadian Police College,
ii) national security investigations services,
iii) protective security such as security at embassies and airports and security for internationally protected persons,
iv) services provided to or on behalf of federal government departments, and
v) any policing services provided under the Provincial Police Service Agreement.
[17]It is apparent that, by the combined operation of these provisions, Humboldt and Antigonish must each provide its own employees to support the work of the RCMP as a municipal police force, and the RCMP must provide its own employees to support the work of the RCMP under its federal mandate.
[18]The terms of the Humboldt and Antigonish municipal policing agreements relating to support staff may be contrasted with the support staff provisions in the Saskatchewan and Nova Scotia provincial policing agreements. Those agreements have no equivalent to article 2.4, 2.5 or 2.6 of the municipal policing agreements. Rather, "Support Staff" is defined as "all those persons who are employed by Canada in the province as public service or casual employees in support of the Provincial Police Service and who are not Members." It is not disputed that, under the provincial policing agreements, civilian employees of the RCMP are part of the federal public service, even if they provide services related to provincial policing.
[19]The actual operations of the RCMP detachments in Humboldt and Antigonish are well and fully described in the Judge's reasons, and so I will only summarize. The support staff in the Antigonish detachment of the RCMP consists of three civilian clerks, two appointed under the Public Service Employment Act and one who is an employee of the municipality of Antigonish. In the Humboldt detachment of the RCMP there are two civilian clerks, one appointed under the Public Service Employment Act and one who is a municipal employee.
[20]The functions of the municipal and federal civilian support staff in the RCMP detachments in both municipalities are similar. They write occurrence reports, answer inquiries (which may be related to federal, provincial or municipal policing), record firearm registrations (which involves checking on applicants and guns), operate radio equipment and conduct dispatching functions, maintain radio communications logs, maintain records systems (including records relating to theft and stolen material, the payment of fines, court dockets, and administrative matters such as expenses and overtime), prepare files for members and officers who may appear in court, maintain communications with public volunteers, and conduct background checks on individuals.
[21]It is admitted by the Crown that the municipal employees in Humboldt and Antigonish provide the support services necessary to carry out the functions and duties of the RCMP established pursuant to the municipal policing agreements, which includes the support services necessary to enforce all applicable municipal, provincial, and federal laws. The evidence is that the functions of the civilian support staff who are municipal employees are commingled with those of federal government employees.
[22]The argument of the Public Service Alliance of Canada, in a nutshell, is that the work of the RCMP under a municipal policing agreement is part of the "functions and duties" of the RCMP, and it follows that any civilian support staff necessary for carrying out those functions must be appointed under the Public Service Employment Act.
[23]The argument of the Crown, which the Judge accepted, is that for the purposes of section 10 of the RCMP Act, the "functions and duties" of the RCMP include only the activities that are part of the RCMP's "core mandate". As I understand it, counsel for the Crown used the term "core mandate" to refer to the functions that would remain for the RCMP even if there were no provincial or municipal policing agreements (that is, the functions described in paragraph 10 above). Using that terminology, it is axiomatic that the enforcement of the Criminal Code in the provinces, and the enforcement of provincial and municipal laws under a provincial or municipal policing agreement, are not part of the RCMP's core mandate.
[24]I must respectfully disagree with the Judge. I would reject the Crown's argument on this point. I see nothing in the RCMP Act or the RCMP Regulations that supports the Crown's proposition that the work of the RCMP under a municipal policing agreement is not a "function" or "duty" of the RCMP merely because it is not part of the RCMP's core mandate (as that term is defined in the previous paragraph). On the contrary, it seems to me that the work of the RCMP as a municipal police force is necessarily work done under the authority of the RCMP Act and, in particular, under the authority of paragraph 17(c) of the RCMP Regulations. The fact that the RCMP is the police force "for Canada", as stated in section 3 of the RCMP Act, is not inconsistent with this conclusion.
[25]Section 20 of the RCMP Act contemplates that the RCMP may act as a provincial or municipal police force, once the required approvals are obtained and agreements are entered into. Although section 20 permits agreements between a municipality and the Solicitor General, with the approval of the Governor in Council, to facilitate the provision of municipal police services by the RCMP, it contains no language that would suggest that the Solicitor General is authorized to enter into any agreement that is not consistent with a provision of the RCMP Act or any other Act of Parliament.
[26]I am not persuaded, as the Judge was, that there is anything about the constitutional aspect of policing that dictates a different interpretation of section 10 of the RCMP Act. I agree with counsel for the Crown that subsection 92(14) of the Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], gives each province legislative authority over the administration of criminal law within the province, which would necessarily include the organization and management of a provincial police force. However, it is well established that matters of discipline, organization and management of the RCMP, even in relation to its activities as a provincial police force, are within the sole legislative authority of Parliament: O'Hara v. British Columbia, [1987] 2 S.C.R. 591. If the services of a civilian are in fact necessary for carrying out the functions and duties of the RCMP when it is acting as a municipal police force, then the employment of that civilian is necessarily an aspect of the organization and management of the RCMP. I am unable to conclude that section 10 of the RCMP Act must be "read down" to ensure its constitutionality.
[27]Some support for this conclusion may be found in Alberta (Attorney General) v. Putnam, [1981] 2 S.C.R. 267. In that case, the Court held that Alberta could not apply the inquiry provisions of The Police Act, 1973, S.A., 1973, c. 44, to examine the conduct of RCMP officers in the province because the matter dealt with discipline and internal management of the RCMP, and so was solely within federal authority. Laskin C.J., writing for the majority, added that this would be the result whether the particular complaint against the officers was connected with an investigation under a federal statute, or the enforcement of a provincial law or municipal by-law. He wrote this at page 277:
It does not appear to me to be possible or practical to separate the law enforcement duties of the R.C.M.P. detachment for the purpose of determining whether in some respects they are subject to the procedures of The Police Act, 1973 and in others not.
[28]Similarly, when considering the employment of necessary civilian employees, which is an aspect of the organization and management of the RCMP, I can see no valid reason for distinguishing the support services related to the fulfilment of a municipal policing agreement from the support services related to the other policing activities of the RCMP.
[29]The record contains no evidence that the Province of Saskatchewan or the Province of Nova Scotia would have any constitutional concerns if all civilians who provide support services to the RCMP, acting as a municipal police force, were required to be employed under the Public Service Employment Act. Neither Province is a party to this appeal or the action in the Federal Court. However, counsel for the Crown advised the Court that both provinces have been made aware of the proceedings.
[30]Counsel for the Crown listed 48 instances of federal legislation that contain language similar to section 10 of the RCMP Act. One example is section 68 of the Canadian Environmental Assessment Act, S.C. 1992, c. 37, which reads:
68. The officers and employees necessary to carry out the work of the Agency shall be appointed in accordance with the Public Service Employment Act.
[31]Counsel for the Crown argued that the purpose of these provisions is simply to identify, as between the Public Service Commission and the federal institution to which the provision applies, who has the power to appoint persons to specified positions. Counsel argued that the flexibility inherent in these provisions should not be denied to municipalities who choose to use the RCMP as their municipal police force. I cannot accept this argument. I see very little inherent flexibility in section 10 of the RCMP Act, section 68 of the Canadian Environmental Assessment Act, or in any of the other similar provisions to which the Court was referred.
[32]In my view, the intention of Parliament in enacting section 10 of the RCMP Act was to require that services "necessary for carrying out the functions and duties" of the RCMP, other than the services provided by members of the RCMP, are to be provided by persons appointed under the Public Service Employment Act. There may be instances where a debate may arise as to the "necessity" of certain services, but the agreed facts in this case permit no such debate with respect to the municipal employees who provide support services to the RCMP detachments in Humboldt, Saskatchewan and Antigonish, Nova Scotia.
[33]I conclude that the Public Service Alliance of Canada is entitled to a declaration that section 10 of the RCMP Act is contravened by the provisions of the municipal policing agreements with Antigonish, Nova Scotia and Humboldt, Saskatchewan, that permit persons who are not members of the RCMP, and who are not appointed under the Public Service Employment Act, to provide services to the RCMP that are necessary for carrying out the functions and duties of the RCMP as a municipal police force. I would allow this appeal with costs in this Court and in the Federal Court. I would set aside the summary judgment and return this matter to the Federal Court for consideration of any claim that the Public Service Alliance of Canada may wish to assert with respect to other remedies, and costs.
Malone J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
[34]Décary J.A. (dissenting): I have read in draft the reasons prepared by my colleague Madam Justice Sharlow. I rely on her statement of the facts and of the relevant legislative and contractual provisions. I have, with the greatest of respect and through perhaps a simpler route, reached the opposite conclusion.
[35]Under subsection 20(2) of the Royal Canadian Mounted Police Act (the RCMP Act), the Solicitor General of Canada may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province "for the use or employment of the Force in aiding the administration of justice in the municipality." Under subsection 20(3), the Solicitor General may agree on and determine the amount of money to be paid by the municipality for the services of the Force. Under subsection 20(4), there may be included in any such agreement provision for the taking over by the Force of officers or other members of the municipal police force.
[36]There is no mention, in section 20, of the civilian staff of the RCMP (which, under the RCMP Act, is not part of "the Force") nor of the staff employed by municipalities. We are dealing, here, with executive arrangements, i.e. arrangements between the federal government (as opposed to the RCMP) on the one hand and a municipal government duly authorized by its provincial government on the second hand. The Act contains no requirement with respect to the use or employment of the civilian staff in the course of these executive arrangements that binds the provincial or municipal governments or ties the hands of the federal government in that regard. The federal government must, of course, and in compliance with section 10 of the RCMP Act, ensure in such agreements that the civilian staff of the RCMP is "appointed or employed" under the Public Service Employment Act. However, there is no requirement that, in these agreements, civilian staff may only be appointed or employed by the RCMP. In this area of municipal police service which is fundamentally within provincial jurisdiction, I am not prepared to find, absent express statutory language, that the federal legislation dictates the terms under which provincial governments may enter into the agreements. Section 20 does not mandate the form nor the extent of the aid ("in aiding", in subsection 20(2)) to be given by the RCMP. It contemplates, but does not mandate, "the taking over by the Force" of municipal police officers. It does not preclude the coexistence of federal and municipal police forces having their own separate entity.
[37]There is no suggestion, in the case at bar, that the federal government entered into these agreements with the view of avoiding the application of section 10 of the RCMP Act. Quite to the contrary, as I read the agreements, the federal government has done its utmost to ensure that civilian staff employed by the RCMP or that civilian staff which was primarily involved in national policing services be considered and treated as federal public servants.
[38]As noted by my colleague, the federal and provincial governments have entered into agreements which treat civilian employees differently depending on whether they are working in support of the provincial or of the municipal police services. No evidence was led to explain why the contracting parties have made that choice, but that option was, in my view, open to them. I would be extremely reluctant to intervene with governmental decisions which, I must assume, were made on the basis of sound political, economic or social considerations.
[39]Finally, were we to retain the position advanced by the Public Service Alliance of Canada, we would need to redraft the terms of the agreements, eradicate the concept of municipal employees, devise new formulas for the calculation of costs, etc., all of this in the context of a statement of claim which does not seek a declaration of invalidity of the agreements and which, in any event, does not implead the provincial and municipal governments which are parties to the agreements and which, we were told at the hearing, support the impugned decision.
[40]In the end, therefore, I come to the conclusion that section 10 of the RCMP Act applies to the civilian staff appointed or employed by the RCMP Commissioner and that it does not apply to the civilian staff appointed or employed by a municipality under an agreement entered into by the Solicitor General pursuant to section 20 of the RCMP Act.
[41]I would dismiss the appeal with costs.