A-240-90
International Longshoremen's and Ware-
housemen's Union—Canada Area Locals 500,
502, 503, 504, 505, 506, 508, 515 and 519; every
person ordinarily employed in longshoring or
related operations at a port on the west coast of
Canada and who is subject to the provisions of the
Maintenance of Ports Operations Act, 1986
(Appellants)
v.
Her Majesty the Queen (Respondent)
INDEXED AS. INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION-CANADA AREA LOCAL S00 V.
CANADA (C.A.)
Court of Appeal, Heald, Décary and Létourneau M.A.
—Vancouver, September 16, 17, 18; Ottawa, Septem-
ber 24, 1992.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of association — Back-to-work legisla
tion, Maintenance of Ports Operations Act, 1986 not violating
Charter, s. 2(d) — Right to freedom of association under s.
2(d) protecting right to establish, belong to and maintain asso
ciation, not right to strike or lockout or to bargain collectively
— Adverse effects of constitutionalization of right to strike on
social and legal fabric.
Constitutional law — Charter of Rights — Life, liberty and
security — Back-to-work legislation, Maintenance of Ports
Operations Act, 1986, prohibiting strike action, not violating
Charter, s. 7 — Workers could exercise rights individually, but
not assert individual rights collectively — Charter, s. 7 dealing
with individual, not collective rights — S. 7 protecting interests
properly and traditionally within domain of judiciary — Right
to strike and Parliament's right to curtail it in public interest
in appropriate circumstances never within domain of judiciary
— Same reasoning applicable to determination of scope of
freedom of association as related to right of union members to
strike applies to determination of scope of right to liberty
under s. 7 for same purpose — Act, s. 13 providing for possi
bility of imprisonment in default of payment of fine, creating
strict liability offence — Not violating Charter, s. 7 — Rebutta-
ble presumption public welfare offences strict liability offences
unless clear indication intention to create absolute liability
offence — Act creating regulatory scheme protecting public
interest while new collective agreement negotiated, public wel
fare statute — Nothing in Act showing intent to create absolute
liability offence.
Labour relations — Back-to-work legislation — Mainte
nance of Ports Operations Act, 1986 ending lockout, extending
duration of collective agreement and ensuring resumption of
work at west coast ports, not violating Charter, ss. 2(d), 7 —
Act, s. 13, providing for possibility of imprisonment in default
of payment of fine, strict liability offence — Not violating
Charter, s. 7.
This was an appeal from the trial judgment holding that the
Maintenance of Ports Operations Act, 1986—except for the
penalty provision—did not violate the Charter, paragraph 2(d)
and section 7 and a cross-appeal from the finding that section
13 of the back-to-work legislation did violate Charter, section
7. The Act ended a lockout, extended the duration of the most
recent collective agreement and ensured the resumption of
work in the ports on the west coast of Canada. The Trial Judge
found that section 13, which provided for the possibility of
imprisonment in default of payment of a fine, created an abso
lute liability offence and therefore violated section 7. The
appellants invited the Court to revisit four Supreme Court of
Canada cases which held that the right to freedom of associa
tion under Charter, paragraph 2(d) protects the freedom to
establish, belong to and maintain an association, but does not
extend to protection of the right to strike or lockout or to bar
gain collectively. It was submitted that every worker has a
right to choose not to work except under terms and conditions
he has agreed to and, if necessary to freely withdraw his labour
upon expiry of his contract of employment. The union argued
that by forcing longshoremen to work in a particular location
on certain terms and conditions on pain of criminal conviction,
substantial fines and the threat of imprisonment, the Mainte
nance of Ports Operations Act, 1986 compelled them to return
to work under terms and conditions that had been lawfully
repudiated thereby infringing their right to liberty under sec
tion 7.
Held, the appeal should be dismissed; the cross-appeal
should be allowed.
As to contravention of paragraph 2(d), there was no valid
reason to revisit the four Supreme Court of Canada decisions
by which this Court was bound. The constitutionalization of
the right to strike would have adverse effects upon the Cana-
dian social and legal fabric.
The purpose of the legislation was not to compel forced
labour in violation of one's right to liberty under section 7.
Under the Act, every worker remained free to exercise his or
her rights individually. An employee could, without incurring
penal sanctions, resign or retire, go on vacation or sick leave.
Employees were merely prevented from resorting to collective
action to assert their individual rights. Charter, section 7 deals
with individual rights, not collective rights such as the right of
union members to strike. This approach was consistent with
case law which has tended to see section 7 as protecting inter
ests "that are properly and have been traditionally within the
domain of the judiciary". The right to strike and the right of
Parliament to curtail it in the public interest in appropriate cir
cumstances had never been within the domain of the judiciary.
This interpretation avoided "the pitfalls of judicial interference
in general public policy". The reasoning applicable to a deter
mination of the scope of freedom of association as it related to
the right of union members to strike applied as well to the
determination of the scope of the right to liberty under section
7 for that same purpose. Union members as a collective group
cannot do indirectly under section 7 what they cannot do
directly under paragraph 2(d).
Section 13 created a valid strict liability offence, which did
not offend Charter, section 7. There is a rebuttable presumption
that public welfare or regulatory offences are strict liability
offences for which the common law defences of due diligence
and reasonable mistake of fact are available, unless there is a
clear indication from the legislature that it intends to make it
an absolute liability offence. The back-to-work legislation was
a public welfare statute which created a regulatory scheme pro
tecting the public interest while a new collective agreement
was being negotiated. There was nothing in the Act to show
any intent to make section 13 an absolute liability offence.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2(d), 7.
Maintenance of Ports Operations Act, 1986, S.C. 1986, c.
46, ss. 3, 5, 8, 12, 13.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Reference Re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313; (1987), 78 A.R. 1; 38 D.L.R.
(4th) 161; [1987] 3 W.W.R. 577; 51 Alta. L.R. (2d) 97; 87
C.L.L.C. 14,021; [1987] D.L.Q. 225; 74 N.R. 99; PSAC v.
Canada, [1987] 1 S.C.R. 424; (1987), 38 D.L.R. (4th)
249; 87 C.L.L.C. 14,022; 32 C.R.R. 114; [1987] D.L.Q.
230; 75 N.R. 161; RWDSU v. Saskatchewan, [1987] 1
S.C.R. 460; (1987), 38 D.L.R. (4th) 277; [1987] 3
W.W.R. 673; 87 C.L.L.C. 14,023; [1987] D.L.Q. 233; 74
N.R. 321; Professional Institute of the Public Service of
Canada v. Northwest Territories (Commissioner), [1990]
2 S.C.R. 367; [1990] N.W.T.R. 289; (1990), 72 D.L.R.
(4th) 1; [1990] 5 W.W.R. 385; 90 C.L.L.C. 14,031; 49
C.R.R. 193; 112 N.R. 269.
APPLIED:
R. v. Martin, [1992] 1 S.C.R. 838; (1992), 7 O.R. (3d)
319; affg (1991), 2 O.R. (3d) 16; 63 C.C.C. (3d) 71; 43
O.A.C. 378 (C.A.); Reference re ss. 193 and 195.1(1)(c)
of the Criminal Code (Man.), [1990] 1 S.C.R. 1123;
[1990] 4 W.W.R. 481; (1990), 68 Man. R. (2d) 1; 56
C.C.C. (3d) 65; 77 C.R. (3d) 1; 109 N.R. 81; R. on the
information of Mark Caswell v. Corporation of City of
Sault Ste. Marie, [1978] 2 S.C.R. 1299; (1978), 85 D.L.R.
(3d) 161; 40 C.C.C. (2d) 353; 7 C.E.L.R. 53; 3 C.R. (3d)
30; 21 N.R. 295; Thomson Newspapers Ltd. v. Canada
(Director of Investigation and Research, Restrictive Trade
Practices Commission), [1990] 1 S.C.R. 425; (1990) 67
D.L.R. (4th) 161; 54 C.C.C. (3d) 417; 29 C.P.R. (3d) 97;
76 C.R. (3d) 129; 47 C.R.R. 1; 39 O.A.C. 161; 106 N.R.
161.
REFERRED TO:
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d)
417; 94 N.R. 167; R. v. Desgagnes, no. 27-11828-755,
S.P. 1975, Montréal, not reported; Canadian Assn. of
Regulated Importers v. Canada (Attorney General),
[1992] 2 F.C. 130 (C.A.); R. v. Wholesale Travel Group
Inc., [1991] 3 S.C.R. 154; (1991), 67 C.C.C. (3d) 193; 8
C.R. (4th) 145; Strasser v. Roberge, [1979] 2 S.C.R. 953;
(1979), 103 D.L.R. (3d) 193; 40 C.C.C. (2d) 129; 79
C.L.L.C. 14,233; 29 N.R. 541; Allard (Ghislain) and Ville
de Montreal, [1982] 2 Can. L.R.B.R. 8; 82 C.L.L.C.
14,171.
AUTHORS CITED
Law Reform Commission of Canada, Criminal Responsi
bility for Group Action (Working Paper No. 16)
Ottawa: Law Reform Commission of Canada, 1976.
APPEAL and cross-appeal from trial judgment,
International Longshoremen's and Warehousemen's
Union—Canada Area Local 500 v. Canada, [1990] 2
F.C. 449; (1990), 69 D.L.R. (4th) 85; 90 CLLC
14,014; 33 F.T.R. 161 (T.D.). Appeal dismissed,
cross-appeal allowed.
COUNSEL:
P. Nicholas M Glass and Mari A. Worfolk for
appellants.
Eric A. Bowie, Q. C. and Meg Kinnear for
respondent.
SOLICITORS:
Swinton & Company, Vancouver, for appellants.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
LÉTOURNEAU J.A.:
Facts and Issues
This is an appeal from a judgment of the Trial
Division [[1990] 2 F.C. 449] dealing with the consti
tutionality of the Maintenance of Ports Operations
Act, 1986, 1 the so-called back-to-work legislation
enacted by Parliament which put an end to a lockout
and ensured that the work in the ports of the west
coast of Canada would resume.
The appellants, the International Longshoremen's
and Warehousemen's Union and persons ordinarily
employed in longshoring or other related operations
who were subject to the provisions of the Act, chal
lenged the Act on the basis that it violated the consti
tutionally protected rights and freedoms guaranteed
by paragraph 2(d) and section 7 of the Canadian
Charter of Rights and Freedoms [being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44]]. Paragraph 2(d) guarantees freedom of asso
ciation and section 7 the right to life, liberty and
security of the person and the right not to be deprived
thereof except in accordance with the principles of
fundamental justice.
The learned Trial Judge found that the back-to-
work legislation did not violate paragraph 2(d) and
section 7, except for the penalty provision found in
section 13 of that legislation which he concluded was
inconsistent with section 7 of the Charter and conse
quently of no force or effect.
On appeal to this Court, the appellants submit that
the learned Trial Judge erred in holding that the Act
did not violate paragraph 2(d) and section 7 of the
1 S.C. 1986, c. 46.
Charter. They also contend that the Trial Judge erred
in severing section 13 from the rest of the Act, leav
ing the balance of the Act valid. In a cross-appeal, the
respondent, Her Majesty the Queen, submits that the
Trial Judge misconstrued the law in deciding that
section 13 of the Act violated section 7 of the Charter
because it created an offence of absolute liability with
a possibility of imprisonment in default of payment
of a fine. Alternatively, the respondent argues that if
it did violate section 7, it could be saved under sec
tion 1 of the Charter as the legislation had a suffi
ciently important objective to override the rights in
question. Furthermore, the respondent claims that the
Trial Judge erred in law in awarding costs to the
appellants who had lost on all the major issues but
succeeded only on a minor point. Therefore, the
respondent requests that it be granted costs in both
Divisions of this Court.
Paragraph 2(d) of the Charter: the right to freedom of
association and the right to collectively bargain and
to strike
The appellants invited this Court to revisit the four
decisions of the Supreme Court of Canada 2 which
ruled that the right to freedom of association under
paragraph 2(d) of the Charter, while it protects the
freedom to establish, belong to and maintain an asso
ciation, does not extend to the protection of the right
to strike or lockout or to bargain collectively. They
could not give any valid reasons or justifications for
doing so. The Trial Judge rightly decided that he was
unquestionably bound by those decisions of the
Supreme Court of Canada. Likewise, this Court is
similarly bound.
One needs only read the decision of the Supreme
Court in the Alberta Reference, [1987] 1 S.C.R. 313,
to be convinced of the tremendous impact the consti-
tutionalization of the right to strike would have on
our social and legal fabric. At pages 416-417, McIn-
2 Reference Re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R.
424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professio
nal Institute of the Public Service of Canada v. Northwest Ter
ritories (Commissioner), 11990] 2 S.C.R. 367.
tyre J., after having alluded to the chilling effect it
could have on the development of labour relations
and on the legislative development of the right itself,
wrote:
To constitutionalize a particular feature of labour relations
by entrenching a right to strike would have other adverse
effects. Our experience with labour relations has shown that
the courts, as a general rule, are not the best arbiters of disputes
which arise from time to time. Labour legislation has recog
nized this fact and has created other procedures and other
tribunals for the more expeditious and efficient settlement of
labour problems. Problems arising in labour matters frequently
involve more than legal questions. Political, social, and eco
nomic questions frequently dominate in labour disputes. The
legislative creation of conciliation officers, conciliation boards,
labour relations boards, and labour dispute-resolving tribunals,
has gone far in meeting needs not attainable in the court sys
tem. The nature of labour disputes and grievances and the other
problems arising in labour matters dictates that special proce
dures outside the ordinary court system must be employed in
their resolution. Judges do not have the expert knowledge
always helpful and sometimes necessary in the resolution of
labour problems. The courts will generally not be furnished in
labour cases, if past experience is to guide us, with an eviden-
tiary base upon which full resolution of the dispute may be
made. In my view, it is scarcely contested that specialized
labour tribunals are better suited than courts for resolving
labour problems, except for the resolution of purely legal ques
tions. If the right to strike is constitutionalized, then its applica
tion, its extent, and any questions of its legality, become mat
ters of law. This would inevitably throw the courts back into
the field of labour relations and much of the value of special
ized labour tribunals would be lost.
He went on further to say at pages 419 - 420:
A further problem will arise from constitutionalizing the
right to strike. In every case where a strike occurs and relief is
sought in the courts, the question of the application of s. 1 of
the Charter may be raised to determine whether some attempt
to control the right may be permitted. This has occurred in the
case at bar. The section 1 inquiry involves the reconsideration
by a court of the balance struck by the Legislature in the devel
opment of labour policy. The Court is called upon to deter
mine, as a matter of constitutional law, which government ser
vices are essential and whether the alternative of arbitration is
adequate compensation for the loss of a right to strike. In the
PSAC case, the Court must decide whether mere postponement
of collective bargaining is a reasonable limit, given the Gov
ernment's substantial interest in reducing inflation and the
growth in government expenses. In the Dairy Workers case,
the Court is asked to decide whether the harm caused to dairy
farmers through a closure of the dairies is of sufficient impor
tance to justify prohibiting strike action and lockouts. None of
these issues is amenable to principled resolution. There are no
clearly correct answers to these questions. They are of a nature
peculiarly apposite to the functions of the Legislature. How
ever, if the right to strike is found in the Charter, it will be the
courts which time and time again will have to resolve these
questions, relying only on the evidence and arguments
presented by the parties, despite the social implications of each
decision. This is a legislative function into which the courts
should not intrude. It has been said that the courts, because of
the Charter, will have to enter the legislative sphere. Where
rights are specifically guaranteed in the Charter, this may on
occasion be true. But where no specific right is found in the
Charter and the only support for its constitutional guarantee is
an implication, the courts should refrain from intrusion into the
field of legislation. That is the function of the freely-elected
Legislatures and Parliament.
This is just as true now as it was five years ago. In
the case at bar, considerable time, effort and expense
was spent on determining, in application of section 1
of the Charter, whether Parliament's intervention was
justified in the economic context which prevailed at
the time. Expert evidence including macro- and
micro-assessment of the economic impact of the
work stoppage was introduced. Evidence was given
as to the impact of the stoppage on Canadian produc
ers, transporters and shippers, on Canada's interna
tional competitiveness, on Canada's credibility on the
national and international markets, to name but a few
issues. Real and speculative evidence of a conflicting
nature was adduced as to the extent of the damages
caused and as to the damages that would likely have
resulted had there been no immediate legislative
intervention. I shudder at the thought that any signifi
cant labour dispute necessitating a swift intervention
from Parliament in the public interest would have to
be settled through endless proceedings in a judicial
forum.
Section 7 of the Charter: the right to liberty and the
right to strike
In analyzing section 7 of the Charter, the Trial
Judge adopted the procedure followed by Dickson
C.J. in Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927, to determine the scope of free
dom of expression mandated by paragraph 2(b) of the
Charter. On this basis, the learned Trial Judge ruled
that the right to strike does not fall within the pur
view _ of "life, liberty and security of the person"
found in section 7.
The appellants submitted at the hearing that the
issue in the case and under section 7 is not only the
right to strike as the Trial Judge put it, but also the
right of every individual or worker to freely exercise
a choice not to work except under terms and condi
tions he has agreed to and, if necessary, to freely
withdraw his labour upon expiry of his contract of
employment. To put it another way, an individual
should not be compellable, under the threat of penal
sanctions, to go to work at a time, at a place and
under terms imposed by Parliament when he has
democratically rejected those terms. A person's right
to liberty under section 7, they argued, is infringed by
a law that forces that person to go back to work under
terms and conditions that have been lawfully repudi
ated. According to the appellants' contention, the
Maintenance of Ports Operations Act, 1986 did noth
ing less than that. It forced each longshoreman to
perform work in a particular location on certain
terms and conditions on pain of criminal conviction,
substantial fines and the threat of imprisonment. The
appellants' contention calls for an interpretation of
the Act and the purpose sought by Parliament in
enacting it.
The key provisions are sections 3, 5, 8 and 12 of
the Act which read:
3. On the coming into force of this Act,
(a) each company shall forthwith resume longshoring and
related operations at ports on the west coast of Canada; and
(b) every person who is ordinarily employed in longshoring
or related operations at a port on the west coast of Canada
and who, on December 30, 1985, was bound by the collec
tive agreement to which this Act applies shall, when so
required, return forthwith to the duties of his employment.
5. The term of the collective agreement to which this Act
applies is extended to include the period beginning on January
1, 1986 and ending on the day on which a new collective
agreement entered into between the parties thereto in amend
ment or revision thereof comes into effect, or on December 31,
1988, whichever is the earlier.
8. During the term of the collective agreement to which this
Act applies, as extended by section 5,
(a) no company shall declare or cause a lockout;
(b) no person who is an officer or representative of the union
shall declare or authorize a strike against a company; and
(c) no person who is bound by the collective agreement to
which this Act applies shall participate in a strike against a
company.
12. Nothing in this Act shall be deemed to limit or restrict
the rights of the parties to the collective agreement to which
this Act applies to agree to vary or amend any of the provisions
of the agreement as amended pursuant to this Act, other than a
provision relating to the term of the agreement, and to give
effect thereto.
I note in passing that section 12 maintained the
right of the appellants, as a result of collective bar
gaining, to vary or amend the collective agreement.
Section 5 extended the terms of the agreement until a
set date or a new agreement is reached. Section 8 for
bade the employer to declare a lockout and a member
of the union to go on strike.
It appears from a reading of these sections that the
purpose of the Act was to terminate an ongoing lock
out, to extend the duration of the most recent collec
tive agreement, to ensure that the employees who
were out as a result of the lockout would come back
to work and to prevent future lockouts or strikes.
As attractive as the appellants' argument may be,
there is a short answer to it. The purpose of the legis
lation was not to compel forced labour in violation of
one's right to liberty under section 7 of the Charter.
Under the Act, every worker remained free to exer
cise his or her rights individually and there is evi
dence that some did just that. For instance, an
employee could, without incurring penal sanctions,
resign or retire, go on vacation or on sick leave or fail
to show up at work for a valid reason. 3 He or she had
the liberty to individually exercise his or her rights
under the contract, including the right to terminate it.
Section 5 of the Act, as already mentioned, extended
the terms of the agreement until a set date or until a
new agreement was reached. What the employees
could not do, however, is to resort to a collective
action, namely a strike, in order to collectively assert
their individual rights. The legislation allowed for an
individual action to be taken in conformity with the
agreement but not for a collective strike action. To
put it another way, the Act did not deprive the work
ers of their individual rights; it temporarily sus
pended their right to collectively exercise them by
way of a collective work stoppage.
Here again it is worth quoting from the Alberta
Reference case where McIntyre J., at pages 410-411,
stressed the fundamental difference between what I
would call an individual and a collective cessation of
work. He wrote:
The second reason is simply that there is no analogy whatever
between the cessation of work by a single employee and a
strike conducted in accordance with modern labour legislation.
The individual has, by reason of the cessation of work, either
breached or terminated his contract of employment. It is true
that the law will not compel the specific performance of the
contract by ordering him back to work as this would reduce
"the employee to a state tantamount to slavery" (I. Christie,
Employment Law in Canada (1980), p. 268). But, this is mark
edly different from a lawful strike. An employee who ceases
work does not contemplate a return to work, while employees
on strike always contemplate a return to work. In recognition
of this fact, the law does not regard a strike as either a breach
of contract or a termination of employment. Every province
and the federal Parliament has enacted legislation which pre
serves the employer-employee relationship during a strike (see
Canada Labour Code, R.S.C. 1970, c. L-1, as amended, s.
107(2); Labour Relations Act, R.S.A. 1980 (Supp.), c. L-1.1, as
amended, s. 1(2); Labour Code, R.S.B.C. 1979, c. 212, as
3 See ss. 11.01 and 21.03(6) of the Collective Agreement
and Vol. 1 of the Proceedings, at pp. 146-147; for an example
of impunity in such circumstances, see the case of R. v. Des -
gagnes, Sessions of the Peace, Montréal, no. 27-11828-755,
1975 where a longshoreman charged with having participated
in a strike was acquitted because he had reported himself sick
in conformity with the prescriptions of the collective agree
ment that had been extended by a back-to-work legislation.
amended, s. 1(2); The Labour Relations Act, S.M. 1972, c. 75,
as amended, s. 2(1); Industrial Relations Act, R.S.N.B. 1973, c.
I-4, as amended, s. 1(2); The Labour Relations Act, 1977, S.N.
1977, c. 64, as amended, s. 2(2); The Trade Union Act, S.N.S.
1972, c. 19, as amended, s. 13; Labour Relations Act, R.S.O.
1980, c. 228, as amended, s. 1(2); Labour Act, R.S.P.E.I. 1974,
c. L-1, as amended, s. 8(2); Labour Code, R.S.Q. 1977, c.
C-27, as amended, s. 110; and The Trade Union Act, R.S.S.
1978, c. T-17, as amended s. 2(f); and see Canadian Pacific
Railway Co. v. Zambri, [1962] S.C.R. 609). Moreover, many
statutes provide employees with reinstatement rights following
a strike (Ontario, Labour Relations Act, s. 73; Quebec, Labour
Code, s. 110.1; Manitoba, The Labour Relations Act, s. 11; and
see Canadian Air Line Pilots' Ass'n and Eastern Provincial
Airways Ltd. (1983), 5 CLRBR (NS) 368) and in the province
of Quebec the employer is expressly prohibited from replacing
employees who are lawfully on strike (s. 109.1).
Modern labour relations legislation has so radically altered
the legal relationship between employees and employers in
unionized industries that no analogy may be drawn between
the lawful actions of individual employees in ceasing to work
and the lawful actions of union members in engaging in a
strike.
In my respectful view, section 7 of the Charter
deals with individual rights, not collective rights such
as the right of union members to strike. I am also
mindful of Chief Justice Dickson's words in the
Alberta Reference case, at page 367, that "There is no
individual equivalent to a strike. The refusal to work
by one individual does not parallel a collective
refusal to work". In the context of the negotiation of a
labour agreement, the individual rights of the mem
bers of a union are exercised, discussed and expanded
in a collective process which, by necessity, is subject
to a set of different rules to ensure its proper func
tioning. The individual members delegate the exer
cise of their rights to the collective bargaining unit
with the possibility, if need be, of resorting to a col
lective action such as a strike. I believe the learned
Trial Judge was right in his conclusion that the Main
tenance of Ports Operations Act, 1986 did not violate
section 7 of the Charter by reason that it prohibited
the appellants from taking strike action, be it in the
form of collectively refusing to resume work pursu
ant to the cessation of the lockout or going on a strike
proper at a later date.
Let me add that the approach I am taking to section
7 is consistent with the case law where the tendency
is to see section 7 as protecting interests "that are
properly and have been traditionally within the
domain of the judiciary .... The common thread that
runs throughout s. 7 and ss. 8-14 is the involvement
of the judicial branch as guardian of the justice sys
tem" (per Lamer J., as he then was, in Reference re
ss. 193 and 195.1(1)(c) of the Criminal Code (Man.),
[1990] 1 S.C.R. 1123, at pages 1173-1174).
I am satisfied that the right to strike and the right
of Parliament to curtail it in the public interest in
appropriate circumstances have never been tradition
ally within the domain of the judiciary. This interpre
tation of section 7 avoids what my colleague
MacGuigan J.A. called "the pitfalls of judicial inter
ference in general public policy" (see Canadian Assn.
of Regulated Importers v. Canada (Attorney Gen
eral), [1992] 2 F.C. 130 (C.A.), at page 158). This is
even more obvious in a case like the one at bar where
the back-to-work legislation involved important
social, political and economic considerations with
national and international ramifications which, I am
convinced beyond any doubt, were never intended to
be discussed under the right to individual liberty
found in section 7.
I believe the appellants are trying to do under sec
tion 7, i.e., under the cover of the right to liberty,
what they cannot do under paragraph 2(d), i.e., under
freedom of association. As attractive as the argu
ments of the appellants may be, they purposely
ignore the reality of the collective process of which
the right to strike is an important feature. I agree with
a submission made by counsel for the respondent that
the thrust of the reasoning applicable to paragraph
2(d) to determine the scope of freedom of association
as it related to the right of union members to strike
applies as well to the determination of the scope of
the right to liberty under section 7 for that same pur
pose. Union members as a collective group cannot do
indirectly under section 7 what they cannot do
directly under paragraph 2(d).
Section 7 of the Charter, section 13 of the impugned
Act and the invalidity of that penal provision
In his judgment, the learned Trial Judge concluded
that the penal provision found in section 13 of the
Maintenance of Ports Operations Act, 1986 created
an absolute liability offence with the possibility of
imprisonment in default of payment of the fine and as
a result violated section 7 of the Charter. He also
came to the conclusion that it could not be saved
under section 1, but that it could be severed from the
rest of the Act. He ruled that section 13 of the Act
was of no force or effect.
Subsection 13(1) of the Act reads:
13. (1) Where an individual, the union or a company contra
venes any provision of this Act, the individual, union or com
pany, as the case may be, is guilty of an offence punishable on
summary conviction and is liable, for each day or part of a day
during which the offence continues, to a fine
(a) subject to paragraph (b), of not less than $500 and not
more than $1,000, in the case of an individual who is con
victed of the offence;
(b) of not less than $10,000 and not more than $50,000
where, in the case of an individual who is convicted of the
offence, the individual was an officer or representative of
the union or of the company and the offence was committed
while the individual was acting in that capacity; or
(c) of not less than $20,000 and not more than $100,000, in
the case of a company or the union that is convicted of the
offence.
I have omitted subsections 2 and 3 as they are not in
issue.
At the time of writing his reasons, the learned Trial
Judge did not have the benefit of the decisions of the
Supreme Court of Canada in R. v. Martin, [1992] 1
S.C.R. 838; affg (1991), 2 O.R. (3d) 16 (C.A.) and in
R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R.
154.
As a result of the Sault Ste. Marie case (R. on the
information of Mark Caswell v. Corporation of City
of Sault Ste. Marie, [1978] 2 S.C.R. 1299) and the
Martin case (supra), there is a presumption that pub
lic welfare offences or regulatory offences are strict
liability offences for which the common law defences
of due diligence and reasonable mistake of fact are
available. This presumption can be displaced but it
requires a clear indication from the legislature that it
intends to make it an absolute liability offence. The
Ontario Court of Appeal went further and decided
that even if an offence appears to have the hallmarks
of an absolute liability offence, it should be construed
as an offence of strict liability to avoid conflict with
the Charter (R. v. Martin, supra). This has the obvi
ous advantage of sustaining the validity of a law
while at the same time granting fairness to an
accused.
Looking at the back-to-work legislation as a whole
and specifically at section 13, I have no hesitation in
concluding that the impugned statute is a public wel
fare statute, that it creates a regulatory scheme pro
tecting the public interest while a new collective
agreement is negotiated and, therefore, that the
offence created by section 13 is a strict liability
offence. It fits the underlying rationale given by the
Law Reform Commission of Canada (Criminal
Responsibility for Group Action, Working Paper No.
16, 1976, at page 12) and adopted by Mr. Justice La
Forest in Thomson Newspapers Ltd. v. Canada
(Director of Investigation and Research, Restrictive
Trade Practices Commission), [1990] 1 S.C.R. 425,
at page 511:
[The regulatory offence] is not primarily concerned with val
ues, but with results. While values necessarily underlie all legal
prescriptions, the regulatory offence really gives expression to
the view that it is expedient for the protection of society and
for the orderly use and sharing of society' s resources that peo
ple act in a prescribed manner in prescribed situations .... The
object is to induce compliance with rules for the overall benefit
of society.
There is nothing at all in the Act which shows any
intent whatsoever from Parliament to make it an
absolute liability offence. Indeed, offences similar in
nature to section 13 have been categorized as strict
liability offences (Strasser v. Roberge, [1979] 2
S.C.R. 953; Allard (Ghislain) and Ville de Montreal,
[1982] 2 Can. L.R.B.R. 8).
I am also fortified in my conclusion by the fact that
in the Martin case already cited, the Ontario Court of
Appeal, later affirmed by the Supreme Court of
Canada, found that the disputed provision was one
creating a strict liability offence notwithstanding that
there was one other provision which expressly con
tained a defence of due diligence. Griffiths J.A. for
the Court held, in application of the presumptions in
Sault Ste. Marie, that the express provision of due
diligence in one section did not manifest an intent of
the legislature to preclude raising the defence under
another. There is no ambiguity of this kind in the
Maintenance of Ports Operations Act, 1986. In my
view, section 13 creates a valid offence, one of strict
liability which does not offend section 7 of the Char
ter. Having so found, it becomes unnecessary to deal
with the issues of justification under section 1 and
severance.
Conclusion
I would dismiss the appeal and I would allow the
cross-appeal. The respondent should be entitled to
her costs in the appeal both here and in the Trial
Division. The respondent should also be entitled to
her costs of the cross-appeal in this Court.
HEALD J.A.: I concur.
DÉCARY J.A.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.