Law in Quebec

The APPQ had already reached an agreement in principle with Quebec that provided for a 21 per cent increase in the total remuneration of police officers over five years but the majority of the association’s members, 59 per cent, rejected the agreement in principle. Negotiations have since stalled, with the association asserting that “the government was unable to show us its willingness to reach an agreement by improving the first one.”

In August, Quebec Superior Court Justice Florence Lucas held that a provincial law that banned police officers from wearing non-regulation uniforms while on duty was unconstitutional.

The decision, the latest to build on the “nuts and bolts” of the Supreme Court of Canada’s seminal labour decision in Saskatchewan, held that the legislative provisions infringe the police officers’ freedom of expression by prohibiting pressure tactics designed to convey a message to the public by altering the appearance of their uniforms. Justice Florence Lucas also held that the ban also substantially infringed their freedom of association because it prohibited “collective activities” that involve the “assertion and autonomy” of police officers in “concerted action” that also raised public awareness of their demands, which are “collective objectives” essential to the “true process” of collective bargaining.

“It is a judgment of considerable importance in terms of fundamental rights in labour relations,” noted Jean-François Raymond, managing partner at Roy Bélanger Avocats. “We welcome the recognition of concerted action by police officers in the context of a labour dispute as an important form of discourse that these workers want and must be able to convey,” added Raymond, who successfully pleaded the case.

But equally important, said Raymond, the decision marks an “important step forward” for the freedom of association provided for s. 2(d) of the Canadian Charter of Rights and Freedoms because it recognizes that the Quebec legislature substantially restricted the right of police to change their uniforms “as a means of pressure that is particularly effective.”

According to labour law professor Finn Makela, the decision represents the latest exercise by the courts to determine and delineate the scope of the constitutionally protected right to strike. The Supreme Court in a trilogy of decisions, including Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, enshrined the right to strike as “indispensable component” of collective bargaining.

“Generally when there’s a big change in the jurisprudence that comes out from the Supreme Court, often it’s couched in very broad terms and then the lower courts in subsequent litigation kind of need to work out the nuts and bolts of what it actually means in specific situations,” explained Makela of the Université de Sherbrooke. “There are a couple of interesting things in this (Quebec Superior Court) decision that I think adds to the kind of collective discussion about the limits that governments can put on the rights of workers to organize in order to advance their collective interests.”

The case stems to 2015 when the Quebec government introduced pension reforms, an effort that led police officers to don camouflage trousers and red caps as a form of protest. That’s something police have been doing since the mid-1970s when police officers wore jeans, then baseball caps and cowboy hats before evolving to colourful cargo pants or so-called “clown pants.” When police controversially worn the vibrant pants at the state funeral of former prime minister Jacques Parizeau, it provoked a public outcry and the Quebec government adopted a bill that prohibited police from wearing non-uniform clothing items while on duty. Bill 20 had bite, as any police officer who contravened the law was liable for fines between $500 and $3,000 a day.

Police challenged the ban, maintaining that the legislative provisions create a total prohibition on altering police officers’ work uniforms as a means of pressure, thereby unjustifiably infringing on its members’ freedom of expression and substantially hindering their freedom of association, protected by s. 2(b) of the Canadian Charter and the Quebec Charter of Human Rights and Freedoms.

The Quebec government countered that the wearing of a uniform is a privilege, linked to the exercise of public authority which cannot receive constitutional protection. It also claimed that the prohibitions were rationally connected to real and pressing objectives aimed at preserving public confidence, and “unequivocal” identification of police officers and public safety.

Justice Lucas, in a 68-page ruling in Fédération des policiers et policières municipaux du Québec c. Procureur général du Québec, 2023 QCCS 3333 found that the prohibitions are not justified. The objectives pursued by the Quebec government are “laudable” and a rational connection can be inferred, but the ban is excessive and arbitrary scope and do not infringe constitutional rights to the least extent possible, “especially” since their prejudicial effects on police officers’ freedom of expression and freedom of association are disproportionate to any social benefit they might confer, added Justice Lucas.

Justice Lucas dismissed the government’s contention that the wearing of a uniform by police officers arises from an obligation that is part of maintaining the exercise of public authority, and is therefore a privilege that cannot receive constitutional protection. Besides noting there is no precedent to support this contention, Justice Lucas held that the police officers and associations “rightly argue” that the prohibitions in Bill 20 and its significant penalties have the effect of creating a “chilling effect” on the future expression of police officers because they are unable to use this type of pressure tactic. Altering their uniform in the context of a labour dispute is a “means of publicly communicating the discontent of police officers, so that it is an activity that is an integral part of freedom of expression,” held Justice Lucas. It is “therefore clear” that the provisions prohibiting the substitution or alteration of uniforms infringe section 2(d) of the Charter.

“The ruling conveys the message that the form of expression of altering the uniform must be recognized and protected in Quebec and Canadian law,” said Raymond.

The police union associations also argued that replacing or altering uniforms as part of concerted union action during collective bargaining has been an essential collective activity in the bargaining process for more than four decades. They asserted that these are pressure tactics that make it possible to balance the employer-employee relationship, particularly in the absence of the right to strike for police officers, and it is a low-cost, easy-to-implement way to create solidarity.

“The union’s argument is interesting,” said Makela. “They argued that wearing clown pants has a purpose other than simply communicating to the public their demands but that it is also a mechanism of self-organization or way of organizing that creates solidarity. And that’s one of the cornerstones of the Supreme Court jurisprudence, even before 2015, which is an integral part of the freedom of association, and that is letting unions and their members decide for themselves what is the best way to organize for themselves.”

Justice Lucas noted that in Quebec the right to strike by police officers has been offset by mandatory arbitration. “While arbitration makes it possible to restore a certain balance, it must be acknowledged that this mechanism does not achieve all the objectives of the right to strike, including those related to the affirmation and autonomy of police officers in concerted action and their direct participation in the negotiation process, as well as raising public awareness of their demands,” said Justice Lucas.

Union associations and police officers, added Justice Lucas, are “certainly entitled” to choose other means of exerting pressure in order to achieve these “substantial values.” The alteration of the uniform as a means of concerted communication, ineffective if exercised by a single person, fulfils a “collective objective” that compulsory arbitration cannot compensate for, held Justice Lucas. But the provisions that prohibit the substitution or alteration of uniforms have a substantial impact on the police officers’ collective right to consultation and negotiation in good faith, said Justice Lucas.

“Considering the historical context of the alteration of uniforms as a means of pressure and the essential purposes served by such means, the Court concludes that the ability of police officers to act as one to achieve common goals is substantially compromised by the prohibitions set out in the provisions at issue, with the result that there is an infringement of the freedom of association guaranteed in s. 2(d) of the Charter,” concluded Justice Lucas.

“There’s some discussion in the judgment that says well actually the 2(d) protection, so the freedom of association itself has an expressive element, and that’s a kind of nuance that is interesting, and we’ll see if it gets taken up in later jurisprudence,” said Makela.