Law Times

PAGE 4 NEWS march 7, 2011 • Law Times Back-to-work bill 'unconstitutional' Comments come as challenge by federal Crowns set to go before court BY MICHAEL McKIERNAN Law Times B ack-to-work legislation that ended a legal strike by Quebec Crown pros- ecutors and government lawyers is unconstitutional, according to the leaders of two associations. In their view, the provincial legislation passed following an all-night session of the national assembly late last month violates the right to collective bargaining established in the 2007 Supreme Court of Canada decision in Health Services and Support – Fa- cilities Subsector Bargaining Asso- ciation v. British Columbia. Marco Mendicino, presi- dent of the Association of Jus- tice Counsel that represents al- most 3,000 federal lawyers, has written federal Justice Minister Rob Nicholson urging him to step in and ask the Quebec provincial government to re- consider the bill. "It must be repealed or will face being struck down by the courts," he wrote. "Until then, the strike may be over, but the ad- ministration of justice in Quebec will remain in a crisis." Mendicino tells Law Times the terms of the bill that threaten daily fi nes of up to $35,000 for individuals and $125,000 for as- sociations that engage in any fu- ture work action in the next fi ve years are "beyond draconian." Th e bill also imposes a six-per- cent pay raise over fi ve years for prosecutors. Th ey were seeking raises of 40 per cent to bring them in line with their counter- parts in other provinces. "Th is appears to be a piece of legislation that was dusted off from perhaps 50 or 60 years ago, certainly from an era long before the Charter was intro- duced," Mendicino says. James Chaff e, president of the Canadian Association of Crown Counsel, says he's "virtually of expression. Th e ruling reversed its position in previous case law. "Th e right to bargain col- lectively with an employer en- hances the human dignity, lib- erty, and autonomy of workers by giving them the opportunity to infl uence the establishment of workplace rules and thereby gain some control over a major aspect of their lives," reads the majority decision by Chief Jus- tice Beverley McLachlin and Justice Louis LeBel. In Quebec, Crown prosecu- Quebec's bill 'must be repealed or will face being struck down by the courts,' says Marco Mendicino. certain" of a challenge to a bill he calls "manifestly unconsti- tutional." B.C. Health Services was the fi rst Supreme Court decision to recognize a limited right to collec- tive bargaining as part of freedom tors and government lawyers gained the right to strike in 2003 when the province refused to enter into binding arbitration for a previous deal. By quash- ing a legal strike and imposing a settlement, the Quebec gov- ernment has substantially inter- fered with the lawyers' right to bargain collectively, according to Mendicino and Chaff e. "It would seem that Quebec's lawyers have forfeited their fundamental rights under the Charter merely because they ex- ercised them," Mendicino says. According to Chaff e, the legis- lation was particularly damaging for government lawyers who were part of the strike and whose job is to advise ministers and their deputies of the legality of their planned legislation. Th ey make up two-thirds of the 1,500 lawyers who walked off the job last month. Chaff e says they may feel intimidated in the future about standing up to government offi cials who have acted as though they are "above the Constitution" in passing the back-to-work legislation. "I don't know who they got to draft this legislation, but the peo- ple drafting this legislation must have done so with the knowledge of B.C. Health Services. It's be- yond me how they could write the law. It's a profound breach of trust between the government lawyers and the government right now, and one wonders how they can carry on the relationship." Th ere are also concerns the THE ONTARIO MUNICIPAL SERVICE DIRECTORY 2011 A Comprehensive Guide for reAl estAte professionAls, 2011 All the municipal services information you need for real estate searches under one cover. With introduction and historical linkages by michael l. 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As well as the 40-per- cent wage hike, Crown prosecu- tors had called for the creation of at least 200 new positions in order to relieve their workloads. Crowns in Quebec make about half of what their counterparts in Ontario earn, while the ratio of prosecutors to population is lower there. Th e government has promised to employ just 80 new Crowns, but Chaff e says it could be dealing with an exodus. "Morale couldn't be lower. With this legislation, you can expect more experienced peo- ple will leave. . . . Th ese issues are prevalent right across the country, but Quebec is an ab- solute catastrophe." Mendicino's association is also engaged in its own constitu- tional challenge against the fed- eral government alleging it inter- fered with its right to collective bargaining by imposing retroac- tive limits on pay increases in its 2009 Expenditure Restraint Act. A hearing is set for the Ontario Superior Court in April, and cross-examinations of affi ants are currently underway. Th e association is also await- ing a decision from the Federal Court on a judicial review of its fi rst arbitrated settlement with the government. Federal offi cials have applied to roll back Crown lawyers' gains on overtime pay and travel allowances. Th e gov- ernment dropped additional claims related to robe costs and meal allowances before the court heard the matter. Nicholson's offi ce, mean- CANADA LAW BOOK® HA0211 www.lawtimesnews.com OMSD 1/2 pg 4X.indd 1 2/24/11 9:30:54 AM while, had very little to say about Mendicino's letter. "We are in receipt of the letter from the Association of Justice Coun- sel and we will be responding in due course," said spokeswoman Pamela Stephens.

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