POUR UNE ASSOCIATION PROFESSIONNELLE DE DÉFENSE DES DROITS DES MILITAIRES AU CANADA

Abstract

This article makes the case for recognizing the right of Canadian Armed Forces (CAF) members to join a union-type professional association, without granting the right to collective bargaining or the right to strike. As it currently stands, the Canadian government essentially prohibits CAF members from seeking outside assistance to make changes to their service conditions, limiting their ability to engage in collective action. This approach is rooted in the military’s role in service of the Crown and the need to maintain discipline. The situation in Canada is compared to that of some of its allies that allow military members to form professional associations, subject to certain conditions to maintain discipline and operational efficiency. Articles 19.09 and 19.10 of the Queen's Regulations and Orders for the Canadian Forces (QR&O) are analyzed through the lens of section 2(d) of the Canadian Charter of Rights and Freedoms and are unsurprisingly found to be inconsistent with the three key elements of freedom of association established by case law and Canada’s international obligations. While maintaining discipline is a pressing and substantial objective, particularly for national security, the rational connection between the objective and the means used to achieve it is questionable. When considered in comparison with other countries and in conjunction with international instruments, these limits on CAF members’ rights are not minimally impairing. Parliament could recognize CAF members’ right to join a union-type professional association while at the same time prohibiting collective bargaining and striking in order to maintain national security. Denying thousands the opportunity for an efficient, solidarity-driven form of representation is therefore a disproportionate restriction on this right that cannot be justified in a free and democratic society. Beyond the legality of the matter, there are legitimate reasons to recognize CAF members’ right to organize with their peers to advocate for their rights and interests.