I will start by thanking my colleague from Nova Scotia for quoting me extensively, though I should say out of context. I was referring to a bill amended by this house, and the amendment was not accepted by the other house. Then I spoke about the deference that is owed to the other place and when we should insist or not upon an amendment that has not been accepted. That may happen if we amend this bill. It’s nice to remind me.

Honourable senators, I stand before you today to comment on two aspects of this issue. The first is the role of the Senate as an institution that now enjoys full independence from the governing party in the House of Commons, and the second is the content of Bill C-89 and the reasons why I will not be voting for the bill.

I am a member of the Independent Senators Group now forming the majority in this chamber. For the first time in its history, the Senate enjoys full independence from the governing party and party whips. We enjoy this independence because it is the sincere wish of the current Prime Minister to have an independent Senate. This independence allows us to better fulfill our mission by making our decisions based on science and evidence and in the full respect of the fundamental rights of all Canadians, such as Indigenous and treaty rights, the rights of francophone minorities outside Quebec, the rights of the English minority in Quebec, and of course, the enforcement of fundamental rights recognized by the Charter, such as the right to equality, the right to freedom of association and the right to freedom of expression.

These fundamental rights should not be sacrificed, thwarted or denied in order to build a pipeline across Indigenous lands because it will be cheaper, to reduce by a few million the massive Ontario deficit, or to provide some businesses a way to ensure more revenue.

As you all know, this house could not sit over the weekend to rush through Bill C-89, as urged by the government, without the unanimous consent of senators. And maybe Senator Plett, if he is listening to me, will hear the answers to his questions.

Because of our duty as independent senators to stand for fundamental rights, some of us made it clear last week we will not consent to suspending the ordinaryRules of the Senate because we were of the opinion it did not behoove a chamber whose mission is to safeguard fundamental rights and to protect minorities, to waive its rules to facilitate the denial of fundamental rights of the unionized workers of Canada Post. I understand my colleague Senator Plett does not share these principles. I respect his views. I stand firm on mine.

In the end, we agreed on Saturday morning to engage in the process Saturday but to hold the critical vote today, Monday. We were of the view this compromise would provide senators with more time to think about the issues at hand and for the parties, including the government, which is the owner of Canada Post, to go back to the table and reach an agreement in principle. We are here today because, much to my disappointment, no such agreement was reached over the weekend, though I’m told there were discussions and the parties are not too far apart.

Does that mean we should pass this legislation? My answer is no, for the following reasons.

In Saskatchewan Federation of Labour v. Saskatchewan, rendered in 2015, the Supreme Court of Canada ruled on the constitutionality of the right to strike. Justice Abella for the majority wrote:

The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. . . . the right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

As the majority of the court explained, the right to strike promotes equality in the bargaining process. It places pressures on both sides to engage in good-faith negotiations, thus placing workers on an equal footing with their employer.

It goes without saying the government’s intervention through Bill C-89, at a time when the parties were still negotiating and the unions were striking, interferes with Canada Post workers’ fundamental freedom of association. This is a clear violation of section 2(d) of the Charter of Rights and Freedoms. Nobody can deny that.

However, Charter violations can be justified under some circumstances under section 1 of the Charter.

Last Thursday, when the ISG met with the labour minister, we asked her to provide us a Charter statement from the Justice Department, since the fundamental right of association, guaranteed by the Charter, was at stake. We received that Charter statement late Friday night, as the bill was rammed through the other place. I don’t know how many of you have read it, but I did. Like Senator Sinclair, I am of the view it’s not worth the paper it’s written on.

First, this one-and-a-half-page document contains no conclusion. Second, it does not acknowledge the fact there is a clear violation of the freedom of association guaranteed by the Charter. Third, it does not give any weight to the fact Canada Post workers have resorted only to rotating strikes and not to a full strike. It does not refer to agreements made between the unions and management about the delivery of social security cheques and other social benefit cheques to all Canadians.

Finally, it fails to apply a legal test called the Oakes test to determine if an infringement is justifiable under section 1 of the Charter. This word is not even used in the statement. It fails to explain how the proposed measure is a forced end to any form of strike and to negotiations. The mediation is going to last for seven days and then it will go to forced compulsory arbitration.

How do these measures follow an objective of sufficient importance to warrant overriding constitutionally protected rights and freedoms? How are the measures rationally connected to the identified objective? How is the infringement minimally impairing? Will a balance be struck between the infringing effects of the measures and the importance of the objective? In other words, we’re left without a Charter statement worthy of the name.

Therefore, we have to come to a conclusion without it. Fortunately, I feel some ability to do my own Oakes analysis.

The government’s stated objectives are to ensure the delivery of mail and parcels to Canadians, to preserve a means for businesses to send parcels at a crucial time of the year, and to allow Canada Post Corporation to make a good portion of its annual sales.

For the sake of discussion, let us assume that the objectives are quite real and that removing the right to strike and the right to negotiate after seven days is a measure that will achieve those objectives. The question that remains is the following: Do these objectives justify suspending the constitutional right of Canada Post employees to conduct strikes, even rotating strikes, and to obtain a collective agreement through real negotiation and not under an agreement imposed by an arbitrator?

Does the bill consequently result in minimal infringement on the guaranteed rights of Canada Post employees? It is true that the text of this bill is different in several ways from the 2011 legislation, which was declared unconstitutional. However, in both cases, the government interfered in Canada Post negotiations. The government intervened when the parties were negotiating on an equal footing.

In my view, the government has other measures at its disposal to meet those objectives while limiting the infringement on fundamental rights. Indeed, it would have been easy for the government to propose a ban on all general strike action and provide a framework for rotating strikes. For example, it could have stipulated that the distribution centres in Montreal, Toronto and Vancouver could not be part of any rotating strike.

Instead, the government is choosing the most extreme measure, completely prohibiting the workers from using pressure tactics on their employer and taking away their right to negotiate the next collective agreement unless they reach a deal within seven days of the bill’s passing.

In reality, all this bill does is impose on the union and its members a little less than what the CEO of Canada Post Corporation offered last Monday. She described that offer to the Senate on Saturday, and I quote:

We would have restored full benefits under the current collective agreement and would have agreed to renewed mediation under a jointly agreed mediator that would have extended until the end of January. We would have provided a$1,000 bonus for employees in recognition of the compromise this would represent for them. We would have continued the free collective-bargaining process and negotiated until the end of January, then moving to binding arbitration if we didn’t reach an agreement.

In other words, the bill submitted to us provides less than what was offered last Monday and rejected by the unions: a shorter period for negotiations — seven days only — no bonus and a compulsory arbitration.

The bill does not require the employer to take measures immediately to reduce the risk of workplace accidents. I should point out that, every day, 15 Canada Post Corporation employees are involved in workplace accidents, that the workplace accident rate is five times higher at Canada Post than in any other federal organization, and that the rate is rising in step with the growing number of parcels delivered.

In other words, workers are being forced back to dangerous working conditions during the busiest time of the year as winter sets in. This is all the more surprising considering that the CEO of Canada Post told the Senate on Saturday that employee health and safety is the corporation’s priority.

She said:

Canada Post needs to bring its injury incidents down dramatically. It is imperative. . . .

At the end of day, management and I have a responsibility to provide safe workplaces. That responsibility is absolute, and safety has to be a primary consideration, if not the primary consideration, in terms of all matters of work.

Where do we find anything about that in the bill? They resume work without these issues being dealt with.

In short, not only does the bill upset the balance between the union and the employer, but it also sets out measures whose only immediate goal is to protect the employer’s economic interests at the expense of worker health and safety.

At this stage, we are asked not only to disregard the constitutional right of association and the right to freely negotiate a collective agreement, but also to overlook the legitimate health and safety concerns of Canada Post workers in order to allow the corporation to preserve its client base where it makes profits.

I cannot support a bill that sacrifices fundamental rights and risks injuring employees in order to protect the end of the year books of the employer.