|
Charter - Section 8 - Analytic Framework. Power Workers’ Union v. Canada (Attorney General)
In Power Workers’ Union v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of a JR, here relating to "the validity of pre-placement and random alcohol and drug testing which were imposed by the Canadian Nuclear Safety Commission (the Commission) as a license condition to persons licensed to operate high security—or Class I—nuclear facilities".
The court considers the Charter s.8 ['search and seizure'] challenge to this testing, here utilizing an 'analytic framework' appropriate where there was no evidentiary record below [ie. "no search has been carried out so far"]:A. The Charter claim
[25] The Application Judge found that the Impugned requirements did not breach sections 7, 8 or 15 of the Charter. This finding was largely informed by the "“unique context”" of the highly regulated nuclear industry where "“safety is the most important priority”" given the "“devastating and long lasting impacts on the community and the environment”" a nuclear incident can have (Decision at para. 56).
[26] On the section 8 claim, because no search has been carried out so far due to the successive Stay Orders, and because he was asked to "“strike regulatory provisions that empower Licensees to authorize a seizure”", the Application Judge followed the analytical framework applied by this Court in Reference re Marine Transportation Security Regulations (CA), 2009 FCA 234 (Marine Reference), and recently followed in Union of Canadian Correctionnal Officers – Syndicat des agents correctionnels du Canada – CSN (UCCO-SACC-CSN) v. Canada (Attorney General), 2019 FCA 212 (Correctional Officers), "“as guided by the [Supreme Court of Canada] in [Goodwin v. British Columbia (Superintendent of Motor Vehicles), ""2015 SCC 46"" (Goodwin)""]”" (Decision at para. 77). In applying this framework, the Application Judge considered the following questions:a) Is section 8 engaged by the Impugned requirements, based on the safety-critical workers’ reasonable expectation of privacy?
b) If so, are the Impugned requirements "“authorized by law”"? and
c) If so, are they reasonable? [27] On the first question, the Application Judge determined that requiring the Licensees to collect bodily samples (breath, urine or saliva) involved the taking of personal and informational data, and that this amounted to a search or seizure within the construct of section 8 (Decision at para. 82). On the reasonable expectation of privacy requirement, the Application Judge found that although safety-critical workers have a diminished expectation of privacy when working at nuclear facilities, given the highly regulated nature of the nuclear power workplace, their privacy interest in the collection of their bodily samples "“[was] by no means eliminated”". Therefore, to the extent that the Impugned requirements permit the Licensees to take these workers’ biographical information without their consent, he concluded that section 8 is engaged (Decision at paras. 97–98).
[28] At the second stage of the analysis, the Application Judge held that the Impugned requirements are "“authorized by law”". He was not persuaded by the appellants’ argument that the collection of bodily samples could only be authorized by clear statutory language, not general grants of regulatory power, as is the case here. This is because, he said, this argument "“fails to consider the regulatory context in which the seizure is authorized”", a context that requires "“a more flexible approach to the ‘authorized by law’ requirement, as suggested by the [Supreme Court of Canada]”" (Decision at para. 104).
[29] For the Application Judge, the Commission’s authority to impose the Impugned requirements rests on the General Regulations and Class I Regulations, which both "“require Licensees to maintain human performance programs that include ongoing attention to reducing the likelihood of human performance-caused safety events”" and on the Commission’s broad power under subsection 24(2) of the Act to impose licensing requirements "“as it sees fit”" (Decision at para. 105).
[30] On the third question, the Application Judge was satisfied that the Impugned requirements were reasonable "“when considering all the contextual factors at hand, including the regulatory context, the public interest in nuclear safety, the identified need to bolster fitness for duty programs, the reliability of the testing methodology, and the availability of judicial oversight.”" (Decision at para. 151). He agreed that in the nuclear industry, "“one cannot ‘wait and see’ given the severe consequences that often result from nuclear incidents.”" (Decision at paras. 127–28). Being urged by the appellants to rely on arbitral jurisprudence, according to which "“an employer’s interest in safety will not justify breaching an employee’s privacy rights without reasonable cause, even in an inherently dangerous workplace”", the Application Judge found that this jurisprudence was not authoritative for the section 8 analysis, and was, in any event, distinguishable on a number of grounds (Decision at paras. 109–12).
|
