[1] The Public Service Alliance of Canada appeals a judgment of the Federal Court dated January 8, 2004, reported as Public Service Alliance of Canada v. Canada, 2004 FC 13, (2004) 244 F.T.R. 190 (F.C.). The judgment was made on the Crown's motion for summary judgment, and dismissed an action by the Public Service Alliance of Canada for a declaration and other relief. The basis of the action is the contention of the Public Service Alliance of Canada that section 10 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMP Act), is contravened by municipal policing agreements that permit municipalities to employ civilian staff to provide support services to the RCMP. The facts are not in dispute, but the parties disagree on the interpretation of section 10 of the RCMP Act.

[2] The work of the RCMP may require the assistance of civilians, that is, individuals who are not members or officers of the RCMP. The appointment and employment of civilians by the RCMP is the subject of section 10 of the RCMP Act, which reads as follows:

10. (1) Subject to subsection (2), the civilian employees that are necessary for carrying out the functions and duties of the Force shall be appointed or employed under the Public Service Employment Act.

10. (1) Sous réserve du paragraphe (2), la nomination et l'emploi du personnel civil nécessaire à l'exercice des attributions de la Gendarmerie sont régis par la Loi sur l'emploi dans la fonction publique.

(2) The Commissioner may employ such number of temporary civilian employees at such remuneration and on such other terms and conditions as are prescribed by the Treasury Board, and may at any time dismiss or discharge any such employee.

(2) Le commissaire peut employer du personnel civil temporaire, dans les limites et les conditions de rémunération ou autres fixées par le Conseil du Trésor. Il a, à son égard, tout pouvoir de congédiement ou de renvoi.

[3] The Public Service Employment Act, R.S.C. 1985, c. P-33, governs the employment of most members of the federal public service. It contains, among other things, classification standards for federal public service positions, hiring procedures for merit-based competitions and other forms of appointment, and procedures for discipline, termination and dispute resolution.

[4] Subject to certain exceptions that are not relevant to this case, anyone who is appointed under the Public Service Employment Act as a civilian employee of the RCMP is subject to a collective bargaining agreement between the Treasury Board as the employer and the Public Service Alliance of Canada as bargaining agent for the employees.

[5] The Public Service Alliance of Canada contends that, under the municipal policing agreements in issue in this case, the RCMP uses the services of individuals who are not, but who should be, appointed under the Public Service Employment Act. The Crown disagrees with that contention. To resolve the debate, it is necessary to determine who are the civilian employees that are necessary for carrying out the functions and duties of the RCMP. That in turn requires a determination of the functions and duties of the RCMP, which depends upon the RCMP's governing legislation: the RCMP Act and theRoyal Canadian Mounted Police Regulations, 1988, SOR/88-361 (the RCMP Regulations).

[6] The RCMP, the successor to the North-West Mounted Police established by an Act of Parliament over 130 years ago, is the police force for Canada. This follows from section 3 of the RCMP Act, which reads as follows:

3. There shall continue to be a police force for Canada, which shall consist of officers and other members and be known as the Royal Canadian Mounted Police.

3. Est maintenue pour le Canada une force de police composée d'officiers et autres membres et appelée Gendarmerie royale du Canada.

[7] For the RCMP to operate effectively as a police force for Canada, the officers and certain other members of the RCMP must be authorized to act as peace officers throughout Canada. That is dealt with in section 9 of the RCMP Act, which reads:

9. Every officer and every person designated as a peace officer under subsection 7(1) is a peace officer in every part of Canada and has all the powers, authority, protection and privileges that a peace officer has by law until the officer or person is dismissed or discharged from the Force as provided in this Act, the regulations or the Commissioner's standing orders or until the appointment of the officer or person expires or is revoked.

9. Les officiers ont qualité d'agent de la paix partout au Canada, avec les pouvoirs et l'immunité conférés de droit aux agents de la paix, au même titre que les personnes désignées comme telles en vertu du paragraphe 7(1), jusqu'à leur renvoi ou leur congédiement de la Gendarmerie dans les conditions prévues par la présente loi, ses règlements ou les consignes du commissaire ou jusqu'à l'expiration ou la révocation de leur nomination.

[8] The duty of RCMP members who are peace officers is more specifically described in section 18 of the RCMP Act, which reads as follows:

18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

18. Sous réserve des ordres du commissaire, les membres qui ont qualité d'agent de la paix sont tenus :

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;

a) de remplir toutes les fonctions des agents de la paix en ce qui concerne le maintien de la paix, la prévention du crime et des infractions aux lois fédérales et à celles en vigueur dans la province où ils peuvent être employés, ainsi que l'arrestation des criminels, des contrevenants et des autres personnes pouvant être légalement mises sous garde;

(b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers;

b) d'exécuter tous les mandats -- ainsi que les obligations et services s'y rattachant -- qui peuvent, aux termes de la présente loi, des autres lois fédérales ou de celles en vigueur dans une province, légalement l'être par des agents de la paix;

(c) to perform all duties that may be lawfully performed by peace officers in relation to the escort and conveyance of convicts and other persons in custody to or from any courts, places of punishment or confinement, asylums or other places; and

c) de remplir toutes les fonctions qui peuvent être légalement exercées par des agents de la paix en matière d'escorte ou de transfèrement de condamnés, ou d'autres personnes sous garde, à destination ou à partir de quelque lieu que ce soit : tribunal, asile, lieu de punition ou de détention, ou autre;

(d) to perform such other duties and functions as are prescribed by the Governor in Council or the Commissioner.

d) d'exercer les autres attributions déterminées par le gouverneur en conseil ou le commissaire.

[9] Section 18 of the RCMP Act is supplemented by section 17 of the RCMP Regulations, which reads as follows:

17. In addition to the duties prescribed by the Act, it is the duty of members who are peace officers to

17. En plus des fonctions prévues par la Loi, les membres qui sont agents de la paix doivent :

(a) enforce all Acts of Parliament and regulations made thereunder, and render such assistance to departments of the Government of Canada as the Minister may direct;

a) faire respecter les lois fédérales et leurs règlements d'application et prêter aux ministères du gouvernement du Canada l'aide qu'ordonne le ministre;

(b) maintain law and order in the Yukon Territory, the Northwest Territories and national parks and such other areas as the Minister may designate;

b) faire respecter la loi et régner l'ordre dans le territoire du Yukon et dans les Territoires du Nord-Ouest, ainsi que dans les parcs nationaux et autres régions désignées par le ministre;

(c) maintain law and order in those provinces and municipalities with which the Minister has entered into an arrangement under section 20 of the Act and carry out such other duties as may be specified in those arrangements; and

c) faire respecter la loi et régner l'ordre dans les provinces et les municipalités avec lesquelles le ministre a conclu des arrangements en vertu de l'article 20 de la Loi et exercer les autres fonctions qui y sont prévues;

(d) guard and protect such buildings, installations, dock yards and other property of Her Majesty in right of Canada as the Minister may designate.

d) assurer la surveillance et la protection des bâtiments, installations, chantiers navals et autres biens de Sa Majesté du chef du Canada désignés par le ministre.

[10] Paragraphs 17(a), (b) and (d) of the RCMP Regulations cover a wide range of policing functions that are federal in nature, in the sense that they encompass all of Canada and are governed by federal legislation. The RCMP's federal mandate includes the enforcement of federal statutes and the provision of service to federal government departments that administer statutes containing criminal sanctions, such as the Controlled Drugs and Substances Act, S.C. 1996, c.19, the Security Offences Act, R.S. C. 1985, c.S-7, the Migratory Birds Convention Act, 1994, S.C. 1994, c.22, and the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.). The RCMP also undertakes a number of policing activities on a Canada-wide basis, such as the investigation of organized crime and counter terrorism, the provision of security to senior government officials and foreign officials, the provision of security for international government events in Canada, the collection and dissemination of information relating to the administration of the criminal law (through, for example, the Canadian Police Information Centre), and the operation of forensic laboratories, identification services, and the Canadian Police College.

[11] The RCMP does not enforce provincial laws or municipal laws, nor does it enforce the Criminal Code of Canada, R.S.C. 1985, c. C-46, within a province, unless authorized by the province or a municipality to act as a provincial or municipal police force. That is because those aspects of police work are within the exclusive legislative authority of the provinces. Generally, any province or municipality that wishes to employ the RCMP as its provincial or municipal police force must be authorized to do so by provincial law (see, for example, the Police Act, R.S.N.S. 1989, c. 348, c. 10-17, and The Police Act, 1990, S.S. 1990-91, c. 15.01, s. 18-36).

[12] By virtue of paragraph 17(c) of the RCMP Regulations, the RCMP cannot act as a provincial or municipal police force without the authority of a provincial or municipal policing agreement that meets the requirements of section 20 of the RCMP Act. Section 20 reads as follows:

20. (1) The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.

20. (1) Avec l'agrément du gouverneur en conseil, le ministre peut conclure, avec le gouvernement d'une province, des arrangements pour l'utilisation de la Gendarmerie, ou d'un élément de celle-ci, en vue de l'administration de la justice dans la province et de la mise en oeuvre des lois qui y sont en vigueur.

(2) The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein.

(2) Avec l'agrément du gouverneur en conseil et du lieutenant-gouverneur en conseil d'une province, le ministre peut conclure, avec toute municipalité de cette province, des arrangements pour l'utilisation de la Gendarmerie, ou d'un élément de celle-ci, en vue de l'administration de la justice dans la municipalité et de la mise en oeuvre des lois qui y sont en vigueur.

(3) The Minister may, with the approval of the Treasury Board, in any arrangement made under subsection (1) or (2), agree on and determine the amount of money to be paid by the province or municipality for the services of the Force.

(3) Avec l'agrément du Conseil du Trésor, le ministre peut, dans le cadre des arrangements visés aux paragraphes (1) ou (2), convenir avec la province ou la municipalité du montant à payer pour les services de la Gendarmerie.

(4) There may be included in any arrangement made under subsection (1) or (2) provision for the taking over by the Force of officers and other members of any provincial or municipal police force.

(4) Les arrangements conclus aux termes des paragraphes (1) ou (2) peuvent prévoir le passage sous l'autorité de la Gendarmerie des officiers et autres membres des forces de police provinciales ou municipales.

(5) The Minister shall cause to be laid before Parliament a copy of every arrangement made under subsection (1) or (2) within fifteen days after it is made or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.

(5) Dans les quinze jours de la conclusion de l'un des arrangements visés aux paragraphes (1) ou (2), le ministre en fait déposer une copie devant le Parlement ou, s'il ne siège pas, dans les quinze jours de séance ultérieurs de l'une ou l'autre chambre.

[13] I turn now to the particular facts of this case. Provincial policing agreements are in force in Saskatchewan and Nova Scotia. In addition, municipal policing agreements are in force in Humboldt, Saskatchewan and Antigonish, Nova Scotia. Both of these municipal policing agreements are dated April 1, 1992 and have a term of twenty years. Under both agreements, the government of Canada agrees to provide a "municipal police service" within the municipality, for which the municipality agrees to pay 70% of the cost or, if the municipality has a population of more than 15,000, 90% of the cost.

[14] The portions of the Humboldt and Antigonish municipal policing agreements that are relevant to this case are the same in both agreements, and read as follows:

2.1 a) Canada shall, subject to and in accordance with the terms and conditions of this Agreement, provide and maintain a Municipal Police Service within the Municipality for the term of this Agreement.

2.1 a) Sous réserve des modalités de l'entente et conformément à ces modalités, le Canada fournira un Service de police municipal dans la municipalité pendant la durée de l'entente.

b) Canada is hereby authorized to provide the Municipal Police Service in accordance with this Agreement.

b) Par la présente, le Canada est autorisé à fournir un Service de police municipal conformément aux termes de l'entente.

2.2 Those Members who form part of the Municipal Police Service shall

2.2 Les membres qui font partie du Service de police municipal doivent :

a) perform the duties of peace officers; and

a) remplir les fonctions d'agents de la paix;

b) render such services as are necessary to

b) rendre les services nécessaires

i) preserve the peace, protect life and property, prevent crime and offences against the laws of Canada and the Province, apprehend criminals, offenders and others who may be lawfully taken into custody; and

i) au maintien de la paix, à la protection to la vie et de la propriété, à la prévention du crime et des infractions aux lois fédérales et aux lois de la province, a l'arrestation des criminels des contrevenants et autres personnes pouvant être légalement mises sous garde;

ii) execute all warrants and perform all duties and services in relation thereto that may, under the laws of Canada, the Province or the Municipality, be executed and performed by peace officers.

ii) à l'exécution de tous les mandats - ainsi que des obligations et services s'y rattachant - qui peuvent, aux termes des lois fédérales; provinciales ou des règlements municipaux, légalement être exécutés par des agents de la paix.

[...]

2.4 The Municipality shall provide, without any cost to Canada, all necessary Support Staff; such Support Staff shall meet the job and other related requirements as determined by the Commissioner;

2.4. La municipalité devra fournir le personnel de soutien nécessaire, sans que le Canada n'ait à en assumer le coût; le personnel de soutien devra répondre aux exigences de l'emploi et aux autres exigences connexes établies par le commissaire.

2.5 Where a Municipality provides Support Staff to Canada in support of provincial or federal policing, Canada shall pay the Municipality the salaries for any part of the Support Staff that is so employed.

2.5 Si la municipalité fournit du personnel de soutien au Canada pour les services de police provinciaux ou fédéraux, le Canada devra payer à la municipalité les traitements des employés de soutien qui sont engagés à cette fin.

2.6 Where the Municipality fails to provide the Support Staff required by subarticle 2.4, Canada may provide such Support Staff and charge the Municipality 100 per cent of all the costs of that support Staff.

2.6 Si la municipalité ne fournit pas le personnel de soutien visé au paragraphe 2.4, le Canada pourra fournir le personnel de soutien et la municipalité devra payer la totalité de tous les coûts associés à ce personnel.

[15] The term "Support Staff" ( « employés de soutien » ) is defined in the agreements as follows:

... "Support Staff" means all of those persons who are employed by the Municipality, including clerks, stenographers, data processors, tele- communication operators, jail guards, matrons and janitors, who are required for the effective operation of the Municipal Police Service ...

... « employés de soutien » Toutes les personnes qui sont employées par la municipalité pour assurer le fonctionnement efficace d'un Service de police municipal, y compris les commis, les sténographes, les opérateurs de traitement de données et d'appareils de télécommunication, les gardiens, les matrones et les concierges de prisons ...

[16] The term "Municipal Police Service" ( « Service de police municipal » ) is defined in the municipal policing agreements as follows:

... the aggregate of resources and Members employed by Canada to provide municipal police services in the Municipality under this agreement, but does not include those resources and Members employed primarily in

... L'ensemble des ressources et des membres que le Canada affecte à la prestation de services de police dans la municipalité visée par la présente entente; sont exclus les ressources et les membres qui sont principalement affectés:

i) policing services of a national or international nature, such as forensic laboratories, the Canadian Police Information System, identification services and the Canadian Police College,

i) aux services de police de nature nationale ou internationale, comme les laboratoires judiciaires, le système de données du Centre d'information de la police canadienne, le Service de l'identité judiciaire et le Collège canadien de police;

ii) national security investigations services,

ii) aux services d'enquêtes relatives à la sécurité nationale;

iii) protective security such as security at embassies and airports and security for internationally protected persons,

iii) à la sécurité préventive, comme la sécurité dans les ambassades et les aéroports, et à la sécurité des personnes jouissant d'une protection internationale;

(iv) services provided to or on behalf of federal government departments, and

iv) aux services fournis aux ministères du gouvernement fédéral ou en leur nom;

(v) any policing services provided under the Provincial Police Service Agreement.

v) aux services de police fournis selon les termes de l'Entente sur les services de police provinciaux.

[17] It is apparent that, by the combined operation of these provisions, Humboldt and Antigonish must each provide its own employees to support the work of the RCMP as a municipal police force, and the RCMP must provide its own employees to support the work of the RCMP under its federal mandate.

[18] The terms of the Humboldt and Antigonish municipal policing agreements relating to support staff may be contrasted with the support staff provisions in the Saskatchewan and Nova Scotia provincial policing agreements. Those agreements have no equivalent to sections 2.4, 2.5 or 2.6 of the municipal policing agreements. Rather, "Support Staff" is defined as "all those persons who are employed by Canada in the province as public service or casual employees in support of the Provincial Police Service and who are not Members." It is not disputed that, under the provincial policing agreements, civilian employees of the RCMP are part of the federal public service, even if they provide services related to provincial policing.

[19] The actual operations of the RCMP detachments in Humboldt and Antigonish are well and fully described in the Judge's reasons, and so I will only summarize. The support staff in the Antigonish detachment of the RCMP consists of three civilian clerks, two appointed under the Public Service Employment Act and one who is an employee of the municipality of Antigonish. In the Humboldt detachment of the RCMP there are two civilian clerks, one appointed under the Public Service Employment Act and one who is a municipal employee.

[20] The functions of the municipal and federal civilian support staff in the RCMP detachments in both municipalities are similar. They write occurrence reports, answer inquiries (which may be related to federal, provincial or municipal policing), record firearm registrations (which involves checking on applicants and guns), operate radio equipment and conduct dispatching functions, maintain radio communications logs, maintain records systems (including records relating to theft and stolen material, the payment of fines, court dockets, and administrative matters such as expenses and overtime), prepare files for members and officers who may appear in court, maintain communications with public volunteers, and conduct background checks on individuals.

[21] It is admitted by the Crown that the municipal employees in Humboldt and Antigonish provide the support services necessary to carry out the functions and duties of the RCMP established pursuant to the municipal policing agreements, which includes the support services necessary to enforce all applicable municipal, provincial, and federal laws. The evidence is that the functions of the civilian support staff who are municipal employees are commingled with those of federal government employees.

[22] The argument of the Public Service Alliance of Canada, in a nutshell, is that the work of the RCMP under a municipal policing agreement is part of the "functions and duties" of the RCMP, and it follows that any civilian support staff necessary for carrying out those functions must be appointed under the Public Service Employment Act.

[23] The argument of the Crown, which the Judge accepted, is that for the purposes of section 10 of the RCMP Act, the "functions and duties" of the RCMP include only the activities that are part of the RCMP's "core mandate". As I understand it, counsel for the Crown used the term "core mandate" to refer to the functions that would remain for the RCMP even if there were no provincial or municipal policing agreements (that is, the functions described in paragraph [10] above). Using that terminology, it is axiomatic that the enforcement of the Criminal Code in the provinces, and the enforcement of provincial and municipal laws under a provincial or municipal policing agreement, are not part of the RCMP's core mandate.

[24] I must respectfully disagree with the Judge. I would reject the Crown's argument on this point. I see nothing in the RCMP Act or the RCMP Regulations that supports the Crown's proposition that the work of the RCMP under a municipal policing agreement is not a "function" or "duty" of the RCMP merely because it is not part of the RCMP's core mandate (as that term is defined in the previous paragraph). On the contrary, it seems to me that the work of the RCMP as a municipal police force is necessarily work done under the authority of the RCMP Act and, in particular, under the authority of paragraph 17(c) of the RCMP Regulations. The fact that the RCMP is the police force "for Canada", as stated in section 3 of the RCMP Act, is not inconsistent with this conclusion.

[25] Section 20 of the RCMP Act contemplates that the RCMP may act as a provincial or municipal police force, once the required approvals are obtained and agreements are entered into. Although section 20 permits agreements between a municipality and the Solicitor General, with the approval of the Governor in Council, to facilitate the provision of municipal police services by the RCMP, it contains no language that would suggest that the Solicitor General is authorized to enter into any agreement that is not consistent with a provision of the RCMP Act or any other act of Parliament.

[26] I am not persuaded, as the Judge was, that there is anything about the constitutional aspect of policing that dictates a different interpretation of section 10 of the RCMP Act. I agree with counsel for the Crown that section 92(14) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict. c.3 (R.S.C. 1985, App. II, No.5), gives each province legislative authority over the administration of criminal law within the province, which would necessarily include the organization and management of a provincial police force. However, it is well established that matters of discipline, organization and management of the RCMP, even in relation to its activities as a provincial police force, are within the sole legislative authority of Parliament: O'Hara v. British Columbia, [1987] 2 S.C.R. 591. If the services of a civilian are in fact necessary for carrying out the functions and duties of the RCMP when it is acting as a municipal police force, then the employment of that civilian is necessarily an aspect of the organization and management of the RCMP. I am unable to conclude that section 10 of the RCMP Act must be "read down" to ensure its constitutionality.

[27] Some support for this conclusion may be found in Alberta (Attorney General) v. Putnam, [1981] 2 S.C.R. 267. In that case, the Court held that Alberta could not apply the inquiry provisions of the Police Act, S.A. 1973, c. 44, to examine the conduct of RCMP officers in the province because the matter dealt with discipline and internal management of the RCMP, and so was solely within federal authority. Laskin C.J., writing for the majority, added that this would be the result whether the particular complaint against the officers was connected with an investigation under a federal statute, or the enforcement of a provincial law or municipal by-law. He wrote this at page 277:

It does not appear to me to be possible or practical to separate the law enforcement duties of the R.C.M.P. detachment for the purpose of determining whether in some respects they are subject to The Police Act, 1973 and in others not.

[28] Similarly, when considering the employment of necessary civilian employees, which is an aspect of the organization and management of the RCMP, I can see no valid reason for distinguishing the support services related to the fulfilment of a municipal policing agreement from the support services related to the other policing activities of the RCMP.

[29] The record contains no evidence that the Province of Saskatchewan or the Province of Nova Scotia would have any constitutional concerns if all civilians who provide support services to the RCMP, acting as a municipal police force, were required to be employed under the Public Service Employment Act. Neither Province is a party to this appeal or the action in the Federal Court. However, counsel for the Crown advised the Court that both Provinces have been made aware of the proceedings.

[30] Counsel for the Crown listed 48 instances of federal legislation that contain language similar to section 10 of the RCMP Act. One example is section 68 of the Canadian Environmental Assessment Act, S.C. 1992 c.37, which reads:

68. The officers and employees necessary to carry out the work of the Agency shall be appointed in accordance with the Public Service Employment Act.

68. Le personnel nécessaire à l'exécution des travaux de l'Agence est nommé conformément à la Loi sur l'emploi dans la fonction publique.

[31] Counsel for the Crown argued that the purpose of these provisions is simply to identify, as between the Public Service Commission and the federal institution to which the provision applies, who has the power to appoint persons to specified positions. Counsel argued that the flexibility inherent in these provisions should not be denied to municipalities who choose to use the RCMP as their municipal police force. I cannot accept this argument. I see very little inherent flexibility in section 10 of the RCMP Act, section 68 of the Canadian Environmental Assessment Act, or in any of the other similar provisions to which the Court was referred.

[32] In my view, the intention of Parliament in enacting section 10 of the RCMP Act was to require that services "necessary for carrying out the functions and duties" of the RCMP, other than the services provided by members of the RCMP, are to be provided by persons appointed under the Public Service Employment Act. There may be instances where a debate may arise as to the "necessity" of certain services, but the agreed facts in this case permit no such debate with respect to the municipal employees who provide support services to the RCMP detachments in Humboldt, Saskatchewan and Antigonish, Nova Scotia.

[33] I conclude that the Public Service Alliance of Canada is entitled to a declaration that section 10 of the RCMP Act is contravened by the provisions of the municipal policing agreements with Antigonish, Nova Scotia and Humboldt, Saskatchewan, that permit persons who are not members of the RCMP, and who are not appointed under the Public Service Employment Act, to provide services to the RCMP that are necessary for carrying out the functions and duties of the RCMP as a municipal police force. I would allow this appeal with costs in this Court and in the Federal Court. I would set aside the summary judgment and return this matter to the Federal Court for consideration of any claim that the Public Service Alliance of Canada may wish to assert with respect to other remedies, and costs.

(s) "K. Sharlow" J.A.

"I agree.

B. Malone J.A."

DÉCARY J.A. (dissenting)

[34] I have read in draft the reasons prepared by my colleague Madam Justice Sharlow. I rely on her statement of the facts and of the relevant legislative and contractual provisions. I have, with the greatest of respect and through perhaps a simpler route, reached the opposite conclusion.

[35] Under subsection 20(2) of the Royal Canadian Mounted Police Act (the RCMP Act), the Solicitor General of Canada may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province "for the use or employment of the Force in aiding the administration of justice in the municipality." Under subsection 20(3), the Solicitor General may agree on and determine the amount of money to be paid by the municipality for the services of the Force. Under subsection 20(4), there may be included in any such agreement provision for the taking over by the Force of officers or other members of the municipal police force.

[36] There is no mention, in section 20, of the civilian staff of the RCMP (which, under the RCMP Act, is not part of "the Force") nor of the staff employed by municipalities. We are dealing, here, with executive arrangements, i.e. arrangements between the federal government (as opposed to the RCMP) on the one hand and a municipal government duly authorized by its provincial government on the second hand. The Act contains no requirement with respect to the use or employment of the civilian staff in the course of these executive arrangements that binds the provincial or municipal governments or ties the hands of the federal government in that regard. The federal government must, of course, and in compliance with section 10 of the RCMP Act, ensure in such agreements that the civilian staff of the RCMP is "appointed or employed" under the Public Service Employment Act. However, there is no requirement that, in these agreements, civilian staff may only be appointed or employed by the RCMP. In this area of municipal police service which is fundamentally within provincial jurisdiction, I am not prepared to find, absent express statutory language, that the federal legislation dictates the terms under which provincial governments may enter into the agreements. Section 20 does not mandate the form nor the extent of the aid ("in aiding", in subs. 20(2)) to be given by the RCMP. It contemplates, but does not mandate, "the taking over by the Force" of municipal police officers. It does not preclude the coexistence of federal and municipal police forces having their own separate entity.

[37] There is no suggestion, in the case at bar, that the federal government entered into these agreements with the view of avoiding the application of section 10 of the RCMP Act. Quite to the contrary, as I read the agreements, the federal government has done its utmost to ensure that civilian staff employed by the RCMP or that civilian staff which was primarily involved in national policing services be considered and treated as federal public servants.

[38] As noted by my colleague, the federal and provincial governments have entered into agreements which treat civilian employees differently depending on whether they are working in support of the provincial or of the municipal police services. No evidence was led to explain why the contracting parties have made that choice, but that option was, in my view, open to them. I would be extremely reluctant to intervene with governmental decisions which, I must assume, were made on the basis of sound political, economic or social considerations.

[39] Finally, were we to retain the position advanced by the Public Service Alliance of Canada, we would need to redraft the terms of the agreements, eradicate the concept of municipal employees, devise new formulas for the calculation of costs, etc., all of this in the context of a statement of claim which does not seek a declaration of invalidity of the agreements and which, in any event, does not implead the provincial and municipal governments which are parties to the agreements and which, we were told at the hearing, support the impugned decision.

[40] In the end, therefore, I come to the conclusion that section 10 of the RCMP Act applies to the civilian staff appointed or employed by the RCMP Commissioner and that it does not apply to the civilian staff appointed or employed by a municipality under an agreement entered into by the Solicitor General pursuant to section 20 of the RCMP Act.

[41] I would dismiss the appeal with costs.

(s) "Robert Décary"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Appeal from an Order of the Federal Court dated January 8, 2004, Court File No. T-2091-00

DOCKET: A-48-04

STYLE OF CAUSE: PUBLIC SERVICE ALLIANCE OF CANADA V. HER MAJESTY THE QUEEN

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: November 16, 2004

REASONS FOR JUDGMENT BY: SHARLOW J.A.

CONCURRED IN BY: MALONE J.A.

DISSENTING REASONS BY: DÉCARY J.A.

DATED: January 6, 2005

APPEARANCES:

Mr. David Yazbeck FOR THE APPELLANT

Mr. Alain Préfontaine FOR THE RESPONDENT

SOLICITORS OF RECORD:

Raven, Allen, Cameron, FOR THE APPELLANT

Ballantyne & Yazbeck, LLP

Ottawa, Ontario

Mr. John H. Sims Q.C. FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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