Entities Exercising Governmental Functions

An entity can be considered “government” for the purposes of s. 32 if it exercises governmental functions.  In Godbout v Longueuil (City) the Supreme Court of Canada first expressly said that municipalities can be considered “governmental entities”.  In this case, the city made a rule that all permanent employees of the city had to live within city limits.  Godbout, an employee of the city, signed a document agreeing to this. The document contained a clause saying that if she moved out of the city limits she could be fired without notice.  Godbout moved and was fired.  The majority of the court ruled that the clause violated s. 5 of Quebec’s Charter of Human Rights and Freedoms (respect for private life).

La Forest went on to discuss the Charter’s application to municipalities:

·      Municipalities are institutionally distinct from provincial governments but are “governmental entities”

·      Based his finding on a few things:

o   Municipal councils are democratically elected by members of public, accountable to their constituents just like Parliament and provincial legislatures

o   Municipalities have general taxing powers

o   Municipalities are empowered to make, administer and enforce laws

o   Municipalities derive existence and law-making authority from the provinces

·      Charter applies to provincial legislatures and governments, therefore it must also apply to entities (including municipal bodies) that are given government powers by the provinces or are governmental in nature

·      Otherwise, provinces could avoid Charter obligations by giving certain powers to these entities and have them carry out what are actually governmental activities or policies

OVERRIDE

OVERRIDE (pp. 790-794 Canadian Constitutional Law Case Book 4th Ed.)

Section 33 is a rarely used feature of the Charter. It was used in all Quebec legislation following the enactment of the Charter. In Ford v Quebec (Attorney General), [1988] 2 SCR 712, 54 ALR (4th) 577 the Court dealt with application and interpretation of the section.

            Quebec applied section 33 after the enactment of the Supreme Court held that a prohibition on the use of English in outdoor advertising was a violation of section 2(b) of the Charter. Quebec felt that the Charter did not protect its unique language rights.

Issues: Ford argued that 1) Quebec legislation should use the specific wording of the sections of the Charter subject to the override 2) cannot do a blanket application of the clause across all its legislation and 3) section 33 cannot be used retroactively.

Findings:

1)    It is okay to refer to the sections by number only in the legislation, and in fact this is the correct manner in which to apply section 33

2)    It is perfectly acceptable to apply a blanket amendment to all provincial acts, and is routinely done by the provinces when amending legislation

3)    Section 33 sets out that  “the Act of provision thereof shall operate notwithstanding” where “shall operate notwithstanding” could be interpreted proactively or retroactively. Court found that it is not appropriate to interpret section 33 as applying retroactively. 

The Court also expressed that use of section 33 must be done using “an explicitly expressed declaration”. The courts will determine what constitutes “an explicitly expressed declaration” but won’t specifically determine in advance what type of legislation section 33 is applicable to.

Vriend and Notes

Vriend is an example of how government inaction may be the subject of Charter review.

Vriend v Alberta

Facts:

·         the case involved a challenge to Alberta's Individual Right's Protection Act (IRPA), the general scheme of which Act was to "prohibit discrimination in public life"

·         sexual orientation was not listed among the prohibited grounds of discrimination in the Act, leaving Vriend with no cause of action against his employer for wrongful dismissal

·         Vriend was dismissed by his employers at King's College when they learned he was gay

·         Vriend sought a declaration that the omission of sexual orientation in the Act violated his equality rights under the Charter

Issue:

Does the Charter, pursuant to s.32, apply to the subject of the challenge in this case? In other words, can government inaction be actionable under the Charter?

Holding:

The government, by failing to provide sexual orientation in the list of prohibited grounds, discriminated against Vriend; sexual orientation should be read into the provision of the Act in question. s.32 should not be interpreted as precluding the application of the Charter.

Reasoning:

If underinclusive legislation was immune to Charter challenge, it would allow the form rather than the substance of the legislation to determine whether it was open to challenge - an illogical and unfair result. The omission, being deliberate by the legislature, can be interpreted as an act of the legislature so as to provide actionable grounds under s.32 of the Charter.

                Several other cases seem to establish that the government, once having undertaken to do something, must do so in a non-discriminatory manner. Other cases, such as Dunmore, pose the idea that government may have positive obligations to protect some vulnerable minority groups in a broad sense. This entire group of cases seems to "chip away at Dolphin Delivery as a precedent."

- Canadian Constitutional Law, 4th ed., pg.821-825

Eldridge v. British Columbia (Attorney General) pg 816

Eldridge v. British Columbia (Attorney General) pg 816

Facts

Three individuals who were born deaf preferred to communicate in sign language and went to court for a declaration that the failure to provide sign language interpreters when receiving medical assistance violated s.15 of the Charter.

The medical services Commission were responsible for deciding which services were provided to patients and deemed this service unnecessary.

The two relevant sections of the Charter for this case are:

15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

32.(1)  This Charter applies

(a)  to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

In the judgment for this case, La Forest J. outlines the types of non-government entities to which the Charter will apply under s. 32. Entities, such as crown corporation, over which the government imposes direct control will be deemed “government” for the purposes of s. 32 of the Charter. Sometimes, however, governments will utilize entities which are private in nature to implement a particular provision of government policies. These entities are not considered “government” for the purposes of s. 32 of the Charter. However, the Court points out that this finding could function as a mechanism for government to evade its Charter responsibilities by delegating policy implementation to third parties. As such, the Court holds that any entity, in performing a particular government action, are held to be operating under s. 32 in so far as that particular governmental action is concerned.

As such, while the Court held that hospitals are not “government” for s. 32 of the Charter, they are performing an government action when implementing government policies. Thus, s. 32 applies and, by extention, so does s. 15.

Dolphin Delivery

Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd,  [1985] 2 SCR 573

Pages 797-800

Facts:

·      Employees in Retail, Wholesale and Department Store Union, Local 580  were in a labour dispute with their employer, Purolator.

·      The union was picketing at Dolphin Delivery, as they said that Dolphin Delivery was performing work for Purolator during their labour strike.

·      There was a court order restraining the union from picketing on Dolphin Delivery’s premise.

·      The Canada Labour Code legislation did not regulate secondary picketing, so the legality of the proposed picketing had to be determined by the common law.

Issues:

·      The union sought to have an injunction on their secondary picketing overturned on the basis that it violated the union’s freedom of expression.

·      Does the Charter apply directly to private actors?

Analysis:

·      The Charter does not apply to private litigation.

·      As per s. 32 it only applies to “government” which comprises the legislature, executive and administration.

·      The Charter only applies to the common law when the common law is used as a basis for government action that is alleged to infringe on a Charter right. 

·      In this case, a court order is not a government action because considering it as a government action could expand the Charter to all private litigation. 

Application of the Charter: Analysis of s 32(1)

Dolphin Delivery’s distinction of judiciary as being outside application of s 32(1) does not follow logically. Over time, this particular restriction has been reduced, especially regarding application of Charter rights (i.e. right to a fair trial).  In the same vein, adherence to the finding in Dolphin Delivery (that the Charter does not apply to private litigants or court-order-issues resulting from litigation between private parties) has also relaxed, as the courts recognize that the common law rules must be consistent with Charter values (Swain and Degenais). In the aforementioned cases, the Supreme Court was willing to adjust the common law rules (regarding the defence of insanity and publication bans, respectively).

A question raised in the casebook relates to the issue of same-sex marriage. The common law defines marriage as a heterosexual union. Does the Charter apply to this definition, and if so, does the definition breach the standard of equality rights? Can the courts make a ruling that redefines marriage without the need for deference to the legislatures (who are primary law-makers)?

Entities Exercising Statutory Powers of Compulsion

The Charter also applies to non-governmental actors exercising coercive statutory powers. 

In Slaight Communications Inc v Davidson, an adjudicator ordered an employer, who had wrongfully dismissed an employee, to write a letter of reference for the employee.  The employer argued that requiring him to write the letter constituted a violation of freedom of expression.  The Supreme Court found that it did violate the right, but could be saved under s. 1. 

In order to come to this conclusion, the Supreme Court decided that the Charter does apply to an adjudicator acting pursuant to the Canada Labour Code.  The adjudicator was appointed under a legislative provision and derived all of his powers from the statute.  Since the Constitution is the supreme law of Canada, and any statute that is inconsistent with it is of no force and effect to the extent of the inconsistency, then the discretion conferred by a statute on an individual is also subject to the Charter. 

Criticisms of Dolphin Delivery

Of course the Charter only applies to governmental action, but the line the court has chosen to draw in determining what governmental and non-governmental action is forms the basis for a wide range of criticisms. Identified are 4:

1. If Common law rules relied on by private actors are not subject to Charter scrutiny, while statutes covering private relations are, there the danger of inconsistent application across the country looms, since some provinces govern private relationships through statute, and others leave it to the common law.

2. In Quebec, the stakes are higher. As a province that relies on the Civil Code, private relations are governed by statute and thus much larger Charter scrutiny.

3. If the private sphere is not fair game for the Charter, then there exists a wide terrain for powerful private actors to operate free of Charter scrutiny and in the process, the Charter goal of securing private rights is undermined.

4. Peter Hogg provides an alternative line: that common law rules which have ‘crystallized’ to the point of enforceability by the courts should mark the point at which the Charter applies.

McKinney v. University of Guelph

Facts: Mandatory retirement policy at 65 imposed by the University on faculty members. Ontario Human Rights Code protected individuals from the age of 18-65.

Issue - are universities considered government actors?

Holding - they are not

Reasons: Government has no legal power over the universities (have their own governing bodies) they manage their own affairs even though they are heavily funded.

The government does not have any influence on the academic freedom that the universities enjoy - especially hiring, tenure, and money allotment - basically the universities are autonomous bodies

The public function test is indaequeate as many institutions perform public or quasi-public functions but are not considered government bodies as per the wording in s. 32
The Charter is not limited to entities which discharge functions that are inherently governmental in nature. No real alternative test is outlined, however dissenting Wilson J outlines 3 tests to determine the kinds of bodies that ought to be constrained by the Charter:

1. The Control Test
2. The Government Function test
3. The Statutory Authority and Public Interest test

Section 32: Application of the Charter

32. (1) This Charter applies to

       (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

       (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Section 1 Prescribed by Law

Requirement for a section 1 case:

In order for a Charter right to be limited, the first of two requirements is that this limitation must `be prescribed by law. 


In R v Therens [1985] SCR 613, the Supreme Court of Canada held that the limit can be prescribed by statute or the common law. In Irwin Toy Ltd. V. Quebec (Attorney General) [1989], the Court found that any limit imposed must live up to a clearly intelligible standard that allows the judiciary to do its work. It cannot be so vague so as to amount to no standard at all. However, they added that absolute precision in the law exists rarely, if at all.

In common practice, this requirement speaks to the general concept of the rule of law; if citizens are expected to obey the law, it is fair that these laws be readily and easily known., S 1 allows for limited violation of Charter rights, but the SCC, in recognizing that some level of rights infringement is valid, has held Parliament on a short leash with which to operate.

Here is a link to Lon Fuller’s story of a king named Rex who tries to legislate for his political community.  Rex fails when he does not abide by the rule of law.  This is a good illustration of rule of law principles.

http://www.scribd.com/doc/19455269/8FULLER-Eight-Ways-to-Fail-to-Make-Law

Oakes Framework

1. Objective of sufficient importance to warrant limiting the right or freedom. Objective must relate to pressing and substantial concerns in a free and democratic society
2. Three part proportionality test ensuring that the means chosen to achieve the objective are reasonable and demonstrably justified
1. Measures must not be arbitrary, unfair, or based on irrational considerations - they must be rationally connected to the objectives
2. The means should impair the right or freedom as little as possible
3. There must be proportionality between the effects of the measures limiting the charter right or freedom and the objective which has been identified as sufficiently important. 

R v Oakes [1986] 1 SCR 103, 26 DLR (4th) 200

Post Oakes Judicial Deference

When balancing the importance of different rights under the Charter, they must be weighed in the same manner.  One right should not be considered contextually, versus weighing one in a more abstract manner.

Some of the circumstances where more deference to the legislature would be warranted include (Irwin Toy):

• Address conflicting social science evidence as to the cause of a social problem
• Protect a socially vulnerable group
•  Balance the interest of various social groups competing for scarce resources
• The government has sought to balance competing rights

These are some of the factors that should be considered when determining whether judicial deference is appropriate in a particular case.


In Irwin Toy, the Court also stated that judicial deference was not appropriate in some circumstances, such as when there the state is acting as a singular antagonist, such as in criminal prosecutions.

In R. Moon’s article (2002), he outlines three categories of deference:
1. Judicial deference to relevant findings of fact by the legislature
2. Legislature’s accommodation of competing values or interests
3. Lowering standard of justification  under section 

The Contextual Approach

Subsequent Development of the Oakes Test: Context

The emergence of the contextual approach to a Section 1 analysis is a major development post-Oakes.  Under this approach, a court will look at the weight of the right and its restriction in its context, as opposed to an abstract context. An understanding of the contextual approach can be brought out through a hypothetical challenge to a law, but before doing so, lets look at the details of the contextual approach. In determining a justification of a law under section 1, courts will look at what the restriction accomplishes in purpose against the value of the charter right.

An example.

The Province of New Brunswick has recently passed a law outlawing niqabs from being worn when voting. The Supreme Court has deemed that the law has violated sec 2a of the Charter, and has now begun an analysis as to whether the limitation is demonstrably justified.

The first question to be asked is whether it is a sufficient objective: to properly identify voters and prevent voting fraud. The court has been fairly relaxed under the first stage, and the majority of laws requiring justification have not failed at this point.


When looking at the final step of the Oakes test, the contextual approach requires the court to look at the impact of the law on the affected right. The abstract approach in this case would look at the impact simply on freedom of religion. The contextual approach in this case will be slightly more precise and frame the impact as one concerning the freedom of Muslim women to wear their religious clothing while exercising civic freedoms.

The contextual approach, as put forward by Wilson J.  in Edmonton Journal v Alberta, is that it recognizes that the freedom does not carry a constant, unchanging value. Rather, the context governs the importance. For example, both a restriction on banning nativity scenes on government property and banning scientology outright may be both restrictions on the freedom of religion, yet it is reasonable to suggest that same freedom is engaged on different levels of importance.



The Oakes test is further developed by the judgments in Edmonton Journal and Irwin Toy. Firstly, the Court added a contextual interpretation to the Oakes test and demonstrated greater judicial deference in using the Oakes test.

Sujit Choudry, "So What Is the Real Legacy of Oakes? Two Decades of Proprotionality Analysis Under the Canadian Charter's section 1"

Who should bear the risk of the empirical uncertainty is the crux question, based on the fact that public policy is debated on certainty?


The Thesis of the article is that Oakes created an enormous institutional dilemma for the Court, by setting up a conflict between the demand for definitive proof to support each stage of the section 1 analysis, and the reality of policy making under conditions of factual uncertainty.


If the government bears the onus of bringing evidence for each step of the analysis then they bear the risk of empirical uncertainty If they don't bring evidence, common sense will do, but this will remove the requirement that they need to prove that there is a requirement that reasonable limits be demonstrably justified. Courts have accepted the reasonable basis test as an in-between. But split in the circumstances on where it is applicable to use it in the absence of evidence.


In response to the question of who bears the risk of empirical uncertaintiy with respect to government activity that infringes Charter rights, the rights-claimant or the government, the answer has been, in effect, both. But even though the Court has agreed on this compromise, deep disagreements persist along its ragged edges. The Court has yet to work out under what circumstances it will use common sense, reason, or logic to bridge an absence of evidence, and to delineate when it will allow inferences to be drawn from inconclusive social science evidence. (Canadian Constitutional Law, 4th ed, p 790) Cites Thomson Newspapers Co. v. AG Canda as a basis for his argument.