1 CONSTITUTIONAL LAW 34 APPLICATION OF CHARTER: GOVERNMENT INACTION AND PRIVATE ACTION Shigenori Matsui

2 INTRODUCTION Is the Charter applicable to government inaction? What about the applicability to private persons? How does the Charter affect private conducts?

3 I Government inaction Vriend v. Alberta [1998]

4 “There is nothing in that wording to suggest that a positive act encroaching on rights is required; rather the subsection speaks only of matters within the authority of the legislature. Dianne Pothier has correctly observed that s. 32 is "worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority”… The application of the Charter is not restricted to situations where the government actively encroaches on rights.”

5 The IRPA is being challenged as unconstitutional because of its failure to protect Charter rights, that is to say its underinclusiveness. The mere fact that the challenged aspect of the Act is its underinclusiveness should not necessarily render the Charter inapplicable. If an omission were not subject to the Charter, underinclusive legislation which was worded in such a way as to simply omit one class rather than to explicitly exclude it would be immune from Charter challenge… Therefore, where, as here, the challenge concerns an Act of the legislature that is underinclusive as a result of an omission, s. 32 should not be interpreted as precluding the application of the Charter.

6 “It might also be possible to say in this case that the deliberate decision to omit sexual orientation from the provisions of the IRPA is an "act" of the Legislature to which the Charter should apply.” “It is also unnecessary to consider whether a government could properly be subjected to a challenge under s. 15 of the Charter for failing to act at all, in contrast to a case such as this where it acted in an underinclusive manner.”

7 In general, Charter rights and freedoms are negative in nature: they prohibit the government from infringing them. When the government regulate them, s. 15 mandates non-discriminatory means.

8 When the government implements government policy or program, the government must abide by s. 15 by using non-discriminatory means. But generally, the government has no constitutional obligation to implement a particular government program or policy.

9 Dunmore v. Ontario [2001]

10 “In this context, it must be asked whether, in order to make the freedom to organize meaningful, s. 2(d) of the Charter imposes a positive obligation on the state to extend protective legislation to unprotected groups. More broadly, it may be asked whether the distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime substantially contributes to the violation of protected freedoms.”

11 “In sum, while it is generally desirable to confine claims of underinclusion to s. 15(1), it will not be appropriate to do so where the underinclusion results in the effective denial of a fundamental freedom such as the right of association itself. … However, a claim for inclusion should not, in my view, automatically fail a s. 2(d) analysis: depending on the circumstances, freedom of association may, for example, prohibit the selective exclusion of a group from whatever protections are necessary to form and maintain an association, even though there is no constitutional right to such statutory protection per se.”

12 II Judicial order applying the common law Injunction issued on its own motion BCGEU v. British Columbia [1988]

13 “As a preliminary matter, one must consider whether the order issued by McEachern C.J.S.C. is, or is not, subject to Charter scrutiny. … At issue here is the validity of a common law breach of criminal law and ultimately the authority of the court to punish for breaches of that law. The court is acting on its own motion and not at the instance of any private party. The motivation for the court's action is entirely "public" in nature, rather than "private". The criminal law is being applied to vindicate the rule of law and the fundamental freedoms protected by the Charter. At the same time, however, this branch of the criminal law, like any other, must comply with the fundamental standards established by the Charter”

14 Damage awards in a suit between private parties applying the common law Hill v. Church of Scientology of Toronto [1995]

15 “This Court first considered the application of the Charter to the common law in Dolphin Delivery, supra. In that case, the issue was whether an injunction to restrain secondary picketing violated the Charter freedom of expression. It was held that, pursuant to s. 32(1) of the Charter, a cause of action could only be based upon the Charter when particular government action was impugned. Therefore, the constitutionality of the common law could be scrutinized in those situations where a case involved government action which was authorized or justified on the basis of a common law rule which allegedly infringed a Charter right.”

16 “When determining how the Charter applies to the common law, it is important to distinguish between those cases in which the constitutionality of government action is challenged, and those in which there is no government action involved…. Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action.”

17 “The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values.”

18 RWDSU, Local 558 v. Pepsi-Cola Canada Beverages Ltd [2002]

19 “The second preliminary issue is how the Charter may affect the development of the common law. Here again the answer seems clear. The Charter constitutionally enshrines essential values and principles widely recognized in Canada, and more generally, within Western democracies. Charter rights, based on a long process of historical and political development, constitute a fundamental element of the Canadian legal order upon the patriation of the Constitution. The Charter must thus be viewed as one of the guiding instruments in the development of Canadian law.”

20 “Although s. 2(b) of the Charter is not directly implicated in the present appeal, the right to free expression that it enshrines is a fundamental Canadian value. The development of the common law must therefore reflect this value. ”

21 Is the approach adopted by the Supreme Court of Canada appropriate?

22 IOC or VANOC? Is Charter applicable to VANOC? Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games [2009]