1 CONSTITUTIONAL LAW 33 WHO IS ENTITLED TO CHARTER RIGHTS AND FREEDOMS AND THE APPLICABILITY OF THE CHARTER Shigenori Matsui

2 INTRODUCTION 1 Who is entitled to Charter rights and freedoms? To what extent the Charter is applicable? Could it be applied to common law? Could it be applied in a private litigation? Could it be applied to conducts of private persons?

3 I Who is entitled to Charter rights and freedoms? Everyone Every individual Every citizen of Canada

4 Canadian citizens

5 Fetus Minors Dead persons

6 Non-citizens

7 corporations

8 II The applicability of the Charter: General framework Retail, Wholesale and Department Store Union Local 580 v. Dolphin Delivery Ltd [1986]

9 Does the Charter apply to the Common Law? In my view, there can be no doubt that it does apply. Section 52(1) of the Constitution Act, 1982 provides……To adopt a construction of s. 52(1) which would exclude from Charter application the whole body of the common law which in great part governs the rights and obligations of the individuals in society, would be wholly unrealistic and contrary to the clear language employed in s. 52(1) of the Act.

10 “I am in agreement with the view that the Charter does not apply to private litigation.” “The word ‘government’, following as it does the words ‘Parliament’ and ‘Legislature’, must then, it would seem, refer to the executive or administrative branch of government... I am of the opinion that the word ‘government’ is used in s. 32 of the Charter in the sense of the executive government of Canada and the Provinces.”

11 “It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation. It would seem that legislation is the only way in which a legislature may infringe a guaranteed right or freedom.”

12 “Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority. Such action may also depend, however, on the common law, as in the case of the prerogative. To the extent that it relies on statutory authority which constitutes or results in an infringement of a guaranteed right or freedom, the Charter will apply and it will be unconstitutional. The action will also be unconstitutional to the extent that it relies for authority or justification on a rule of the common law which constitutes or creates an infringement of a Charter right or freedom. In this way the Charter will apply to the common law, whether in public or private litigation. It will apply to the common law, however, only in so far as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom.”

13 “…I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute. To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation.”

14 “Where, however, private party "A" sues private party "B" relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply. I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law. But this is different from the proposition that one private party owes a constitutional duty to another…”

15 What is the government actions, which trigger the application of the Charter?

16 Is it appropriate for the Supreme Court of Canada to refuse application of Charter to courts adjudicating private litigation based on common law?

17 II Government action: entities controlled by the government McKinney v. University of Guelph [1990]

18 “But the mere fact that an entity is a creature of statute and has been given the legal attributes of a natural person is in no way sufficient to make its actions subject to the Charter. It was not disputed that the universities are statutory bodies performing a public service. As such, they may be subjected to the judicial review of certain decisions, but this does not in itself make them part of government within the meaning of s. 32 of the Charter.”

19 “It is evident from what has been recounted that the universities' fate is largely in the hands of government and that the universities are subjected to important limitations on what they can do, either by regulation or because of their dependence on government funds. It by no means follows, however, that the universities are organs of government. There are many other entities that receive government funding to accomplish policy objectives governments seek to promote.”

20 Harrison v. University of British Columbia [1990]

21 Stoffman v. Vancouver General Hospital [1990]

22 Douglas/Kwantlen Faculty Association v. Douglas College [1990]

23 “…the college is a Crown agency established by the government to implement government policy. Though the government may choose to permit the college board to exercise a measure of discretion, the simple fact is that the board is not only appointed and removable at pleasure by the government; the government may at all times by law direct its operation. Briefly stated, it is simply part of the apparatus of government both in form and in fact.

24 In carrying out its functions, therefore, the college is performing acts of government, and I see no reason why this should not include its actions in dealing with persons it employs in performing these functions. Its status is wholly different from the universities…” Accordingly, the actions of the college in the negotiation and administration of the collective agreement between the college and the association are those of the government for the purposes of s. 32 of the Charter. The Charter, therefore, applies to these activities.”

25 Greater Vancouver Transportation Authority v. Canadian Federation of Students,[ 2009]

26 “In this Court, BC Transit does not address the trial judge’s conclusion that it is itself “government” within the meaning of s. 32 of the Charter. It is clearly a government entity. It is a statutory body designated by legislation as an “agent of the government”, with a board of directors whose members are all appointed by the Lieutenant Governor in Council … Moreover, the Lieutenant Governor in Council has the power to manage BC Transit’s affairs and operations by means of regulations … Thus, BC Transit cannot be said to be operating autonomously from the provincial government, since the latter has the power to exercise substantial control over its day-to-day activities.”

27 As for TransLink, it argues that the trial judge and the majority of the Court of Appeal erred in finding that it is “government” within the meaning of s. 32 of the Charter. Prowse J.A. found that because TransLink is controlled by the GVRD, which itself is “government” within the meaning of s. 32, it is an apparatus of government. She based her finding that the GVRD was governmental in nature on s. 5 of the Local Government Act…The GVRD therefore clearly falls within the definition of “local government”.

28 The conclusion that TransLink is a government entity is also supported by the principle …that a government should not be able to shirk its Charter obligations by simply conferring its powers on another entity. The devolution of provincial responsibilities for public transit to the GVRD cannot therefore be viewed as having created a “Charter ‑ free” zone for the public transit system in Greater Vancouver.

29 Is it persuasive to deny the application of Charter to universities but not to colleges? Is it persuasive to deny the application of Charter to VGH?

30 What about the public school?

31 IV Entities exercising governmental functions Goodbout v. Longueuil [1997] The majority declined to decide the applicability of Charter to municipalities

32 La Forest, J, “The main issue concerns whether the Canadian Charter applies to municipalities -- like the appellant - - at all. To my mind, the analysis I have undertaken thus far leads inexorably to the conclusion that it does. While this Court has never before expressly endorsed that proposition, we have done so inferentially, inasmuch as we have already applied the Charter to municipal by-laws without specifically engaging in an analysis of the application issue... Indeed, municipalities -- though institutionally distinct from the provincial governments that create them -- cannot but be described as “governmental entities”.

33 “First, municipal councils are democratically elected by members of the general public and are accountable to their constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to the electorates they represent. Secondly, municipalities possess a general taxing power that, for the purposes of determining whether they can rightfully be described as “government”, is indistinguishable from the taxing powers of Parliament or the provinces. Thirdly, and importantly, municipalities are empowered to make laws, to administer them and to enforce them within a defined territorial jurisdiction….”

34 “Finally, and most significantly, municipalities derive their existence and law-making authority from the provinces; that is, they exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves. Since the Canadian Charter clearly applies to the provincial legislatures and governments, it must, in my view, also apply to entities upon which they confer governmental powers within their authority.”

35 Should the Charter be applied to municipalities?

36 What about the professional bodies with statutory power of regulation? Black and Co. v. Law Society of Alberta [1989]

37 V Entities implementing government programs Eldridge v. British Columbia, [1997]

38 “…in my view it is not the impugned legislation that potentially infringes the Charter. Rather, it is the actions of particular entities -- hospitals and the Medical Services Commission -- exercising discretion conferred by that legislation that does so. The second question is whether the Charter applies to those entities. In my view, the Charter applies to both in so far as they act pursuant to the powers granted to them by the statutes.”

39 “Legislatures have created many other statutory entities, however, that are not as clearly autonomous from government. There are myriad public or quasi- public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy. When it is alleged that an action of one of these bodies, and not the legislation that regulates them, violates the Charter, it must be established that the entity, in performing that particular action, is part of “government” within the meaning of s. 32 of the Charter.”

40 It seems clear, then, that a private entity may be subject to the Charter in respect of certain inherently governmental actions. The factors that might serve to ground a finding that an activity engaged in by a private entity is “governmental” in nature do not readily admit of any a priori elucidation. McKinney makes it clear, however, that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that actually implements the program, it is government that retains responsibility for it.

41 “Two important points must be made with respect to this principle. First, the mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may be described as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of the Charter…. In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program. ”

42 Slaight Communications Inc v. Davidson [1989]

43 Blencoe v. British Columbia [2000]

44 What is the government function that would trigger the application of the Charter?