Application of the Charter LAWS2502A PDF

Application of the Charter LAWS2502A Ryan Koo [email protected] Re-cap Participation Midterm and final exams [email protected] Advent of the Charter On April 17, 1982, the Constitution Act, 1982 was proclaimed in force, and the Charter w...

Application of the Charter LAWS2502A Ryan Koo [email protected] Re-cap Participation Midterm and final exams [email protected] Advent of the Charter On April 17, 1982, the Constitution Act, 1982 was proclaimed in force, and the Charter was officially entrenched in Canada’s Constitution The Charter is part of the Canadian Constitution Constitutional Supremacy: Subsection 52(1) of the Constitution Act, 1982 states that any law that is inconsistent with the provisions of the Constitution is of no force or effect Can be amended only by using the amended formula Discussion Question #1: Why is Charter important? Evolution of Charter jurisprudence Women’s right to liberty and security (Morgentaler) Discrimination based on sexual orientation (Vriend) Equality rights for same-sex partners (M v. H) Rights to be presumed innocent until proven guilty (Oakes) Rights to a fair trial (Stinchcombe) Recent Issues Various government measures adopted in the context of the COVID-19 pandemic have been challenged under s. 7 of the Charter: a federal measure imposing mandatory quarantine in government-approved accommodation after international travel by plane a federal measure imposing mandatory requirement to use the ArriveCan phone app provincial measures imposing back-to-school plans municipal by-laws requiring that all persons in public buildings and using public transportation wear face masks Recent Issues How are Charter rights limited? Section 1 of the Charter: “1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Oakes test – Government has burden to show the infringing measure: Is prescribed by law Pursues a pressing and substantial objective Is rationally connected to that objective (“rational connection”) Impairs the right no more than reasonably necessary to achieve the objective (“minimal impairment”) Has benefits that outweigh the negative effects on the right (“overall proportionality”) Section 33 “notwithstanding clause” Discussion Question #2: Is our notwithstanding clause legitimate? Section 32 of the Charter The Charter applies: (a) “to the Parliament and government of Canada in respect of all matters within the authority of Parliament...” (b) “to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” When and to whom does the Charter apply? RWDSU v. Dolphin Delivery Ltd., 2 SCR 573 (Dolphin Delivery) to both federal and provincial governmental actions to legislative, executive and administrative branches of government E.g., Cabinet decisions and exercise of prerogative to the exercise of discretionary decision-making powers conferred by statute to the common law as it is the basis of governmental action that infringes a right or freedom (Hill) When does the Charter not apply? Legislative assemblies when exercising their inherent privileges (New Brunswick Broadcasting Co. v. Nova Scotia) most orders of the courts (Dolphin Delivery) purely private action (Dolphin Delivery) private institutions (McKinney; Harrison (e.g., universities); Stoffman (e.g., hospitals))  Szeles v. Costco Wholesale Canada Ltd.: 2021 AHRC 154 (CanLII) | Szeles v Costco Wholesale Canada Ltd. | CanLII Coelho v. Lululemon Athletica Canada Inc.: 156 Coelho v Lululemon Athletica Canada Inc 2021 BCHRT 156 (gov.bc.ca) But, the Charter may apply to (1) Entities which are essentially governmental in nature (entities that are governmental in nature) What are indicia of government? (1) the governing body is democratically elected and accountable to its constituents (2) the body exercises governmental functions (e.g. law making and enforcing) (3) whether the body exercises powers conferred on it by the provincial legislatures Municipalities (Godbout, 1997 CanLII 335 (SCC) | Godbout v. Longueuil (City) | CanLII) But, the Charter may apply to (2) Entities which by virtue of the extent and degree of government control may be properly characterized as “government” (entities that are governmental by virtue of control) Factors considered: (a) whether the board is appointed and removable by the government (b) whether the government exercises regular control over the entity (directive powers; approval of by-laws, budgets) (c) whether the entity was established to implement government policy Douglas/kwantlen Faculty Assn. v. Douglas College, 3 SCR 570 Douglas/kwantlen Faculty Assn. v. Douglas College “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. 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 in the companion cases of McKinney v. University of Guelph, supra, and Harrison v. University of British Columbia, supra, which, though extensively regulated and funded by government, are essentially autonomous bodies”  2024 BCSC 961 (CanLII) | Alter v The University of British Columbia | CanLII (June 2024) Practice Question Ryan Awesome School of Law is a law school located in Ontario, Canada. It is run by a Board composed of 10 members. The provincial government has the power to appoint 4 members of the Board. The government’s power with respect to the by-laws of the school extends beyond the negative power of veto and could require the school to adopt new by-laws or change existing by-laws. Ryan Awesome School of Law is considered a private institution In January 2024, Ryan Awesome School of Law adopted an admission policy whereby the school rejected those students who identified as homosexual James who considered the school as his top choice got rejected You are a lawyer retained by James who is considering challenging the school pursuant to the Charter Discussion Question #3 But, the Charter may apply to (3) Entities exercising statutory powers Peter Hogg, in Constitutional Law of Canada, 5th ed: “Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.” But, the Charter may apply to (4) Non-governmental entities which engage in governmental acts/activities Factors considered: (a) whether the entity implements a specific statutory scheme or function (b) whether the entity acts in furtherance of a specific government policy or program Eldridge v. British Columbia (Attorney General), 3 SCR 624 Vriend v. Alberta, 1 SCR 493 Eldridge v. British Columbia (Attorney General) Eldridge v. British Columbia (Attorney General), 3 SCR 624 Robin Eldridge and John and Linda Warren are deaf and prefer to communicate through sign language They were unable to receive medical interpretation services from the provincial government Without access to such interpretation services, they had difficulty communicating with their doctors, increasing their risk of misdiagnosis and ineffective treatment They sought a declaration that the failure to provide sign language interpreters as an insured benefit violates their Charter rights Eldridge v. British Columbia (Attorney General) “Private corporations are entirely creatures of statute; they have no power or authority that does not derive from the legislation that created them. The Charter does not apply to them, however, because legislatures have not entrusted them to implement specific governmental policies” “Of course, governments may desire corporations to serve certain social and economic purposes, and may adjust the terms of their existence to accord with those goals. Once brought into being, however, they are completely autonomous from government; they are empowered to exercise only the same contractual and proprietary powers as are possessed by natural persons. As a result, while the legislation creating corporations is subject to the Charter, corporations themselves are not part of “government” for the purposes of s. 32 of the Charter” Eldridge v. British Columbia (Attorney General) “Unlike Stoffman, then, in the present case there is a ‘direct and... precisely-defined connection’ between a specific government policy and the hospital’s impugned conduct. The alleged discrimination – the failure to provide sign language interpretation – is intimately connected to the medical service delivery system instituted by the legislation.. The provision of these services is not simply a matter of internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act” “The structure of the Hospital Insurance Act reveals, therefore, that in providing medically necessary services, hospitals carry out a specific governmental objective…Rather, it provides for the delivery of a comprehensive social program” Vriend v. Alberta Vriend v. Alberta, 1 SCR 493 Delwin Vriend worked as a laboratory coordinator at a college in Edmonton, Alberta Throughout his employment, he received positive evaluations, salary increases and promotions for his work performance In 1990, he disclosed that he was homosexual. In early 1991, the college’s board of governors adopted a position statement on homosexuality Shortly thereafter, the president of the college requested his resignation Vriend wanted to make a complaint with the Alberta Human Rights Commission (Commission) that his employer had discriminated against him The Commission advised that he could not make a complaint under the Individual’s Rights Protection Act (IRPA), because it did not include sexual orientation Vriend v. Alberta Alberta argued that the effect of applying the Charter to the case at hand would be to regulate private activity. The Supreme Court disagreed: “This argument cannot be accepted. The application of the Charter to the IRPA does not amount to applying it to private activity. It is true that the IRPA itself targets private activity and as a result will have an ‘effect’ upon that activity. Yet it does not follow that this indirect effect should remove the IRPA from the purview of the Charter. It would lead to an unacceptable result if any legislation that regulated private activity would for that reason alone be immune from Charter scrutiny. The respondents’ submission has failed to distinguish between “private activity” and “laws that regulate private activity”