Downtown Charter Series: November 20, 2019
Colton Fehr, sessional instructor and PhD candidate at the Faculty of Law, University of Alberta, will tell you how the vague sounding "principles of fundamental justice" in Section 7 of the Charter have been used by the courts to effect change with respect to controversial social policy issues, including the regulation of sex work, euthanasia, and abortion.
Advocacy Notwithstanding the Notwithstanding Clause
Robert Leckey
The Notwithstanding Clause and the New Populism
Richard Mailey
Shouting into the Constitutional Void: Section 28 and Bill 21
Kerri A Froc
The Crown and Government Formation: Conventions, Practices, Customs, and Norms
Philippe Lagassé
David Robitaille
Declarations of Invalidity in Superior Courts
Mark Mancini
Ford et Irwin Toy 30 ans plus tard: une conversation avec le juge de Montigny
Han-Ru Zhou
Ford and Irwin Toy 30 Years Later: A Conversation with Justice Montigny
Han-Ru Zhou
With an upcoming federal election, Canadians are preparing to decide who deserves their vote. A 2019 poll conducted for The Globe and Mail found that the biggest issue for voters is ethics in government.[1] This concern is not uniquely Canadian either. In the UK, a man sued recently selected Prime Minister Boris Johnson for “misconduct in public office.”[2] The claim against Johnson was that he deliberately misled the public during the EU referendum, and again during the general election, with the claim that “the UK gave the EU £350m a week.”[3] Just how false was this claim? The chairman of the UK Statistics Authority was so appalled that he wrote a letter to Mr. Johnson decrying the “clear misuse of official statistics”.”[4] Nevertheless, a judge refused to let the lawsuit proceed.[5]
What if there were a law that prevented politicians from lying? Surely charges levelled under such a statute would assist voters in their assessment of a political candidate’s ethics. Could such a law be constitutionally valid despite encroaching on a politician’s right to freedom of expression, which is protected by section 2 of the Charter?[6] This article discusses the relevant existing regulations, and previous decisions by the Supreme Court of Canada ("SCC") about laws regarding democratic fairness, protecting vulnerable groups, and prohibiting false news.
Some would argue that we do not need a law of this sort. “Lying about their views is just part of the game that candidates play.”[7] Others would argue that, as a Globe and Mail editorial puts it, “politicians need to be able to speak freely without fear of judicial reprisal.” According to this view, it should be left to the politicians and the media to draw attention to lies, and the voters to determine whom to trust.[8]
But laws and courts do regulate speech in a variety of other contexts. For example, food labels have to be truthful about ingredients.[9] Elon Musk found himself in trouble with the U.S. Security Exchange Commission for fraud because of a tweet that suggested Tesla might be going private; he was fined $20M.[10] If we are willing to go this far to protect the interests of potential consumers and shareholders, one would think we would try to protect voters at least equally, if not more.
Ad Standards Canada handles the regulation of advertising and is guided by the priorities of truth, accuracy, and fairness.[11] However, the Code the ASC follows explicitly excludes application to political or election advertising.[12] They do not want to “govern or restrict the free expression of public opinion or ideas.”[13]
Freedom of Expression
The Charter guarantee of freedom of expression protects “freedom of thought, belief, opinion and expression.” The SCC ruled that there are three underlying values guiding its purpose:
If a court finds there has been a restriction on freedom of expression, it must decide if the restriction is justifiable as a reasonable limit in a free and democratic society, a qualifier found in section 1 of the Charter.[15] To determine whether a restriction is a reasonable limit the courts conduct a balancing exercise. They consider the underlying objective of the action (which must have a pressing and substantial reason) and the benefits of the action and weigh those against the harmful effects.[16] If the government can prove these, among other considerations, a limitation of a Charter right is constitutional.
The purpose of a law preventing politicians from lying clearly limits freedom of expression; therefore, a section 1 analysis would be required. An older, and unconstitutional law similar to what this article is discussing, lacked the pressing and substantial objective required to restrict a Charter right. Below, this article will explain that law against ‘fake news’, and discuss how a pressing and substantial objective might now exist.
Crafting a Law Against Political Lies and Fake News
In 1992 the SCC struck down a law that prohibited the publication of any news, statement, or tale that the publisher knew to be false, “and that causes or is likely to cause injury or mischief to a public interest.”[17] The wording of the Criminal Code section as drafted was found to be too broad and, its objective was not pressing and substantial because it lacked any apparent purpose.[18]
Our plan to devise a law against lying seems to be off to rough start. However, the SCC did leave us some hope. They did note that “this is not to say that words cannot properly be constrained by the force of the criminal law.”[19] The law “could support criminalization of expression only on the basis that the sanction was closely confined to situations of serious concern.”[20]
But perhaps the biggest problem to overcome is determining what constitutes a lie. In 1992, the SCC observed that “the question of falsity of a statement is often a matter of debate, particularly where historical facts are at issue.”[21]
Determining the validity of facts is one thing, but it gets even more complicated when we begin to engage in epistemology: “the distinction between justified belief and opinion.”[22] The belief in the science around climate change is a great example. Is human caused climate change the truth if only 97% of scientists agree, or is a unanimous consensus required?
A Pressing and Substantial Reason
Nevertheless, the SCC has upheld limiting freedom of expression in the past in order to protect a vulnerable group from manipulation. In 1989, the SCC upheld a law that banned advertising directed at children under the age of 13 “for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising.”[23]
In a 1990 decision where the vulnerable group was high school students, the SCC noted that “even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient’s mind as an idea that holds some truth.”[24] They also found that they should not “overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas.”[25]
The SCC historically seems more willing to uphold laws that limit Charter rights when the law is to protect a vulnerable group.
Voter Vulnerability
Have voters become a vulnerable group? With the rise of fake news, the growing difficulty of fact checking, and increased manipulation through the use of personal data and foreign interference, the electorate appears to be growing more and more vulnerable by the day.
In 2004 the SCC decided that limits on third party spending for election advertising are a constitutionally valid limitation on freedom of expression.[26] The SCC found multiple reasons why spending limits are a pressing and substantial concern; notably, promoting “equality in the political discourse” and ensuring “that voters have confidence in the electoral process.”[27] By promoting accessibility and fairness in the electoral system, confidence is bolstered; these outweigh the limit on “unlimited political expression.”[28]
In balancing the effects of spending limits, the court emphasized a previous finding that “[P]rotecting the fairness of referendum campaigns is a laudable objective that will necessarily involve certain restrictions on freedom of expression” (emphasis in original).[29]
The majority of the court drew on the vulnerability of voters. They emphasized that voters “must be presumed to have a certain degree of maturity and intelligence,” however, if third party advertising seeks to systematically manipulate voters, they may be seen as more vulnerable.[30]
The SCC upheld limiting freedom of expression for electoral fairness again in 2007, this time in the name of informational equality. The SCC upheld a law banning the publication of election results from the East coast prior to the closing of polls on the West coast.[31] The law prevented “the perception of unfairness created when some voters have general access to information that is denied to others.”[32] The SCC recalled from their earlier decision on third party spending that “ensuring that all voters receive the same information where possible” was an important objective.[33]
One could argue that as long as everyone is receiving the same lies, voters are being ensured access to the same information. However, the issue becomes the voters’ ability to educate themselves on what is the truth and what is a lie; which as we have seen is an increasingly arduous task. In the past the court has voiced concern for the vulnerable groups of “the young and the less educated - those segments of the population who are least able to inform themselves … and to protect themselves.”[34]
But perhaps the biggest hope comes from a recent Federal Court decision that required ‘Product of Israel’ labels to be removed from wines made in the West Bank.[35] The Court found that Canadians need to have accurate information about the origin of products in order to express their political views through purchasing.[36] Otherwise, their Charter right to freedom of expression would be limited.[37] It seems plausible then that the courts could uphold as constitutional a law that prevents politicians from lying in order to ensure that voters have access to accurate information, because like expressing political views through purchasing, voting is a protected form of freedom of expression.[38]
Conclusion
Creating a law that prevents politicians from lying would be extremely difficult. It would need to be narrow, specific, and could not handcuff politicians unduly in the pursuit of truth and democracy. Not to mention, it could only catch undisputable facts. But we already regulate lies when it comes to things like food labelling, commercial advertising and publicly traded companies, and in Alberta the United Conservative government is creating a war room to counter “lies and misinformation” about the energy industry.[39] Why not a law that prohibits politicians from lying?.
The SCC has limited freedom of expression multiple times in the past in order to uphold objectives in the furtherance of democracy, and in order to protect a vulnerable group from manipulation. With today’s ubiquitous dissemination of fake news and politicians’ falsehoods, voters may well be a group deserving of such protection.
[1]Robert Fife & Steven Chase “Canadians view ethics in government as paramount issue in fall election, poll shows”, The Globe and Mail (16 June 2019), online: <theglobeandmail.com>.
[2]Michael Holden “British judges quash prosecution of PM candidate Johnson over Brexit campaign claim”, The Globe and Mail (7 June 2019), online: <theglobeandmail.com>.
[3]“Brexit: Boris Johnson ordered to appear in court over £350m claim”, BBC (29 May 2019), online: <bbc.com>.
[4]“Is that politician lying? In a democracy, only you can decide”, Editorial, The Globe and Mail (29 May 2019), online: <theglobeandmail.com>.
[5]Holden, supra note 2.
[6]Constitution Act, 1982, s 2(b), being Schedule B to the Canada Act 1982 (UK), 1982, c11.
[7]CM Melenovsky, “Not All Political Lies Are Morally Equal” (2018) 49:2 J Social Philosophy 294 at 296.
[8]“Is that politician lying? In a democracy, only you can decide”, supra note 4.
[9]Michael Skapinker “Should politicians get lying privileges?” Opinion, Financial Times (3 June 2019), online: <ft.com>.
[10] Ibid.
[11]Elizabeth Keith “This Legal Loophole Actually Allows Canadian Politicians To Lie In Their Election Campaigns”, Narcity (14 April 2019), online: <narcity.com>.
[12]Ad Standards, “The Canadian Code of Advertising Standards” (July 2019), online: Ad Standards <https://adstandards.ca/code/the-code-online/>.
[13]Ibid.
[14]R v Keegstra, [1990] 3 SCR 697 at 802 – 804, 117 NR 1 .
[15]Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 979, 58 DLR (4th) 577 .
[16]R v Oakes, [1986] 1 SCR 103 at 138 – 140, 26 DLR (4th) 200; Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 at 887, 120 DLR (4th) 12.
[17]R v Zundel, [1992] 2 SCR 731, 95 DLR (4th) 202 ; Criminal Code, RSC 1985, c C-46, s 181.
[18]Zundel, supra note 17 at 764, 776 (see also 744-746 for a history of s 181).
[19]Ibid at 774.
[20]Ibid at 776.
[21]Ibid at 747.
[22]Oxford English Dictionary, (Online: Oxford University Press, 2019) sub verbo “epistemology”.
[23]Irwin Toy, supra note 15 at 987.
[24]Keegstra, supra note 14 at 747-748.
[25]Ibid at 763.
[26]Harper v Canada (Attorney General), 2004 SCC 33 .
[27]Ibid at para 92.
[28]Ibid at para 120-121.
[29]Ibid at para 121.
[30]Ibid at para 80.
[31]R v Bryan, 2007 SCC 12 .
[32]Ibid at para14.
[33]Ibid.
[34]RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199 at 274, 127 DLR (4th) 1.
[35]Sean Fine “Federal Court orders removal of ‘Product of Israel’ labels from West Bank wines”, The Globe and Mail (29 July 2019), online: <theglobeandmail.com>.
[36]Kattenburg v Canada (Attorney General), 2019 FC 1003 at para 117 .
[37]Ibid.
[38]Siemens v Manitoba (Attorney General), 2003 SCC 3 at para 41.
[39]Michelle Bellefontaine “Alberta energy ‘war room’ to be based in Calgary”, CBC (4 June 2019), online: <cbc.ca>.
In 2019, the federal government has been inconsistent about a potential ban on conversion therapy even though the practice is harmful and professionally disregarded. This article will pose and attempt to answer a series of questions:
A Discredited ‘Therapy’
Conversion therapy is the discredited practice of attempting to “stop an individual from being homosexual or transgender”[1] or any other diverse gender or sexual identity. This article will use the label “GSD” [gender and sexually diverse] as an umbrella term to describe anyone with a gender or sexual identity outside of heterosexual and cisgender. Conversion therapy is used to attempt to ‘convert’ GSD people to become heterosexual or cisgender.
Conversion therapy was widely practiced in the past when GSD identities were disdained – this lead GSD people or their families to seek ‘therapy’ to turn GSD people ‘normal’ (heterosexual or cisgender). Conversion therapy was “the treatment of choice when homosexuality was thought to be an illness” but the practice has declined as GSD identities have become more accepted in wider society.[2] Nonetheless, it is still practiced.
Conversion therapy can have a psychological or religious basis.[3] Common ‘treatment’ techniques include “psychotherapy, psychoanalysis, hormones, and several types of aversion therapy.”[4] A subject can experience deep psychological trauma from these methods even if no physical pain is inflicted. Many survivors of conversion therapy express that they have deep psychological scars from the practice – for example, one survivor called his experiences “soul-crushing torture.”[5]
The Canadian Psychological Association stated that conversion therapy does not accomplish it’s goals and “can result in negative outcomes such as distress, anxiety, depression, negative self-image, a feeling of personal failure, difficulty sustaining relationships, and sexual dysfunction.”[6] Thus, conversion therapy is a painful and harmful exercise that does not work – so why has the federal government not banned the practice?
Mixed Messages
In March 2019, despite acknowledging the practice as “immoral” and “painful,” the federal government said that it would not ban the practice throughout Canada.[7] However, in a June 21, 2019 letter to the Alberta Minister of Justice, the federal government stated that they are “committed to doing everything within [our] jurisdiction to combat conversion therapy” through Criminal Code reforms.[8]
There is no doubt that pre-election politics are influencing the federal government’s evolving stance on banning conversion therapy. With a federal election scheduled for October 21, 2019, it is realistic that political parties would attempt to curry favour among GSD Canadians and their allies.
What are some reasons the government has been reluctant to ban the discredited practice throughout the country? What constitutional hurdles would the government face if it attempted to ban the practice through criminal law?
A Provincial Domain?
In March 2019, the federal government’s refusal to outlaw conversion therapy was because they believed that the provincial governments had jurisdiction for the issue through the regulation of health care.[9] While health care is not exclusively in the jurisdiction of the either the federal or provincial governments, on-the-ground delivery of health care is administered by provincial governments. The constitutional authority is found in a number of sections of the Constitution Act, 1867, including the expansive s 92(13)– the control of property and civil rights in the provinces.[10] Since provinces can decide what is and what is not considered health care, the regulation of a discredited practice like conversion therapy is thought to rest with the provinces.
Currently, Ontario, Manitoba, and Nova Scotia have enacted bans on conversion therapy.[11] Also, cities such as Vancouver and St. Albert, Alberta have banned businesses from practicing conversion therapy in their municipalities.[12] In Alberta, the previous New Democratic Party Government established a working group to recommend a plan to ban conversion therapy but the new United Conservative government has been noncommittal about whether they will implement any recommendations.[13]
Thus, the federal government may desire to leave the banning conversion therapy to the provinces through the regulation of health care. Ottawa may have been fearful that a federal law could encroach on provincial jurisdiction and be struck down for being out of the powers of the federal government.
Ottawa was also reluctant to further regulate conversion therapy because they believed that Criminal Code offences already captured many of the criminal acts in the practice. Other “offences such as kidnapping, forcible confinement and assault may apply where a person is forcibly compelled to undergo conversion therapy.”[14] However, pre-election politics and the desire to stop a harmful practice may have led the federal government to consider criminally banning the practice.
Criminal Law
The federal government has the sole authority to make criminal laws in Canada.[15] The standard test for whether legislative action is a “criminal law” is:
The criminal barring of conversion therapy would need to be found to have a criminal purpose for the federal government to use its criminal law power.
Esteemed constitutional scholar Peter Hogg notes that there “is a criminal-law aspect of health,” allowing the federal Parliament to “punish conduct that is dangerous to health.”[17] If the federal government created a criminal law banning conversion therapy, they could justify it as conduct dangerous to the health of GSD persons, and thus arguably with a criminal law purpose.
However, if a federal criminal law is enacted, it risks other potential constitutional challenges. At least two Charter challenges exist. The first is that a ban on conversion therapy is a potential infringement on liberty.
Loss of Liberty?
Any law that can lead to imprisonment is as a deprivation of liberty, and thus an infringement on s 7 of the Charter unless it is found to be “in accordance with the principles of fundamental justice.”[18] Carissima Mathen, vice-dean of the University of Ottawa Faculty of Law, states that “there is a potential Section 7 challenge [to a conversion therapy ban] on the basis that the law is just too blunt a tool and you're putting people at risk of imprisonment in ways that are fundamentally unfair."[19]
Of course, it is impossible to know whether an infringement on liberty would be in accordance with the principles of fundamental justice without first seeing a law. Much would depend on what exactly was prohibited, who was targeted, and what the penalty was. If a ban was comprehensive, it may be harder to justify than a narrower ban against minors undergoing the ‘treatment.’ If those seeking conversion therapy were targeted as well as providers, it may also be harder to justify.
As with any infringement on liberty, a law with jail time could be subject to a s 7 Charter challenge which would depend on the details of the law. Even if the ban was found to breach the Charter, the government would get the chance to justify the law under s 1 by arguing that the benefits to outlawing conversion therapy outweigh any Charter infringement. The question becomes, could the law as drafted be sold as a reasonable limit on rights, demonstrably justified in a free and democratic society?
Freedom of Religion
An outright ban on conversion therapy could also infringe the freedom of religion guaranteed by s 2(a) of the Charter. Conversion therapy is often practiced in religious settings by people who believe that their religion is incompatible with GSD identities.
Freedom of religion allows individuals to “be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates” if the religious practices “do not injure his or her neighbours.”[20] Arguably, a ban could not apply to recipients who actively choose to participate in conversion therapy because of their deeply held religious beliefs. Daniel Lerner, a Toronto criminal defence attorney, states that he could see a freedom of religion argument from individuals who believe that a ban would stop them from exercising their religious beliefs.[21]
Without a draft law, it is difficult to speculate whether religious rights would be infringed. However, it is a possible route for a religious person who wants to try and change their sexuality or gender identity to challenge a federal ban. It remains to be seen how the courts would handle such a challenge, or how much significance would be given to the harmful nature of the practice.
Conclusion
It is likely that a debate about banning conversion therapy in the Criminal Code will be part of the political gamesmanship of the upcoming federal election campaign. The federal Liberals have sent mixed messages, the federal New Democrats have called for a ban on conversion therapy throughout Canada,[22] and Conservative leader Andrew Scheer says that he will “wait and see” before taking a position on a conversion therapy ban.[23]
If after the election, a law banning conversion therapy is enacted there are several potential constitutional challenges. This includes assessing if the law is in federal jurisdiction and if the ban infringes an individual’s Charter rights. However, it is important to note that even if a Charter breach is found, the government can try and justify the law under s 1 of the Charter.
What is clear is that conversion ‘therapy’ is a discredited and harmful practice. The provinces are slowly banning the practice through regulation of health, but there has been no federal ban because of constitutional concerns. As the federal election campaign politics heats up, the issue will likely be discussed, and a ban could follow the election. Thus, the potential regulation of conversion therapy in Canada has been slow, fraught with mixed messages, and has several constitutional hurdles. Time will tell if the harmful effects of the practice will outweigh the uncertain constitutional status and lead the federal government to action.
[1] Devinn Larsen, “Striving for Change: California’s Attempt to Outlaw Conversion Therapy” (2019) 50:2 McGeorge L Rev 285 at 286.
[2] Douglas C Halderman, “The Practice and Ethics of Sexual Orientation Conversion Therapy” (1994) 62:2 Journal of Consulting and Clinical Psychology 221.
[3] Ibid.
[4] MJ MacCulloch & MP Feldman, “Aversion therapy in Management of 43 Homosexuals” (1967) 2 British Medical Journal 594. Aversion therapy commonly uses the technique of showing pictures of men or women that the subject finds sexually desirable and then inflicting pain, such as electroshock therapy, in an attempt to ‘train’ the subject not to be attracted to a member of the same gender.
[5] Peter Gajdics, “I experienced ‘conversion therapy’ – and it’s time to ban it across Canada,” Maclean’s (6 June 2018), online: <macleans.ca/opinion/i-experienced-conversion-therapy-and-its-time-to-ban-it-across-canada/>.
[6] Canadian Psychological Association, “CPA Policy Statement on Conversion/Reparative Therapy for Sexual Orientation” (2015), online (pdf): Canadian Psychological Association <cpa.ca/docs/File/Position/SOGII%20Policy%20Statement%20-%20LGB%20Conversion%20Therapy%20FINALAPPROVED2015.pdf>.
[7] Hannah Thibedeau, “Ottawa looking at Criminal Code reforms to deter ‘shameful’ conversion therapy,” Canadian Broadcasting Corporation (9 July 2019), online: <cbc.ca/news/politics/conversion-therapy-criminal-code-1.5204919>.
[8] Ibid.
[9] Perlita Stroh, “Ottawa rejects plans for nationwide conversion therapy ban,” Canadian Broadcasting Corporation (23 March 2019), online: <cbc.ca/news/canada/the-national-conversion-therapy-federal-petition-1.5066899> [Stroh].
[10] Peter W Hogg, Constitutional Law of Canada (2017 Student Edition) (Toronto: Thompson Reuters, 2017) at 32-2 [Hogg].
[11] Stroh supra note 9.
[12] Ibid.; Phil Heidenreich, “St. Albert City Council unanimously passes motion to crack down on conversion therapy” Global News (8 July 2019), online: <globalnews.ca/news/5473416/st-albert-city-council-conversion-therapy-motion-passes/>.
[13] Phil Heidenreich, “Email from Alberta health minister offers mixed message on conversion therapy group’s status,” Global News (7 June 2019), online: <globalnews.ca/news/5368734/tyler-shandro-conversion-therapy-group-alberta/>.
[14] Stroh supra note 9.
[15] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(27), reprinted in RSC 1985, Appendix II, No 5.
[16] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 50.
[17] Hogg supra note 10 at 18-12.1.
[18] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[19] Mark Gollom, “Federal ban on conversion therapy could face constitutional hurdles,” Canadian Broadcasting Corporation (10 July 2019), online: <cbc.ca/news/politics/conversion-therapy-ban-federal-government-1.5205696> [Gollom].
[20] R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 346.
[21] Gollom supra note 19.
[22] New Democratic Party of Canada, “NDP: Let’s Put an End to Conversion Therapy” (4 August 2019), online: <ndp.ca/news/ndp-lets-put-end-conversion-therapy>.
[23] Rachel Browne, “Andrew Scheer will ‘wait and see’ before taking stance on Liberal plan for conversion therapy ban,” Global News (10 July 2019), online: <globalnews.ca/news/5479933/conversion-therapy-ban-2/>.
The Charter protects certain rights and freedoms. Before considering whether a Charter right or freedom has been violated, there is a threshold question that must be answered: does the Charter even apply? Section 32 of the Charter explains who the 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.”[1]
This section limits the application of the Charter to the actions of the federal, provincial and municipal governments. The Supreme Court of Canada has stated that this section is a clear message that the Charter is “an instrument for checking the powers of government over the individual”.[2]
The Charter does not apply directly to private actors. This means that it does not apply to litigation between private parties, such as commercial or contractual disputes.
When does the Charter apply?
There are two ways to determine whether the Charter applies to an entities’ activities:
Nature of the Entity
If an entity is part of any level of government, the Charter will apply to all of its actions, including any laws it makes. However, there are also ways that an entity that is not technically government can be considered government such that the Charter applies:
This category does create some confusion surrounding Charter application. Public and quasi-public institutions such as universities and hospitals are the types of institutions that fit into this category for some roles they fill, but not others. The Charter will apply when the entities activities are subject to “routine or regular control by the government”.[4] Each situation must be examined to determine the level of governmental control.
Under this category, the Charter will only apply to the activities performed by the entity that can be said to be governmental in nature. The clearest example of an entity that fits into this category are Municipalities. Municipal councils are democratically elected, possess taxing power, and are empowered to make and administer laws. Municipalities derive their existence and law-making authority from the provinces. As such, the Charter applies to their actions.[6]
Nature of the Activity
When an entity itself is non-governmental, the Charter will not apply. However, if the entity partakes in governmental activities, the Charter will apply to those specific activities. This is to prevent the government from avoiding Charter application by granting powers to non-governmental entities to implement government actions.
[1] Canadian Charter of Rights and Freedoms, s 32, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982 c 11 .
[2] McKinney v University of Guelph, [1990] 3 SCR 229 at 261.
[3] Greater Vancouver Transport Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 at para 16.
[4] Douglas/Kwantlen Faculty Assn v Douglas College, [1990] 3 SCR 570
[5] Patrick Macklem & Carl Rogerson, Canadian Constitutional Law, 5th ed (Toronto: Edmond Montgomery Publications Limited, 2017) at 817.
[6] Godbout v Longueuil (City), [1997] 3 SCR 844.