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Charter - s.32 Application

. Dickson v. Vuntut Gwitchin First Nation

In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considers the general principles of Charter s.32 ['Application of Charter'] doctrine, and leading case law:
VI. Analysis

A. Does the Charter Apply to the VGFN’s Residency Requirement?

(1) Section 32(1) of the Charter: General Principles

[40] The application of the Charter is addressed, in particular, in s. 32(1):
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.
[41] Section 32(1) identifies certain entities that are bound by the Charter. They include the legislature and government of each province in respect of provincial matters, as well as the federal Parliament and government in respect of federal matters, which include territorial governments and territorial matters. As a result, under s. 32(1), the Charter applies broadly to the legislative, executive, and administrative branches of government in respect of all matters within their authority (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 14; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at p. 598).

[42] Section 32(1) also explicitly contemplates that the Charter applies to entities other than Parliament, the provincial legislatures, and the federal, provincial, or territorial governments. This is because s. 32(1) applies to “matters within the authority” of “the particular legislative body that created them”, which includes “entities that are controlled by government or that perform truly governmental functions” (Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844, at para. 48).

[43] As a result, all exercises of governmental authority by Parliament or the provincial legislatures under the Constitution Act, 1867 are subject to the Charter. The words “within the authority of Parliament” and “within the authority of the legislature of each province” in s. 32(1)(a) and (b) refer to “the division of powers in ss. 91 and 92 of the Constitution Act, 1867” (Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at pp. 463‑64, per Wilson J., and at p. 455, per Dickson J. (as he then was) for the majority). As noted by Professors Peter W. Hogg and Wade K. Wright, the phrase “‘in respect of all matters within the authority of’ . . . limits the application of the Charter to laws within the distribution-of-powers authority of the Parliament or the Legislature” (Constitutional Law of Canada (5th ed. Supp.), at § 15:2; see also H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at pp. 971 et seq.).

[44] The objective of the broad wording employed in s. 32(1) of the Charter is to prevent Parliament, the legislatures, and the federal, provincial, and territorial governments from avoiding their Charter obligations by conferring certain of their legislative responsibilities or powers on other entities that are not ordinarily subject to the Charter (Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 42; Godbout, at para. 48; Greater Vancouver Transportation Authority, at paras. 14 and 22).

[45] Section 32(1) of the Charter, as the entry point for the Charter’s application, must be interpreted in a manner that is flexible, purposive, and generous, rather than technical, narrow, or legalistic. Such an approach serves to secure for individuals and relevant collective minorities the full benefit of the Charter’s protections and to constrain government action inconsistent with those protections (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 344; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 156; Hogg and Wright, at §§ 36:18-36:20). The words of s. 32(1) signal that “the Charter is confined to government action” and is “essentially an instrument for checking the powers of government over the individual” (McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 261).

....

(3) The Eldridge Framework for Applying Section 32(1) of the Charter

[60] A significant body of case law has addressed when the Charter applies under s. 32(1). The jurisprudence has been described as “both fluid and complex” (A. K. Lokan and M. Fenrick, Constitutional Litigation in Canada (loose-leaf), at § 2:21), and as raising the “very vexed question” of what is “government” under s. 32(1) (G. J. Kennedy, The Charter of Rights in Litigation: Direction from the Supreme Court of Canada (loose-leaf), at § 2:2).

[61] More than a quarter century ago, La Forest J. for the Court in Eldridge distilled the jurisprudence and clarified the law. He held that an entity may be subject to the Charter in one of two ways. First, an entity may be found to be “government” for the purpose of s. 32(1) if it can be characterized as government by its very nature or because of the degree of governmental control exercised over it. In such a case, all the entity’s activities are subject to the Charter. Second, even if an entity is not itself “government” for s. 32(1) purposes, it will be subject to the Charter with respect to particular activities that can be ascribed to government because they are “‘governmental’ in nature” (para. 44; see also Greater Vancouver Transportation Authority, at para. 16; Lokan and Fenrick, at §§ 2:21-2:23; Régimbald and Newman, at §18.15).

[62] It is instructive to consider how this Court has applied the two branches of the Eldridge framework.

(a) First Branch: Government “by Nature” or “Control”

[63] In Godbout, decided shortly after Eldridge, the Court had to decide whether a municipal residency requirement for employees infringed the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12, or the Canadian Charter. The majority decided the case under the Quebec Charter, while a minority did so under the Canadian Charter. Speaking for the minority, La Forest J. (with the concurrence of L’Heureux‑Dubé J. and McLachlin J., as she then was) stated that municipalities are governments by nature, and thus bound by the Canadian Charter, even though they are “institutionally distinct from the provincial governments that create them” (para. 50). He highlighted that municipal councils (1) are democratically elected by members of the public and accountable to their constituents, like Parliament and provincial legislatures; (2) have a general taxing power that is indistinguishable from the taxing powers of Parliament or the provinces; (3) are empowered to make, administer, and enforce laws within a defined territorial jurisdiction, which is a “quintessentially governmental function” (para. 51 (emphasis deleted), citing McKinney, at p. 270); and (4) derive their existence and lawmaking authority from the provinces and exercise powers that the province would otherwise exercise (para. 51). Justice La Forest reasoned that “[s]ince the Canadian Charter clearly applies to the provincial legislatures and governments, it must . . . also apply to entities upon which they confer governmental powers within their authority. Otherwise, provinces could . . . simply avoid the application of the Charter by devolving powers on municipal bodies” (para. 51).

[64] Later, in Greater Vancouver Transportation Authority, Deschamps J. for the Court held that two transit authorities that prohibited political advertising on public transit vehicles were “governments” and were subject to the Charter under the control test of the first branch of Eldridge. She found that the province of British Columbia had substantial control over the transit authorities’ activities. One transit authority was a statutory body designated by legislation as an “agent of the government”; its board of directors was appointed by the Lieutenant Governor in Council; and its affairs and operations could be managed by regulations (para. 17). As a result, this transit authority could not “be said to be operating autonomously from the provincial government” (para. 17). The other transit authority was similarly an “apparatus of government”, because it was statutorily controlled by a district government, which itself was “government” within the meaning of s. 32(1) of the Charter (para. 18). Further, as Deschamps J. noted, the second transit authority had been created to devolve provincial responsibilities for public transit into the hands of local governments, triggering the principle that “a government should not be able to shirk its Charter obligations by simply conferring its powers on another entity” (para. 22). She held that this devolution of provincial responsibilities for public transit could not “be viewed as having created a ‘Charter-free’ zone for the public transit” (para. 22). As a result, both transit authorities were subject to the Charter.

(b) Second Branch: “Governmental Activity”

[65] Eldridge itself is an example of the second branch of the Eldridge framework, under which the Charter applies to a non-governmental entity in respect of governmental activities it performs. Justice La Forest for the Court held that a hospital’s failure to provide sign language interpretation to persons receiving medical services under provincial legislation was subject to review under the Charter. In deciding not to provide sign language interpretation, the hospital had exercised discretion under provincial legislation about how to provide medically necessary services (paras. 19 and 51). The hospital’s decision was thus “not simply a matter of internal hospital management”, but rather was “intimately connected to the medical service delivery system instituted by the legislation” (para. 51). As a result, La Forest J. ruled that the hospital was subject to the Charter in exercising discretion to provide medical services under legislation.

[66] Similarly, in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, Bastarache J. for a majority of the Court held that the British Columbia Human Rights Commission was subject to the Charter for its delay in processing a human rights complaint. Although the Commission was “autonomous or independent from government”, it had been created by statute and “all of its actions” were “taken pursuant to statutory authority” (paras. 34‑35). The Commission’s conduct could not escape Charter scrutiny “merely because it is not part of government or controlled by government” (para. 37). Justice Bastarache concluded that the Commission was bound by the Charter because it was “both implementing a specific government program and exercising powers of statutory compulsion” (para. 37).

[67] Professors Hogg and Wright have explained why action taken under statutory authority involving a power of compulsion is a relevant factor when considering the application of the Charter. They note that even if an entity is otherwise independent of the federal and provincial governments, the presence of a delegated statutory power of compulsion means that the entity has a “coercive power of governance” that is not possessed by private individuals, corporations, or organizations (§ 37:8). As they explain, “it is the exercise of a power of compulsion that makes the Charter applicable to bodies exercising statutory authority” (§ 37:8). We agree.

[68] As Professors Hogg and Wright note, the presence of a delegated statutory power of compulsion helps explain the Court’s decision that the Charter applied to the Human Rights Commission in Blencoe, as well as its earlier decisions that the Charter applied to an arbitrator exercising powers conferred by statute (Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038); a municipal by-law made under statutory authority that prohibited postering on public property (Ramsden v. Peterborough (City), 1993 CanLII 60 (SCC), [1993] 2 S.C.R.1084); the rules of a law society restricting entry to the legal profession by out-of-province law firms (Black v. Law Society of Alberta, 1989 CanLII 132 (SCC), [1989] 1 S.C.R. 591); and the terms of an insurance policy stipulated by statute (Miron v. Trudel, 1995 CanLII 97 (SCC), [1995] 2 S.C.R. 418). See also Brun, Tremblay and Brouillet, at pp. 972-73 ([translation] “The word ‘government’ in section 32 receives a functional interpretation . . . . The Canadian Charter therefore applies to all paragovernmental authorities in the public administration when they perform a government function, that is, when they exercise public authority under the law, by unilaterally compelling human behaviour”).

(c) Summary

[69] To summarize, the Charter applies broadly to the legislative, executive, and administrative branches of government. The Charter applies to Parliament, the provincial legislatures, and the federal, provincial, and territorial governments in respect of all matters within the legislative authority of Parliament and the provinces, which includes entities not specifically listed under s. 32(1). Entities subject to the Charter cannot avoid their Charter obligations by conferring certain of their legislative responsibilities or powers on other entities that are not ordinarily subject to the Charter.

[70] An entity may be subject to the Charter in one of two ways. An entity may be government by its very nature or because the federal or a provincial government exercises substantial control over it, in which case all the entity’s activities are subject to the Charter. Alternatively, even if an entity is not part of government, it will be subject to the Charter in respect of governmental activities it performs.
The court continues [at paras 71-96] to apply this Charter 'application' doctrine to the present case, primarily focussing on how the First Nation forms a 'government':
(d) Conclusion

[101] We conclude that the Charter applies to the residency requirement, either because the VGFN is government by nature, or because the enactment and enforcement of the residency requirement is a “governmental activity” operating under a statutory power of compulsion. We reach this conclusion by applying the Eldridge framework to the specific agreements, implementing legislation, and Indigenous constitution at issue in this case. We expressly refrain from commenting on whether the Charter would apply to an Indigenous government exercising an inherent self-government authority untethered from federal, provincial, or territorial legislation.
. Canadian Council for Refugees v. Canada (Citizenship and Immigration)

In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considers the application (both geographical, and by the actuality and foreseeability of 'state action') of the Charter, here in a s.7 ['life, liberty and security of the person'] challenge to the 'third safe country' refugee scheme:
[84] The respondents rightly acknowledge that assessing the constitutional implications of effects that materialize in other countries does not amount to applying the Charter to foreign governments. Here, the challenge is directed at the legislative scheme, which is undoubtedly state action that attracts Charter scrutiny. There is no place in this analysis for assessing whether American laws, policies or actions themselves comply with the Charter. Canadian courts only consider deprivations “effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected” (Suresh, at para. 54). Canada cannot “avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand” (ibid.; see also Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, at p. 522; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at paras. 59‑60; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 38). But the focus remains fixed on the Canadian legislative scheme and its effects.

....

[109] As noted above, to establish s. 7 engagement, challengers must not only demonstrate effects falling within the scope of the s. 7 interests, but also that these effects are caused by Canadian state action. In domestic matters, the requisite causal link will often be obvious. This is rarely so for cases where the deprivation in question is effected by foreign actors. When connecting harms to Canadian state action, courts must be “sensitive to the context of the particular case” (Bedford, at para. 76). When a challenger seeks to draw a causal connection between Canadian state action and a harm brought about by a foreign actor, the context is meaningfully different from cases in which harms arise through purely domestic processes.

[110] Canada has no jurisdiction to dictate the actions of foreign authorities. Thus, to draw a causal connection to Canadian state action, Canadian authorities must have been implicated in how the harms arose. Accordingly, challengers will succeed in drawing a causal connection to Canadian state action “[a]t least where Canada’s participation is a necessary precondition for the deprivation” (Suresh, at para. 54).

[111] Further, Canada cannot foresee all the actions that foreign authorities will take. Where there is no basis for Canada to have known that a harm would arise, it would be improper to view those harms as causally connected to Canadian state action. Thus, to draw a causal connection to Canadian state action, it must be shown that Canadian authorities knew, or ought to have known, that the harms could arise as a result of Canada’s actions. This has been expressed through the recognition that challengers will be able to show a causal connection to Canadian state action “[a]t least where . . . the deprivation is an entirely foreseeable consequence of Canada’s participation” (Suresh, at para. 54 (emphasis added)).

(a) Necessary Precondition

[112] In this case, it is clear that Canada’s participation is a necessary precondition to each of the effects related to detention and refoulement. Without the legislative implementation of the Safe Third Country Agreement regime, individuals could advance their refugee protection claims in Canada. Instead, they are sent back to the United States by Canadian officials acting under legislative authority, where they face (or are presumed to face) these effects. Thus, I have no hesitation in concluding that the relevant Canadian state action — here, s. 159.3 of the IRPR along with the broader legislative scheme — is a necessary precondition.

(b) Foreseeable Consequence

[113] In Bedford, this Court discussed the foreseeability threshold from Suresh and further explained its role (para. 77). Foreseeability, as described in Suresh, can be established “by a reasonable inference, drawn on a balance of probabilities” (Bedford, at para. 76). As is generally true, what is required is “a sufficient connection, having regard to the context of the case” (para. 78). Nevertheless, foreseeability remains useful in an international context where Canada does not necessarily have full knowledge of how foreign authorities will act (see, e.g., J. C. Hathaway, The Rights of Refugees Under International Law (2nd ed. 2021), at pp. 367‑68). To be plain, the foreseeability standard described in Suresh and interpreted in Bedford is binding on this Court.

[114] An effect can be shown to be foreseeable in at least two ways (see, e.g., Hathaway, at p. 373). First, challengers can show that Canada had actual knowledge of the risk that the effects would emerge. For example, Parliamentary debates discussing the risks may establish this knowledge. Second, challengers can also show that Canada ought to have known about the risks, such that knowledge can be imputed. Public reporting, academic analysis, and other sources originating outside government may help establish constructive knowledge. While speculation will not suffice, the threshold for constructive knowledge should remain attainable since foreseeability is a “port of entry for s. 7 claims” (Bedford, at para. 78). For example, the threshold should remain well below the strict approach taken to judicial notice (see R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48).

[115] In this case, the Federal Court judge noted the Suresh causation framework but did not explicitly consider whether each of the relevant effects was foreseeable (para. 100). She did not state what evidence could have allowed her to conclude that Canada knew, or ought to have known, that these effects would occur. In my respectful view, this approach led the Federal Court judge into reversible error in her application of the foreseeability standard this Court established in Suresh and Bedford.

[116] With respect to the cold temperatures in detention facilities, deficiencies in medical care, detention alongside criminally convicted individuals and the violation of religious dietary restrictions, the record does not support a finding that these effects were a foreseeable consequence of Canada’s actions on the Suresh and Bedford standard. While these effects are concerning, the question at this stage is whether Canada knew or ought to have known they could occur. The appellants have not pointed to evidence that would enable this Court to answer this question in the affirmative in light of the absence of findings below. They have not established that Canada either knew or ought to have known of this kind of harm arising in American detention facilities. Thus, in my respectful view, there was no basis for concluding that these effects were a foreseeable consequence.

[117] By contrast, the record substantiates that the other negative effects were entirely foreseeable. With respect to the risk of detention, it is plain that Canada knew returnees would be exposed to such a risk. From the earliest consultations on the scope of a possible safe third country agreement, the use of detention in the United States was the subject of debate and study (see, e.g., UNHCR, UNHCR Comments on the Draft Agreement between Canada and the United States of America for “Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries”, July 26, 2002 (online), at p. 3). Similarly, the “one-year bar” and the treatment of gender-based claims were each focal points during the adoption of the agreement (see, e.g., p. 2; Regulatory Impact Analysis Statement, SOR/2004‑217, Canada Gazette, Part II, vol. 138, No. 22, November 3, 2004, at p. 1627). Further, Canada ought to have known that returnees were at risk of being subjected to the widespread practice of medical isolation. These infringements of liberty and security of the person are causally connected to Canadian state action and must be assessed in relation to the principles of fundamental justice.
. Canada v. Boloh 1(a)

In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considers the geographical application of the Charter:
[55] In any event, the Charter and all of the sections the respondents invoke do not apply. Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight. The respondents’ own conduct and persons abroad who have control over them alone are responsible. In no way is the Government of Canada infringing the respondents’ right to liberty nor on these facts is it violating a principle of fundamental justice (section 7), arbitrarily detaining the respondents (section 9), inflicting cruel and unusual punishment on them (section 12) or discriminating against them (section 15). To the extent these rights are being infringed, entities other than the Government of Canada are responsible.

[56] Further, the application of the Charter in this case would be extraterritorial and invalid. True, sometimes the Charter can apply to circumstances outside of Canada: see e.g., Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44. But for that to happen, there must be some action or involvement by the Government of Canada to attract the application of the Charter. In particular, there must be either evidence of "“Canadian participation in a process that violates Canada’s international law obligations”" or "“consent by the foreign state to the application of Canadian law”": R. v. McGregor, 2023 SCC 4 at para. 18; see also R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paras. 51-52 and 101 and Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 at paras. 18-19. Neither is present here.

[57] As the Federal Court found, there is no evidence of Canadian participation or contribution to the respondents’ plight. A foreign state has not consented to the application of Canadian law. Instead, the respondents’ plight stems from foreign causes and the actions or omissions of the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, or both. Thus, in this case, the Charter does not apply.
. R. v. McGregor

In R. v. McGregor (SCC, 2023) the Supreme Court of Canada considered the s.32 'application' provision of the Charter, here in light of it's extra-territorial jurisdiction:
[18] The starting point of the analysis is the text of the Constitution. The scope of application of the Charter is delineated in s. 32(1):
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.
This Court’s decision in Hape is the governing authority on the territorial reach and limits of the Charter under s. 32(1). Under the Hape framework, the Charter generally cannot apply to Canadian authorities involved in an investigation conducted abroad. This general rule is qualified by two exceptions: (1) consent by the foreign state to the application of Canadian law (para. 106); and (2) Canadian participation in a process that violates Canada’s international law obligations (paras. 51‑52 and 101; see also Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, at paras. 18‑19).



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