Talk:Charter Application to Care Homes

Dunmore v. Ontario (Attorney General), 2001 SCC 94 (CanLII), [2001] 3 SCR 1016

24 In my view, the cases of Haig, NWAC and Delisle function to circumscribe, but not to foreclose, the possibility of challenging underinclusion under s. 2 of the Charter. One limit imposed by these cases is that claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime. Thus, in Haig, the majority of this Court held that “[a] government is under no constitutional obligation to extend [a referendum] to anyone, let alone to everyone”*, and further that “[a] referendum as a platform of expression is . . . a matter of legislative policy and not of constitutional law” (p. 1041 (emphasis in original)). Similarly, in NWAC, the majority of this Court held that “[i]t cannot be claimed that NWAC has a constitutional right to receive government funding aimed at promoting participation in the constitutional conferences” (p. 654). In my view, the appellants in this case do not claim a constitutional right to general inclusion in the LRA, but simply a constitutional freedom to organize a trade association. This freedom to organize exists independently of any statutory enactment, even though the so-called “modern rights to bargain collectively and to strike” have been characterized otherwise in the Alberta Reference, supra, per Le Dain J., at p. 391. While it may be that the effective exercise of this freedom requires legislative protection in some cases, this ought not change the fundamentally non-statutory character of the freedom itself. As long as the appellants can plausibly ground their action in a fundamental Charter freedom, Haig and NWAC ought simply to be distinguished.

25 Second, the underinclusion cases demonstrate that a proper evidentiary foundation must be provided before creating a positive obligation under the Charter. This requirement proved fatal in Haig, NWAC and Delisle because the claimants in all three cases were unable to prove that the fundamental freedom at issue, as opposed to merely their requested statutory entitlement, was impossible to exercise. On the contrary, it was concluded in Haig that “the referendum itself, far from stifling expression, provided a particular forum for such expression” (p. 1040). Similarly, it was concluded in NWAC that “[e]ven assuming that in certain extreme circumstances, the provision of a platform of expression to one group may infringe the expression of another and thereby require the Government to provide an equal opportunity for the expression of that group, there was no evidence in this case to suggest that the funding or consultation of the four Aboriginal groups infringed the respondents’ equal right of freedom of expression” (p. 664). Finally, it was concluded in Delisle that “it is difficult to argue that the exclusion of RCMP members from the statutory regime of the PSSRA prevents the establishment of an independent employee association because RCMP members have in fact formed such an association in several provinces, including Quebec, where ‘C’ Division was created by Mr. Delisle himself” (para. 31). In my view, the evidentiary burden in these cases is to demonstrate that exclusion from a statutory regime permits a substantial interference with the exercise of protected s. 2(d) activity. Such a burden was implied by Dickson C.J. in the Alberta Reference, supra, where he stated that positive obligations may be required “where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms” (p. 361 (emphasis added)). It was also implied by this Court in NWAC, where Sopinka J. stated that “[i]t will be rare indeed that the provision of a platform or funding to one or several organizations will have the effect of suppressing another’s freedom of speech” (p. 657 (emphasis added)). These dicta do not require that the exercise of a fundamental freedom be impossible, but they do require that the claimant seek more than a particular channel for exercising his or her fundamental freedoms.

26 Assuming an evidentiary foundation can be provided, a third concern is whether the state can truly be held accountable for any inability to exercise a fundamental freedom. In this case, it is said that the inability to form an association is the result of private action and that mandating inclusion in a statutory regime would run counter to this Court’s decision in Dolphin Delivery, supra. However, it should be noted that this Court’s understanding of “state action” has matured since the Dolphin Delivery case and may mature further in light of evolving Charter values. For example, this Court has repeatedly held that the contribution of private actors to a violation of fundamental freedoms does not immunize the state from Charter review; rather, such contributions should be considered part of the factual context in which legislation is reviewed (see Lavigne, per La Forest J., at p. 309; see, similarly, R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, per Dickson C.J., at p. 766). Moreover, this Court has repeatedly held in the s. 15(1) context that the Charter may oblige the state to extend underinclusive statutes to the extent underinclusion licenses private actors to violate basic rights and freedoms (see Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493). Finally, there has been some suggestion that the Charter should apply to legislation which “permits” private actors to interfere with protected s. 2 activity, as in some contexts mere permission may function to encourage or support the act which is called into question (see Lavigne, per Wilson J., at p. 248). If we apply these general principles to s. 2(d), it is not a quantum leap to suggest that a failure to include someone in a protective regime may affirmatively permit restraints on the activity the regime is designed to protect. The rationale behind this is that underinclusive state action falls into suspicion not simply to the extent it discriminates against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental freedoms.

27 The notion that underinclusion can infringe freedom of association is not only implied by Canadian Charter jurisprudence, but is also consistent with international human rights law. Article 2 of Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 17, provides that “[w]orkers and employers, without distinction whatsoever, shall have the right to establish and . . . to join organisations of their own choosing” (emphasis added), and that only members of the armed forces and the police may be excluded (Article 9). In addition, Article 10 of Convention No. 87 defines an “organisation” as “any organisation of workers or of employers for furthering and defending the interests of workers or of employers” (emphasis added). Canada ratified Convention No. 87 in 1972. The Convention’s broadly worded provisions confirm precisely what I have discussed above, which is that discriminatory treatment implicates not only an excluded group’s dignity interest, but also its basic freedom of association. This is further confirmed by the fact that Article 2 operates not only on the basis of sex, race, nationality and other traditional grounds of discrimination, but on the basis of any distinction, including occupational status (see L. Swepston, “Human rights law and freedom of association: Development through ILO supervision” (1998), 137 Int’l Lab. Rev. 169, at pp. 179-180). Nowhere is this clearer than in Article 1 of Convention (No. 11) concerning the Rights of Association and Combination of Agricultural Workers, 38 U.N.T.S. 153, which obliges ratifying member states to secure to “all those engaged in agriculture” the same rights of association as to industrial workers; the convention makes no distinction as to the type of agricultural work performed. Although provincial jurisdiction has prevented Canada from ratifying Convention No. 11, together these conventions provide a normative foundation for prohibiting any form of discrimination in the protection of trade union freedoms (see J. Hodges-Aeberhard, “The right to organise in Article 2 of Convention No. 87: What is meant by workers ‘without distinction whatsoever’?” (1989), 128 Int’l Lab. Rev. 177). This foundation is fortified by Convention (No. 141) concerning Organisations of Rural Workers and Their Role in Economic and Social Development (I.L.O. Official Bulletin, vol. LVIII, 1975, Series A, No. 1, p. 28) which extends, under Article 2, the freedom to organize to “any person engaged in agriculture, handicrafts or a related occupation in a rural area, whether as a wage earner or, . . . as a tenant, sharecropper or small owner-occupier”.

28 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. This is not to say that such claims will be common: they are constrained by both s. 32 of the Charter, which demands a minimum of state action before the Charter can be invoked, as well as by the factors discussed above. 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. In this sense, the burden imposed by s. 2(d) of the Charter differs from that imposed by s. 15(1): while the latter focuses on the effects of underinclusion on human dignity (Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497), the former focuses on the effects of underinclusion on the ability to exercise a fundamental freedom. This distinction is contemplated by the wording of the Charter itself and is supported by subsequent jurisprudence of this Court (see, e.g., Delisle, supra, at para. 25).