Unchartered Territory: York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 and Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10

In two cases this year, the Supreme Court of Canada revisited the scope of application of the Charter of Rights and Freedoms. In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, the Court held that the Charter applies to Ontario school boards. And in Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, a majority of the Court concluded that self-governing Indigenous nations are subject to the Charter. I will outline the basic principles of s. 32, describe the decisions in these cases and conclude with some thoughts about what they portend for the future of s. 32, with particular reference to the application of the Charter to universities.

Let us begin with some background. The application clause in s. 32 of the Charter specifies the entities to which the Charter is applicable. Unsurprisingly, the Charter applies to Parliament and the provincial legislative assemblies. But it also applies to the “government” of Canada and of each province. The consequence of the application of s. 32 is that any entity considered to be “government” will have to comply with the Charter.

In Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624 the Supreme Court explained that there are two ways in which an entity can be considered to be “government” for the purposes of the Charter. An entity can be government in all of its functions, or can be government in some functions that involve the implementation of government policy:

First, it may be determined that the entity is itself “government” for the purposes of s. 32.  This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1).  In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”.  Second, an entity may be found to attract Charter scrutiny with respect to a particular activitythat can be ascribed to government.  This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself.  In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor.  If the act is truly “governmental” in nature — for example, the implementation of a specific statutory scheme or a government program — the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities (at para. 44).

There are, therefore, two branches to the Eldridge test: entities can be inherently governmental (a branch that has two aspects (or twigs?), either by virtue of the nature of the entity or control by government); or entities can be governmental because they undertake governmental actions.

In Eldridge, hospitals came within s. 32 because of their role in implementing a government programme, the second branch of the test. This year’s cases focused more on the first branch.

In York Teachers, the Supreme Court held that school boards in Ontario are inherently governmental entities that are always “government” for the purposes of s. 32. Rowe J offered two reasons in support of this conclusion, covering both aspects of the first branch of the Eldridge test.

First, school boards exercise statutory authority under provincial legislation and are subject to the “extensive powers” of the Minister of Education, such that they are “in effect, an arm of government” (at para. 79). Second, public education “is inherently a governmental function” (at para. 81), as is manifest from the constitutional guarantee of denominational education in the province of Ontario in s. 93 of the Constitution Act, 1867.

Ultimately, “[a]ll actions carried on by Ontario public school boards are subject to Charter scrutiny” (at para. 82). In a nutshell, the statutory authority they have is not exercised for reasons internal to the school boards themselves but seeks to further an external public purpose (at para. 80). Under both aspects of the first branch of the Eldridge test — governmental by very nature and governmental control — school boards qualified.

In Dickson, Kasirer and Jamal JJ held that the Vuntut Gwitchin First Nation was “government” for the purposes of s. 32. They began by distinguishing the two different ways in which an entity might be said to be “government” under the first branch of the Eldridge test: by its very nature or by virtue of being controlled by government. Here, the VGFN was not controlled by government:

Through the Self-Government Agreement, the VGFN exercises self-government powers “by and for the first nation” (Yukon First Nations Self-Government Act, s. 2, “self-government agreement”)…Its essential function is to advance the interests of the Vuntut Gwitchin in accordance with their “traditional decision-making structures” and “to support and promote” their “contemporary and evolving political institutions and processes” (Self-Government Agreement, preamble). To this end, the Self-Government Agreement provides that the VGFN “shall have the exclusive power to enact laws” in relation to an agreed upon list of matters, including the administration of the VGFN’s “affairs and operation and internal management” (Self-Government Agreement, s. 13.1). As a result, the VGFN operates autonomously from, and is not substantially controlled by, either the federal or the Yukon government (at para. 76).

However, the VGFN was nonetheless government because of its resemblance to the characteristics set out as indicia of government in Godbout v. Longueuil (City), [1997] 3 SCR 844. It is a democratically elected entity that has law-making authority (including the power to raise revenue) within a defined territory that is ultimately attributable at least in part to the federal government and Yukon legislative assembly (at paras. 79-91).

Kasirer and Jamal JJ also found that the VGFN fell under the second branch of the Eldridge test. Here, the issue was whether a residency requirement to be able to participate in VGFN elections was consistent with the Charter right to equality. In implementing this residency requirement, the VGFN was, in their view, implementing a government programme:

The residency requirement under the VGFN’s Constitution was adopted at least in part under federal statutory authority (even assuming it also reflects the exercise of an inherent right to self-government). The residency requirement involves the exercise of a statutory power of compulsion because it imposes legal restrictions on who may serve as a VGFN Chief or Councillor. It has the force of law because it forms part of the VGFN Constitution, adopted under the Self-Government Agreement, which was itself approved and given effect by the federal and territorial implementing legislation. As stated succinctly in s. 2 of the First Nations (Yukon) Self-government Act: “The Self-Government Agreement is hereby approved and has the force of law” (see also Yukon First Nations Self-Government Act, s. 5(1) (bringing into effect the Self-Government Agreement), and s. 8(1)(b) (providing that a Yukon First Nation such as the VGFN “shall, in a manner consistent with its self-government agreement”, adopt a constitution that provides for, among other things, “the governing bodies of the first nation and their composition, membership, powers, duties and procedures”)). The federal legislation thus gives the VGFN Constitution the force of federal law under the Constitution Act, 1867, even if it already had the force of law as an Indigenous law (at para. 95).

Martin and O’Bonsawin JJ wrote separately on the s. 32 issue, reaching the same conclusion as the majority but through a different route. They were not satisfied that existing categories adequately captured Indigenous self-government and expressed particular concern about the notion that the VGFN was exercising authority delegated by “another level of government” (at para. 260):

Looking for a form of delegated authority by the federal or a provincial government does not respect the historic and integral role of Indigenous societies in Canada and fails to account for the modern context of self-governing Indigenous nations (at para. 263).

They preferred a more expansive, purposive approach to s. 32. Whereas Kasirer and Jamal JJ reasoned by analogy to Godbout, a case involving the application of s. 32 to municipalities, Martin and O’Bonsawin JJ sought to ground their analysis in first principles relating to the raison d’être of the Charter:

The reference to [Parliament and the provincial legislatures in s. 32] signals an intention that the full legislative field — “all matters within the authority” of Parliament and the provincial legislatures — be covered by the Charter. Otherwise, individuals would be deprived of critical protections in situations of power imbalance between the governed and those who govern. This would amount to sanctioning Charter-free zones (at para. 269).

In the end, however, Martin and O’Bonsawin JJ agreed that the Charter applies to the VGFN and relied on a similar set of factors to the majority:

For example, the VGFN council is democratically elected, it has the authority to levy taxes, and it possesses extensive lawmaking powers — all of which were described by La Forest J. in Godbout as non-exhaustive indiciaof government (para. 51; see also VGFN Final Agreement (1993), ch. 24; VGFN Self-Government Agreement, s. 13.0; Yukon First Nations Self‑Government Act, s. 11 and Sch. III). The VGFN also has the exclusive authority to govern its internal affairs (VGFN Self-Government Agreement, s. 13.1). This includes the enactment of the residency requirement itself — a legislative action that impacts individual members’ rights by restricting democratic participation. Further, the VGFN can enact laws applicable in the Yukon in relation to a wide array of matters touching the everyday lives of its citizens, such as health care, education, adoption and child welfare, solemnization of marriage, and estate administration (s. 13.2). It is empowered to legislate on matters of a local or private nature on the settlement land, which the VGFN Self-Government Agreement defines as including the administration of justice, land use, expropriation of land, protection of fish, wildlife, and habitat, environmental protection, vehicles, curfews and the prevention of disorderly conduct, public health, public order, and other “matters coming within the good government of Citizens on Settlement Land” (s. 13.3) (at para. 278).

The real difference between the two sets of judges was the role of delegation. It was important for the majority (see e.g. at para. 86, albeit not centrally so: at para. 83) but not for Martin and O’Bonsawin JJ, for whom the VGFN’s authority was “a different modality for the exercise of legislative power” (at para. 279). First Nations are not, one might say, like school boards or municipalities.

The majority went on to conclude that VGFN was shielded from the rigours of the Charter’s equality guarantee by s. 25 of the Constitution Act, 1982, which states that the Charter shall not “be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples”. Martin and O’Bonsawin JJ dissented on this point.

Rowe J dissented on the application of the Charter to the VGFN. In his view, the Charter was “designed by the federal and provincial governments, for those governments” (at para. 437, emphasis original). A “separate” set of mechanisms was created in the Constitution Act, 1982 to regulate the relationship between Indigenous peoples and the federal and provincial governments (at para. 443). Given these features of the 1982 constitutional settlement, judicial oversight of Indigenous legal orders for Charter compliance would be inappropriate: “Whatever the nuances, their approaches [Kasirer and Jamal JJ and Martin and O’Bonsawin JJ] amount to a means for courts to apply Charter rights (or “values”) to the operation of Indigenous self-government” (at para. 450).

As for the s. 32 jurisprudence, the application of the Charter has always turned on the relationship between the entity in question and the federal and provincial governments identified in s. 32 (at para. 461):

The jurisprudence simply recognizes that the scope of s. 32(1), while capable of embracing extensions of the federal and provincial governments in the modern administrative state, is not so broad as to encompass entities that bear no significant connection to the particular governments enumerated in s. 32(1) itself (at para. 463).

There is thus no need to shoehorn Indigenous legal orders into s. 32 because the fear of creating Charter-free zones for government action — a consideration that underpins the second branch of the Eldridge test — does not have any purchase in the context of self-governing entities:

The jurisprudence simply recognizes that the scope of s. 32(1), while capable of embracing extensions of the federal and provincial governments in the modern administrative state, is not so broad as to encompass entities that bear no significant connection to the particular governments enumerated in s. 32(1) itself (at para. 468).

Ultimately, for Rowe J:

the VGFN is not, by its nature, part of the apparatus of the federal government in the sense required under s. 32(1). Rather, its internal governance structures are rooted in the VGFN’s own laws, customs, and practices. The VGFN Arrangements give the VGFN’s unique governance structures effect within contemporary Canada through mutually binding commitments between the VGFN and the Crown (at para. 490).

Rowe J essentially sees First Nations as autonomous entities, somewhat like private organizations created to further the interests of their members and which ought to be free from court oversight. This is of a piece with his decision (for a majority of the Court) in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 SCR 750 (see especially at para. 36). More generally, Rowe J returns to first principles just as Martin and O’Bonsawin JJ does. His reasons recall the point made trenchantly by La Forest J in McKinney v. University of Guelph, [1990] 3 SCR 229 that the Charter does not apply to private ordering:

The exclusion of private activity from theCharter was not a result of happenstance.  It was a deliberate choice which must be respected.  We do not really know why this approach was taken, but several reasons suggest themselves.  Historically, bills of rights, of which that of the Unites States is the great constitutional exemplar, have been directed at government.  Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom.  Only government requires to be constitutionally shackled to preserve the rights of the individual.  Others, it is true, may offend against the rights of individuals.  This is especially true in a world in which economic life is largely left to the private sector where powerful private institutions are not directly affected by democratic forces.  But government can either regulate these or create distinct bodies for the protection of human rights and the advancement of human dignity.

Moving forward, it is interesting to reflect on whether these cases portend any further new developments in the scope of s. 32.

The application of the Charter to universities has long been a bone of contention. In McKinney, the Court held that s. 32 does not cover universities, but the point has been contested in subsequent jurisprudence (Pridgen v. University of Calgary, 2012 ABCA 139; BC Civil Liberties Association v. University of Victoria, 2016 BCCA 162; UAlberta Pro-Life v. Governors of the University of Alberta, 2020 ABCA 1), especially under the second branch of the Eldridge test (see Koshan and Hamilton). At this point in time, the question is very much on the public agenda given the regulation of protests on university property (see e.g. University of Toronto (Governing Council) v. Doe et al., 2024 ONSC 3755). Further litigation would not be surprising, especially in light of York Teachers and Dickson.

Taken together, the focus in the majority reasons in York Teachers and Dickson on delegated authority and public functions (including the elaboration of binding norms) is likely to animate arguments for Charter application in university settings. For the most part, Canadian universities exercise delegated authority under statute, make binding rules, take highly consequential decisions and perform public functions in educating students and distributing government money. These considerations chime with those relied upon in York Teachers and Dickson. Even the minority reasons in Dickson, with the emphasis on protecting individual rights and not creating Charter-free zones, point in the direction of extending the application of s. 32 to universities.

Only Rowe J’s plaintive appeal to autonomy — the key factor, in my view, leading the Court in the McKinney decision to hold that universities are not covered by s. 32 — gives any comfort to university administrators who would like to ward off court oversight for Charter compliance. But that appeal was in dissent in Dickson. Ultimately, if even self-governing First Nations are subject to the Charter, by what rationale could self-governing universities not be?

This content has been updated on October 2, 2024 at 15:52.