Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component

Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component
Collection
Supreme Court Judgments
Date
2009-07-10
Neutral citation
2009 SCC 31
Report
[2009] 2 SCR 295
Case number
31845
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 31845
Decision Content
SUPREME COURT OF CANADA
Citation: Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295
Date: 20090710
Docket: 31845
Between:
Greater Vancouver Transportation Authority
Appellant
and
Canadian Federation of Students — British Columbia Component
and British Columbia Teachers’ Federation
Respondents
‑ and ‑
Attorney General of New Brunswick, Attorney General of
British Columbia, Adbusters Media Foundation and
British Columbia Civil Liberties Association
Interveners
And Between:
British Columbia Transit
Appellant
and
Canadian Federation of Students — British Columbia Component
and British Columbia Teachers’ Federation
Respondents
‑ and ‑
Attorney General of New Brunswick, Attorney General of
British Columbia, Adbusters Media Foundation and
British Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 91)
Concurring Reasons:
(paras. 92 to 139)
Deschamps J. (McLachlin C.J. and Binnie, LeBel, Abella, Charron and Rothstein JJ. concurring)
Fish J.
* Bastarache J. took no part in the judgment.
______________________________
Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295
Greater Vancouver Transportation Authority Appellant
v.
Canadian Federation of Students — British Columbia Component
and British Columbia Teachers’ Federation Respondents
and
Attorney General of New Brunswick, Attorney General of
British Columbia, Adbusters Media Foundation and
British Columbia Civil Liberties Association Interveners
‑ and ‑
British Columbia Transit Appellant
v.
Canadian Federation of Students — British Columbia Component
and British Columbia Teachers’ Federation Respondents
and
Attorney General of New Brunswick, Attorney General of
British Columbia, Adbusters Media Foundation and
British Columbia Civil Liberties Association Interveners
Indexed as: Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component
Neutral citation: 2009 SCC 31.
File No.: 31845.
2008: March 25; 2009: July 10.
Present: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Application of Charter — Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles — Actions brought alleging that transit authorities’ policies violated freedom of expression — Whether entities which operate public transit systems “government” within meaning of s. 32 of Canadian Charter of Rights and Freedoms .
Constitutional law — Charter of Rights — Freedom of expression — Advertisements on buses — Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles — Whether advertising policies infringing freedom of expression — If so, whether infringement can be justified — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b).
Constitutional law — Charter of Rights — Reasonable limits prescribed by law — Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles — Policies infringing freedom of expression —Whether policies are “law” within meaning of s. 1 of Canadian Charter of Rights and Freedoms .
Constitutional law — Charter of Rights — Remedy — Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles — Policies unjustifiably infringing freedom of expression — Declaration that policies are of “no force or effect” sought — Whether declaration ought to be based on s. 52 of Constitution Act, 1982 or s. 24(1) of Canadian Charter of Rights and Freedoms — Whether policies are “law” within meaning of s. 52 of Constitution Act, 1982 .
The appellant transit authorities, the Greater Vancouver Transportation Authority (“TransLink”) and British Columbia Transit (“BC Transit”), operate public transportation systems in British Columbia. They refused to post the respondents’ political advertisements on the sides of their buses on the basis that their advertising policies permit commercial but not political advertising on public transit vehicles. The respondents commenced an action alleging that articles 2, 7 and 9 of the transit authorities’ policies had violated their right to freedom of expression guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms . The trial judge dismissed the action, finding that the respondents’ right to freedom of expression had not been infringed. The majority of the Court of Appeal reversed the trial judgment and declared articles 7 and 9 of the advertising policies to be of no force or effect either on the basis of s. 52(1) of the Constitution Act, 1982 or on the basis of s. 24(1) of the Charter .
Held: The appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ.: Both BC Transit and TransLink are “government” within the meaning of s. 32 of the Charter . On the face of the provision, the Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities. BC Transit is a statutory body designated by legislation as an “agent of the government” and it cannot operate autonomously from the provincial government, since the latter has the power, by means of regulations, to exercise substantial control over its day‑to‑day activities. Although TransLink is not an agent of the government, it is substantially controlled by a local government entity — the Greater Vancouver Regional District — and is therefore itself a government entity. Since the transit authorities are government entities, the Charter applies to all their activities, including the operation of the buses they own. [14] [17] [21] [24-25]
The s. 2 (b) claim should not be resolved using the Baier framework. The transit authorities’ policies do not prevent the respondents from using the advertising service as a means of expression. Only the content of their advertisements is restricted. Thus, their claim cannot be characterized as one against underinclusion. Nor can it be characterized as a positive right claim. The respondents are not requesting that the government support or enable their expressive activity by providing them with a particular means of expression from which they are excluded. They seek the freedom to express themselves — by means of an existing platform they are entitled to use — without undue state interference with the content of their expression. [26] [32] [35]
In order to determine whether the expression should be denied s. 2 (b) protection on the basis of location, the City of Montréal framework should be applied. This inquiry leads to the conclusion that the transit authorities’ policies infringe the respondents’ freedom of expression. The proposed advertisements have expressive content that brings them within the prima facie protection of s. 2 (b), and the location of this expression — the sides of buses — does not remove that protection. Not only is there some history of use of this property as a space for public expression, but there is actual use — both of which indicate that the expressive activity in question neither impedes the primary function of the bus as a vehicle for public transportation nor, more importantly, undermines the values underlying freedom of expression. The space allows for expression by a broad range of speakers to a large public audience and expression there could actually further the values underlying s. 2 (b). The side of a bus is therefore a location where expressive activity is protected by s. 2 (b) of the Charter . Finally, the very purpose of the impugned policies is to restrict the content of expression in the advertising space on the sides of buses. The wording of articles 2 and 7 clearly limits the content of advertisements. Article 9 is even more precise in excluding political speech. [36‑38] [42] [46]
The limits resulting from the policies are “limits prescribed by law” within the meaning of s. 1 of the Charter . Where a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature and constitutes a limit that is “prescribed by law”. Here, a review of the enabling legislation suggests that the transit authorities’ policies were adopted pursuant to statutory powers conferred on BC Transit and TransLink. Where a legislature has empowered a government entity to make rules, it seems only logical, absent evidence to the contrary, that it also intended those rules to be binding. The policies are not administrative in nature, as they are not meant for internal use as an interpretive aid for “rules” laid down in the legislative scheme. Rather, the policies are themselves rules that establish the rights of the individuals to whom they apply. Moreover, the policies can be said to be general in scope, since they establish standards which are applicable to all who want to take advantage of the advertising service rather than to a specific case. They therefore fall within the meaning of the word “law” for the purposes of s. 1 and satisfy the “prescribed by law” requirement as the transit authorities’ advertising policies are both accessible and worded precisely enough to enable potential advertisers to understand what is prohibited. [65] [67] [71‑73]
The limits resulting from the policies are not justified under s. 1 of the Charter . The policies were adopted for the purpose of providing “a safe, welcoming public transit system” and this is a sufficiently important objective to warrant placing a limit on freedom of expression. However, the limits on political content imposed by articles 2 , 7 and 9 are not rationally connected to the objective. It is difficult to see how an advertisement on the side of a bus that constitutes political speech might create a safety risk or an unwelcoming environment for transit users. Moreover, the means chosen to implement the objective was neither reasonable nor proportionate to the respondents’ interest in disseminating their messages pursuant to their right under s. 2 (b) of the Charter . The policies amount to a blanket exclusion of a highly valued form of expression in a public location that serves as an important place for public discourse. They therefore do not constitute a minimal impairment of freedom of expression. Advertising on buses has become a widespread and effective means for conveying messages to the general public. In exercising their control over such advertising, the transit authorities have failed to minimize the impairment of political speech, which is at the core of s. 2 (b) protection. To the extent that articles 2 , 7 and 9 prohibit political advertising on the sides of buses, they place an unjustifiable limit on the respondents’ right under s. 2 (b) of the Charter . [76‑77] [80]
With respect to remedy, the transit authorities’ policies clearly come within the meaning of “law” for the purposes of s. 52(1) of the Constitution Act, 1982 . The transit authorities used their delegated rule‑making power to adopt policies which unjustifiably limited the respondents’ freedom of expression. Those policies are binding rules of general application that establish the rights of members of the public who seek to advertise on the transit authorities’ buses. Since ensuring the largest numbers of potential claimants and beneficiaries of a constitutional challenge is in keeping with the spirit of the supremacy of the Charter , the appropriate remedy for an invalid rule of general application is one under s. 52(1) of the Constitution Act, 1982 , and not s. 24(1) of the Charter . As the transit authorities’ advertising policies are “law” within the meaning of s. 52(1) of the Constitution Act, 1982 , they are therefore declared of no force or effect to the extent of their inconsistency. [89‑90]
Per Fish J.: There is agreement that the transit authorities are subject to the Charter , that their advertising policies infringe s. 2 (b) of the Charter , that this infringement cannot be justified under s. 1 , and that the respondents are entitled to a declaration that the policies are of no force or effect. But there is disagreement with the analytical framework adopted in circumscribing freedom of expression under s. 2 (b). [93] [100] [137]
Freedom of expression enjoys broad but not unbounded constitutional protection in Canada. It is subject to internal limits which allow government to curtail expressive activity that is inherently inconsistent with the object and purpose of s. 2 (b), and it is subject as well to “external” limitation in virtue of s. 1 of the Charter . Two recognized internal limits are relied on by the transit authorities: the significant burden exception and the manifest incompatibility exception. Under the first, expressive activity will not normally be protected where it imposes on the government a significant burden of assistance, in the form of expenditure of public funds, or the initiation of a complex legislative, regulatory, or administrative scheme or undertaking. Government expenditures and initiatives may be undertaken to advance Charter rights and freedoms in innumerable ways, but given finite resources, it is generally considered to be a matter for the legislature and not the judiciary to determine which social priorities are to receive government assistance. Second, expressive activity will also fall outside the protected zone of s. 2 (b) where it is manifestly incompatible with the purpose or function of the space in question. Governments should not bear the burden of strictly prescribing by law and justifying limits on those kinds of expression that are so obviously incompatible with the purpose or function of the space provided. Freedom of expression is also subject to an external limitation: even if an expressive activity falls within the protected zone of s. 2 (b), it may be validly curtailed in virtue of s. 1 of the Charter pursuant “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. [95‑98] [103] [105] [130‑131]
Neither the significant burden nor the manifest incompatibility exception to the general rule of broad protection enshrined in s. 2 (b) applies in this case. The respondents’ request would not impose a significant burden on the transit authorities. Little change is needed to remove the infringing restrictions and the steps that would have to be taken require no meaningful expenditure of funds and no new operating initiatives of significance. They involve no administrative reorganization, restructuring or expansion that can reasonably be characterized as “burdensome”. Also, advertisements conveying a political message are not incompatible — let alone manifestly incompatible — with a commercial and public service advertising facility. Having chosen to make the sides of buses available for expression on such a wide variety of matters, the transit authorities cannot, without infringing s. 2 (b) of the Charter , arbitrarily exclude a particular kind or category of expression that is otherwise permitted by law. There is no inherent conflict between political advertisements on the sides of buses and orderly transportation. [97] [116‑117] [121] [123]
Cases Cited
By Deschamps J.
Applied: Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; distinguished: Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; referred to: Lehman v. City of Shaker Heights, 418 U.S. 298 (1974); Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Haig v. Canada, [1993] 2 S.C.R. 995; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Therens, [1985] 1 S.C.R. 613; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; R. v. Oakes, [1986] 1 S.C.R. 103; Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; R. v. Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728; R. v. Tremblay, [1993] 2 S.C.R. 932; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.
By Fish J.
Referred to: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; R. v. Keegstra, [1990] 3 S.C.R. 697; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; R. A. V. v. City of St. Paul, 505 U.S. 377 (1992).
Statutes and Regulations Cited
British Columbia Transit Act, R.S.B.C. 1996, c. 38, ss. 2(5), 3(1)(c), 4(1), (4)(e), 32(2).
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 15 , 24(1) , 32 .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 83.02 .
Greater Vancouver Transportation Authority Act, S.B.C. 1998, c. 30, ss. 2(4), 8(1), (2), 14(3), (4), 25(3), 29(5), 29.1(5), 133(5).
Local Government Act, R.S.B.C. 1996, c. 323, ss. 2, 5 “local government”, 173, 174, 266(1), 783(1), 796(1), 803(1).
South Coast British Columbia Transportation Authority Act, S.B.C. 1998, c. 30.
Authors Cited
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Scarborough, Ont.: Thomson/Carswell, 2007.
Holland, Denys C., and John P. McGowan. Delegated Legislation in Canada. Toronto: Carswell, 1989.
APPEAL from a judgment of the British Columbia Court of Appeal (Southin, Prowse and Lowry JJ.A.), 2006 BCCA 529, 275 D.L.R. (4th) 221, [2007] 4 W.W.R. 575, 233 B.C.A.C. 81, 386 W.A.C. 81, 64 B.C.L.R. (4th) 29, 148 C.R.R. (2d) 203, [2006] B.C.J. No. 3042 (QL), 2006 CarswellBC 2887, reversing a decision of Halfyard J., 2006 BCSC 455, 266 D.L.R. (4th) 403, 139 C.R.R. (2d) 148, [2006] B.C.J. No. 729 (QL), 2006 CarswellBC 865. Appeal dismissed.
David F. Sutherland and Clark Roberts, for the appellant the Greater Vancouver Transportation Authority.
George K. Macintosh, Q.C., and Timothy Dickson, for the appellant the British Columbia Transit.
Mark G. Underhill and Catherine J. Boies Parker, for the respondents.
Gaétan Migneault, for the intervener the Attorney General of New Brunswick.
Neena Sharma and Jennifer J. Stewart, for the intervener the Attorney General of British Columbia.
Ryan D. W. Dalziel and Audrey Boctor, for the intervener the Adbusters Media Foundation.
Chris W. Sanderson, Q.C., and Chelsea D. Wilson, for the intervener the British Columbia Civil Liberties Association.
The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Abella, Charron and Rothstein JJ. was delivered by
[1] Deschamps J. — Can government entities, in managing their property, disregard the right of individuals to political expression in public places? The appellant transit authorities answered this question in the affirmative and refused to post the respondents’ political advertisements on the sides of buses on the basis that their advertising policies permit commercial but not political advertising on public transit vehicles. This appeal raises the issues of whether those policies must comply with the Canadian Charter of Rights and Freedoms and, if so, whether they violate the respondents’ right under s. 2 (b) of the Charter to freedom of expression and whether such a breach can give rise to a declaration that the policies are invalid under s. 52 of the Constitution Act, 1982 .
1. Facts and Judicial History
[2] The appellants, the Greater Vancouver Transportation Authority (“TransLink”) and British Columbia Transit (“BC Transit”), are corporations that operate public transportation systems in British Columbia. TransLink is responsible for running the transit system in the area under the jurisdiction of the Greater Vancouver Regional District (“GVRD”), whereas BC Transit operates in British Columbia communities outside the GVRD. For years, the appellants (the “transit authorities”) have earned revenue by posting advertisements on their buses.
[3] In the summer and fall of 2004, the respondents, the Canadian Federation of Students — British Columbia Component (“CFS”) and the British Columbia Teachers’ Federation (“BCTF”), attempted to purchase advertising space on the sides of buses operated by the transit authorities. The CFS, a society which represents thousands of college and university students in B.C., sought to encourage more young people to vote in a provincial election scheduled for May 17, 2005 by posting, on buses, advertisements about the election. The first advertisement, which was to run the length of the bus, would have depicted a silhouette of a crowd at a concert with the following text:
Register now. Learn the issues. Vote May 17, 2005.
ROCKTHEVOTEBC.com
The second advertisement was a “banner ad” placed along the top of the bus which would have read in one long line as follows:
Tuition fees ROCKTHEVOTEBC.com Minimum wage ROCKTHEVOTEBC.com Environment ROCKTHEVOTEBC.com
The BCTF, a society and trade union which is the exclusive bargaining agent for more than 40,000 public school teachers in B.C., sought to voice its concern about changes in the public education system by posting the following message:
2,500 fewer teachers, 114 schools closed.
Your kids. Our students. Worth speaking out for.
[4] The transit authorities refused to post the respondents’ advertisements on the basis that such advertisements were not permitted by their advertising policies. The transit authorities had adopted essentially identical advertising policies, which included the following provisions:
POLICY:
. . .
2. Advertisements, to be accepted, shall be limited to those which communicate information concerning goods, services, public service announcements and public events.
. . .
Standards and Limitations
. . .
7. No advertisement will be accepted which is likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy;
. . .
9. No advertisement will be accepted which advocates or opposes any ideology or political philosophy, point of view, policy or action, or which conveys information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office;
[5] The respondents commenced the present action, alleging that articles 2, 7 and 9 of the transit authorities’ policies had violated their right to freedom of expression guaranteed by s. 2 (b) of the Charter . The respondents restricted their claim for relief to a declaration, “pursuant to s. 52 of the Constitution Act, 1982 , that [articles] 2, 7 and 9 of the advertising policies are unconstitutional and of no force and effect”.
[6] Halfyard J. of the British Columbia Supreme Court dismissed the action (2006 BCSC 455, 266 D.L.R. (4th) 403). He determined that both BC Transit and TransLink were subject to the Charter since they were “government” within the meaning of s. 32 of the Charter . However, he concluded, on the basis of the factors set out in Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141 (“City of Montréal”), and in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), that the respondents’ right to freedom of expression had not been infringed. In his view, since there was no history of permitting political or advocacy advertising on the sides of buses, the location was not a “public place”.
[7] Halfyard J. went on to state that, had he found that the transit authorities’ policies infringed the respondents’ freedom of expression, he would have concluded that the total ban on political and other advocacy advertising was not a reasonably minimal impairment of freedom of expression and that the alleged benefits of the advertising restrictions did not outweigh their detrimental effects. Nevertheless, he would have found that the advertising policies failed the s. 1 test on the basis that the limits they imposed were not limits prescribed by law.
[8] The British Columbia Court of Appeal reversed the trial judgment (2006 BCCA 529, 64 B.C.L.R. (4th) 29). On the question of freedom of expression, Prowse J.A., writing for the majority, concluded that the trial judge had erred in finding that the transit authorities’ advertising policies did not infringe the respondents’ right to freedom of expression. In her view, Halfyard J. had erred, in applying City of Montréal, in considering the content of the advertisement and had mistakenly elevated the historical use of the sides of buses from a potential indicator that a place is a “public place” to an actual prerequisite for finding that it is. According to Prowse J.A., BC Transit and TransLink had a history of permitting advertising on their buses, and expression in this location could not therefore be viewed as inimical to the function of the buses as vehicles for public transportation.
[9] Regarding s. 1 of the Charter , Prowse J.A. declined to embark on her own analysis of whether the transit authorities’ policies were “law” within the meaning of s. 1 , and she neither accepted nor rejected the trial judge’s finding on the issue. She felt that it was inappropriate to engage in this discussion given that the parties’ submissions on s. 1 were insufficient. On a similar basis, she chose not to rule definitively on the issues of remedy, merely stating that if the policies were “law” within the meaning of s. 1 , she could make an order under s. 52 , and if they were not “law”, she also had jurisdiction under s. 24(1) to make a similar order. Thus, she declared, without identifying the remedial provision upon which her order was actually based, that articles 7 and 9 of the advertising policies were of no force or effect. Although the validity of article 2 was raised before the trial judge, it was not referred to in the conclusion of the Court of Appeal.
[10] Southin J.A., dissenting, would have dismissed the appeal. In her view, what was at issue was the freedom of expression of both the transit authorities and the respondents. According to Southin J.A.’s interpretation, s. 2 (b) includes a freedom not to publish a message or, in other words, it does not confer a right of access to “media of communication”. Furthermore, in her view, there were no signs of state oppression in the transit authorities’ refusal to post the respondents’ advertisements.
[11] The transit authorities sought and were granted leave to appeal to this Court with respect to the constitutional validity of articles 2, 7 and 9 of the transit authorities’ policies.
2. Issues
[12] There are four issues in this appeal: (1) whether the entities which operate the public transit systems in the GVRD and elsewhere in British Columbia are subject to the Charter ; (2) if so, whether the impugned policies adopted by these entities infringe the respondents’ right to freedom of expression; (3) if so, whether the limits imposed by those policies are “reasonable limits prescribed by law” within the meaning of s. 1 of the Charter ; and (4) whether a declaration can be made under s. 52 of the Constitution Act, 1982 with respect to the policies.
3. Analysis
3.1 Section 32 of the Charter : The Principles
[13] Section 32 identifies the entities to which the Charter applies. It reads:
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.
[14] On the face of the provision, the Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities. In Godbout v. Longueuil (City), [1997] 3 S.C.R. 844, La Forest J. explained the rationale for the broad reach of s. 32 as follows (at para. 48):
Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are — as a simple matter of fact — governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies. In other words, Parliament, the provincial legislatures and the federal and provincial executives could simply create bodies distinct from themselves, vest those bodies with the power to perform governmental functions and, thereby, avoid the constraints imposed upon their activities through the operation of the Charter . Clearly, this course of action would indirectly narrow the ambit of protection afforded by the Charter in a manner that could hardly have been intended and with consequences that are, to say the least, undesirable. Indeed, in view of their fundamental importance, Charter rights must be safeguarded from possible attempts to narrow their scope unduly or to circumvent altogether the obligations they engender. [Emphasis added.]
[15] In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, La Forest J. reviewed the position the Court had taken in McKinney v. University of Guelph, [1990] 3 S.C.R. 229 (university), Harrison v. University of British Columbia, [1990] 3 S.C.R. 451 (university), Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 (hospital), Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570 (college), and Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 (college), on the issue of the status of various entities as “government”. Writing for a unanimous Court, he summarized the applicable principles as follows (at para. 44):
. . . the Charter may be found to apply to an entity on one of two bases. 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 activity that 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.
[16] Thus, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be “government”, either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter . If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter .
3.1.1 Application of the Principles to the Transit Authorities
[17] In this Court, BC Transit does not address the trial judge’s conclusion that it is itself “government” within the meaning of s. 32 of the Charter . It is clearly a government entity. It is a statutory body designated by legislation as an “agent of the government”, with a board of directors whose members are all appointed by the Lieutenant Governor in Council (British Columbia Transit Act, R.S.B.C. 1996, c. 38, ss. 2(5) and 4(1)). Moreover, the Lieutenant Governor in Council has the power to manage BC Transit’s affairs and operations by means of regulations (s. 32(2)). Thus, BC Transit cannot be said to be operating autonomously from the provincial government, since the latter has the power to exercise substantial control over its day-to-day activities.
[18] As for TransLink, it argues that the trial judge and the majority of the Court of Appeal erred in finding that it is “government” within the meaning of s. 32 of the Charter . Prowse J.A. found that because TransLink is controlled by the GVRD, which itself is “government” within the meaning of s. 32 , it is an apparatus of government. She based her finding that the GVRD was governmental in nature on s. 5 of the Local Government Act, R.S.B.C. 1996, c. 323 (“LGA”), which defines “local government” as “the council of a municipality” and “the board of a regional district”. She added that regional districts are corporations (s. 173), that they are governed by boards (s. 174) and that the boards consist of municipal directors and electoral area directors (s. 783(1)). Furthermore, the LGA describes regional districts as “independent, responsible and accountable order[s] of government within their jurisdiction” and states that a regional district is intended to provide “good government for its community” (s. 2(a)). The GVRD therefore clearly falls within the definition of “local government”.
[19] One might add to the criteria upon which Prowse J.A. based her conclusion the facts that, subject to specific limitations established in the LGA, a regional district may operate any service that the board considers necessary or desirable for its geographic area (s. 796(1)), and that it may recover the costs of its services (s. 803(1)). Moreover, the board of a regional district has the power to make bylaws which are enforceable by fine or by imprisonment (s. 266(1)). Consequently, not only is the GVRD designated as “government” in the LGA, but the legislature has granted it powers consistent with that status.
[20] Having established that the GVRD is “government”, Prowse J.A. went on to conclude that the GVRD exercises substantial control over TransLink:
. . . the GVRD has substantial control over the day‑to‑day operations of TransLink which, when combined with the GVRD’s powers to appoint the vast majority of the members of TransLink’s board of directors, satisfies the control test posited by the authorities. To the extent that the GVRD does not have complete control over TransLink, control is shared by the provincial government. In either case, I conclude that TransLink cannot be viewed to be operating independently or autonomously in a manner similar to either universities or hospitals. It has no independent agenda other than that provided in its constituent Act and no history of being an entity independent of government. [para. 93]
[21] Prowse J.A. came to this conclusion after reviewing the Greater Vancouver Transportation Authority Act, S.B.C. 1998, c. 30, and remarking that the GVRD must appoint 12 of the 15 directors on TransLink’s board (s. 8(1) and (2)) and must ratify TransLink’s strategic transportation plan (s. 14(4)), that TransLink must “prepare all its capital and service plans and policies and carry out all its activities and services in a manner that is consistent with its strategic transportation plan” (s. 14(3)), and that the GVRD must ratify bylaws relating to a variety of taxes and levies (ss. 25(3), 29(5), 29.1(5) and 133(5)). Although TransLink is not an agent of the government, Prowse J.A. concluded that it is substantially controlled by a local government entity — the GVRD — and is therefore itself a government entity. The control mechanisms are substantial, and I agree with Prowse J.A.’s analysis and conclusion on this issue.
[22] The conclusion that TransLink is a government entity is also supported by the principle enunciated by La Forest J. in Eldridge (at para. 42) and Godbout (at para. 48) that a government should not be able to shirk its Charter obligations by simply conferring its powers on another entity. The creation of TransLink by statute in 1998 and the partial vesting by the province of control over the region’s public transit system in the GVRD was not a move towards the privatization of transit services, but an administrative restructuring designed to place more power in the hands of local governments (B.C.C.A. reasons, at paras. 75-79). The devolution of provincial responsibilities for public transit to the GVRD cannot therefore be viewed as having created a “Charter ‑free” zone for the public transit system in Greater Vancouver.
[23] At this point, I should mention that the legislation considered by the courts below has been repealed since the time of the events at issue in this case. Pursuant to the South Coast British Columbia Transportation Authority Act, S.B.C. 1998, c. 30, TransLink’s activities are now conducted by the South Coast British Columbia Transportation Authority. The provisions of the new statute are not before the Court, and I need not comment on them here.
[24] In summary, both BC Transit and TransLink are “government” within the