AuthorRobert J. Sharpe - Kent Roach
ProfessionCourt of Appeal for Ontario - Faculty of Law, University of Toronto

Page 97

Section 32 of the Canadian Charter of Rights and Freedoms states that the Charter applies to "the Parliament and government of Canada in respect of all matters within the authority of Parliament" and "to the legislature and government of each province in respect of all matters within the authority of the legislature of each province." In the early years of the Charter, there was considerable debate and uncertainty as to the appropriate interpretation of this section. It was not clear whether all legal relationships were subject to Charter scrutiny. In all provinces except Quebec, the residual source of law is the common law, which does not depend upon any explicit legislative enactment. Common law rules of contract, property, and tort govern an enormous range of social and economic activity. Does the Charter apply to the common law? Another aspect of the common law tradition is the concept that individuals are free to do as they please in the absence of some specific legal measure restraining their freedom. Does the Charter reach areas of human activity that are not subject to any specific legislation?

Despite the importance of these issues, the text of the Charter was ambiguous. Some...

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