Application

• Author: Hon. Robert J. Sharpe/Kent Roach
• Profession: Court of Appeal for Ontario- Faculty of Law University of Toronto
• Pages: 93-104

CHAP TER 6

APPLIC ATION

Section 32 of the Canadian Charter of Rights and Freedoms states t hat

the Charter applie s to “the Parl iament and gove rnment of Canada i n

respect of all matters w ithin the authority of Parliament …” and “to the

legislature and government of each province in respect of al l matters

within the author ity of the legislature of e ach province.” In the early

years of the Charter, there was considerable debate and uncertainty as

to the appropriate interpretat ion of this sect ion. It was not clear wheth-

er all legal relationships were subject to Charter scrutiny. In all prov-

inces except Quebec, the residual source of law is the common law,

which does not depend upon any ex plicit legi slative en actment. Com-

mon law rules of contract, propert y, and tort govern an enormous range

of social and economic activity. Does the Charte r apply to the common

law? Another aspect of the common law tradition is the concept that

individuals are free to do as they please i n the absence of some specific

legal measure restraining their freedom. Does the Charter reach a reas

of human activity that are not subject to any specific legislation?

Despite the importance of the se issues, the text of the Charter was

ambiguous. Some commentators thought that the purpose of section

32 was to limit the application of the Charte r to government action.

They argued that it would be wrong to subject the entire legal regime

to Charter review, and that the essence of a constitutional charter of

rights was to deal w ith the relationship between t he individual and

the state, not all relationships between individuals. Others argued t hat

the supremacy clause i n section 52 of the Constitution Act, 1982, made

the Charter applicable to all action, public and private, and that section

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