Application

• Author: Robert J. Sharpe, Kent Roach
• Pages: 97-111

97

Cha pter 6

APPLIC ATION

Section 32 of the Canadian Charter of Rights and Freedoms states that

the Charter applies to “t he Parli ament a nd govern ment 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 provi nce.” In the early

years of t he Charter, there was considerable debate and uncer tainty as

to the appropriate interpretation of this section. 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 e xplicit legislative enactment. Com-

mon 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 t he concept that

individuals are free to do as they plea se in the absence of some specif‌ic

legal measure restrain ing their freedom. Does the Charter reach areas

of human activity th at are not subject to any specif‌ic legislation?

Despite the importance of these is sues, the text of t he Charter wa s

ambiguous. Some commentators thought t hat the purpose of section

32 was to limit the application of the Charter to governme nt action.

They argued that it would be w rong to subject the entire legal reg ime

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

rights was to deal with the rel ationship between the individual and

the state, not all relationships between i ndividuals. Others argued that

the supremacy cl ause in sect ion 52 of the Constitution Act, 1982, made