C. The Charter: An Overview
| Author | Patrick J. Monahan - Byron Shaw |
| Pages | 428-472 |
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The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, consists of sections 1 to 34. The Charter is included within the definition of the "Constitution of Canada" set out in section 52 of the 1982 Act. Therefore, it is part of the supreme law of Canada, and takes precedence over inconsistent federal or provincial laws. However, the Charter is separate and distinct from the guarantees of Aboriginal
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rights set out in section 35 of the Constitution Act, 1982. While there are certain similarities between the Charter and the guarantees of Aboriginal rights in section 35, there are also important distinctions between the two categories of rights. Some of the key differences are highlighted below and in Chapter 14.
Section 32 of the Charter provides that the Charter applies to the "Parliament and government of Canada" and to the "legislatures and governments of the provinces." The reference to Parliament and the provincial legislatures means that the Charter applies to laws enacted by these bodies.74The references to "government" also indicate that the Charter applies to the executive or administrative branches of government.75
While the Charter applies to Parliament, the legislatures and the executive or administrative branches, it does not apply to purely private activity. The effect of this rule is that Charter claims cannot be brought against private persons, unconnected with government, on the basis that they have violated the Charter.76In Dolphin Delivery,77McIntyre J. for a unanimous Supreme Court quoted with approval the following passage from Peter Hogg’s text explaining the limits on the Charter in the following terms:
The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the Charter. Such actions as an employer restricting an employee’s freedom of speech or assembly, a parent restricting the mobility of a child, or a landlord discriminating on the basis of race in his selection of tenants, cannot be breaches of the Charter, because
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in no case is there any action by the Parliament or government of Canada or by the Legislature or government of a province. In cases where private action results in a restriction of a civil liberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract law or property law, or under some other branch of the law governing relations between private persons; but there will be no breach of the Charter.78Some commentators have criticized the decision to exclude purely private activity from Charter scrutiny.79It has been argued that the courts are a part of government such that the Charter should apply to disputes between private parties. However, the rule in Dolphin Delivery is consistent with the underlying purpose of section 32, which was designed to limit the impact of the Charter to the relationship between the state and individuals. The point was well-expressed by McIntyre J. in Dolphin Delivery, in which he agreed with the view of commentators that the Charter, like most written constitutions, was set up to regulate the relationship between the individual and the Government. It was intended to restrain government action and to protect the individual. It was not intended in the absence of some governmental action to be applied in private litigation.80Furthermore, the application of the Charter to purely private activity would vastly increase the role and power of the judiciary, since courts would be required to create a set of judge-made rules to ensure that private dealings between individuals were consistent with the requirements of the Charter.81It would also significantly constrain the jurisdiction of legislatures, since judicial codes of constitutional conduct
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would take precedence over ordinary statutes. If the Charter applied to private disputes, the only manner in which judge-made rules could be amended by government would be through the cumbersome device of constitutional amendment.82Therefore, there are compelling practical considerations supporting the Supreme Court’s decision in Dolphin Delivery.
While the rule in Dolphin Delivery is analytically sound, it is often difficult to determine whether there is sufficient government involvement to trigger Charter scrutiny in a particular case. As discussed above, section 32 refers to Parliament, legislatures, and government. It is clear that government, for the purposes of section 32, includes the entire executive branch, including ministers, civil servants, and regulatory agencies appointed by government. Section 32 also refers to "all matters within the authority of" Parliament, the legislatures and government. For this reason, the Charter extends to entities which are constituted through statute and exercise governmental power.83As Lamer J. explained in Godbout, were it otherwise, "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."84
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The Supreme Court has established two distinct tests under section 32 for determining whether the Charter applies to a particular entity. The two tests were summarized by Deschamps J. in Greater Vancouver as follows:
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.85On the basis of the "control test," community colleges, which are subject to significant ministerial or governmental control, have been considered part of government for purposes of Charter review, even though they are not formally part of the executive branch of government.86Similarly, the Vancouver transit authority was held to be sufficiently controlled by the provincial government so as to attract Charter scrutiny.87By contrast, universities88and hospitals,89which have been said to enjoy a greater measure of institutional autonomy, were held not to constitute government for purposes of section 32 of the Charter.
The "governmental activities" test has its genesis in the Supreme Court of Canada’s decision in Eldridge. In Eldridge, the Court held that if an 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.90In Eldridge, hospitals delivering medical services in accordance with a provincial statutory scheme failed to provide sign language interpreta-
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tion for deaf persons. The relevant statutes were silent on the question of funding for sign language interpretation, and it would have been possible for hospitals to have funded the services out of their global budgets received from the provincial government.91The provincial government argued that the decision not to fund sign language interpretation was a decision of the hospitals rather than the government, and that the Charter did not apply.92However La Forest J., for a unanimous Court, rejected this argument. La Forest J. concluded that hospitals operated within the context of a "comprehensive social program" for the delivery of medically necessary services, with hospitals being the "vehicles the legislature has chosen to deliver this program."93There was, therefore, a "direct and ... precisely-defined connection" between the failure to provide sign language interpretation and the medical service delivery system instituted by the legislation. The decision not to provide sign language interpretation was not a matter of "internal hospital management" but was, instead, an expression of government policy.94
In coming to this conclusion, La Forest J. distinguished the Supreme Court’s earlier decision in Stoffman. In Stoffman, the Supreme Court held that the imposition of a mandatory retirement scheme was made by a hospital board and was not a reflection of government policy. In Eldridge, La Forest J. did not expressly overrule the conclusion in Stoffman that hospitals are autonomous from government. Nor did he find that the specific decision with respect to funding of sign language interpretation was one made by the government itself.95Rather, La Forest J.’s
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conclusion in Eldridge was based on the fact that the delivery of medically necessary services was part of a comprehensive program that is generally defined and controlled by government. Therefore, decisions as to the specific services to be provided were necessarily subject to Charter review, even in cases where a particular decision might have been made by a non-government body, such as hospitals.96
The "governmental activities" test from the Eldridge case...
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