Subsection 32(1) – Application of the Charter

Provision

32.(1) This Charter applies:

  1. to the Parliament and the government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and the Northwest Territories; and
  2. to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Similar provisions

Provisions on the scope of application of an instrument can be found in the following Canadian laws and international instruments binding on Canada: sections 2, 5(2), and 5(3) of the Canadian Bill of Rights; article 2.1 of the International Covenant on Civil and Political Rights; article 6 of the International Convention on the Elimination of Racial Discrimination; article 2.1 of the Convention on the Rights of the Child; article 2.1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

See also the following international and comparative law instruments not binding on Canada: article 1 of the American Convention on Human Rights; article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; the American Bill of Rights — American courts have held that most of the guarantees apply to both federal and state governments.

Purpose

Subsection 32(1) defines the scope of the Charter’s application. The text of subsection 32(1) provides “a strong message that the Charter … is essentially an instrument for checking the powers of government over the individual”: McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 261.

The Charter is not intended to govern relations between private actors. “The exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice that must be respected. We do not really know why this approach was taken, but several reasons suggest themselves. Historically, bills of rights, of which that of the United States is the great constitutional exemplar, have been directed at government. Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom”: McKinney at 262.

Analysis

1. Introduction

The Charter binds the actions of governments and not private actors: R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Vriend v. Alberta, [1998] 1 S.C.R. 493 at paragraphs 65-66; R. v. Buhay, [2003] 1 S.C.R. 631, at paragraph 31. Perhaps the fullest discussion of the issue of Charter application is found in McKinney and in its companion cases, Harrison v. University of British Columbia, [1990] 3 S.C.R. 451, Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483 and Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570.

In Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Supreme Court set out the basic approach to determining whether the Charter applies. The Charter can apply in two ways. The first depends on the nature of the actor. If an entity is a part of “government”, either by its very nature or due to extensive government control, then the Charter generally applies to all of its actions. The second way the Charter applies depends on the nature of the action. Even if an entity is not part of “government”, the Charter nonetheless might apply to certain actions of that entity. Persons or entities that are not “government” but that implement a specific government policy or program, must generally comply with the Charter in performing the relevant governmental activity but not in respect of their non-governmental or private activities. See also Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, [2009] 2 S.C.R. 295 (“GVTA”) at paragraphs 15-16.

2. Government – The “nature of the actor”

If an entity is a part of “government” then the Charter generally applies to all its activities, including those that might in other circumstances be thought of as private, commercial, contractual or non-public in nature (Eldridge, supra, at paragraph 40. See also Douglas College; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 and Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391 — on the application of the Charter to “government” as employer).

(i) The federal and provincial governments

The Charter applies to the executive and legislative branches of the federal and provincial governments (Dolphin Delivery, supra, at paragraph 33). See also Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, which discusses the application of the Charter to decisions of the federal Cabinet.

“Parliament” and the “provincial legislatures” are expressly named in subsection 32(1) and therefore the Charter applies to the legislation they enact (Dolphin Delivery, supra, at paragraph 34). Note however, that the privileges of Parliament and the legislatures that are necessary for their proper functioning as legislative assemblies are immune from Charter scrutiny since they themselves are constitutionally entrenched (New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Canada (House of Commons) v. Vaid, [2005] S.C.R. 667 at paragraph 30).

The Charter also applies to regulations, by-laws, orders, directives, rules, etc. that are adopted pursuant to legislation (Dolphin Delivery, supra, at paragraph 39: Eldridge, supra, at paragraph 21).

(ii) Municipalities

The Charter applies to municipalities and their actions (Godbout v. Longueuil (City), [1997] 3 S.C.R. 844).

“The possibility that the Canadian Charter might apply to entities other than Parliament, the provincial legislatures and the federal or provincial governments is, of course, explicitly contemplated by the language of subsection 32(1) inasmuch as entities that are controlled by government or that perform truly governmental functions are themselves “matters within the authority” of the particular legislative body that created them” (Godbout, supra, at paragraph 48).

Municipal councils are institutionally distinct from the provincial governments but exercise delegated law-making authority. They exhibit many of the indicia of a government actor: they are democratically elected by members of the public and are accountable to their electorate; they possess a general taxing authority; they are empowered to make, administer and enforce laws within a defined territorial jurisdiction; and they derive their existence and law-making powers from the provincial legislature (Godbout, supra, at paragraph 51).

(iii) Aboriginal governments

There is no Supreme Court decision that discusses subsection 32(1) in relation to Aboriginal governments. However, the Federal Court of Appeal has held that the Charter applies to a community election code adopted by a First Nation. The First Nation’s Band Council was found to be a government entity exercising government authority under the Indian Act and other federal legislation in Taypotat v. Kahkewistahaw First Nation (2013), 365 D.L.R. (4th) 485, at paragraphs 34-41. The result in that case was reversed by the Supreme Court, but on the basis of a finding of no violation of the substantive Charter right at issue; the Supreme Court made no comment on subsection 32(1), but did not question that the Charter applied ([2015] 2 S.C.R. 548). Similarly, lower courts have found that Band Councils acting according to custom and those operating under the Indian Act both derive their authority from the Indian Act and therefore are subject to the Charter (Clifton v. Hartley Bay Indian Band, [2005] F.C.J. No. 1267 (F.C.T.D.). See also: Nakochee v. Linklater, [1993] O.J. No. 979 (Ont. Gen. Div.); Scrimbitt v. Sakimay Indian Band Council, [1999] F.C.J. No. 1606 (T.D.); Horse Lake First Nation v. Horseman, [2003] A.J. No. 227 (Alta.Ct.Q.B.); Woodward v. Council of the Fort McMurray, [2010] F.C.J. No. 393 (F.C.T.D.)).

(iv) Government officials

The actions of government officials qua government officials are subject to the Charter. Ministers and government officials acting pursuant to legislative authority are subject to the Charter (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at 1078; McKinney, supra, at 264-5).

Individuals who normally act as agents of government will not attract the application of the Charter when acting outside the scope of their duties. Thus, a Crown Attorney who acts as an agent of government in his official capacity is not bound by the Charter when he institutes his own personal defamation action — even though his action may have been funded by the government — where the proceedings were instituted in his own capacity and it was not demonstrated that the government had requested or required him to institute these proceedings or that it had controlled their conduct (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at paragraphs 74-75).

3. Government institutions or entities under “routine or regular control”

There are myriad public and quasi-public institutions that may or may not be part of government. An entity may be considered part of the apparatus of government even if it has some degree of discretion, when its activities are subject to “routine or regular control” by the government. Each situation must be examined on its facts to determine the level, degree and purpose of control exercised by government (Douglas College, supra; Lavigne, supra).

In determining whether an entity, such as a hospital, university or transit authority, is a “government entity” that attracts the application of the Charter, it is important to distinguish between “routine or regular control” by government over the day-to-day operations of an entity and “ultimate or extraordinary control” by government (Stoffman, supra, at 513-14; Lavigne, supra). The Charter applies to the former. That an entity provides an important public service that is part of the legislative mandate of a level of government is not by itself sufficient to trigger the application of the Charter (McKinney, supra; Stoffman, supra; Eldridge, supra; Buhay, supra. And see GVTA, supra, at paragraph 22, regarding the governmental nature of public transit).

Indicators of “routine or regular control” include:

However, “routine or regular control” by the government does not follow from:

(i) Crown corporations

Crown corporations or agencies are likely to be considered government actors if established by government to implement government policy (Douglas College, supra). However, the fact that an entity is a creature of statute and provides a “public service” is not sufficient to make it a government actor (McKinney; Stoffman).

(ii) Police services

Police services are government institutions that exercise statutory authority.

As a result of an agreement with the Province of New Brunswick, the Royal Canadian Mounted Police participates in the government functions of New Brunswick and, therefore, has the constitutional obligations of New Brunswick in respect of language rights (Société des Acadiens et Acadiennes du Nouveau-Brunswick Inc. v. Canada, [2008] 1 S.C.R. 383).

(iii) Colleges, schools and school boards

The Charter applies to a college where the statute that creates it gives the government the power to conduct the activities of the college (“routine or regular control”) (Douglas College; Lavigne).

The Supreme Court has yet to provide a full discussion of the basis on which the Charter applies to elementary and secondary schools. In a case involving an administrative search of a computer by school officials and a transfer of the computer to a police officer, the Crown had conceded in the lower courts that the Charter applied to the school officials (R. v. Cole, [2012] 3 S.C.R. 34 at paragraph 38. See also R. v. M. (M.R.), [1998] 3 S.C.R. 393 at paragraphs 24-25).

The majority in Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256 stated that there was “no question” that the Charter applied to the decision of the school board (la commission scolaire) as the board is a creature of statute, derives all its powers from statute, and therefore is as constrained by the Charter in exercising its administrative powers as is the legislature that enabled it (at paragraph 22).

4. Non-governmental entities – The “nature of the action”

The Charter does not apply to non-governmental entities created by government for the purpose of legally enabling them to do things of their own choosing (such as private corporations, hospitals and universities) (McKinney, supra; Stoffman, supra).

Governments cannot circumvent the Charter, however, simply by granting powers to non-governmental entities or by pursuing governmental initiatives through means other than the traditional mechanisms of government action: Eldridge, supra, at paragraph 42; Godbout, supra, at paragraph 56; GVTA, supra, at paragraph 22.

An entity is not considered part of the apparatus of government (it is a non-governmental entity), when it is subject only to “ultimate or extraordinary control” by the government. See Stoffman, supra, at 513-14 for indicators of “ultimate or extraordinary control”:

Although the Charter generally does not apply to actions of non-governmental entities, specific actions of a non-governmental actor can attract Charter scrutiny where there is a high degree of control exercised by the government in the accomplishment of the act or because the government retains responsibility for the act in question. These acts would include:

The fact that legislation imposes a requirement of Ministerial approval before a regulation or by-law of a non-governmental entity can come into effect is not sufficient to turn the matter covered by the approved regulation into a governmental action. Ministerial approval does not necessarily mean that the regulation is delegated legislation or that the content of the regulation represents ministerial policy (Stoffman).

(i) Private corporations

Private corporations are entirely creatures of statute; they have no power or authority that does not derive from the legislation that created them. The Charter does not apply to them, however, because legislatures have not entrusted them to implement specific governmental policies. “[W]hile the legislation creating corporations is subject to the Charter, corporations themselves are not part of ‘government’ for the purposes of section 32 of the Charter” (Eldridge, supra, at paragraph 35).

(ii) Courts, court orders, litigation and the common law

Courts are not “government” under subsection 32(1). The exercise of the judicial function does not itself constitute government action for the purposes of subsection 32(1). Something more than the mere existence of a judicial order will be required in order to trigger the application of the Charter (Dolphin Delivery, supra, at paragraph 36).

The Charter will apply to a court order that is based on the common law in circumstances where a court makes an order on its own motion for reasons of a public nature. Thus, an injunction against union picketing in front of the courthouse made by the Chief Justice on his own motion, based on the Court’s authority in matters relating to criminal contempt, was subject to Charter scrutiny (B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214). Similarly, a court-ordered publication ban was subject to scrutiny for compliance with the paragraph 2(b) guarantee of free expression (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835).

Does the Charter apply to litigation between private actors? Dolphin Delivery was the first Supreme Court of Canada decision to discuss the application of the Charter in the context of purely private litigation. See also Tremblay v. Daigle, [1989] 2 S.C.R. 530. Dolphin Delivery does not “preclude the possibility of a successful reliance on the Charter by a party to a dispute between private individuals, provided it could be shown that the party against whom the Charter was invoked relied upon some form of governmental action” (Stoffman at 507). However,

[p]rivate parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values; care must be taken not to expand the application of the Charter beyond that established by subsection 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values. (Hill, supra, at paragraph 95.)

See also Grant v. Torstar Corp., [2009] 3 S.C.R. 640 at paragraphs 44-46, in which the Supreme Court also makes reference to R. v. Salituro, [1991] 3 S.C.R. 654 at 670.

The Charter applies to the common law where there is a challenge to governmental action that was authorized or justified on the basis of a common law rule (Dolphin Delivery at 598-99; Hill; Tremblay v. Daigle; R. v. Golden, [2001] 3 S.C.R. 679 at paragraphs 86 and 104). In the absence of governmental action, Charter values can still inform the development of the common law. “Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action … then the rule ought to be changed” (Salituro at page 675; see also R. v. Swain, [1991] 1 S.C.R. 933 at 978-79; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156).

(iii) Private actors

Private actors such as informers or private security guards who cooperate with state officials are not state agents subject to the Charter unless they would have acted differently “but for” state intervention (R. v. Broyles, [1991] 3 S.C.R. 595 at 608; R. v. M. (M.R.), at paragraph 29; R. v. Buhay at paragraphs 29-30).

5. Administrative decision-making

Not every board or tribunal is a government actor. However, where an individual, board or tribunal exercises administrative decision-making authority under a statute, the exercise of discretion must proportionately balance Charter protections and their underlying values with the relevant statutory objectives in coming to a “reasonable” decision (Doré v. Barreau du Québec, [2012] 1 S.C.R. 395 at paragraph 24; Loyola High School v. Quebec (Attorney General), [2015] 1 S.C.R. 613 at paragraph 4.) 

6. Extraterritorial application of the Charter

The extent of the application of the Charter to government acts that occur outside Canada is not entirely clear as the Supreme Court has not dealt with a number of important contexts in which the Canadian government acts outside the territory of Canada.

It is clear that the Charter does not apply to the law or actions of a foreign country (Spencer v. The Queen, [1985] 2 S.C.R. 278; Canada v. Schmidt, [1987] 1 S.C.R. 500; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841). Likewise, the Charter does not apply to the actions of foreign officials acting in their country whether or not they are assisting the Canadian government or acting as agents of the Canadian government (R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Terry, [1996] 2 S.C.R. 207; Schreiber; R. v. Cook, [1998] 2 S.C.R. 597). Caution should be used in relying on Cook as the analytical approach of the majority was rejected in R. v. Hape, [2007] 2 S.C.R. 292.

The application of the Charter is not absolutely restricted to Canadian territory. Whether an activity falls within subsection 32(1) such that the Charter applies to it depends on 1) whether a government agent or official is involved, and 2) whether the matter falls “within the authority of Parliament” or the provincial legislatures (Hape at paragraphs 94 and 103). In Hape, the Supreme Court stated that the Charter does not apply to the actions of Canadian police officials conducting a criminal investigation on foreign territory with the cooperation and assistance of foreign officials in the absence of that state’s consent to the application of Canadian enforcement jurisdiction on its territory. The Court relied on the fact that the enforcement jurisdiction of Canada under international law does not extend to foreign territory absent the consent of the foreign state. There is appellate authority suggesting that high standards will apply to such consent: it can only be provided by officials with the authority to bind the state in question, or through an expression of that state's sovereign will (R. v. Tan, 2014 BCCA 9 at paragraphs 57-67).

However, if Canadian officials participate in a process outside of Canada that violates Canada’s binding international law obligations, the Charter will apply to the extent of the participation. This exception was identified in Hape at paragraph 101 and applied in Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125 (Khadr #1) at paragraphs 19-20 as well as in Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44 (Khadr #2).

It is not clear to what extent Hape will inform future Supreme Court decisions on the application of the Charter to Canadian officials acting outside Canada in other contexts such as immigration, foreign affairs, military engagements or security intelligence gathering. In obiter, the Supreme Court noted that “comity is not necessarily offended where a state’s courts assume jurisdiction over a dispute that occurred abroad (extraterritorial adjudicative jurisdiction), provided that the enforcement measures are carried out within the state’s own territory” (Hape at paragraph 64).

7. Political questions / high policy / non-justiciability

The American constitutional doctrine of “political questions” has no application in Canada when Charter rights are in issue. Similarly, the approach taken in the United Kingdom to the effect that there are questions of “high policy” that are beyond the jurisdiction of courts has been “emphatically rejected” in respect of the Charter. “The question before us is not whether the government's defence policy is sound but whether or not it violates the appellants' rights under section 7 of the Charter of Rights and Freedoms. This is a totally different question. I do not think there can be any doubt that this is a question for the courts” (Operation Dismantle Inc. v. The Queen, supra, at 472 & 459. See also Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381 at paragraph 80).

“In exercising its common law powers under the royal prerogative, the executive is not exempt from constitutional scrutiny [citing Operation Dismantle] . . . the courts clearly have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter” (Khadr #2, supra, at paragraph 36).

“The notion of judicial deference to legislative choices should not . . . be used to completely immunize certain kinds of legislative decisions from Charter scrutiny” (Vriend at paragraph 54). While it may be appropriate for judges to defer to legislatures on policy matters expressed in particular laws, “to declare a judicial “no go” zone for an entire Charter right on the ground that it may involve the courts in policy matters is to push deference too far. Policy itself should reflect Charter rights and values” (Health Services and Support — Facilities Subsector Bargaining Assn., supra, at paragraph 26).

“The fact that [a] matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by the Constitution to review legislation for Charter compliance when citizens challenge it” (Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at paragraph 107).

8. Public law damages

In accordance with section 32 of the Charter, an action for damages for a breach of Charter rights is a public law action directed against the state for which the state is primarily liable. The nature of the remedy is to require the state (or society at large) to compensate an individual for breaches of the individual’s constitutional rights. “An action for public law damages — including constitutional damages — lies against the state and not against individual actors” (Vancouver (City) v. Ward, [2010] 2 S.C.R. 28 at paragraph 22).

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