Section Thirty-two of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter
. Only claims based on the type of law contemplated by this section can be brought before the Court.
Section 32(1) describes the basis on which all rights can be enforced. Section 32(2) was added in order to delay the enforcement of section 15
until government was given time to amend their laws to conform to the section.
The purpose of this section is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations. ( off the Heritage Canada Website )
The Courts found that the "authority" of government consisted of all laws created by the three branches of government (executive, legislative, and administrative), as well as any rules, or regulations created by "government actors". Common law only applied when it was the basis of some government action. Later, in R. v. Rahey
(1987) the Supreme Court held that the Charter equally applies to courts as well.
. The Court, using what is called the "effective control test", examines the role of the government in the institution. A government actor consists of institutions for which the government has statutory authority to exercise substantial control over the day-to-day operations, policy-making, and as well provides substantial funding for the institutions.
The main question to ask is how much control the government has over the institution:
The greater the government control over the operation of the institution, the more likely it is to be a part of the government, although different Supreme Court decisions have required different amounts of control.
In practice this generally excluded organizations such as public universities and hospitals since the Board of Governors
usually operated independently of government control. Colleges, however, are government actors because they lack the independence of a Board.
services to private organizations in order to get around the "control test".
For example, in Eldridge v. British Columbia, the Court found that though hospitals are not considered government actors, they are often subject to Charter scrutiny as many government policies are designed to be carried out by the hospitals.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. Only claims based on the type of law contemplated by this section can be brought before the Court.
Section 32(1) describes the basis on which all rights can be enforced. Section 32(2) was added in order to delay the enforcement of section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
until government was given time to amend their laws to conform to the section.
Text
Under the heading "Application of Charter" the section states:The purpose of this section is to make it clear that the Charter only applies to governments, and not to private individuals, businesses or other organizations. ( off the Heritage Canada Website )
Interpretation
The meaning of section 32(1) was first examined in RWDSU v. Dolphin Delivery Ltd.RWDSU v. Dolphin Delivery Ltd.
RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, is the seminal Canadian Charter of Rights and Freedoms decision that states that the Charter applies to governmental action, and to the common law except where matters are solely between private parties...
The Courts found that the "authority" of government consisted of all laws created by the three branches of government (executive, legislative, and administrative), as well as any rules, or regulations created by "government actors". Common law only applied when it was the basis of some government action. Later, in R. v. Rahey
R. v. Rahey
R. v. Rahey, [1987] 1 S.C.R. 588 is a leading constitutional decision of the Supreme Court of Canada. The accused challenged a delay of over eleven months on an application for a directed verdict as violation of the right to a trial within a reasonable time under section 11 of the Charter...
(1987) the Supreme Court held that the Charter equally applies to courts as well.
Government actors
The meaning of "government actors" was considered in the case of McKinney v. University of GuelphMcKinney v. University of Guelph
McKinney v. The University of Guelph [1990] 3 S.C.R. 229 is the Supreme Court of Canada case that decided that mandatory retirement age for University teachers does not violate equality rights under section 15 of the Canadian Charter of Rights and Freedoms...
. The Court, using what is called the "effective control test", examines the role of the government in the institution. A government actor consists of institutions for which the government has statutory authority to exercise substantial control over the day-to-day operations, policy-making, and as well provides substantial funding for the institutions.
The main question to ask is how much control the government has over the institution:
- Is there a law that directs how the institution will operate?
- Does the government appoint the majority of the institution's board of directors?
- Does the institution have any history or guarantees of independent action from government?
The greater the government control over the operation of the institution, the more likely it is to be a part of the government, although different Supreme Court decisions have required different amounts of control.
In practice this generally excluded organizations such as public universities and hospitals since the Board of Governors
Board of governors
Board of governors is a term sometimes applied to the board of directors of a public entity or non-profit organization.Many public institutions, such as public universities, are government-owned corporations. The British Broadcasting Corporation was managed by a board of governors, though this role...
usually operated independently of government control. Colleges, however, are government actors because they lack the independence of a Board.
Government policy
In cases where the "effective control test" fails there is still the possibility of the Charter applying where it can be shown that the organization provided services that were in furtherance of a specific government policy or program (Eldridge v. British Columbia). The reason for this expansion was to prevent the government from outsourcingOutsourcing
Outsourcing is the process of contracting a business function to someone else.-Overview:The term outsourcing is used inconsistently but usually involves the contracting out of a business function - commonly one previously performed in-house - to an external provider...
services to private organizations in order to get around the "control test".
For example, in Eldridge v. British Columbia, the Court found that though hospitals are not considered government actors, they are often subject to Charter scrutiny as many government policies are designed to be carried out by the hospitals.
External links
- section 32(1) digest (canlii.org)
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages