Canada

The Canadian Charter of Rights and Freedoms states:

32(1) This Charter applies:

a) To the Parliament and government of Canada in respect of all matters within the authority of Parliament including…

b) To the legislature and government of each province in respect of all matters within the authority of the legislature in each province.

The section makes the Charter applicable to the government and government departments.103 Although the Charter values make reference to the need to develop the law to give meaning to constitutional rights, the courts have not been able to effectively explain what balancing between constitutional and private rights means or how it is to happen.104 Despite the existence of Constitutional values and the use of the courts’ inherent jurisdiction to give weight to the Constitution, the confusion arising from the attempts of courts to determine whether the

102 _{Ibid at 145.}

103 _{See Graham Garton ‘The Canadian Charter of Rights Decisions Digest, Justice Canada’ (April 2005) (CanLII)}

under Section 32(1) ‘Section 32(1) - Application of Charter’. See also Swinton, Katherine. "Application of the Canadian Charter of Rights and Freedoms " in W S Tarnopolsky & G A Beaudoin (eds) The Canadian Charter of

Rights and Freedoms - Commentary (1982) 44-45 cited in RWSDU v Dolphin Delivery para 30:

“The automatic response to a suggestion that the Charter can apply to private activity, without connection to government, will be that a Charter of Rights is designed to bind governments, not private actors. That is the nature of a constitutional document: to establish the scope of governmental authority and to set out the terms of the relationship between the citizen and the state and those between the organs of government. The purpose of a Charter of Rights is to regulate the relationship of an individual with the government by invalidating laws and governmental activity which infringe the rights guaranteed by the document, while relationships between individuals are left to the regulation of human rights codes, other statutes, and common law remedies, such as libel and slander laws. Furthermore, s. 32(1) specifically states that the Charter applies to "the Parliament and government of Canada in respect of all matters within the authority of Parliament" (emphasis added). It is governmental action which is caught, not private action.”

104 _{Aharon Barak ‘Constitutional Human Rights and Private Law’ in Daniel Friedmann and Daphne Barak-Erez}

constitution was applicable to private action or to what extent is noteworthy.105 The provision has been subjected to judicial interpretation, in a bid to answer numerous questions arising, including whether the Charter applied equally to the private sector as to the government;106 to what extent constitutional rights could be enforced against corporations and the question whether constitutionalism could be an effective safeguard against the abuse of private power.107 The wording of the provision, seen in light of the amendments that led to it, was said to be ‘intentionally vague as to deliberately raise the question whether the constitution applied to the private sector or not’,108 leaving it to the courts to make the determination.

The Canadian courts have approached the question if and how the Charter could apply to the private sector with formal technicality.109 The question of applicability to the private sphere was first considered in the case of RWSDU v Dolphin Delivery110 where it was held that the Charter would not apply to the private sphere generally, but only insofar as and to the extent that there was a direct and precisely defined connection between the offending action and the government.111 This decision of the court gave rise to other questions: what amounts to a direct and precise link with the government; was it sufficient that a law passed by the government was the source of the offending action? Later cases attempted to refine these requirements. At one point, Canadian courts required that the connection with government had to be so direct and precisely defined as to turn the private actor into government.112 The measure would be to ascertain if the private entity was fulfilling a government role and how it represented its role, and to establish if it resembled a public entity.113 Yet even this decision raised further questions: how much connection was sufficient to change the nature of the actor from private to government – in other words, how direct is a direct link? In what way could the given actor be said to have changed in nature from private to public? Ultimately, the Canadian courts’ attempt to diminish

105 _Ibid.

106 _{In Hunter v Southern Inc, 1984 2 SCR 145, the respondent, a business entity, brought a successful claim against}

the appellants for violation of Section 8 of the Canadian Charter of Rights and Freedoms which provided that ‘Everyone has the right to be secure against unreasonable search or seizure’.

107 _{Gearty & Tomkins op cit note 63.}

108 _{In the previous version of the Section, the Charter was said to apply to “the parliament and government of}

Canada and to all matters within the authority of Parliament. Gearty & Tomkins op cit note 63 at 531.

109 _{Gavin Anderson ‘The Limits of Constitutional Law: The Canadian Charter of Rights and Freedoms and the}

Public-Private Divide’ in Gearty & Tomkins op cit note 63 at 549.

110

[1986] 2 SCR 573.

111 _{Supra, see para 36.}

112 _{Anderson op cit note 109 at 539.} 113 _{Ibid at 536.}

the public-private distinction and make the Charter applicable across the divide was easier said than done. This effort to obscure the public-private divide was nonetheless believed not to have been the most correct interpretation of the Charter.114 Reviewing the application of the Canadian Charter of Rights, Gavin agrees that a constitution establishes and regulates government institutions, leaving these institutions to order the private affairs of people in a space where the Charter of rights should not intrude.115

The “state doctrine theory”, called as such or implied by the action of courts is applied to determine whether conduct by non-government entities has sufficient link with government to effectively make the action a government or public action. The theory comes with its challenges. How, for example, will the determination be made of the source or depth of state influence that would be considered sufficient to link a private entity to the state and thus justify extension of the application of the constitution to them? In reviewing the Canadian Charter of Fundamental Rights, Gavin observes that the wording of Section 32 was deliberately vague, left to the ultimate deliberation of the courts.116 He points out that had the legislature wanted to make any of the positions clear it would have done so: to say with certainty whether the Charter applied to private persons or it did not, or whether it applied to only some of them.117 He proceeds to interrogate the meaning intended by the wording of the Constitution which raises a myriad of further questions whose answers are complicated:118 can non-governmental bodies be subjected to the Charter, and on what basis: because they are linked to the government or because they are exercising a governmental function? Can the Charter apply between two private persons where there is no government intervention in the violating act?119 Can the Charter apply to a case of traditional private law for example tort or contract? He looks to the decided court cases to see what their determination was, and presents the complex decision-making process arising from the courts that presents a case that is far from clear.

114 Ibid at 549. 115 _Ibid. 116 _{Ibid at 531.} 117 _Ibid. 118

The provision made the Charter of Rights applicable to the legislature and courts and he queried: what was meant by application of the charter to parliament and provincial legislatures in respect of all matters within their authority? Does ‘government’ include courts? Anderson op cit note 107 at 530.

119

Article 12 of the Indian Constitution provides that “state” should be interpreted to mean government, parliament, state legislatures and additionally also ‘all other authorities within the territory of India under the control of the Government of India.’ This creates room for a wider interpretation of “state” to include not only the traditional government-related agencies but also private actors that can be said to be under the control of the government.