13.

Application of the Charter of Rights and Freedoms

Constitution Act, 1982, s.32
Hogg, chapter 37, “Application of Charter”
Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, paragraphs 19-52
Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31,
paragraphs 13-24

Step 1: Who can benefit from Charter rights?

Benefit of Rights- is a corporation entitled to the benefit of all rights?
Section 2, 7, 8, 9, 10, 12 and 17 opens with the phrase “Everyone has the right”
Section 11 and 19 “any person” replaces “everyone”
Section 20 uses “any member of the public”
Section 24 uses “anyone”
Not available to Corporations
 s2(a) “Freedom of conscious and religion” in does not apply to corporation, because
a corporation cannot hold religious belief or any other belief.
 s7 does not apply because it is limited to deprivations of life, liberty and security of
person which are attributes of individuals, not corporations.
 s9-The right to not be arbitrarily detained or imprisoned
 s10 arrest and detention
 s11 (e) the right to reasonable bail because a corporation cannot be detained,
imprisoned or arrested.
 s13 The right to self incrimination
 s14 the right of a witness to an interpreter
-
- A foetus is not a legal person until the child is born by being separated alive from
the mother. A foetus is not entitled to the right of life under s7 or any other right
under the charter.
-
Connection to Canada?
Yes, s32 requires that there must be action by a Canadian legislative body or government
for the Charter to apply.
To receive the benefit- no independent requirement (Singh v Minsters of Employment and
Immigration (1985) held that anyone who entered the country, however Illegally, was instantly
entitled to assert s7 rights which apply to “everyone.”
Exception- R v Cook ( 1998)- American citizen arrested in America for Canadian murder.
Argued statement made was illegal due in violation to right of counsel.

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 Step Two- Who is bound by the Charter?
S32(1) This Charter applies
A) to the Parliament and government of Canada in respect of all matters within the authority of
Parliament including all matters relating to the Yukon Territory and Northwest Territories and
B) to the legislature and government of each province in respect of all matters within the
authority of the legislature of each province.
The Charter applies to both levels of government.
“Parliament” and “Legislature” make it clear the Charter operates on these powers and any statue
enacted by either Parliament or a Legislature which is inconsistent with the Charter will be
outside the power of ( ultra vires) the enacting body and will be invalid.
If Parliament delegates a compulsion to a body or person then the Charter will apply.
 A private corporation/statutory authority is empowered to exercise only the same
proprietary and contractual powers that are available to a natural person.
 anybody exercising statutory authority GG, ministers, officials, municipalities,
administrative tribunals, and police officers are all bound by the Charter. ( NOTE- action
taken must be within the scope of that authority)
 a distinctive characteristic is that it involves a power of compulsion that is not possessed
by a private individual or organization.
 A private person making a citizen’s arrest under statutory authority is subject to the
Charter. R v Lerke ( 1986)
 The Charter was applicable to an automobile insurance policy that excluded common law
spouses from spousal accident benefits-although both the insurer and the insured were
private parties, the terms were stipulated by state. Miron v Trudel [1995]
 The Charter applies to the exercise of statutory authority regardless of whether the actor
is part of the government or is controlled by the government.
 The courts have occasionally have deviated from this position. In one case, it was held
that the Charter was applicable despite the absence of any power of compulsion, and in
two other cases (Bhindi and Lavigne) it was held that the Charter was inapplicable
despite the presence of a power of compulsion.
 Bhindi- a “closed shop” where employer agrees to hire on union workers. Court held that
the collective agreement was a private contract to which the Charter did not apply.
 Lavigne- SCC held the Charter did apply because the employer was an agent for the
province which made the collective agreement a governmental act. If employer had not
been a part of the government then the collective agreement would be a private contract
and the Charter would not have applied.
Amending Procedures and the Charter
Amending procedures that require the concurrence of several legislative houses (s38, 41, 43)
are not constrained by the Charter.

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 The limited powers of amendment that are possessed by the federal Parliament alone (s44)
and by each provincial Legislature alone ( s 45) are constrained by the Charter
References to government will make the charter applicable to governmental action taken under
both kinds of common law powers.
Does the charter apply to Courts?
The SCC has said yes and no.
No- Retail, Wholesale and Department Store Union v Dolphin Delivery (1986)
Yes – came from in R v Rahey ( 1987) –The SCC had to determine whether a criminal court had
denied to a defendant the s 11(b) right to be tried within a reasonable time.
Does the Charter apply to Common Law? Hogg 37.2
No- the charter does not apply to common law or at least those rules of the common law
regulate relationships between private parties. (Dolphin Delivery(1986)
The Charter does not apply directly to the common law (where no governmental actor is
involved)
Does the Charter regulate private action?
No, 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 Charter.
Does the Charter apply to extraterritorial application?

Foreign governments are not bound by the charter. Canada has extradition treaties with other countries.
It’s a 2 stage process. First a judge holds a hearing to look at evidence and second the Minster of Justice
decides whether to surrender the fugitive to the requesting state. It could possible breach s7 ( fundamental
of justice) were to be extradited to a country where he or she may be treated in a fashion that “shocks the
conscience)Can v Schmidt [1987] If death penalty is involed (USA) Canada may refuse extradition order.
However in Kindler, two fugitives were handed over.
Deportation and possible torture would usually be a breach of the Charter Suresh v Canada ( 2002)

A letter sent by RCMP to get information about Swiss Bank accounts against criminal in Canada. The
criminal argued the letter was a breach of the Charter. Held- the letter had no legal affect and was not
subject to the Charter. Schreiber v Canada (1998) 37.2(i)

Two police officer travel to New Orealeans and breach criminals right to counsel. Criminal extraidited
back to Canada. Held- Was a breach of the Charter R v Cook(1998) However overruled in Rv Hape
(2007).

Canada v Khadr ( 2008)- Hape reasoning did not apply to this case. Neither the interviews nor the
handing over of records was a breach of the charter.

Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, paragraphs 19-52

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 37.2(c)-It was held that the Charter was applicable despite the absence of any power of compulsion.
Issue- Is a hospital bound by a Charter? The hospital did not provide sign language interpretation for deaf
people seeking medical services, (breach of s15 equality guarantee) The Hospital Services Act funded the
hospitals services program so “it was implementing a specific government policy and program” this
contrasted (Stoffman) held the Charter did not apply to hospitals and there “day-to-day operations)
37.2(e)

Greater Vancouver Transportation Authority v. Canadian Federation of Students, 2009 SCC 31

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