s. 32 This Charter applies

s. 32 This Charter applies

1. 1) to the Parliament and government of Canada in respect of all matter within the authority of Parliament including all matters relating to the Yukon Territory and 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.

   • Begin with the Eldridge Test: It is not enough for the "function' to be public: "it must be found to be implementing a specific governmental policy or program"
     • 1) Is the actor a government entity?
       • i) by its nature (municipalities are governmental in nature) or
         • Godbout v Longueli; factors which indicate gov't:
           • democratically elected & accountable to ppl who elect them
           • Taxation Power
           • Law-making power
           • Derive their law- making power for the provinces- created by the government
       • ii) Degree of governmental control exercised over it
         • university not an "organ of the government" - McKinney
           • Private factors which won:
             • Gov't does not set curriculum
             • decided who's on it's board of directors,
             • firing and hiring practices,
             • not the same coercive powers
             • Legal autonomy
           • Factors which may lend to gov't (Mckinney):
             • subjected to gov't regulation
             • a creature of statue
             • funded by the gov't
             • incorporated to perform a gov't function
       • 2) Is the activity governmental?
         • Focus on features- is it a delegation of government power; quality of the action not to actor
         • Eldridge v BC: Purpose is to have a public health care system. and the government is achieving it's goal through the hospital
           • Is is a vehicle for the government?
             • provides a particular service to the public is indicative but not enough
             • Is it in the legislature or an ACT?
               • By providing medically necessary services, hospitals carry out a specific government objective
                 • Hospitals may be autonomous but are agents of the gov't when providing services listed in the Act
       • Once gov't every action undertake can be scrutinized by Charter- Eldridge
   • Can also apply to a gov't omission when it is a matter of under inclusion;Vriend v Alberta;
     • They do not have to enact legislation, but if they choose to enact it they must do so in a nondiscriminatory way
     • omission of sexual orientation from Alberta Individual's rights Protect Act (IRPA)
   • APPLICATION TO PRIVATE MATTER (NON_GOVERNMENT)
     • Hill v Church of Scientology of Toronto
       • A private litigant can only argue that the common law is inconsistent with Charter values
         • Burden is on the individual who claims the discrepancy ; have to ID the value in question and argue it supersedes the common law
           • Must balance: The protection of ones reputation & the importance of free expression