application of the charter Flashcards
s. 32(1): This Charter applies
to the Parliament and government of Canada
s. 52
any law that is inconsistent with the provisions of the Constitution
Dolphin Delivery issue
Does s.32 of the Charter apply to CL in private litigation?
Main q is to whom/what does charter apply (Question of stat interpretation)
two different interpretations in dolphin
narrow and broad
narrow reading in dolphin
- Specifically naming “gov, parliament and leg” - expressly says this, so it’s an exclusive list.
- earlier drafts included private action (now removed)
- Charter is part of con law, and the purpose of con law is to set limits and bind governments, the state
- We already have a law to protect rights in private relations (CHRA)
broad reading in dolphin
- they didn’t say private actors because they were trying to emphasize the people to whom it should apply, knowing that otherwise it would be assumed to apply to private actors
- Have to read 52 - supports a claim that s32 is all about emphasis.
- if we read quasi-constitutional in a large and liberal way, then surely, we are to read constitutional texts in a large and liberal way
- if u restrict charter to gov. How do we figure out who is gov?
what removes action from private sphere, makes private litigation into a matter of public law?
when you can identify the hand of gov
dolphin ratio
Charter applies to legislative and gov action, taken pursuant to all law
The Charter applies to the CL only when an government actor/action is involved
SUMMARY of DD
for charter to apply, need to find some form of gov action. And charter applies to all law because s52 - but only where hand of gov
Hill v. Church of Scientology of Toronto ratio
CL should develop in accordance with Charter values
The Charter is an expression of fundamental norms
- charter values always exist - part of the unwritten political morale
Section 15 of the Charter
) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
McKinney et al. v. University of Guelph facts
Mandatory retirement policy at University of Guelph was challenged for violating equality guarantees under s. 15 by discriminating based on age.
McKinney et al. v. University of Guelph issue
Are universities considered government actors under s. 32 making the Charter applicable to them?
what does gov actor require in McKinney?
- Created and empowered by statute
- To effect the purpose of that statute
To know if you’ve met second requirement, look to gov control and gov function
Are universities created or empowered by statute? (McKinney)?
Universities are stat bodies - powers come from statute - ARE creatures of statute. But then he says this alone is not sufficient.
