Canadian Charter of Rights and Freedoms |
---|
Part of the Constitution Act, 1982 . |
Preamble |
Guarantee of Rights and Freedoms |
1 |
Fundamental Freedoms |
2 |
Democratic Rights |
3, 4, 5 |
Mobility Rights |
6 |
Legal Rights |
7, 8, 9, 10, 11, 12, 13, 14 |
Equality Rights |
15 |
Official Languages of Canada |
16, 16.1, 17, 18, 19, 20, 21, 22 |
Minority Language Education Rights |
23 |
Enforcement |
24 |
General |
25, 26, 27, 28, 29, 30, 31 |
Application of Charter |
32, 33 |
Citation |
34 |
Section 32 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 a 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.
Under the heading "Application of Charter" the section 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 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.
- (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.
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. [1]
The meaning of section 32(1) was first examined in RWDSU v. Dolphin Delivery Ltd. 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) [2] the Supreme Court held that the Charter equally applies to courts as well.
The meaning of "government actors" was considered in the case of McKinney v. University of Guelph . 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.
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 outsourcing services to private organizations [1] 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.
The Canadian Charter of Rights and Freedoms, often simply referred to as the Charter in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the Constitution Act, 1982. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all areas and levels of the government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982, along with the rest of the Act.
Freedom of association encompasses both an individual's right to join or leave groups voluntarily, the right of the group to take collective action to pursue the interests of its members, and the right of an association to accept or decline membership based on certain criteria. Freedom of Association, The Essentials of Human Rights describes the right as coming together with other individuals to collectively express, promote, pursue and/or defend common interests. Freedom of Association is both an individual right and a collective right, guaranteed by all modern and democratic legal systems, including the United States Bill of Rights, article 11 of the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms, and international law, including articles 20 and 23 of the Universal Declaration of Human Rights and article 22 of International Covenant on Civil and Political Rights. The Declaration on Fundamental Principles and Rights at Work by the International Labour Organization also ensures these rights.
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