Legislative Acts and Private Individuals

In so far as the Charter of Rights and Freedoms, as a part of the Constitution Act, is itself a legislative act, it is therefore representative of a principle applicable to all acts of legislature, namely:

Legislative Acts do not apply to interactions between private individuals unless:  

  • that private individual is acting in the capacity of an agent for the government
  • that private individual is performing a function of government

Support for these points are found in the case law below.

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[27]  In Buhay, the Supreme Court of Canada concluded that a violation of section 8 of the Charter had occurred because the police searched the accused’s locker without having obtained a search warrant. R. v. Anderson, 2007 CanLII 66698 (NL PC)

As agents of the government, the police are subject to Legislative Acts.

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[24]    But the fact the bouncer’s actions were based on legitimate, private motives does not end the inquiry. Indeed, if motivation were the only test for Charter application, the Charter would not likely apply to citizen’s arrests any more than to investigative detention by private citizens, because citizen’s arrests also are frequently motivated by private concerns. Nor, according to Buhay is a public purpose alone adequate to invoke Charter protection. “In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program”: Buhay at para. 28, citing Eldridge at para. 43. Arguably, citizen’s arrest involves not only a broad public purpose of maintaining the peace, but the delegation of a specific government function to private persons. The latter characteristic is absent from investigative detention, and, as such, detention by private persons cannot be considered a specific government function attracting Charter protection.

[7]    Buhay, supra, recognized two exceptions to the general rule that the Charter does not apply to interactions between private citizens. The first is when a private citizen acts as an agent of the state: Buhay at para. 25 citing R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595. The agent of the state analysis requires an examination of the relationship between the state and the private individual alleged to have acted as an agent of the state. To decide whether the bouncer in this case was an agent of the state, the relevant question is: Would the exchange between Dell and the bouncer have taken place, in the form and manner in which it did take place, had the police not intervened? See Buhay at para. 25. This question must be answered in the affirmative because the detention and search of Dell were independent from any police activity or instruction. The police did not become involved until they responded to a call following Dell’s detention and search in the washroom. Accordingly, the bouncer was not acting as an agent of the state and the Charter does not apply on this basis.   

[8]   The second exception to the general rule that the Charter does not apply between private individuals occurs when a private person can be categorized as “part of government” because he or she is performing a specific government function: Buhay at para. 25, citing Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624. In Eldridge, at para. 43, the Court noted that the Charter will only apply to a private entity if it is found to be implementing a specific governmental policy or program. The Court in Buhay, at para. 31, observed that this exception would apply if there were an express delegation of a public function to a private person or if the state were to abandon, in whole or in part, an essential public function to the private sector.  R. v. Dell, 2005 ABCA 246

The bouncer was not performing a function of government nor was he acting as an agent of the government and was therefore not under the jurisdiction of Legislative Acts

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43  Two important points must be made with respect to this principle.  First, the mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may be described as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of the Charter.  Thus, with specific reference to the distinction between the applicability of the Charter, on the one hand, and the susceptibility of public bodies to judicial review, on the other, I stated as follows, at p. 268 of McKinney:

It was not disputed that the universities are statutory bodies performing a public service.  As such, they may be subjected to the judicial review of certain decisions, but this does not in itself make them part of government within the meaning of s. 32 of the Charter. . . . In a word, the basis of the exercise of supervisory jurisdiction by the courts is not that the universities are government, but that they are public decision-makers.  [Emphasis added.]

In order for the Charter to apply to a private entity, it must be found to be implementing a specific governmental policy or program.  As I stated further on in McKinney, at p. 269, “[a] public purpose test is simply inadequate” and “is simply not the test mandated by s. 32”.

44  The second important point concerns the precise manner in which the Charter may be held to apply to a private entity.  As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases.  First, it may be determined that the entity is itself “government” for the purposes of s. 32.  This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1).  In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”.  Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government.  This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself.  In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor.  If the act is truly “governmental” in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities. Eldridge v. British Columbia (Attorney General), [1997] 3 SCR 624

The two tests to determine if legislative acts apply to an entity are that the entity is itself government or performing an activity ascribed to government.

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