Does the Charter apply to a given issue?
Disclaimer: The following is not considered legal advice and is for entertainment purposes only.
Recently I finished second year of law school in Canada and there are a few interesting things that I learned about law that I wasn’t quite aware of before. Well, a lot to be sure, but some specific structural things that I wasn’t quite aware of and I thought I would share them with you here.
How do we have our laws? Where do they come from?
Well, there here’s how it basically works.
First there’s the constitution or the Charter. This is a document that some old people made a long time ago that basically are the inherent rights of people. Here’s the kicker though, these rights are only valid and protected against the government. So there is something in the Charter that basically gives people the right of equality. That means you can’t say “only boys are allowed to play hockey in this hockey league and not girls.” Is my Canadian showing? Also, you can’t say something like “everyone has to retire at 60” because that’s discrimination against old people.
But here’s the kicker, here’s the thing that most people don’t realize. The charter actually only applies to the government. Non government entities can break the charter whenever they want. That means if the government runs a hockey league they are not allowed to disallow girls from playing but if it’s owned by a private corporation then you are. If the government owns the hospital they are not allowed to force retirement at age 60 but if it’s owned privately then you are. You are not bound by the charter if you are not a government entity.
So let’s say you work for a hospital and they’re forcing you to retire. You say “no way, that’s against the Charter”, but they say “wait, we’re not a government entity,” and you say “but wait, 75% of your funding is by the government and the board of directors is made up entirely of government officials.” What happens then? It’s a fight. It’s a fight about how government you have to be to really be considered government and then the charter would apply. There’s a whole set of criteria that the judge will look to determine whether or not it’s government or not. People will argue yes and people will argue no and in the end the judge decides whether the hospital or university or hockey league is government or not.