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Charter - s.32 Application (2). R. v. L.T. ['state agents']
In R. v. L.T. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against "convictions for two counts of sexual assault and one count of assault with choking, contrary to ss. 271 and 267(c) of the Criminal Code".
Here the court considers when a private citizen can become a 'state agent' for Charter application purposes:[3] .... In the alternative, he argues that, although the complainant had not yet had any contact with the police when she recorded the conversations, because her purpose was to obtain evidence, she was a state agent when she made the recordings, and thus the recordings infringed his rights under s. 8 of the Charter.
[4] I would dismiss the appeal. I see no error in the trial judge’s finding that the complainant was not a state agent when she recorded the conversations with the appellant. The complainant had had no contact with the police at the time she made the recordings, nor had she been given any type of inducement by the police to make the recordings. Her primary purpose in making the recordings was to protect herself in case the appellant lost his temper. Although she agreed in cross-examination that, at the time she made the recordings, she also considered that they could be used as evidence if she made a police complaint, that purpose, in the absence of any type of police involvement with the complainant at the time the recordings were made, does not make her a state agent.
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b. The law in relation to state agency of private actors
[28] The starting point in considering the state-agency argument is that, pursuant to s. 32, the Charter only applies to government actors: R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 25. In the criminal investigative context, police officers are government actors. The complainant is not a government actor.
[29] However, the jurisprudence also recognizes that in some circumstances a non-government actor may act as a state agent such that the Charter applies. This issue has been considered by the Supreme Court of Canada in the context of the s. 7 Charter right to silence of detained individuals and searches conducted by non-state actors.
[30] In the right to silence in detention context, the Supreme Court described the analysis for whether an informer is a state agent as follows, in R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at p. 608:... it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purpose of s. 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents? [Emphasis added.] [31] In Broyles, the Supreme Court drew a bright line that if the informer had no contact with the police before the conversation with the accused, they could not be a state agent, at p. 608: “If [this test] is applied to a conversation with a cell mate who has no contact with the authorities until after the conversation is concluded, it is equally clear that the actions of the authorities had no effect on the conversation, and that there would be no violation of the right to silence.”[4]
[32] In the result in Broyles, there was no question that the informer was a state agent because he was approached by police to meet with the accused. The meeting was set up and facilitated by police and the informer wore a recording device provided by police at the time he spoke to the accused: at p. 612. The court found a violation of the s. 7 right to silence because the informer actively elicited the statement from the accused and sought to exploit his relationship with the accused to elicit the statement.
[33] The Supreme Court considered state agency in the context of searches in R. v. M.(M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393, and Buhay. M.(M.R.) involved a search of a student conducted by a school vice-principal. The vice-principal had received information from several students that the particular student was selling drugs on school property and would be carrying drugs on the evening of a school dance. Quite apart from the criminal law, this was prohibited by school policies. The vice-principal contacted the police prior to the search. An officer was present for the search, but the search was conducted by the vice-principal. The vice-principal found drugs, gave them to the officer, and the officer placed the student under arrest.
[34] The Supreme Court accepted the concession by the Crown that the Charter applied to the vice-principal as a state actor under provincial education legislation: at paras. 24-25. However, the court found that the vice-principal was not acting as an agent of the police when he conducted the search. The fact that the vice-principal cooperated with the police was not sufficient in itself to make him an agent of the police: at paras. 26-29. The court held that there was no evidence of police instructions to the vice-principal or an agreement to work together that could create an agency relationship. Applying the test from Broyles, Cory J. for the majority held, at para. 29:Applying the test to this case, it must be determined whether the search of the appellant would have taken place, in the form and in the manner in which it did, but for the involvement of the police. The evidence, in my opinion, demonstrates that it would have taken place and was not materially different than it would have been if there had been no police involvement. Although [the vice-principal] knew that criminal charges might result, the primary motive for the search was the enforcement of school discipline, for which he was responsible. There is nothing in the evidence to suggest that the vice‑principal initiated the search or conducted it differently because of police intervention. It is thus apparent that the vice‑principal was not acting as an agent of the police. [35] Buhay involved a search of a rented locker at a bus depot. Security guards employed by the depot smelled a strong odour of marijuana from the locker. They contacted other staff to open the locker. They found a duffel bag containing marijuana. They relocked the locker and contacted police. Two police officers attended. They also smelled marijuana. The staff member opened the locker and the police seized the marijuana without a warrant. The Supreme Court found that the initial search of the locker by the security guards did not engage s. 8 of the Charter because the security guards were not state agents: at paras. 25-31. However, the court found that the subsequent warrantless search by police infringed the s. 8 rights of the accused.
[36] In reaching the conclusion that the security guards were not state agents, the court in Buhay applied the analysis from Broyles and M.(M.R.). The court concluded as follows, at paras. 29-30:Based on the test set out in Broyles, supra, and M. (M.R.), supra, the proper question is whether the security guards would have searched the contents of locker 135 but for the intervention of the police. On the facts here, it is clear that the security guards acted totally independently of the police in their initial search. … In the present case, the relationship between the police and the security guards developed after the security guards searched the appellant’s locker. The guards started an investigation on their own initiative, without any instructions or directions from the police.
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Volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to citizens to participate in the detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter. Rather, the intervention of the police must be specific to the case being investigated. In the case at bar, there is nothing in the evidence which supports the view that the police instructed the security guards to search locker 135 and therefore the security guards cannot be considered state agents. [Emphasis added. Citations omitted.] [37] These cases make clear that the assessment of whether a private actor is a state agent requires a case-by-case analysis, which focuses on the actions of the private actor alleged to constitute a Charter breach and the relationship between the private actor and the state: Buhay, at para. 31.
[38] The findings in each of Broyles, M.(M.R.), and Buhay assist in delineating the circumstances in which the relationship between a private actor and a state actor will or will not support a finding of state agency. Also of assistance is the recent decision of the British Columbia Court of Appeal in R. v. Pham, 2025 BCCA 324, 455 C.C.C. (3d) 94, leave to appeal granted, 2025 S.C.C.A. No. 510 (May 21, 2026).
[39] In Pham, at para. 93, the British Columbia Court of Appeal adopted the following non-exhaustive factors enumerated in R. v. Norgan, 2024 BCPC 187, at para. 36, as relevant to considering whether the relationship between the police and a private actor is such that the private actor was a state agent: (i) whether there was a causal connection between the police and the actions of the private actor; (ii) whether the private actor was acting of its own independent authority or initiative; (iii) the degree and nature of any collaboration and cooperation between the police and the private actor; (iv) whether there were direct or implied instructions provided by the police to the third party; and, (v) the motives of the police and the third party.
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[51] The appellant argues that the jurisprudence supports the proposition that where a person’s primary purpose is to fulfil a state function (here, to gather evidence for a criminal investigation), that alone makes the person a state agent. In support, the appellant relies on the decisions of the Supreme Court in M.(M.R.), the Alberta Court of Appeal in R. v. Chang, 2003 ABCA 293, 180 C.C.C. (3d) 330, leave to appeal refused, [2003] S.C.C.A. No. 548, and the trial level decisions in R. v. Ilmi, 2023 ONSC 5602, at paras. 15-16, and R. v. G.J., 2012 ONSC 5413, at para. 19.
[52] The jurisprudence does not support the proposition that a private actor being motivated by the purpose of collecting evidence, standing alone, can make the private actor a state agent. Several of the cases the appellant relies on are more supportive of the Crown’s position in this appeal. And to the extent that any of the trial level decisions suggest that a purpose of collecting evidence, standing alone, can make a private actor a state agent, they are wrongly decided.
[53] In M.(M.R.), the Supreme Court found that the vice-principal was not a state agent in conducting the search of the student. I note that this finding was made despite the fact that, unlike this appeal, the vice-principal, by virtue of his position, had coercive authority over the student. Similarly, in Chang, the Alberta Court of Appeal found that a security guard who conducted a search and then contacted police was not acting as a state agent. The court reached this conclusion for reasons which support the Crown’s position in this appeal. The security guard had mixed purposes in conducting the search – to protect herself and potentially use the results of the search as evidence if she contacted police. In the absence of police contact before the search was conducted, the Alberta Court of Appeal found that the security guard was not a state agent.
[54] The appellant’s argument that purpose alone can make a private actor a state agent seems to have its genesis in the reference in M.(M.R.), at para. 29, to the fact that “the primary motive” of the principal in conducting the search of the student “was the enforcement of school discipline”. The appellant’s argument, and some trial level decisions, would read this reference from M.(M.R.) as holding that if the primary motive of a private actor was to assist police, this alone would make them a state agent.
[55] Respectfully, read in the context of the decision as a whole and the court’s subsequent decision in Buhay, this reference from M.(M.R.) does not support the proposition that an individual’s purpose of collecting evidence for a criminal investigation, standing alone, can make them a police agent. A private actor’s purpose is a relevant factor in the state agency assessment. But purpose alone does not make a private actor a state agent. Buhay clearly holds that “volunteer participation in the detection of crime by private actors, or general encouragements by the police authorities to participate in detection of crime, will not usually be sufficient direction by the police to trigger the application of the Charter”: at para. 30.
[56] M.(M.R.), Broyles, and Buhay stand for the proposition that police involvement must have some impact on the actions of the private actor in order for the private actor to be a state agent. Where the private actor has had no contact with police of any kind, as in this case, they are not a state agent.
[57] The trial level decisions that suggest that a private citizen who records a conversation with an accused, in the absence of police involvement, is a state agent solely on the basis that their primary purpose in obtaining the evidence was to support criminal charges (see: G.J. at para. 19, and Ilmi, at para. 16), are inconsistent with Buhay, rest on a misreading of Broyles, and should not be followed.
[58] I would emphasize, as the Supreme Court did in Buhay, that these are fact-specific determinations. For example, in Pham, at paras. 94-109, the British Columbia Court of Appeal found that the trial evidence made available the conclusion that a courier company’s employees setting aside suspicious packages based on instructions from the police could be sufficient to make them state agents.[5]
[59] This case is not a close call on state agency. Given the complete absence of any communication between the complainant and the police at the time she made the recordings, the trial judge did not err in finding that the complainant was not a state agent at the time she made the recordings. As she was not a state agent, the making of the recordings by the complainant did not engage s. 8 of the Charter. . Dorceus v. Ontario
In Dorceus v. Ontario (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against findings of a motion judge that "concluded that the claim constituted both an abuse of process and a pleading that disclosed no reasonable cause of action", and consequently struck the pleadings. The claim was by "a group of more than 400 current and former healthcare workers" who "allege that a provincial public health directive led to the suspension or termination of their employment because they declined vaccination".
Here the court considered the Charter s.32 ['Application'] provision, here drawing a public-private disinction:i. Charter Claims
[44] The Appellants allege violations of ss. 2, 6, 7, 9, and 15 of the Charter. The motion judge correctly struck these claims because (1) the Charter does not apply to most of the healthcare respondents, (2) and those claims are bound to fail as a matter of law.
[45] First, the motion judge correctly concluded that the Charter did not apply to the 47 healthcare respondents which are private entities rather than public bodies.
[46] Section 32(1) limits the application of the Charter to the federal and provincial legislatures and governments in respect of all matters within their respective legislative authority. That section provides: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. [47] Because of this constitutional limit, private non-governmental activity is not subject to the Charter. This deliberate choice was made, in part, to safeguard the separation of powers. By barring judicial scrutiny of private actions for constitutional compliance, it preserves the political branches’ authority to regulate private actors through more flexible instruments. This choice must be respected: RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, at pp. 593-597; McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at pp. 262-263.
[48] To uphold this careful balance, the Charter only applies to an entity if (1) it is government by nature or control, or (2) it conducts specific activities that are governmental in nature – meaning, implementing a specific governmental program or exercising powers of statutory compulsion. The first branch subjects all the entity’s activities to the Charter, while the second only applies the Charter to the entity’s inherently governmental activities: Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, 490 D.L.R. (4th) 1, at paras. 61, 66.
[49] The first branch does not apply in this case because, as the motion judge recognized, private healthcare institutions are not government by nature or control: Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, at para. 46, citing Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 S.C.R. 483.
[50] The motion judge correctly concluded that the second branch does not apply either because the activity at issue – the suspension or termination of employment – is private not inherently governmental. The Directive neither governs nor mandates suspending or terminating employment. Instead, like the public-private agreement in Sagen v. Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, it preserved the healthcare respondents’ exclusive authority over those specific acts: 2009 BCCA 522, 313 D.L.R. (4th) 393, at paras. 46-49, leave to appeal refused, [2009] S.C.C.A. No. 459. Thus, similar to the mandatory retirement policy in Stoffman, those acts are internal management matters which lack a “direct and … precisely-defined connection” to the Directive: Stoffman, at p. 516, quoting Dolphin Delivery, at p. 601.
[51] The appellants’ contrary argument that the Charter applies because healthcare is an important public function fails. The exercise of private contractual powers over internal management is not subject to the Charter simply because the entity in question performs a “public function” in the loose sense, like healthcare delivery or post-secondary education: Eldridge, at para. 43; see also Lavigne v. Ontario Public Service Employees Union, 1991 CanLII 68 (SCC), [1991] 2 S.C.R. 211, at p. 311. . Nyaberi v. TD Insurance [non-application against opposing litigants]
In Nyaberi v. TD Insurance (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an HRTO JR, this brought against "its decision dismissing the application for jurisdictional reasons", being that although the HRTO application alleged discrimination in "the social areas defined by the Code, which are: services, goods and facilities, accommodation, contracts, employment and membership in vocational associations", "their only relationship was as opposing parties in the personal injury action" and that none of these activities applied.
The court considers the inapplicability of the Charter to parties where "their only relationship was as opposing parties in the personal injury action.":[6] .... He also submits that the Tribunal reached its decision without applying the law, evidence, or factual findings and that his rights under s. 15 of the Canadian Charter of Rights and Freedoms were violated.
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[9] The applicant did not raise the Charter before the Tribunal and has not explained how s. 15 of the Charter could apply to his relationship with the respondents, who are not public entities. The Charter applies only to the actions of the legislative, executive and administrative branches of government: RWDSU v. Dolphin Delivery Ltd., [1986]¸ 1986 CanLII 5 (SCC), 2 S.C.R. 573, at para. 33. The applicant also has not explained why the Tribunal should have applied the Charter in circumstances where it otherwise did not have jurisdiction over his relationship with the respondents. This ground of review is dismissed. . Macciacchera (Smoothstreams.tv) v. Bell Media Inc.
In Macciacchera (Smoothstreams.tv) v. Bell Media Inc. (Fed CA, 2024) the Federal Court of Appeal explained that only state action attracts application of the Charter, here in an appeal of a review of an Anton Pillar orders:[5] First, the appellants cannot ground their appeal upon a Charter right. This is because the Charter does not apply between private parties, and Charter rights do not exist in the absence of state action: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130 at para. 95 [Hill]; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 SCR 573 at p. 599; Tremblay v. Daigle, 1989 CanLII 33 (SCC), [1989] 2 SCR 530 at p. 571.
The execution of an Anton Piller order does not involve state action; the order "“is not placed in the hands of a public authority for execution”": Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 at para. 1 [Celanese]. Rather, as in this case, an Anton Piller order "“authorizes a private party to insist on entrance to the premises of its opponent to conduct a surprise search, the purpose of which is to seize and preserve evidence to further its claim in a private dispute”": Celanese at para. 1 (emphasis added); see also Ontario Realty Corp. v. P. Gabriele & Sons Ltd., 2000 CanLII 22697 (ON SC) at para. 34; Viacom Ha! Holding Co. v. Jane Doe, [2000] F.C.J. No. 498 at paras. 80–81.
[6] Second, in the absence of an explanation as to how the execution of the Order was inconsistent with Charter values, this argument cannot be entertained: Hill at para. 95; Singh Brar v. Canada (Public Safety and Emergency Preparedness), 2024 FCA 114 at para. 66. . Canada (Attorney General) v. Power
In Canada (Attorney General) v. Power (SCC, 2024) the Supreme Court of Canada re-considers and confirms [the previous case was Mackin (SCC, 2002)] whether and how the Crown can be liable for Charter damages for passing unconstitutional legislation.
Here the court reviews principles of Charter application:[29] Section 32(1) of the Charter states that it applies to “the Parliament and government of Canada in respect of all matters within the authority of Parliament” and “to the legislature and government of each province in respect of all matters within the authority of the legislature of each province”.
[30] Clearly, the federal and provincial legislatures are subject to Charter scrutiny. As this Court has explained, the words of s. 32(1) express that “the Charter is essentially an instrument for checking the powers of government over the individual” (McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229, at p. 261). The Charter “is intended to constrain governmental action inconsistent with those rights and freedoms” (Hunter, at p. 156). As explained further below, ss. 32(1) and 24 of the Charter, along with s. 52(1) of the Constitution Act, 1982, entrench the court’s role in holding the government to account for Charter violations (M. L. Pilkington, “Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms” (1984), 62 Can. Bar Rev. 517, at pp. 535 and 552-67). . York Region District School Board v. Elementary Teachers’ Federation of Ontario
In York Region District School Board v. Elementary Teachers’ Federation of Ontario (SCC, 2024) the Supreme Court of Canada considers application of the Charter [s.32] to "Ontario public school boards", here in a employer (labour) privacy context:B. The Charter Applies to Ontario Public School Boards Under the First Branch of Eldridge
[72] Section 32 of the Constitution Act, 1982, sets out the scope of the Charter’s application: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. [73] In this regard, the landmark ruling is Eldridge, in which this Court established a two-branch framework: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. [para. 44] [74] Until now, this Court has made no definitive statement as to whether the Charter applies to school boards. While this Court has assumed that the Charter applies to school boards (see Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256), it has done so without addressing the Eldridge framework, save as noted below.
[75] In Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, Gonthier J., dissenting (Bastarache J. concurring), examined this issue, which the majority found unnecessary to consider, at length. He held that there was “no doubt” that a school board was subject to the Charter under the first branch of Eldridge (para. 121). Subsequent to Chamberlain, this Court has accepted the Crown’s concession in cases before it that the Charter applies to the actions of school officials and proceeded on that basis (see Cole, at para. 38).
[76] Lower courts have analyzed whether the Charter applies to school boards, and have drawn different conclusions. Some have followed Gonthier J.’s reasons in Chamberlain and applied the Charter to school boards (see British Columbia Public School Employers’ Assn. v. B.C.T.F., 2005 BCCA 393, 257 D.L.R. (4th) 385; and Gillies (Litigation Guardian of) v. Toronto District School Board, 2015 ONSC 1038, 125 O.R. (3d) 17). Others have distinguished Gonthier J.’s reasons and held that the Charter does not apply to school boards (see Calgary Roman Catholic Separate School District No. 1 v. O’Malley, 2007 ABQB 574, 81 Alta. L.R. (4th) 261; and Hamilton v. Rocky View School Division No. 41, 2009 ABQB 225, 192 C.R.R. (2d) 22).
[77] The time has come to determine whether the Charter applies to Ontario public school boards and, if so, whether they come under the first or second branch of Eldridge. This is a constitutional question that requires a final and determinate answer from the courts, thus a standard of correctness applies, as per Vavilov (para. 55).
[78] Under the first branch of the Eldridge framework, “it may be determined that the entity is itself ‘government’ for the purposes of s. 32” (para. 44). This is so where, by (1) “its very nature” or (2) “the degree of governmental control exercised over it” (Eldridge, at para. 44), the entity is akin to a government. Under this branch, where the entity is found to be “government”, the Charter applies to all its actions. This includes those that would otherwise be described as “private”, were they carried out by a non-governmental actor.
[79] A review of the Education Act confirms that Ontario public school boards are government by nature. The section of the Act entitled “Purpose” highlights the role that school boards play in the education system; s. 8 of the Act provides for extensive powers of the Minister of Education with respect to boards. Ontario public school boards are, in effect, an arm of government, in that they “exercise powers conferred on them by provincial legislatures, powers and functions which they would otherwise have to perform themselves” (Chamberlain, at para. 121, quoting Godbout, at para. 51).
[80] In Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at paras. 15-16, the Court further clarified that governmental action as part of a “public function” may be sufficient to bring that activity within the purview of government and attract Charter scrutiny (UAlberta Pro-Life v. Governors of the University of Alberta, 2020 ABCA 1, 98 Alta. L.R. (6th) 252, at para. 128). The Alberta Court of Appeal, for example, has described Greater Vancouver Transportation Authority as a starting point for applying Eldridge as follows: “. . . the test for s 32 resides in the analysis in Greater Vancouver Transportation Authority and rests on the ability to identify an area of government policy and objectives that the [entity] can be said to be implementing for the state more broadly and not just for internal . . . objectives” (UAlberta Pro-Life, at para. 139).
[81] Public education is inherently a governmental function. It has a unique constitutional quality, as exemplified by s. 93 of the Constitution Act, 1867 and by s. 23 of the Charter. Ontario public school boards are manifestations of government and, thus, they are subject to the Charter under Eldridge’s first branch.
[82] Ontario public school boards do not fit under the second branch of Eldridge. They are not private entities carrying out a governmental activity. All actions carried on by Ontario public school boards are subject to Charter scrutiny, including the principal’s actions, in this case, as he acted in his official capacity as an agent of the Board, a statutory delegate, “and not in his personal capacity” (Gillies, at para. 40).
[83] The purpose of the Eldridge framework is to interpret s. 32(1) so as to ensure that the federal and provincial governments do not evade their constitutional responsibilities under the Charter by delegating governmental functions to non-governmental entities, for example private enterprises (para. 40).
[84] The analysis above relates specifically to Ontario public school boards. I leave for another day the question of the applicability of the Charter to public schools in other provinces, or to the operation of private schools.
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