There is a very big problem in Canada. It is that the Charter of Rights and Freedoms is taken not to apply to corporations. This position is fairly well-stated in Mckinney:
The appellants strongly relied on a statement by Hogg, Constitutional Law of Canada (2nd ed. 1985), at p. 671, cited by this Court in Slaight Communications Inc. v. Davidson, supra, at p. 1078, to the effect that Parliament and the legislatures cannot authorize action by others that would be in breach of the Charter. That statement would, no doubt, be true of a situation such as occurred in Slaight Communications Inc. v. Davidson, supra, where a statute authorizes a person to exercise a discretion in the course of performing a governmental objective. But the Charter was not intended to cover activities by non-governmental entities created by government for legally facilitating private individuals to do things of their own choosing without engaging governmental responsibility. Professor Hogg himself makes this clear, at n. 140 on p. 677:
There is perhaps a faint argument that the Charter applies to the actions of all Canadian corporations, whether publicly or privately owned, and even if they are engaged only in commercial activity. The argument would start from the premise that the existence and powers of a modern corporation depend upon the statute which authorized its incorporation. In that sense, it could be argued, all modern corporations act under statutory authority and should be held to be bound by the Charter. But the better view is that a corporation, once it has been brought into existence and empowered (admittedly under statutory authority), is thereafter exercising the same proprietary and contractual powers as are available to any private person. (LA FOREST J, [1990] 3 SCR 229)
Hogg’s reasoning is not persuasive: natural persons enjoy proprietary and contractual powers due to their natural constitution; such are not grants of Government. The issue is better articulated by the majority of the BC Court of Appeal in Re Bhindi and British Columbia Projectionists:
In my opinion, Mr. Justice Gibbs was right in rejecting the extension of the Charter to a private contract such as this. It is a rare commercial contract which does not ex facie infringe on some freedom set out in s. 2 or some legal right under s. 7 . To include such private commercial contracts under the scrutiny of the Charter could create havoc in the commercial life of the country.((1986), 29 D.L.R. (4th) 47, at p. 54)
Rather than having any strict ground of statutory construction, we have the problem of “havoc in the commercial life of the country.” The Court of Appeal, however, overstates the matter: it would not apply to all commercial contracts; Bob could contract with Alice to bake a cake. The Charter would, however, apply if Bob, for the purpose of availing himself of a government-designed liability management scheme, designed to promote economic activity, incorporated himself. If this were the case, Alice should have the benefit of charter scrutiny for her contract.
Perhaps a consideration of the law of England will help to determine the matter. This is how Edward Coke divides the law:
the law of England is divided into three parts, common law, statute law, and custom; but the King’s proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation. (12 Co Rep 74)
Thus, whenever something is prohibited by Act of Parliament, the Charter applies, but it should equally apply whenever something is enabled by Act of Parliament, or by the royal prerogative. As to the notion that corporations are private, this is another part of the problem: corporations exist to discharge a broad government policy concerning limitation of liability, for the purpose of spurring economic activity, as well as for the benefit of making it possible for a durable entity to subsist even though all of its members should change. In exchange for these statutory benefits, which are in no way available to natural persons considered in disconnection from society, the Charter ought to apply.
It is also the case, though perhaps hard to stomach for some, that Parliament is a corporation. Drawing again from English Law,
THE conftituent parts of a parliament are the next objects of our enquiry. And thefe are, the king’s majefty, fitting there in his royal political capacity, and the three eftates of the realm ; the lords fpiritual, the lords temporal, (who fit, together with the king, in one houfe) and the commons, who fit by themfelves in another. And the king and thefe three eftates, together, form the great corporation or body politic of the kingdom(1 Bl. Comm. 149)
While the Parliament of Canada is not composed of the exact same estates, it is still a corporation, composed of the two estates of our realm: the commons, the senate, of which the sovereign is head. The Charter, therefore, applies to the Parliament as a corporation, and the Parliament is therefore incapable of granting anything contrary to the Charter, and it would be a strange thing if a corporation could grant more power than it had itself. The notion that Parliament has a public side, by which public statutes are made, and a private side, which does not attract Charter scrutiny, is false.
Whatever commercial havoc this might bring upon Canada, the Constitution is not designed to promote commerce; it is designed to ensure respect for the fundamental rights and freedoms of individuals.