THE CHARTER’S BLIND SPOT Part 3 of 3

Section 9: Comparative Jurisprudence — International Approaches to Public-Function Accountability

9.1 Purpose of Comparative Analysis

Section 32 of the Canadian Charter defines “government” narrowly, allowing rights obligations to vanish when the state acts through intermediaries. Other democracies have confronted the same problem and, through statutory or judicial innovation, have extended constitutional duties to functions rather than forms of government.

Examining these systems illustrates that Canada’s current doctrine is neither inevitable nor universal—it is a policy choice.

9.2 United Kingdom — The Human Rights Act 1998

A. Functional Test for “Public Authorities”

Section 6(3)(b) of the Human Rights Act 1998 (HRA) makes it unlawful for “public authorities” to act incompatibly with the European Convention on Human Rights. Courts interpret “public authority” functionally: it includes any body “whose functions are of a public nature.”

Key cases:

• Aston Cantlow Parochial Church Council v. Wallbank [2003] UKHL 37:

  The House of Lords distinguished core public authorities (government departments) from hybrid ones (private bodies performing public functions).

• YL v. Birmingham City Council [2007] UKHL 27:

  A private care-home operator contracted by a local council was found not a public authority—a controversial decision later reversed by statute (Health and Social Care Act 2008 s. 145).

B. Relevance to Canada

The U.K. experience shows that even a traditionally unwritten constitution can explicitly extend rights obligations to hybrid actors. If Canada adopted an analogous clause, entities like Alberta Health Services or transplant programs would fall squarely within Charter scope whenever they deliver statutory health services.

9.3 European Union and Council of Europe

A. European Convention on Human Rights (Article 1)

Member states must “secure to everyone within their jurisdiction” the rights of the Convention. The European Court of Human Rights interprets this as applying to any entity exercising governmental authority.

• Storck v. Germany (2005) 43 EHRR 96: Germany liable for actions of a private psychiatric clinic because the state had delegated coercive powers.

• Van der Mussele v. Belgium (1983) 6 EHRR 163: state responsibility arises whenever public duties are imposed on private individuals.

B. EU Charter of Fundamental Rights

Article 51 binds not only the EU’s institutions but also member-state bodies “when they are implementing Union law.” The focus is functional implementation, not institutional identity.

C. Relevance to Canada

European jurisprudence eliminates the ambiguity that allowed Lewis. Whether an actor is public or private is secondary; what matters is whose policy is being executed. A transplant denial mandated by government policy would therefore be attributed to the state.

9.4 United States — The “State-Action Doctrine”

A. Origins

The U.S. Constitution’s Fourteenth Amendment, like Canada’s section 32, applies to “state action.” Early Supreme Court cases created exceptions when private conduct is “fairly attributable to the state.”

B. Key Doctrinal Tests

• Public Function Doctrine (Marsh v. Alabama, 326 U.S. 501 (1946))*: a private entity performing a function “traditionally exclusively reserved to the state” (e.g., running a town) is bound by constitutional norms.

• Nexus or Symbiotic Relationship Test (Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961))*: when government is intertwined with a private entity, their actions are inseparable.

• Entwinement Doctrine (Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001))*: constitutional duties attach where “pervasive entwinement of public institutions and public officials” exists.

C. Relevance to Canada

The U.S. approach, though uneven, demonstrates an established judicial vocabulary for linking private conduct to state responsibility. Canadian courts could adopt a comparable “entwinement” test under section 32 to capture statutory regulators, publicly funded hospitals, and physicians acting under state compulsion.

9.5 Comparative Summary

Jurisdiction	Legal Basis	Test for Applicability of Rights	Example Outcome
United Kingdom	Human Rights Act 1998 s.6	“Functions of a public nature” test	Private care-home performing municipal duties held liable (post-2008 reform).
European Court of Human Rights	ECHR Art. 1	State liable for delegated coercive power	Germany responsible for private clinic’s detention of patient.
European Union	EU Charter Art. 51	Applies to implementation of Union law	Private entities executing EU law bound by Charter.
United States	Fourteenth Amendment	Public function / entwinement tests	Private athletic association subject to constitutional norms.
Canada	Charter s. 32	Narrow identity-based “government” test	Lewis: physicians treated as private, Charter inapplicable.

9.6 Lessons for Canada

1. Adopt a Functional Definition of Government.

   Canada could legislatively or judicially affirm that entities performing statutory or publicly funded functions are “government” for Charter purposes.

   
   

2. Codify a Public-Function Clause.

   Parliament or provincial legislatures could enact a Charter Application Act mirroring the HRA 1998, s. 6(3)(b), explicitly binding “any person or body exercising a public function.”

   
   

3. Encourage Judicial Borrowing of Entwinement Doctrine.

   Canadian courts could analogize the U.S. entwinement test, recognizing that pervasive regulatory and financial integration renders the health-care sector an arm of the state.

   
   

4. Prevent Delegation as Evasion.

   Statutes authorizing professional regulators should stipulate that delegated decisions remain subject to Charter review, thereby closing the “identity gap” exploited in Lewis.

9.7 Conclusion

Comparative jurisprudence demonstrates that other democracies have resolved the dilemma Canada continues to deny: when the state acts through others, it remains the state.

The United Kingdom, Europe, and the United States all apply functional tests that capture delegated power within constitutional accountability. Canada’s refusal to do so is an outlier.

Had a U.K.-style or ECHR-style framework existed in 2023, the decisions that ended the lives of Sheila Lewis and Garnet Harper would have been recognized immediately as acts of the state and subjected to full rights review.

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Section 10: Policy and Legal Reform Proposals — Closing the Accountability Gap

10.1 Purpose of Reform

The preceding analysis establishes that the Charter’s failures in Lewis and similar cases stem not from isolated judicial error but from structural deficiencies: narrow interpretation of “government,” absence of rapid remedies, and lack of deterrent consequence for unconstitutional acts.

Effective reform therefore requires both doctrinal clarification and institutional redesign. The objective is to ensure that constitutional rights apply wherever governmental power is exercised, whether directly or through delegation.

10.2 Legislative Clarification of Charter Application

A. A Public-Function Clause

Parliament and the provinces should enact a Charter Application Act defining “government” for the purposes of section 32 as:

“any person, body, or corporation performing a function of a public nature, implementing a statutory program, or exercising authority derived from law or public funding.”

This mirrors section 6(3)(b) of the UK Human Rights Act 1998 and would capture entities such as hospitals, regulatory colleges, and professional bodies when executing statutory mandates.

B. Mandatory Charter Statements in Delegating Statutes

Every statute that delegates regulatory authority should contain an explicit clause stating that:

“All acts and decisions made under this statute are subject to the Canadian Charter of Rights and Freedoms.”

Such language would pre-empt judicial ambiguity and affirm legislative intent that constitutional rights accompany governmental power wherever it flows.

10.3 Judicial Reform: Restoring Effective Review

A. Functional Interpretation of Section 32

The Supreme Court of Canada should formally adopt the functional-entwinement test used in the United States and Europe: if government policy, funding, or control is pervasive, Charter duties attach. A clear doctrinal statement to that effect would realign lower courts with Eldridge and end the identity-based loophole.

B. Emergency-Review Procedure

A statutory or rules-of-court amendment should create an expedited constitutional-review docket for time-sensitive matters such as medical access, elections, or mobility restrictions.

Applications alleging imminent or ongoing violation of life, liberty, or security should receive hearing dates within 14 days and priority appeal scheduling. This would prevent the “justice after death” scenario of Lewis.

C. Standing and Costs Reform

Public-interest standing should be broadened, and successful applicants in rights-based litigation should receive presumptive cost recovery from the Crown. Without financial parity, constitutional rights remain accessible only to the affluent or the well-funded.

10.4 Institutional Oversight and Independent Remedies

A. Health-Rights Ombudsman

Establish an independent Health-Rights Ombudsman empowered to investigate allegations of Charter violations within the health-care system, subpoena records, and issue binding recommendations to ministers and regulators.

This body would fill the current vacuum between patient complaints mechanisms and constitutional courts.

B. Parliamentary and Provincial Review Committees

Create permanent committees to review all emergency orders and public-health directives within 60 days of issuance. Their mandate: assess necessity, proportionality, and Charter compliance, with power to revoke orders lacking justification.

C. Whistle-blower Protection for Medical Professionals

Legislate protection for physicians and scientists who disclose data or express professional disagreement on matters of public health. Shielding dissent is essential to prevent scientific inquiry from being suppressed by administrative coercion.

10.5 Enforcement and Penalty Mechanisms

A. Charter Damages Presumption

Codify a presumption of damages under section 24(1) where a government or delegate acts in bad faith or with reckless disregard for Charter rights. This would transform the Charter from a purely declaratory instrument into one with deterrent force.

B. Personal Accountability of Decision-Makers

Introduce statutory civil liability for officials who knowingly implement policies later declared unconstitutional. Comparable “qualified-immunity” frameworks abroad show that accountability need not paralyze governance but can discipline it.

10.6 Professional-Regulatory Reform

A. Separation of Regulation and Policy Enforcement

Amend provincial Health Professions Acts to prohibit colleges from enforcing government policy directives that are not directly related to patient safety or professional competence. This restores the original purpose of self-regulation—ethical and scientific integrity independent of politics.

B. Independent Ethics Boards

Establish external ethics boards within each province to review disciplinary actions involving alleged Charter issues, ensuring that regulators cannot act as both instrument and judge of state policy.

10.7 Transparency and Public Access

A. Disclosure of Government Influence

Require all health-sector organizations, including colleges and associations, to publish annual statements of government directives received, funding provided, and compliance actions taken. Transparency deters covert politicization of professional judgment.

B. Freedom of Information Reform

Expand access to internal communications between ministries and regulators during declared emergencies. The right to information is prerequisite to the right of accountability.

10.8 Educational and Cultural Measures

A. Constitutional-Literacy Programs

Mandate continuing education on Charter rights and ethical obligations for all licensed professionals in health, education, and law enforcement. Awareness is the first defence against unconscious complicity.

B. Civic Curriculum Enhancement

Provincial education ministries should reintroduce rigorous civics instruction on constitutional rights and government structure. A populace ignorant of its rights cannot defend them.

10.9 Implementation Strategy

Reform requires collaboration among Parliament, provincial legislatures, courts, and civil society. Immediate priorities should include:

1. Federal-provincial working group on a Public-Function Charter Amendment.

2. Judicial-conference resolution encouraging functional interpretation of section 32.

3. Pilot project establishing a Health-Rights Ombudsman in one province.

4. Draft model statute for emergency judicial review and cost protection.

These steps would convert principle into practice within a single parliamentary term.

10.10 Conclusion

Constitutional documents derive legitimacy not from eloquence but from enforceability. The Lewis and Harper tragedies exposed a Charter capable of being admired yet ignored.

By enacting functional definitions, expedited remedies, and tangible penalties, Canada can transform the Charter from a moral aspiration into an operational safeguard. The reforms outlined above would ensure that no government—federal or provincial, direct or delegated—can again deny a citizen life or liberty through bureaucratic indirection and call it lawful.

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Section 11: The Broader Pattern of Delegated Oppression — Beyond the Medical Sphere

11.1 Delegation as a Systemic Mode of Governance

The pattern exposed in Lewis is not unique to medicine. It represents a governance method increasingly employed across Canadian public life:

1. Government formulates policy goals.

2. Implementation is assigned to semi-autonomous regulators or corporate partners.

3. Those intermediaries enforce compliance through licensing, funding, or access control.

4. When challenged, government disclaims responsibility because “the decision was made independently.”

This administrative diffusion blurs the line between public and private authority, placing citizens under state-derived control while depriving them of state-guaranteed rights.

11.2 Education and Academic Institutions

A. Universities as Policy Conduits

During the pandemic, universities enforced vaccine mandates, speech restrictions, and online-learning policies often crafted through provincial health orders and federal funding conditions. Faculty and students who objected faced suspension or expulsion. Yet, when challenged, institutions claimed Charter immunity on the basis of academic autonomy—an argument derived from McKinney (1990).

B. Ideological Conditioning and Research Funding

Beyond COVID-19, governments now shape academic discourse through targeted research grants tied to “equity, diversity, and inclusion” metrics or climate-policy alignment. Scholars who dissent risk exclusion from funding programs. The mechanism mirrors medical coercion: policy enforcement via gatekeeping rather than statute.

11.3 Media and Communications

A. Regulatory Capture

The Online News Act and Broadcasting Act amendments expand federal authority over digital platforms. Compliance with government-approved content standards becomes a prerequisite for funding or distribution. Independent journalism thereby operates within an ecosystem of delegated censorship, where private platforms act as enforcers of public policy.

B. State-Subsidized Dependence

Federal media-support programs distribute subsidies that condition eligibility on adherence to official accreditation and “trusted-news” frameworks. The result is a press corps economically entwined with the state yet formally “independent,” echoing the physician’s predicament under Alberta Health Services.

11.4 Finance and Economic Control

A. The Emergencies Act Precedent

The 2022 freezing of protest-related bank accounts under the Emergencies Act demonstrated the fusion of governmental directive and private enforcement. Financial institutions acted on state instruction but remained nominally private. This delegated sanction, executed without court order, foreshadowed the dangers of programmable financial control.

B. Prospective Expansion through Digital Finance

The proposed Retail Payments Activities Act and exploratory work on a Central Bank Digital Currency (CBDC) envision direct integration of financial intermediaries into regulatory networks. Unless Charter obligations explicitly attach to such delegated actors, citizens could again face coercion—denial of transactions or services—without judicial remedy.

11.5 Employment and Corporate Compliance

A. Workplace Mandates

Employers across Canada implemented vaccination and masking mandates derived from provincial guidance. Many employees were dismissed or placed on unpaid leave. Courts generally upheld these policies as “reasonable management action,” emphasizing the private nature of employment. Yet in most cases, the mandates originated in government orders and were enforced under threat of regulatory penalty.

B. ESG and Ideological Certification

Environmental, Social, and Governance (ESG) frameworks now influence access to capital and government contracts. Corporations act as policy multipliers, embedding government objectives into private compliance systems. Citizens experience the consequences—restricted employment or investment—without any avenue of constitutional appeal.

11.6 Patterns of Control Across Sectors

Sector	Instrument of Delegation	Form of Coercion	Rights Implicated
Medicine	Colleges / Health Authorities	Licensing & Treatment Denial	Life, Security, Conscience
Education	Universities / Funding Councils	Enrolment & Grant Access	Expression, Association
Media	Regulatory & Funding Agencies	Platform & Subsidy Control	Expression, Press Freedom
Finance	Banks / Payment Networks	Account Freezing	Property, Mobility
Employment	Corporate Policy under Government Guidance	Job Access	Liberty, Equality

Across each domain, the same constitutional pattern recurs: governmental objectives enforced by non-governmental actors who remain, in law, unaccountable under the Charter.

11.7 Cumulative Effect on Democratic Culture

Delegated governance transforms citizens into subjects of opaque systems. When compliance becomes the condition for participation in essential spheres—health, education, livelihood, communication—the formal existence of rights offers little protection.

The phenomenon is not overt tyranny but administrative servitude, diffused across agencies and corporations that together form an unaccountable network of control.

11.8 The Need for Cross-Sectoral Reform

Closing the accountability gap in medicine will be futile unless the solution extends to all delegated sectors. Functional-application clauses, rapid-review mechanisms, and ombudsman offices must apply wherever the state governs through intermediaries. Otherwise, each reform will be outflanked by the next iteration of delegation.

11.9 Conclusion

The story of Sheila Lewis is emblematic of a broader constitutional transformation: the migration of state power into private hands. Whether through hospitals, universities, media platforms, or banks, governments now exercise authority by proxy. The Charter, confined to the visible machinery of government, no longer reaches the sites where coercion actually occurs.

Reclaiming democratic accountability therefore requires a redefinition of governance itself. Power delegated remains power exercised; and wherever governmental power touches the lives of citizens, the Charter—and the moral duty it represents—must follow.

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Section 12: Conclusion — Reclaiming Accountability and the Promise of the Charter

12.1 Summary of Findings

This study began with a single tragedy—the death of Sheila Lewis—and revealed a structural flaw in Canada’s constitutional architecture.The Charter of Rights and Freedoms failed to protect her life not because its principles were wrong but because its enforcement structure was hollow.

Two provisions—section 1 (“reasonable limits”) and section 32 (“application to government”)—combined with procedural delay to create a Constitution of promises without penalties.

The courts’ reasoning in Lewis re-opened loopholes that the Supreme Court had closed in Eldridge and Dunmore. By treating physicians, hospitals, and regulators as private actors rather than state instruments, the judiciary permitted governments to violate rights by proxy.

The parallel case of Garnet Harper confirmed that this was no anomaly but a systemic pattern of delegated coercion.

12.2 The Broader Constitutional Pattern

What occurred in medicine now pervades Canadian governance. Education, media, finance, and employment have all adopted the same model: government formulates policy, delegates enforcement to ostensibly independent bodies, and thereby evades Charter accountability.

Citizens experience the coercion but cannot identify a legally responsible state actor.

This diffusion of power erodes the moral and democratic foundations of the Charter, converting rights into permissions contingent on administrative approval.

12.3 Moral Reckoning

Behind the legal abstractions lie human consequences. When life-saving treatment is withheld for ideological reasons, or when professionals are coerced into silence, the state betrays its foundational duty of care.

The Charter was meant to embody the moral intuition that every person possesses inherent dignity beyond political convenience.

That principle cannot survive if governments may delegate harm and disclaim responsibility.

12.4 Pathways to Renewal

The paper proposes a comprehensive reform program:

1. Functional Definition of Government — Adopt statutory and judicial tests that bind any body performing a public function to Charter duties.

2. Expedited and Affordable Review — Create rapid-response constitutional procedures and cost protection for citizens.

3. Real Penalties for Violations — Establish presumptive damages and personal accountability for officials who act in bad faith.

4. Institutional Oversight — Form independent health-rights and civil-rights ombuds offices.

5. Transparency and Civic Education — Ensure that delegated authority is visible, reviewable, and understood by the public.

Together, these reforms would restore substance to rights that currently exist only in form.

12.5 Reclaiming the Charter’s Promise

A constitution lives not through parchment but through practice. The Lewis and Harper cases remind Canadians that rights unattended will atrophy, and that law without accountability is merely administration.

If the Charter is to regain credibility, it must follow power wherever power moves—into regulators, hospitals, universities, corporations, and digital platforms.

The Charter’s founders intended a shield for citizens, not a cloak for governments. Reclaiming that intent demands both legal reform and moral courage: judges willing to look beyond formal categories, legislators willing to bind themselves, and professionals willing to place conscience above compliance.

12.6 Final Reflection

Sheila Lewis did not die because of a lack of law; she died because law stood aside.Her case is a mirror held to the nation, reflecting the distance between the Charter’s ideals and the realities of delegated governance.

To honour her life—and to ensure that no Canadian again faces death by policy rather than by disease—Canada must restore accountability to the heart of its constitutional order.

Only then will the Charter’s promise be fulfilled: that government, in whatever form it takes, remains forever bound by the rights and dignity of those it governs.

Professional Email Template (Copy/Paste)

Below is a concise, authoritative, professionally written email that any Canadian citizen can copy/paste and send to their MP, MLA, or other representative.

SUBJECT: Request for Accountability and Urgent Review of Delegated Decision-Making and Charter Compliance

Dear <strong>[Representative’s Name]</strong>,

I am writing as a concerned Canadian to express my deep alarm about recent constitutional failures involving delegated authority, medical decision-making, and the practical erosion of rights under the Canadian Charter of Rights and Freedoms — highlighted most clearly in the tragic case of Sheila Annette Lewis.

The Charter is intended to protect citizens from government overreach. Yet recent court rulings, administrative decisions, and the spread of delegated governance have created a situation where life-altering decisions are made without transparency, accountability, or constitutional oversight. When government authority is exercised through hospitals, regulatory colleges, or other delegated institutions, Canadians must still be protected by the Charter.

I am respectfully asking you to:

1. Acknowledge the structural gaps in Section 32 of the Charter.

2. Advocate for reforms that ensure delegated bodies are subject to Charter obligations.

3. Support increased transparency in public health and regulatory decision-making.

4. Push for legal remedies when delegated institutions violate fundamental rights.

5. Commit publicly to defending the rights and freedoms of your constituents.

These issues are not theoretical — they have already cost lives. Canadians are watching closely, and we expect our representatives to take a principled stand in defense of constitutional rights.

I look forward to your reply and to learning what specific actions you will take to prevent further erosion of Canadians’ freedoms.

Sincerely,<strong>

[Your Name]</strong><strong>

[Your City/Province]</strong>