[68]...As I will explain shortly,
the applicant's argument is fatally undercut by a fundamental misapprehension of s. 32 of the Charter on his part. ...
[70] From what I have been able to deduce from the applicant's argument, I gather he argues that because s. 32 of the Charter, as he interprets the jurisprudence, establishes that the Charter and the Constitution only applies to government action, the Charter and the Constitution consequently do not apply to him, because he is a private citizen.
[71] The applicant asks somewhat rhetorically what evidence there was that he performs a government function and appears to assert that as the name Scott Douglas Petrie is presumed to be a government agent, the charges to not apply to the applicant.
[72]
This portion of the applicant's argument appears to hinge on a fundamental misunderstanding of the purpose of s. 32 of the Charter and the case law that has distinguished between acts of private citizens and acts of state actors such as police or government agents.
[73] The applicant appears to suggest the following on his reading of s. 32 of the Charter:
(a) that the Constitution, and by extension the laws of Canada, only applies to government agents, and therefore not to private citizens;
(b) that as he is a private citizen and the name Scott Douglas Petrie in the Indictment is a government agent, the charges have nothing to do with the applicant and ought to be dismissed.
[74] Much like Mr. Klundert's argument before the Ontario Court of Appeal,
the applicant's argument on this point and his reliance on a snippet of a passage from the Alberta Court of Appeal decision in Dell is convoluted to the point of being incomprehensible. The decision in Dell is of no assistance to the applicant in this case.
[75]
Section 32 of the Charter and the jurisprudence interpreting this section makes it clear that the Charter applies to all actions undertaken by state authorities and government agents when they interact with private citizens, meaning that private citizens who have an interaction with a government actor benefit from the rights afforded to them by the Charter during that interaction and have recourse to the courts if they believe that the government actor, and by extension the government, has breached one or more of their Charter rights. To give a concrete example: state conduct, i.e. government action, such as police investigating and arresting a private citizen must conform with Charter values and respect the Charter rights of the private citizen. Thus an individual private citizen, when investigated by the police, has the right to be secure from an unreasonable search and seizure by virtue of s. 8 of the Charter and has the right to retain counsel upon arrest or detention by virtue of s. 10(b) of the Charter.
[76] The jurisprudence interpreting s. 32 of the Charter also establishes that the Charter does not apply or govern activities between private citizens or between private citizens and corporations. Thus, where a legal dispute arises between private citizens, for example, in a divorce proceeding or interpreting the terms of a contract, the parties cannot invoke their respective Charter rights against one another.
[77] The applicant appears to believe that because he is a private citizen, the Constitution and the Charter do not apply to him. He appears to base his argument on the following excerpt from Dell, at para. 6:
[6] Although s. 32 of the Charter limits its application to Parliament, legislatures and provincial and federal governments, when the Charter was first introduced there was some debate about its application. Since that time, the law has been settled that, as a general rule, the Charter only applies to government actions, not interactions between private citizens or institutions: [citations omitted].
...
[79]
With respect, the applicant appears to be endeavouring to turn the jurisprudence pertaining to s. 32 of the Charter on its head. If he is arguing that because he is a private citizen the Constitution, and by extension the laws of this country, only apply to government actions and agents, he is mistaken. He, too, is subject to the laws of Canada, including the CDSA. He cannot pick and choose what laws apply to him, nor can he engage in what Myers J. characterized in Porisky at para. 67 as "legal numerology" by picking and choosing extracts from statutes and cases and weaving them together in an attempt to create logical links where none exist.
[80] Section 32 of the Charter mandates that the Charter applies to government actions such as the RCMP's investigation and arrest of the applicant in this case, which means that the applicant's Charter rights are to be observed and protected in the carrying out of such actions. The Charter does not, however, govern interactions between private citizens. Moreover,
s. 32 of the Charter does not stand for the notion that as a private citizen the Constitution and the laws of Canada do not apply to the applicant and his actions.
[81]
If the applicant is trying to assert the Court has no jurisdiction over him to try the offences because, by virtue of s. 32 of the Charter, the Constitution and the laws under which he is charged only applies to government agents, and he is not a government agent, he has fundamentally misconceived what s. 32 of the Charter means and what the jurisprudence has interpreted its purpose to be.
[82]
If the applicant is trying to advance the argument that the laws under which he is charged do not apply to him because he is not a government agent, again he is mistaken.
[83]
If the applicant is suggesting the Court has no jurisdiction over him to try the offences because he is a private citizen and thus outside of the Court’s jurisdiction, then, as Mr. Justice Hollinrake noted in R. v. Warman, 2001 BCCA 510 (CanLII), 2001 BCCA 510 at para. 13 [Warman],
his argument would be "a complete denial of the constitutional history of this country as it applies to the rights and obligations of its people before the law." Arguments of this kind must be and are "rejected as being without any legal, historical or constitutional foundation whatsoever": Warman, at para. 14.
...
[85]
The applicant acknowledges that the Constitution is the supreme law of the land in that s. 52(1) of the Constitution Act provides as follows:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
[86]
Section 52(1) of the Constitution Act is usually invoked when the constitutional validity of the legislation governing the matter before the Court is challenged, such as legislation charging a person or a corporation with a criminal or regulatory offence. Indeed, that was what the decision in Big M Drug Mart was about; the constitutional validity of the prohibition on Sunday shopping in the Province of Ontario. In that case, the corporate accused was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord's Day Act and challenged the constitutionality of the law as infringing the right to freedom of conscience and religion guaranteed under the Charter.
[87]
The applicant refers to paras. 38 and 39 of Big M Drug Mart in his written application but does not assert or provide any formal notice that he is challenging the constitutional validity of the provisions of the CDSA under which he is charged, let alone on what basis any challenge is founded. The applicant did not articulate in any fashion, either in his written notice or in his oral submissions at the hearing of this application, what he was suggesting was constitutionally invalid in respect of the current charges before the Court.
[88]
Accordingly, I fail to see what relevance s. 52 of the Constitution Act and the decision in Big M Drug Mart has to this application. In the absence of some specific, formal and proper application on this point, there is nothing to be adjudicated.
http://canlii.ca/t/fxn33
