What is the test for determining whether an entity is a state actor?

Ontario, Canada


The following excerpt is from R. v. Daley, 2021 ONCJ 435 (CanLII):

[26] The test for whether an entity is a state actor is set out succinctly by La Forest J. in Eldridge v. British Columbia 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 at para.44: As the case law discussed above makes clear, the Charter may be found to apply to an entity on one of two bases. 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. If the act is truly "governmental" in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.

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