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It is an increasingly common feature of modern constitutional instruments for the state’s “protective function” to be explicitly affirmed in the constitutional text. Thus, in addition to prescribing individual rights that may not be infringed by state actors—the conventional negative rights guarantees—the constitutions of Germany, South Africa and the European Union also instruct the state to secure individuals against deprivations of their constitutional interests by non-state actors. This paper considers whether, despite the absence of a clear textual basis for the protective function in the Canadian Charter of Rights and Freedoms, the state’s obligations under the Charter might nonetheless include a similar duty to secure individuals against deprivations of their constitutional interests by non-state actors. I explore this question using Section 7 of the Charter as a case study, and conclude that there are compelling reasons for recognizing a constitutional basis for this essential task of the state.
