Application

• Author: Robert J. Sharpe; Kent Roach
• Pages: 102-118

102

CHA PTER 6

APPLICATION

Section 32 of the Canadian Charter of Rights and Freedoms state s that

the Charter applies to “the Parliament and government of Canada in

respect of all matters w ithin the authority of Parliament” and “to the

legislature and government of each province in respect of all matters

within the authority of the legislature of each province.” In the early

years of the Charter, there was considerable debate and uncerta inty as

to the appropriate interpretation of this section. It was not clear whether

all legal relationships were subject to Charte r scrutiny. In all provinces

except Quebec, the residual source of law is the common law, which

does not depend upon any explicit legislative enactment. Common

law rules of contract, property, and tort govern an enormous range of

social and economic activity. Does the Char ter apply to the common

law? Another aspect of the common law tradition is the concept that

individuals are f ree to do as they please in the absence of some speci f‌ic

legal measure restraining their freedom. Does t he Charter reach area s

of human activity th at are not subject to any specif‌ic legislation?

Despite the importance of the se issues, the text of the Char ter was

ambiguous. Some commentators thought that the purpose of section 32

was to limit the application of the Char ter to government action. They

argued that it would be wrong to subject the entire legal reg ime to

Charter review and t hat the essence of a constitutional charter of r ights

was to deal with t he relationship between the individua l and the state,

not all relationships between individuals. Others argued t hat the su-

premacy clause in sect ion 52 of the Constitution Act, 1982, made the

Application 103

Charter applicable to all action, public and private, and th at section 32

was included simply as a precautionary measure to ensure that al l levels

of governments were bound.

A.

DOLPHIN DELIVERY

— LIMITING THE

APPL ICATION OF THE

CHA RTER

This debate was largely put to rest in Dolphin Delivery, a case involving

unlawful secondary picketing by a union.1 The employer sought an in-

junction to prevent the picketing. While most provincial labour code s

regulate secondary picketing, this dispute was governed by t he Canada

Labour Code, which was silent on the issue. The employer argued that

the union’s activity was unlawful on the basis that it amounted to a

tort, or civil wrong, recogni zed by the common law. The union argued

that an injunction would violate the guarantee of freedom of expres-

sion under section 2(b) of the Charter, and the issue arose as to whether

the Charter had any application to the activitie s of non-governmental

private actors and to the judge-made common law in areas such as tort,

contract, and propert y.

The Supreme Court of Canada concluded that the Charter applies

only to government. The Court determined that “government” includes

the legislative, executive, and admi nistrative branches. Therefore, all

laws and regulations are subject to Charter scrutiny, as are the actions

of the police or other governmental off‌icials in their treatment of in-

dividuals. The Court also concluded that the Charter must apply to

the common law, but only to the extent that the government relies

upon it. For example, had the picketers been protesting some public

matter and faced a suit by the government, the Charter would apply to

any common law rules relied upon by the government.2 As we explain

below, the Court signif‌icantly quali f‌ied the impact of this restr ictive

approach. It added that the common law should always be interpreted

and developed in a manner consistent w ith the values of the Charter, a

move that has, as a practical matter, allowed the courts to extend the

Charter’s reach over the common law in m any cases.

Some commentators have argued that the judici al branch and the

judge-made common law should be included within the def‌inition of

“government.” Justice McIntyre, wr iting for the majority, rejected the argu-

1 RWDSU, Local 580 v Dolphin Delivery Ltd, [1986] 2 SCR 573, 33 DLR (4th) 174

[Dolphin Delivery].

2 Ibid at 194–95 (DLR).