Application

• Author: Robert J. Sharpe; Kent Roach
• Pages: 109-125

109

CHAPTER 6

APPLICATION

Section 32 of the Canadian Charter of Rights and Freedoms states that the

Charter applies to “the Parlia ment and government of Canada in re spect

of all matters withi n 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 uncertainty as to the appro-

priate interpretation of this section. It was not clear whether all legal

relationships were subject to Charter 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 Charter apply to the common law? Another

aspect of the common law tradition is the concept that individuals are

free to do as they please in the absence of some specif‌ic legal measure

restraining their freedom. Does the Charter reach areas of human activ-

ity that are not subject to any specif‌ic legislation?

Despite the importance of these issues, the text of the Charter was

ambiguous. Some commentators thought that the purpo se of section32

was to limit the application of the Charter to government action. They

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

ter review and that the essence of a constitutional charter of rights was

to deal with the relationship between the individual and the state, not

all relationships between individuals. Others argued that the suprem-

acy clause in section 52 of the Constitution Act, 1982 made the Charter

THE CHARTER OF R IGHTS AND FREEDOMS110

applicable to all action, public and private, and that section 32 was

included simply as a precautionary measure to ensure that all levels of

governments were bound.

A.

DOLPHIN DELIVERY

— LIMITING THE

APPLICATION OF THE

CHARTER

This debate was largely put to rest in RWDSU, Local 580 v Dolphin Deliv-

ery,1 a case involving unlawful secondary picketing by a union. The

employer sought an injunction to prevent the picketing. Although most

provincial labour codes regulate secondary picketing, this dispute was

governed by the Canada Labour Code, which was silent on the issue.

The employer argued that the union’s activity was unlaw ful on the basis

that it amounted to a tort, or civil wrong, recognized by the common

law. The union argued that an injunction would violate the guarantee of

freedom of expression under section 2(b) of the Charter, and the issue

arose as to whether the Charter had any application to the activities of

non-governmental private actors and to the judge-made common law in

areas such as tort, contract, and property.

The Supreme Court of Canada concluded that the Charter applies

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

the legislative, executive, and administrative branches. Therefore, all

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

of the police or other governmental ocials in their treatment of indi-

viduals. 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 qualif‌ied the impact of this restrictive approach. It

added that the common law should always be interpreted and developed

in a manner consistent with 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 many cases.

Some commentators have argued that the judicial branch and the

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

“government.” Justice McIntyre, writing for the majority, rejected the

1 RWDSU, Local 580 v Dolphin Deliv ery, [1986] 2 SCR 573, 33 DLR (4th) 174 [Dol-

phin Delivery].

2 Ibid at 194–95 (DLR).