AuthorRobert J. Sharpe; Kent Roach
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 al l matters within the
authority of the legislature of each province.” In the early years of the
Charter, there was considerable debate and uncertainty a s to the appro-
priate interpretation of thi s section. It was not clear whether all legal
relationships were subject to Charter scr utiny. In all provinces except
Quebec, the residual source of law is t he 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 tradit ion is the concept that individuals are
free to do as they please in t he absence of some specif‌ic legal measure
restraining their freedom. Does the Charte r reach areas of human activ-
ity that are not subject to any specif‌ic legisl ation?
Despite the importance of the se issues, the text of the Char ter 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 t he state, not
all relationships between individuals. Others arg ued that the suprem-
acy clause in section 52 of the Constitution Act, 1982 made the Char ter
applicable to all action, public and private, and that section 32 was
included simply as a precautionary mea sure to ensure that all levels of
governments were bound.
This debate was largely put to rest in RWDSU, Local 580 v Dolphin Deliv-
ery,1 a case involving unlawful secondar y picketing by a union. The
employer sought an injunction to prevent the picketing. Although most
provincial labour codes reg ulate secondary picketing, th is 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 Charte r 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 appl ies
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 t heir 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 w ith the values of the Charter, a move that has,
as a practical matter, allowed the court s to extend the Charter’s reach
over the common law in many case s.
Some commentators have argued that the judicia l branch and the
judge-made common law should be included within the def‌inition of
“government.” Justice McIntyre, wr iting 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).

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