This debate was largely put to rest in Dolphin Delivery, a case involving unlawful secondary picketing by a union.1The employer sought an injunction to prevent the picketing. While 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 unlawful 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 officials in their treatment of individuals. 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.2As 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
argument that a court order constitutes government action.3In MCINTYRE J’s words:
The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in so doing they act as neutral arbiters, not as contending parties in a dispute. To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually...