In October 2011, eight members of an anti-abortion organization
engaged in demonstrations in the Calgary Airport terminal building.
The protesters were carrying signs and distributing pamphlets.
After they refused to leave the premises, the Airport Authority
called police, who attended and charged the protesters under
Alberta trespass legislation. The Provincial Court of Alberta
recently released its judgment in this case (R. v. Booyink), and addressed the issue of
whether the Calgary Airport Authority is subject to the Canadian
Charter of Rights and Freedoms in the context of protests on
In 1991, the Supreme Court of Canada decided a similar case,
which involved individuals distributing political pamphlets at the
Dorval Airport (Committee for the Commonwealth of Canada v.
Canada). The Supreme Court ruled that the individuals'
Charter right to freedom of expression had been violated. At the
time, the Dorval Airport was run by the federal government.
Presently, major Canadian airports are run by private, non-profit
corporations that lease the land from the federal government. As
the Charter only applies to government, a primary issue in Booyink
was whether the reasoning in the Committee case applied with equal
force to an airport run by a corporation.
The court concluded that the protesters in Booyink were not
guilty of trespassing because they were entitled to rely on a
defence in the legislation which bars a finding of trespass if a
person "acted under a fair and reasonable supposition"
that he or she had the right to do the act in question. The judge
found that the protesters, on the basis of the Committee case,
reasonably believed they were entitled to demonstrate at the
Calgary Airport. Although an Airport official had informed them
that he believed the Committee decision did not apply to the
Airport Authority, the protesters did not have to rely on the
official's statement as an accurate statement of their
More importantly for future cases, however, the judge went on to
address the additional issue of whether the private Airport
Authority was subject to the Charter. An entity may be required to
comply with the Charter in two broad types of situations: first,
where that entity itself is "part of government", which
may arise where the entity is not what would be traditionally
thought of as "government" but is subject to substantial
control by government (examples include community colleges or
municipal transportation authorities); and second, where an entity
itself is not "part of government" but nonetheless
engages in actions that are sufficiently governmental to require
Charter compliance (for example, hospitals). In the former case,
all of the entity's actions will be subject to the Charter,
while in the latter, only those actions considered
"governmental" must comply.
On the basis of what the court found to be "substantial
control" exercised by the federal, provincial, and municipal
governments over the Airport Authority, including with respect to
appointment of the board of directors as well as safety and
security standards of the Airport, it concluded that the Authority
was "part of government" for the purposes of the Charter.
Since the Airport Authority was subject to the Charter, the
court concluded that issuing trespassing notices had infringed the
protesters' freedom of expression. The acquittal of the
protesters is not the end of this story, however. Although the
Crown did not appeal the decision, the Calgary Airport Authority
has filed a civil claim against the protesters seeking an
injunction against further demonstrations and claiming $500,000 in
damages. The ultimate outcome of this debate has the potential to
affect the operations of major airports across the country, which
are operated under a similar privatized structure. Stay tuned for
further developments on this issue.
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guide to the subject matter. Specialist advice should be sought
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