Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385: Rules that emanate from directives or guidelines issued by government departments or agencies but which are not officially published delegated legislation do not enjoy the same status as those ‘prescribed by law’.
Respondents L and D were at an airport telling passers-by about the respondent committee and its goals and recruiting members when they were asked by an R.C.M.P. officer to cease their activities. The airport's assistant manager confirmed to them that such political propaganda activities were not permitted, as ss. 7(a) and 7(b) of the Government Airport Concession Operations Regulations prohibited the conducting of any business or undertaking, commercial or otherwise, and any advertising or soliciting at an airport, except as authorized in writing by the Minister.
In this case respondents' activities at the airport benefited from the protection of s. 2(b) of the Charter. The distribution of pamphlets and discussion with certain members of the public are in no way incompatible with the airport's primary function, that of accommodating the needs of the travelling public. An airport is a thoroughfare, which in its open areas or waiting areas can accommodate expression without the effectiveness or function of the place being in any way threatened. There was thus a limitation on the freedom of expression enjoyed by respondents when the airport manager ordered them to cease their activities. However, in the absence of a limit prescribed by law, this limitation cannot be justified under s. 1 of the Charter. The language of ss. 7(a) and 7(b) of the Regulations, analysed in the context of the section and of the Regulations as a whole, prohibits only undertakings of a commercial nature and does not cover political propaganda. Section 7 is accordingly not applicable in this case. The limitation imposed on respondents' freedom of expression arose from the action taken by the airport manager, a government official, who ordered them to cease their activities. Although this action was based on an established policy or internal directive, it cannot be concluded from this that there was a "law" which could be justified under s. 1 of the Charter. The government's internal directives or policies differ essentially from statutes and regulations in that they are generally not published and so are not known to the public. Moreover, they are binding only on government officials and may be amended or cancelled at will.
Executive action will fail the test where officials take action that infringe fundamental rights without possessing clear legal authority to do so.
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