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 airport premises.
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 rights.
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.