A Charter Free Domain: In Defense of Dolphin Delivery
University of British Columbia Law Review, Vol. 35, No. 2, pp. 329-392, 2002
35 Pages Posted: 6 Jun 2006
This article addresses the relationship between the Canadian Constitution and the Canadian common law by answering a familiar question: Should common law norms governing actions of non-governmental entities be subjected to Charter-based judicial review? The paper argues that the common law cannot, and should not, be subjected to Charter-based judicial review. The decision reached in the case of Dolphin Delivery, namely that the application of the Charter is limited, is therefore basically correct. This conclusion is supported by a structural analysis of both the common law and constitutional law, and is mindful of question of legitimacy and institutional dialogue (in Canada and as a general matter).
Keywords: charter application, constitutional application, human rights and private law, judicial review, common law
JEL Classification: K00, K10, K19, K20, K29, K30, K39, K30, K49
Suggested Citation: Suggested Citation