In Dolphin Delivery, the Supreme Court concluded that the Charter did not apply to the common law unless government relied on it. Nevertheless, the Court went on to say that, although the Charter did not apply to disputes between private parties, this was "a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the constitution. The answer to this question must be in the affirmative."26Accordingly, the courts are to consider Charter principles when developing the common law. This is potentially a significant exception to the otherwise restrictive view of the Charter’s application reflected by the Dolphin Delivery decision.
In a decision rendered shortly after Dolphin Delivery, the Supreme Court of Canada held that the Charter applied in a proceeding involving an ex parte injunction.27The injunction was issued to restrain picketing of a courthouse during a lawful strike, on the basis that this constituted criminal contempt of court. The rules about contempt of court were found in the common law, but the Supreme Court held that the Charter nevertheless applied because the judge, in issuing the injunction, acted in a public capacity and invoked criminal law powers: "The criminal law is being applied to vindicate the rule of law and the fundamental freedoms protected by the Charter. At the same time, however, this branch of the criminal law, like any other, must comply with the fundamental standards established by the Charter."28The Charter was similarly invoked in proceedings challenging a judge’s order restraining the broadcast of a docudrama while a criminal trial on similar issues was ongoing or about to start.29The accused feared that the program might influence jurors and thereby affect the fairness of their criminal trials. On that basis, they obtained an order from a superior court judge prohibiting the broadcast until the completion of the criminal trials. The media then challenged the publication ban under section 2(b) of the Charter. Chief Justice Lamer stated that the discretion at common law to order a publication ban in criminal proceedings must be exercised so as to conform to the Charter. In his view, the pre-Charter common law rule emphasized the right to a fair
trial over the right to freedom of expression. The enhanced protection accorded by the Charter to freedom of expression called for a reformulation of the common law rule.30Applying the new rule to the facts in the case, Lamer CJC concluded that the initial ban was not justified, since there were alternative measures to safeguard the trial process.31In both these cases, the application of the common law arose in the context of the administration of the criminal law by the courts. In Hill v Church of Scientology,32the Supreme Court considered the interaction of the Charter and the common law in a purely private context. Hill, then a Crown prosecutor, sued the Church of Scientology and its counsel for libel because of various statements made about his conduct. The defendants challenged the validity of the common law of libel, claiming that it violated their right to freedom of expression. Speaking for the Court, Cory J explained why it was necessary to...