G. Conclusion

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

Page 111

Dolphin Delivery determined that the basic principle of Charter application is that the purpose of the constitution is to check the power of government over the individual. There is no question but that this represents a significant constraint on the reach of the Charter, especially in an age of shrinking government. The sharp distinction between the public and private domains and the immunity of powerful private interests from Charter scrutiny is thought by many to be unduly restrictive. On the other hand, the courts have also been criticized for assuming too much power under the Charter and, indeed, the reach of the Charter would be unlimited were it not for Dolphin Delivery. In the end, the question is an institutional one: which body is best able to deal with the power of private interests - the courts or the legislatures? The Supreme Court has determined that it is not prepared to assume responsibility for all issues of social justice and that it should focus its efforts under the Charter to resolving conflicts between the individual and the state. On the other hand, Dolphin Delivery leaves considerable scope for extending the Charter’s reach into the common law. While not directly subject to the Charter, the common law is a form of judge-made law, and the courts are directed to pay heed to Charter values

Page 112

in its development. This has produced some significant changes and represents an important gloss on the principle that limits the Charter’s application to government action.


BEATTY, DM, "Constitutional Conceits: The Coercive Authority of Courts" (1987) 37 UTLJ 183

BERGER, B, "The Reach of the Security State" (2008) 56 CR (6th) 268

DE MESTRAL, a, & E Fox-DECENT, "Rethinking the Relationship between International and Domestic Law" (2008) 53 MCGILL LJ 573

ELLIOT, R, & R...

To continue reading