A Charter Free Domain: In Defense of Dolphin Delivery

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).