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A Charter Free Domain: In Defense of Dolphin Delivery
Abstract
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).
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This essay suggests that the conception of property rights as empowering the owner of the property with unrestricted power to discriminate in matters of access to the property (or the manner in which the property is to be used) is misguided. The essay suggests that the proper understanding of property entails finer tuning. Some property is infused with public interest; some property is used as part of the undertaking of a common calling; some property is governed by the necessity doctrine. These types of property are placed conceptually and doctrinally outside the unrestricted discretionary powers of the owner. Yet the essay further suggests that the concept of property itself does not entail such unrestricted powers, since the concept of property demands that the right, as an in rem right, relate to the public as such. Such a relation demands that the right be used in a manner consistent with the concept of the public; the article demonstrates that from that one can draw limits on the power to discriminate, at least when dealing with commercial grounds and at least when the discrimination is group-based. Lastly, the essay suggests that this understanding of the public is also at play when the doctrine of public policy is invoked; that doctrine, previously understood as a matter of policy, is presented here as derived from the concept of the public.