Application of the Charter: Analysis of s 32(1)

Dolphin Delivery’s distinction of judiciary as being outside application of s 32(1) does not follow logically. Over time, this particular restriction has been reduced, especially regarding application of Charter rights (i.e. right to a fair trial).  In the same vein, adherence to the finding in Dolphin Delivery (that the Charter does not apply to private litigants or court-order-issues resulting from litigation between private parties) has also relaxed, as the courts recognize that the common law rules must be consistent with Charter values (Swain and Degenais). In the aforementioned cases, the Supreme Court was willing to adjust the common law rules (regarding the defence of insanity and publication bans, respectively).

A question raised in the casebook relates to the issue of same-sex marriage. The common law defines marriage as a heterosexual union. Does the Charter apply to this definition, and if so, does the definition breach the standard of equality rights? Can the courts make a ruling that redefines marriage without the need for deference to the legislatures (who are primary law-makers)?