Criticisms of Dolphin Delivery

Of course the Charter only applies to governmental action, but the line the court has chosen to draw in determining what governmental and non-governmental action is forms the basis for a wide range of criticisms. Identified are 4:

1. If Common law rules relied on by private actors are not subject to Charter scrutiny, while statutes covering private relations are, there the danger of inconsistent application across the country looms, since some provinces govern private relationships through statute, and others leave it to the common law.

2. In Quebec, the stakes are higher. As a province that relies on the Civil Code, private relations are governed by statute and thus much larger Charter scrutiny.

3. If the private sphere is not fair game for the Charter, then there exists a wide terrain for powerful private actors to operate free of Charter scrutiny and in the process, the Charter goal of securing private rights is undermined.

4. Peter Hogg provides an alternative line: that common law rules which have ‘crystallized’ to the point of enforceability by the courts should mark the point at which the Charter applies.