The Hidden Promise of Dolphin Delivery: Shields, Swords and Horizontal Application of the Canadian Charter of Rights and Freedoms

Abstract

This paper poses a series of questions arising from the Supreme Court decision in Hill v Church of Scientology regarding the horizontal application of the Charter. What could have happened differently with Hill? What should have happened? Why did it not happen? Could it happen now, and, if so, what would the actual impact be? We answer these questions by examining a nascent horizontality jurisprudence in Canada, rooted in Hill (which, in turn, was rooted in Dolphin Delivery), that infuses Charter values into private law. Drawing on three streams of jurisprudence, we reveal how horizontality enables private litigants to invoke Charter rights and freedoms: 1) as shields to develop defenses against actions brought against them by other private actors (Part II); 2) as swords to infuse content into existing common law causes of action available to them (Part III); and 3) as swords to craft new causes of action (Part IV). As we explain, courts have treated the consideration of Charter values as mandatory — a result of section 52, and the Court’s interpretation thereof — when considering those values as shields in private law cases. When considering Charter values as swords, however, they have treated them as an optional influence. We argue that this distinction is unfounded, and that Hill prescribes mandatory consideration of Charter values in private law cases regardless of whether those values are invoked defensively or offensively.