The Hidden Promise of Dolphin Delivery: Shields, Swords and Horizontal Application of the Canadian Charter of Rights and Freedoms
Bibliographic record
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.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.007 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.012 | 0.037 |
| Scholarly communication | 0.010 | 0.004 |
| Open science | 0.001 | 0.005 |
| Research integrity | 0.003 | 0.006 |
| Insufficient payload (model declined to judge) | 0.005 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".