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- Is the common law of defamation consistent with the Charter?
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Cory, writing for the majority, discusses the way that common law rules may be challenged with respect to the Charter in private litigation. He says that it is appropriate for the court to make incremental changes in the common law to reflect societal changes. He says that when a government action is challenged, the claimant alleges that that the state has breached its constitutional duties and that they must justify this. However, private parties do not owe each other any constitutional duties and therefore cannot found their cause of action on a Charter right.
He goes on to state that the only Charter claim that can be made in private litigation is that the application of the common law is inconsistent with Charter values. Therefore, in private cases, the Charter only applies to the common law stating that it must be applied with respect to Charter values; it cannot be challenged to be infringing upon Charter guaranteed rights and freedoms.
The courts must interpret and develop the common law in a manner that is consistent with Charter values.