The introduction of the Charter of Rights and Freedoms has affected many elements of the constitutional system in Canada. This dissertation explores the Charter's relationship with liberal constitutionalism and Canadian federalism, and considers whether judicial review on Charter grounds has seen a progression, or a regression, from parliamentary to constitutional to judicial supremacy. Further, this dissertation considers whether Charter review has reduced provincial autonomy by imposing national values in provincial areas of jurisdiction when Charter review nullifies provincial statutes. Through a complex process referred to as the rebalancing of liberal constitutionalism, this study argues that a changed Charter jurisprudence by the Supreme Court of Canada and a changed policy process within the administrative state at the federal level have reduced the negative implications of Charter review for liberal constitutionalism and Canadian federalism. To advance this argument, the concept of Charter activism is introduced to demonstrate that the rebalancing of liberal constitutionalism is the product of the shifting equilibrium within two distinct elements that comprise Charter activism---judicial activism and bureaucratic activism. This study pursues three themes to demonstrate that the decline of judicial activism and the emergence of bureaucratic activism now converge at a point within Charter politics that facilitate the rebalancing of liberal constitutionalism and ensure that Charter review advances constitutional and not judicial supremacy. The first theme investigates the Supreme Court of Canada as a policy actor during Charter review, and analyzes Charter decisions between 1982 and 1997. The second theme considers the impact of Charter review on Canadian federalism and whether the Charter has centralized Canadian federalism and reduced provincial autonomy. The final theme investigates bureaucratic activism and the changes within the policy process at the fe

No description available.

The courts in Canada have often been cast, by both courts and legal scholars, as 'umpires' or 'arbiters' of the federal-provincial division of powers - umpires or arbiters that have the exclusive, or at least decisive, authority to clarify and enforce, and resolve disputes about, 'who does what' in the federal system. However, the image conveyed by these metaphors underestimates the role that the federal and provincial political branches play in the federal system, by working out their own solutions, in the intergovernmental arena, both directly and indirectly, where questions and disputes arise about how jurisdiction is and should be allocated. The image conveyed by the umpire or arbiter metaphors also sits uncomfortably with the facilitative role that the Supreme Court of Canada has carved out for itself in its recent division of powers decisions, a role that casts the courts as facilitators of these instances of intergovernmental dialogue. This doctoral dissertation challenges, and moves beyond, the umpire and arbiter metaphors. It examines the political safeguards available to the provinces in Canada to prevent, or limit, perceived federal encroachments on provincial jurisdiction, in the process highlighting the role that the political branches play in Canada in working out their own allocations of jurisdiction, outside of the courts. It describes, and critically evaluates, the facilitative role carved out by the Court in its recent division of powers decisions, identifying various reasons to be skeptical of a facilitative role that casts the courts as facilitators of intergovernmental dialogue. Finally, and with an eye to future research, it briefly outlines an alternative facilitative role that focuses on facilitating deliberation about the division of powers implications of particular initiatives, arguing that it would be premature to dismiss facilitative approaches to judicial review altogether.

This paper will attempt to explore the history and function of judical disagreement behaviour using information from both the Canadian Supreme Court and the US Supreme Court. The evolution of national high court decision making, highlights the changing role of courts within the political and public spheres, as well as the increasing authority courts have over policy. This changing role reinforces the need to study the role of courts on law. I will use minority opinions from the Laskin and Dickson courts to study what disagreement reveals about the decision making process. Judicial disagreement has largely been summed up into two deficient stereotypes: the dissent as "serious" disagreement and the separate concurrence as inferior disagreement to the dissent. I will dispel this fallacy by introducing the five categories created to describe a new way of thinking about judicial disagreement and to shatter the old stereotypes. / vii, 149 leaves ; 29 cm.

Un autre essai sur la sempiternelle question de l'unite canadienne, deplorez-vous presentement. Pis encore, ajoutez-vous, on y aborde une fois de plus l'ennuyeuse et l'ennuyante problematique constitutionnelle. Et pourquoi l'auteur a-t-il choisi un tel sujet? Parce qu'il fait partie de la race des fatigants mais infatigables maniaques de cet incessant debat qu'est celui des Deux Solitudes? Possible. Surement meme. Mais il y a plus: le Renvoi relatif a la secession du Quebec ne represente pas qu'un simple episode de la saga constitutionnelle canadienne. Vraisemblablement, ces implications pratiques pourraient un jour sceller l'issue du debat. Certes, le mouvement separatiste quebecois, loin d'etre moribond, ne s'eteindra pas sur la seule base d'une decision de la Cour supreme du Canada. Pretendre le contraire releve de la fantaisie, de l'outrecuidance ou encore, d'un manque tangible de pragmatisme politique. Toutefois, un fait persiste: applique in extenso, l'Avis s'avere une serieuse embuche sur le chemin menant a l'independance. (Abstract shortened by UMI.)

No description available.