On April 17, 1982, the Canadian Charter of Rights and Freedoms was proclaimed into force. By including a set of constitutionally entrenched core legal rights (i.e. ss. 8, 9, and 10(b), and a remedial mechanism designed to enforce those rights (i.e. s. 24(2)), the Charter had the potential to alter certain repressive elements of the criminal justice system that had endured in Canada for over a century. Despite this potential, both the core legal rights and s. 24(2) were drafted using vague terminology. As a result, the Charter ‘s ability to succeed where previous attempts at instituting effective due process protections for Canadians had failed would depend largely on the judiciary’s ability to satisfactorily craft such protections out of imprecise statutory language. This thesis will argue that the Supreme Court of Canada has created a test for the exclusion of unconstitutionally obtained evidence under s. 24(2) that fails to adequately protect the core legal rights of the socially, racially and economically marginalized individuals to whom the Canadian criminal justice system is disproportionately applied. In advancing this argument, the relevant jurisprudence and academic literature will be analyzed according to a methodology inspired by the Critical Legal Studies movement. The issue of exclusion will be examined in its social context, primarily by analyzing the current system of Canadian criminal justice and acknowledging its over-application to the socially disenfranchised. It will be argued that the Supreme Court’s test for exclusion has developed as it has because of the judiciary’s subconscious tendency to interpret unclear constitutional provisions in keeping with the dominant conservative ideology, a method that favours maintaining the social status quo. The purpose of this thesis is to set out a framework for a reform of the Charter ‘s exclusionary mechanism. This new approach will attempt to situate social context at the forefront of the s. 24(2) decision-making process. It will be argued that the concept of “disrepute” within s. 24(2) must be redefined so that it captures investigatory practices made possible by unjust social, racial and economic divisions that render certain groups powerless, and thus more vulnerable to police surveillance.

On April 17, 1982, the Canadian Charter of Rights and Freedoms was proclaimed into force. By including a set of constitutionally entrenched core legal rights (i.e. ss. 8, 9, and 10(b), and a remedial mechanism designed to enforce those rights (i.e. s. 24(2)), the Charter had the potential to alter certain repressive elements of the criminal justice system that had endured in Canada for over a century. Despite this potential, both the core legal rights and s. 24(2) were drafted using vague terminology. As a result, the Charter ‘s ability to succeed where previous attempts at instituting effective due process protections for Canadians had failed would depend largely on the judiciary’s ability to satisfactorily craft such protections out of imprecise statutory language. This thesis will argue that the Supreme Court of Canada has created a test for the exclusion of unconstitutionally obtained evidence under s. 24(2) that fails to adequately protect the core legal rights of the socially, racially and economically marginalized individuals to whom the Canadian criminal justice system is disproportionately applied. In advancing this argument, the relevant jurisprudence and academic literature will be analyzed according to a methodology inspired by the Critical Legal Studies movement. The issue of exclusion will be examined in its social context, primarily by analyzing the current system of Canadian criminal justice and acknowledging its over-application to the socially disenfranchised. It will be argued that the Supreme Court’s test for exclusion has developed as it has because of the judiciary’s subconscious tendency to interpret unclear constitutional provisions in keeping with the dominant conservative ideology, a method that favours maintaining the social status quo. The purpose of this thesis is to set out a framework for a reform of the Charter ‘s exclusionary mechanism. This new approach will attempt to situate social context at the forefront of the s. 24(2) decision-making process. It will be argued that the concept of “disrepute” within s. 24(2) must be redefined so that it captures investigatory practices made possible by unjust social, racial and economic divisions that render certain groups powerless, and thus more vulnerable to police surveillance.

Thesis (Ph. D.)--Carleton University, 1992. / Also available in electronic format on the Internet.

On April 17, 1982, the Canadian Charter of Rights and Freedoms was proclaimed into force. By including a set of constitutionally entrenched core legal rights (i.e. ss. 8, 9, and 10(b), and a remedial mechanism designed to enforce those rights (i.e. s. 24(2)), the Charter had the potential to alter certain repressive elements of the criminal justice system that had endured in Canada for over a century. Despite this potential, both the core legal rights and s. 24(2) were drafted using vague terminology. As a result, the Charter ‘s ability to succeed where previous attempts at instituting effective due process protections for Canadians had failed would depend largely on the judiciary’s ability to satisfactorily craft such protections out of imprecise statutory language. This thesis will argue that the Supreme Court of Canada has created a test for the exclusion of unconstitutionally obtained evidence under s. 24(2) that fails to adequately protect the core legal rights of the socially, racially and economically marginalized individuals to whom the Canadian criminal justice system is disproportionately applied. In advancing this argument, the relevant jurisprudence and academic literature will be analyzed according to a methodology inspired by the Critical Legal Studies movement. The issue of exclusion will be examined in its social context, primarily by analyzing the current system of Canadian criminal justice and acknowledging its over-application to the socially disenfranchised. It will be argued that the Supreme Court’s test for exclusion has developed as it has because of the judiciary’s subconscious tendency to interpret unclear constitutional provisions in keeping with the dominant conservative ideology, a method that favours maintaining the social status quo. The purpose of this thesis is to set out a framework for a reform of the Charter ‘s exclusionary mechanism. This new approach will attempt to situate social context at the forefront of the s. 24(2) decision-making process. It will be argued that the concept of “disrepute” within s. 24(2) must be redefined so that it captures investigatory practices made possible by unjust social, racial and economic divisions that render certain groups powerless, and thus more vulnerable to police surveillance. / Law, Faculty of / Graduate

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In the context of Canadas Kindergarten to Grade 12 education system and given the Canadian Charter of Rights and Freedoms, there is a growing body of jurisprudence which reflects ongoing debates about who should ultimately maintain control of the formal and informal curriculum in our schools. In these cases, debates about curricular battles play out through rights conflicts, which our courts are required to resolve. These conflicts typically involve claims relating, directly or indirectly, to fundamental freedoms such as freedom of religion and freedom of expression as well as claims associated with the right to equality.<p>In this thesis, I aim to offer a critical assessment of the relevant body of jurisprudence. My critique draws on the theoretical work of Rob Reich and Jeremy Waldron. Reich suggests that our best hope of understanding and resolving the curricular struggles related to the control of childrens education requires a balanced approach whereby we attempt to reconcile the educational interests of three primary actors: parents, the state and children. Building on Reichs conceptualization of the different interest holders, I identify a fourth stakeholder, namely, teachers, who have interests which are germane to our analysis because these interests raise issues connected to curricular control and childrens education. In my analysis, I apply Reichs matrix of interests to the extant body of jurisprudence to ascertain whether or not our courts are alive to the different interest holders in its treatment of cases involving conflicts of constitutional rights. I also want to know whether the interests of the four stakeholders overlap or conflict with another. Finally, I want to know how these interests are conceptualized by the court and whether this conceptualization is consistent with, or differs from, the one offered by Reich. <p>Waldrons work offers analytical clarity for how we might better understand and resolve conflicts of rights, including conflicts involving constitutional rights claims. He maintains that rights conflicts are fundamentally about conflicts of duties and that we are likely to have more success reconciling conflicts of rights when we conceive of these conflicts in this manner. Applying Waldrons strategy for reconciling rights conflicts to the cases in my study, I posit that we can make sense of the reconciliation process by examining the duties associated with the rights in question. Although our courts do not explicitly draw on Waldrons theoretical framework in their legal analysis, I maintain that, generally speaking, what our courts do is consistent with a Waldronian analysis of conflicts of rights. <p>In my conclusion, I note that the jurisprudence considered initially seems to focus exclusively on two key guiding values: liberty and equality. Yet, a closer examination of the case law reveals a concern for two other important meta values, namely, efficiency and community. Furthermore, the notion of children as rights bearers poses special challenges. We might treat older children as rights claimants, on their own terms, because of their capacity to advance certain projects and to engage in certain commitments. Yet, the exact moral and legal status, for example, of a six- or seven-year old is still uncertain. Finally, I recognize that a rights only version of what happens in our schools provides only a partial account of educational reality. Other values such as duty, love, friendship and compassion are needed to furnish a richer and more nuanced account of morality for our school communities.

In the context of Canadas Kindergarten to Grade 12 education system and given the Canadian Charter of Rights and Freedoms, there is a growing body of jurisprudence which reflects ongoing debates about who should ultimately maintain control of the formal and informal curriculum in our schools. In these cases, debates about curricular battles play out through rights conflicts, which our courts are required to resolve. These conflicts typically involve claims relating, directly or indirectly, to fundamental freedoms such as freedom of religion and freedom of expression as well as claims associated with the right to equality.<p>In this thesis, I aim to offer a critical assessment of the relevant body of jurisprudence. My critique draws on the theoretical work of Rob Reich and Jeremy Waldron. Reich suggests that our best hope of understanding and resolving the curricular struggles related to the control of childrens education requires a balanced approach whereby we attempt to reconcile the educational interests of three primary actors: parents, the state and children. Building on Reichs conceptualization of the different interest holders, I identify a fourth stakeholder, namely, teachers, who have interests which are germane to our analysis because these interests raise issues connected to curricular control and childrens education. In my analysis, I apply Reichs matrix of interests to the extant body of jurisprudence to ascertain whether or not our courts are alive to the different interest holders in its treatment of cases involving conflicts of constitutional rights. I also want to know whether the interests of the four stakeholders overlap or conflict with another. Finally, I want to know how these interests are conceptualized by the court and whether this conceptualization is consistent with, or differs from, the one offered by Reich. <p>Waldrons work offers analytical clarity for how we might better understand and resolve conflicts of rights, including conflicts involving constitutional rights claims. He maintains that rights conflicts are fundamentally about conflicts of duties and that we are likely to have more success reconciling conflicts of rights when we conceive of these conflicts in this manner. Applying Waldrons strategy for reconciling rights conflicts to the cases in my study, I posit that we can make sense of the reconciliation process by examining the duties associated with the rights in question. Although our courts do not explicitly draw on Waldrons theoretical framework in their legal analysis, I maintain that, generally speaking, what our courts do is consistent with a Waldronian analysis of conflicts of rights. <p>In my conclusion, I note that the jurisprudence considered initially seems to focus exclusively on two key guiding values: liberty and equality. Yet, a closer examination of the case law reveals a concern for two other important meta values, namely, efficiency and community. Furthermore, the notion of children as rights bearers poses special challenges. We might treat older children as rights claimants, on their own terms, because of their capacity to advance certain projects and to engage in certain commitments. Yet, the exact moral and legal status, for example, of a six- or seven-year old is still uncertain. Finally, I recognize that a rights only version of what happens in our schools provides only a partial account of educational reality. Other values such as duty, love, friendship and compassion are needed to furnish a richer and more nuanced account of morality for our school communities.

The Canadian Charter of Rights and Freedoms can be interpreted in two ways regarding its relation with administrative law. First, as an alternative statutory remedy against government; second, as a general democratic mandate to reconsider the foundations of Canadian administrative law. Nevertheless, in spite of the entrenchment of the Charter, the former interpretation has prevailed. Indeed, since 1982, the Charter has developed as a distinct body of rights operating separately from administrative law remedies. / The interpretation of the Charter as a distinct statutory remedy has caused problems in both the definition of administrative power under the Charter and in the judicial review of administrative action. First, the interpretation of the Charter as autonomous remedy has polarized the definition of administrative power insofar as administrative authorities can either apply or not apply the Charter. However, both solutions are extreme: administrative authorities are not superior courts; conversely, the notwithstanding clause set aside, the power to give effect to the Charter cannot validly be withdrawn. Second, at the judicial level, even though it is part of the Constitution, the Charter has been treated as an autonomous cause of action against government, thus distinct from inherent judicial powers. This has prompted a separate regime of judicial power under the Charter, and separate constitutional and administrative law standards of review. / However, the autonomy of the Charter and administrative law, at both administrative and judicial levels, is being reconciled through the integration of the Charter into the process of statutory interpretation, thus minimizing the distinction between "administrative law" and the "law of the Charter".

Dialogue between courts and legislatures can occur where legislatures reverse, modify or avoid judicial decisions. With two exceptions, however, legislatures have only reversed the Supreme Court on three occasions. Defiant legislative responses enacted without the notwithstanding clause undermine the Charter and the courts, and are an inappropriate means of expressing institutional disagreement. However, based on a model of coordinate constitutionalism, recourse to the override constitutes a legitimate means for legislatures to advance alternate interpretations of Charter rights. Furthermore, section 33's value lies in the opportunity it creates for public deliberation regarding issues of national importance. Its relative disuse can be attributed to a combination of factors including its legislative history, the influence of American constitutionalism and an executive-dominated parliamentary process. Recognizing the legitimacy of section 33 would contribute to a greater respect for the roles and responsibilities of all three branches of government under a system of constitutional supremacy.

This study represents a qualitative and quantitative analysis of the Supreme Court of Canada's treatment of the exclusionary rule set out in s.24(2) of the Canadian Charter of Rights and Freedoms. The objective of this thesis is to contribute to the theoretical debate between legal positivism and legal realism by examining judicial discretion and the application of s.24(2) by the justices of the Supreme Court. The goal of this work is to demonstrate the weakness of the positivist school in its basic premise that judicial decisions are based solely on the application of the rule of law. It is contended that Supreme Court decisions are derived not only from the words of the law, but also from extra-legal factors, since judges possess certain predispositions by virtue of their own personal experiences. This thesis will illustrate that the exercise of judicial discretion by the Court in its interpretation of s.24(2) has had a profound impact on the nature of Canadian criminal justice policy, moving Canada even closer to the due process model of criminal justice and further from the crime control model than was intended by the framers of the Charter. Both the qualitative and quantitative analysis of s.24(2) Supreme Court decisions show that the language of this provision is often circumvented by the justices who are not constrained by either the intention of the framers or even their own precedent. Consequently, the vague wording of this provision coupled with the discretion conferred on these justices allows the Court to read the exclusionary provision in a manner that best accommodates the exclusionary philosophies of the majority of Supreme Court justices.