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courts; conversely, the notwithstanding clause set aside, the power to give effect to the Charter cannot validly be withdrawn.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.

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

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This thesis explores the intersection of freedom of expression (as protected in the Canadian Charter of Rights and Freedoms (Charter)) and copyright in Canada. In this thesis, I argue that both lower Canadian courts and the Supreme Court of Canada (SCC) should reconsider their approaches to this intersection. Lower Canadian courts have consistently rejected arguments that provisions of Canada's Copyright Act unjustifiably infringe the Charter right to freedom of expression. The SCC, on the other hand, has consistently interpreted provisions of the Copyright Act in such a manner as to result in expanded protection for the expression interests of non-copyright owning parties. It has done so not by relying explicitly on the Charter right to freedom of expression, but through a process of statutory interpretation. I argue that both approaches merit reconsideration. Specifically, I argue that the approaches adopted by lower Canadian courts to the intersection of the Charter right to freedom of expression and copyright are based on now-invalidated approaches to both copyright and to freedom of expression, and are thus themselves invalid; that to the extent to which the SCC's approach to this intersection assumes that the Charter right to freedom of expression can be protected, in the context of copyright, through statutory interpretation alone, that it fails to adequately protect the Charter right to freedom of expression; that other leading national courts from which the SCC has previously sought assistance have explicitly engaged with this intersection, and that the SCC should follow suit; and that the SCC's own copyright and freedom of expression jurisprudence suggests that provisions of the Copyright Act may unjustifiably infringe the Charter right to freedom of expression. These four arguments, taken together, suggest that the time is ripe for reconsideration of this intersection.

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Liberals claim that the exercise of state power must be justified on terms that all citizens can reasonably accept. They also support democracy. The challenge is to bring these two desideratum in line-- to ensure that democratic deliberations are somehow predicated on claims that all citizens can reasonably accept. Put differently, the challenge is to set the terms of public reason. Liberal philosophers advance grand theories of political justice towards this end. They claim that a reasonable argument in the political sphere is one that conforms to theory x. The difficulty is that there will be those who reasonably reject theory x, preferring theory y or z, or eschewing theory altogether. Pessimism at the prospect of agreement on higher-order theories of justice leads some to advocate simple majority rule. The thesis argues that convergence on higher order theory is not essential to public reason. The Supreme Court of Canada’s method of adjudication under the Canadian Charter of Rights and Freedoms is used as a model. Where basic rights are engaged, or are alleged to be engaged, the Court examines the reasonableness of law and policy using a series of open-ended tests. These tests discipline their deliberations by focusing attention on generally accepted facts and values (notably, the values expressed by the Charter). The thesis contends that the Court’s open-ended, contextual approach can serve as a model for broader public reasoning. The thesis then explores the role of religious arguments within this model. In a polity committed above all to Charter values, what is the place of religion in the justification of law? It is argued that religion is understood to be private and inscrutable under the Charter. This is what justifies the Court’s generous reading of the right to religious freedom. It also justifies our forbidding state coercion in the name of religion. With the preceding ideas in mind, the thesis examines Canadian law and public discourse on the issues of therapeutic cloning (ch.4) and same sex marriage (ch.5).