The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

The aim of this thesis is to provide an analytic framework for the governance of suspended declarations of invalidity in Canadian constitutional law. A suspended declaration is a remedial device by which a court strikes down a constitutionally invalid law, but suspends the effect of its order such that the law retains force for a temporary period. While introduced to Canadian law under circumstances of exigency, suspended declarations have grown to be used liberally by the courts, and the principles that previously confined them have been abandoned. As a result, constitutional rights have sometimes been suspended without just basis. I propose a means to reverse this trend: by adopting proportionality, a core feature of the analytic method used to adjudicate limitations on Charter rights, as a remedial principle guiding the use of suspended declarations. I review the jurisprudence of South Africa’s Constitutional Court to illustrate the merits of this approach.

Made available in DSpace on 2016-04-26T20:20:27Z (GMT). No. of bitstreams: 1 Giselle Ashitani Inouye.pdf: 1047828 bytes, checksum: 4addf23aa86db4157d9c0ee5d7aed40c (MD5) Previous issue date: 2011-09-28 / After a long and dark period of dictatorial regime in which rights and guarantees were suppressed, the mobilization of the civil society allowed Brazil s redemocratization. The Constitution of 1988, also kown as the Citizen Constitution, is considered the legal landmark of this process of transition. Civil society is an important vector for the political and social changes. In this context, this paper aims to study the defense of human rights by civil society through the use of constitutional writs as mechanisms to ensure the fullest effectiveness of these rights / Após um longo e obscuro período ditatorial no qual direitos e garantias foram suprimidos, a mobilização da sociedade civil permitiu a redemocratização do Brasil. A Constituição de 1988, também conhecida como Constituição Cidadã, é considerada o marco jurídico desse processo de transição. A sociedade civil constitui importante vetor para as mudanças políticas e sociais. Nesse contexto, o presente trabalho tem por objeto de estudo a defesa dos direitos humanos pela sociedade civil mediante a utilização dos writs constitucionais como mecanismos para se assegurar a mais plena efetividade desses direitos