Thesis (M.A.). / Written for the Dept. of Political Science. Title from title page of PDF (viewed 2008/08/04). Includes bibliographical references.

The Canadian Charter of Rights and Freedoms has significantly changed the functions of the Canadian courts. Ever since its entrenchment in 1982, the third branch of government has enjoyed a powerful status in the Canadian polity. Countless Charter decisions, affecting the lives of all Canadians, have been rendered. The courts have been asked to rule on cruise missile testing, abortion, aboriginal rights, minority language rights and a whole range of other issues of a political, economic or social nature. Our political system, whose traditional foundations lay in the principle of parliamentary supremacy, has become one of constitutional supremacy. The new and powerful status of the nonelected judiciary has raised serious questions not only regarding the legitimacy of judicial review under the Charter but also the institutional capacity of the courts to face the Charter challenge. The author examines the nature of the judiciary's policy-making function under the Charter in order to determine the extent to which the courts are equipped to fulfil their task. The thesis suggests that in order to face the Charter challenge effectively, the courts can no longer operate within the framework of the traditional adversary process. Instead, the courts must constantly look to the prevailing values in our society as well as examine thoroughly social and scientific phenomena before rendering an "informed" policy decision. This can only be achieved through a coherent framework of Charter analysis and effective ways in handling extrinsic materials. The focus of the present paper is on section 1 of the Charter which, due to its open-ended language, most clearly invites courts to make policy-type decision.

The thesis is divided into four sections. The first section lays down a method of interpretation of S.91 and S.92 of the B.N.A. Act. The suggested method is comprised of making three enquiries:- Is the statute in question within S.92---is the statute within a S.91 enumerated power and is the statute within the residuary general power? The validity of this method rests on four propositions viz:- S.91 comprises the residue of powers after the provinces have been given certain basic heads of powers; the enumerated powers in S.91 are supreme over those contained in S.92; where the subject matter of the statute in question goes beyond local or provincial concern or interest it will fall within the general federal power under S.91 even though it might otherwise appear to come within S.92; where neither S.92 nor S.91 enumerated powers apply the statute in question falls under the residuary federal power in S.91. Each one of these propositions is examined and supported. The second section deals with the general rules of construction of the powers in S.91 and S.92. The matter is approached from the idea of a dichotomy between factors and formulae in constitutional interpretation. The factors are those matters that guide the court in answering the questions posed in the first section and the formulae are the rationales given for the decisions. This approach is inseverably connected with the concept of constitutional decisions being evaluative judgments. The evaluative judgment made in answering the original questions is referred to as the 'nexus' judgment. The place of precedent, evidence and extrinsic material in relation to the factors is then examined and the general ideas prevalent in Canadian constitutional interpretation such as the double aspect, ancillary, trenching, paramountcy and severability doctrines are looked at in the light of this 'nexus' judgment. The strength and identity of the factors will vary from individual power to power and the criminal law power is adopted as an illustration of the use of the factorial approach. This illustrative use comprises the third section of the thesis. The lack of logical limits to the power is first shown and then the general factors of construction, purpose and effect are used to provide a basis for constitutional prediction. The evaluation of factors is viewed both from the standpoint of federal legislation and that of the provinces. No attempt is made to give an exhaustive survey of the interpretation of the criminal law power. It is merely given as an illustration of the use of the factorial approach. The final section is the conclusion and recapitulates the major principles contained in the earlier sections. / Law, Peter A. Allard School of / Graduate

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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.

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Seventy-five years ago the provincial governments of Manitoba, Saskatchewan, and Alberta signed a series of Natural Resources Transfer Agreements (NRTAs) with the federal government. These agreements provided the answer to a contentious debate known as the 'Natural Resources Question'. Before the NRTAs, the three prairie provinces did not have control over their public domain lands and did not share equal constitutional status with the other Canadian provinces. In the early 1920s, Prime Minister King recognized the validity of the provincial arguments for constitutional equality and no longer wanted the federal government to be responsible for the administration of provincial natural resources. By this time, the policy ambitions which had previously justified the retention of the natural resources had been fulfilled. Thus, the constitutional rights arguments presented by the prairie provinces found a receptive audience when the control of the lands and resources were no longer a federal priority.

Although Ronald Inglehart's New Politics theory has attracted criticism, its influential distinction between materialist and postmaterialist values tends to go unquestioned. The influence of this distinction is particularly apparent when analysts interpret the "new" social movement emphasis on esteem and belonging as a "postmaterialist" departure from a traditional, or "materialist" focus on security. This way of understanding contemporary feminist and ethnocultural-minority movements is misleading because it rests on a onedimensional view of esteem and belonging. By treating esteem and belonging as expressive, which is to say as purely aesthetic or psychological goods, New Politics obscures the instrumental significance of esteem and belonging for movements that represent traditionally, marginalized constituencies. This work undertakes a qualitative study of the participation of national socialmovement organizations, "old" and "new," in Canadian constitutional politics. The analysis is based on these actors' presentations to parliamentary hearings and royal commissions on major constitution-related issues between the years 1938 and 1992. Above all, the study illustrates what New Politics theory neglects: the instrumental role of social esteem and civic belonging as bases of voice and self-defence. I argue that attending to this role can help analysts to understand better the postwar politics of recognition. The work develops this argument in three major ways. First, I demonstrate the instrumental importance of esteem and belonging for the mid-century traditional left. Second, I show that problems of misrecognition and disesteem presented feminists and ethnocultural minorities with severe difficulties in garnering a meaningful hearing for their security needs. Third, I analyze the discursive ways in which postwar "new" movement participants came to pursue forms of respect that had proved elusive in the past. The work's overall conclusion is this: the material nature of the politics of recognition is demonstrated by the extent to which increased esteem and belonging for traditionally disrespected groups has been paralleled by an expanded menu of recognized security concerns. The study's major message follows from this conclusion: because struggles over esteem and belonging have crucial material stakes, they should not be contrasted a priori with struggles that may appear to target questions of security more directly.