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.

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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

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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.