Constitutional adjudication and the independence of Canada : issues of principle, convention, and law

Thesis

This thesis seeks to identify the conceptual resources available to Canadian courts in the adjudication of fundamental constitutional change.

Part One offers a general analysis of the materials pertaining to the self-interpretation of the higher courts' role as a privileged forum for constitutional decision-making. Reviewing the rich development of the advisory opinion tradition, the drastic weakening of traditional bars to adjudication and the judicial pronouncements on constitutional conventions, it explains how the Canadian judiciary have come to assume in a uniquely Canadian way the role of "guardians of the constitution", well beyond traditional conceptions of the judicial function.

Part Two starts with a critical analysis of the Supreme Court's view of the distinction between convention and law and moves on to offer a more convincing account of the inevitable interface between convention and unwritten constitutional law, with a view to an appropriate treatment of constitutional change.

Part Three directly addresses the issue of fundamental constitutional change. It begins with a theoretical study of the problem of self-reference in constitutional law, moves beyond this so-called paradox to explore how the juncture between "logic" and "pragmatics" might be explained for law, and finally presents the issue as the courts faced it in the Patriation Reference.

Part Four, finally, explains how constitutional principles function in constitutional adjudication as the proper source of both constraint and justification in decisions where fundamental rules are at issue. Picking up the matter where it was left off at the end of Part Three, it concludes this thesis with a legal analysis of the transfer of ultimate and supreme constitutional authority from the United Kingdom to Canada, an analysis which puts all of the author's conclusions to work.

Authors: G�linas, F

• Peer review status: Peer reviewed
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford