Date of Award
Two constitutional principles--constitutional supremacy and parliamentary supremacy--should not be treated as antagonistic. The task for the Supreme Court of Canada since its elevation as constitutional arbiter has been to find the balance between these two constitutional doctrines. It must do so within the limits prescribed by the judicial function. What are those limits in the context of criminal law? The definitional elements of the offence; the political and legal theory of classical liberalism; the Charter's constitutional, as opposed to statutory, character; the primacy of either crime control or due process values in judicial decision-making; the fluctuating balance in the criminal process between the influence of constitutional supremacy and parliamentary supremacy; the flexibility of the foundational principles of judicial independence and judicial impartiality; and, finally, prevailing societal norms. In this thesis it has been argued that there is a reciprocal normative relationship between the criminal process and society. Decision-making at the Supreme Court of Canada filters prevailing societal norms to conform to constitutional values--herein lies the process of readjustment between the criminal law and society at large. To explore the limits of the judicial function at work, an analysis of case law emanating from the Supreme Court of Canada, particularly, but not exclusively, in the law of homicide had been undertaken.
Patricia A. Fricker, The Supreme Court of Canada, Parliament and the Charter: Exploring the Limits of the Judicial Function in Criminal Law (LLM Thesis, Dalhousie University, 1998) [unpublished].