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      Examining the Creation of Common Law Police Powers in Canada

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      FORESTER-THESIS.pdf (1.010Mb)
      Date
      2013-10-04
      Author
      Forester, Nathan
      Type
      Thesis
      Degree Level
      Masters
      Metadata
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      Abstract
      In recent times, the Supreme Court of Canada has utilized the ancillary powers doctrine as a means of expanding police powers at common law. Less apparent is the fact that the proliferation of these coercive powers has been achieved solely on the basis of the Court’s unorthodox—and, indeed radical—use of precedent. Put shortly, it is my thesis that the ancillary powers doctrine has precipitated the undemocratic expansion of both state and judicial power. The actual powers created by the Court are, in themselves, fraught with deficiencies and incapable of delivering on the twin promises of providing fairness and predictability in the law. This is due to the fact that any ad hoc judge-made power will be created retrospectively and shown to lack comprehensiveness. Correspondingly, the constitutional protections available to Canadians have waned in strength, leaving them more susceptible to governmental intrusion. In constructing this thesis, I have reviewed both the historic and contemporary case law that has forged the ancillary powers doctrine in Canada. Significantly, the emergence of this doctrine could not have occurred without Parliamentary acceptance and condonation of the Court’s actions. However, it is on the basis of the Court’s perception that Parliament has failed to close off supposed “gaps” in police powers that the Court has been willing to enter the lawmaking fray. Moreover, the Court’s actions have effectively obviated the need for government to legislate and prospectively stipulate the powers possessed by its agents. Therefore, I have situated this institutional interplay within the “theory of gaps” devised by Hans Kelsen. This model is offered as a plausible explanation for how Waterfield/Dedman became conceived in Canada and, why, it has been permitted to take root. Importantly, the Kelsenian analysis that I advance is explanatory only. It does not present a defence or justify for the proliferation of common law powers in favour of the police or judiciary. The lawmaking paradigm, as described above, has had a pernicious effect upon constitutionalism in Canada. It is for this reason, I argue that the ancillary powers doctrine holds an illegitimate place in Canadian law, and should be reversed.
      Degree
      Master of Laws (LL.M.)
      Department
      Law
      Program
      Law
      Supervisor
      Luther, Glen
      Committee
      Carter, Mark; Plaxton, Michael
      Copyright Date
      June 2013
      URI
      http://hdl.handle.net/10388/ETD-2013-06-1162
      Subject
      Common law police powers
      Ancillary powers doctrine
      Charter rights
      Kelsenian analysis
      Adjudication theory
      Constitutionalism
      Undemocratic
      Anti-democratic
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      • Graduate Theses and Dissertations
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