A theory of the Supreme Court of Canada, police powers, and the Canadian Charter of Rights and Freedoms

This dissertation develops a theory of the Supreme Court of Canada's role in adjudicating cases that raise questions about the source, scope, and limits of police powers under the Canadian Charter of Rights and Freedoms. By way of methodology it combines interdisciplinary, doctrinal, and comparative approaches. This dissertation draws on the wealth of sociological research documenting the realities of how the police actually behave, the work of scholars who have critically examined the institutional limitations of courts, Canadian and American constitutional law and history, and the established tools of constitutional interpretation. By merging the scholarship from these areas, this dissertation develops a theory for resolving cases under the Charter that raise questions about police power.; This dissertation argues that a "dialogue" model is the best explanation of the Supreme Court's function when answering questions about police authority. This account is informed throughout by the realities of the occupational culture of the group that is subject to regulatory efforts in this context: the police. Beyond that reality, however, this theory is equally cognizant of the respective institutional strengths and weakness of the judicial and legislative branches of government. As a result, this theory tasks the Supreme Court with those adjudicative functions for which it is well suited, primarily addressing larger questions of principle. For example, interpreting the meaning of constitutional text and deciding whether Parliament's legislative output and/or the actions of individual police officers comply with these minimum constitutional requirements.; And, at the same time, this theory leaves for Parliament the resolution of those practical policy questions for which it is ideally suited. In doing so, it recognizes Parliament's capacity to generate clear, prospective and comprehensive rules to confine and structure police discretion, as well as its ability to create administrative procedures that can meaningfully check low-level exercises of police discretion. Just as importantly, this theory acknowledges the political reality that without prodding from the judicial branch, Parliament is unlikely to move toward criminal procedure law reform.