| Summary: | This thesis concentrates on the acceptability of judicial involvement in the decision
making processes of democratically appointed representatives and the administrators
who carry out the work of government. While I devote considerable space to the general
question of the judicial role in reviewing administrative discretion, I use as my
particular focus an issue which has been a matter of particular academic and wider
general public interest since 1998: the right of the courts to review the conduct of the
police in their role in the investigation and suppression of crime.
Recent times have seen an increased recognition that it may be necessary to impose
positive obligations on governmental and administrative bodies in order to properly
protect fundamental civil and human rights. The argument between those who believe
that the courts are justified in reviewing the administrative inaction of government and
those who do not is one that has profound implications for the balance of governmental
and democratic power in a modern society. The thesis seeks to identify the important
issues in ascertaining the propriety of judicial involvement in the decision-making
processes of government and its administration. In doing so, I have sought to place the
various legal, political and social arguments in context in order to permit the conduct of
an objective and coherent analysis.
The continued development of civil and human rights codes as one of the foundations of
a modern democratic society means that the questions I seek to answer in this thesis are
of fundamental importance. I seek to analyze the approaches of the Canadian and
European Courts in order to try to ascertain the proper scope of the rights enshrined in
the European Convention of Human Rights and the Canadian Charter of Rights and
Freedoms. My conclusion is that in certain circumstances, the proper protection of
human rights can only be provided where positive obligations on the part of the state are
inferred. The European Court has been more willing to consider positive obligations as
necessary to the proper protection of human rights, although there are positive signs that
members of the Supreme Court of Canada are moving in a similar direction.
I also seek to explore the proper limits of the common law of negligence as regards the
right of the individual to challenge decisions of government, an issue which has
attracted a great deal of comment in the past 30 years. I consider the development of
relatively recent English and Canadian jurisprudence on this issue and conclude that the
Canadian courts have been much more willing than their English counterparts to hold
governmental actors responsible in tort for failures to discharge statutory duties with
due care. However, questions are raised about the methods used by the Canadian courts
to reach conclusions on this issue. It is argued in this thesis that a more context-sensitive
approach is preferable to the artificial distinctions sometimes drawn between courts in
attempting to distinguish between matters of policy and matters of operation.
Primarily, I seek to establish whether the types of decision which governmental bodies
are called upon to make are of a nature which should exempt them from judicial
scrutiny and whether the protection of human rights demands that the courts do become
involved so as to require governmental (and in particular police) action. It is my overall
conclusion that arguments hitherto advanced in favour of insulating governmental
bodies from legal liability are seriously flawed and are counterbalanced by strong
arguments in favour of exposing governmental conduct to more strict judicial scrutiny. === Law, Peter A. Allard School of === Graduate
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