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1. Forester, Nathan. Examining the Creation of Common Law Police Powers in Canada.

Degree: 2013, University of Saskatchewan

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. Advisors/Committee Members: Luther, Glen, Carter, Mark, Plaxton, Michael.

Subjects/Keywords: Common law police powers; Ancillary powers doctrine; Charter rights; Kelsenian analysis; Adjudication theory; Constitutionalism; Undemocratic; Anti-democratic

…of the Court’s “Waterfield calculus.”36 By employing Kelsenian analysis, I will explore the… …Osgoode Hall LJ 75. 13 Richard Jochelson, “Multidimensional Analysis as a Window into Activism… …A.V. Dicey.26 Thus, I will interrogate through my analysis, how the Court… …problematize. Each of the four groups identified will be addressed in the forthcoming analysis. First… 

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APA (6th Edition):

Forester, N. (2013). Examining the Creation of Common Law Police Powers in Canada. (Thesis). University of Saskatchewan. Retrieved from http://hdl.handle.net/10388/ETD-2013-06-1162

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Chicago Manual of Style (16th Edition):

Forester, Nathan. “Examining the Creation of Common Law Police Powers in Canada.” 2013. Thesis, University of Saskatchewan. Accessed July 14, 2020. http://hdl.handle.net/10388/ETD-2013-06-1162.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

MLA Handbook (7th Edition):

Forester, Nathan. “Examining the Creation of Common Law Police Powers in Canada.” 2013. Web. 14 Jul 2020.

Vancouver:

Forester N. Examining the Creation of Common Law Police Powers in Canada. [Internet] [Thesis]. University of Saskatchewan; 2013. [cited 2020 Jul 14]. Available from: http://hdl.handle.net/10388/ETD-2013-06-1162.

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

Council of Science Editors:

Forester N. Examining the Creation of Common Law Police Powers in Canada. [Thesis]. University of Saskatchewan; 2013. Available from: http://hdl.handle.net/10388/ETD-2013-06-1162

Note: this citation may be lacking information needed for this citation format:
Not specified: Masters Thesis or Doctoral Dissertation

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