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Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/11217

Title: Something to Talk About: Applying the Unwritten Principle of Democracy to Secure a Constitutional Right to Access Government Information in Canada
Authors: Kazmierski, Vincent Clayton
Advisor: Weinrib, Lorraine
Department: Law
Keywords: constitutional law
access to information
unwritten
judicial review
principles
information
Canada
constitution
constitutional interpretation
democracy
parliamentary supremacy
Issue Date: 31-Jul-2008
Abstract: Something to Talk About: Applying the Unwritten Principle of Democracy to Secure a Constitutional Right to Access Government Information in Canada by Vincent Clayton Kazmierski A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto 2008 ABSTRACT In this thesis, I argue that the unwritten constitutional principle of democracy provides a foundation for the recognition of a constitutional right to access government information in Canada. More specifically, I argue that the principle of democracy can be used to fill the “access gap” in the written provisions of the Constitution. I begin by synthesizing the Supreme Court of Canada’s jurisprudence and the work of a number of academics to outline guidelines for the recognition of unwritten constitutional principles. I also attempt to construct a coherent account of the content and effect of the constitutional principle of democracy. I proceed to argue that recognition of a right of access to government information as part of the principle of democracy fits within the guidelines I identify as it is supported by “strong” pragmatic, historical and structural evidence. I then demonstrate how the constitutional right of access to government information may be applied to protect access to information in at least three different ways: through statutory interpretation, through the regulation of administrative discretion, and, in exceptional circumstances, through the invalidation of legislation. I rely on the work of a number of British scholars and on aspects of David Dyzenhaus’s conception of law as a culture of justification to help bridge the divide between the Supreme Court of Canada’s approach to the application of unwritten constitutional principles and the concerns raised by critics of that approach. I argue that the application of the principle of democracy respects the primary role of democratically elected representatives of the public, while establishing that the judiciary also has an important role to play in the identification and enforcement of fundamental values. I suggest that this judicial role can be effectively constrained through the guidelines sketched by the Supreme Court and more fully articulated in this thesis. Finally, I argue that the application of the principle of democracy to invalidate legislation can also be justified in exceptional circumstances where the legislation imposes substantial impediments on fundamental aspects of the democratic process. In such cases, the principle of parliamentary supremacy is properly counterbalanced by the principle of democracy.
URI: http://hdl.handle.net/1807/11217
Appears in Collections:Doctoral
Faculty of Law - Doctoral theses

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