Taking constitutional structures seriously, a Canadian case study

grantor: University of TorontoThis thesis explores aspects of the interplay between the legal regimes that comprise a common law constitutional democracy by using anti-discrimination norms in Canada as the focal point of the analysis. The thesis introduces a paradigm with which to understand the legal order as comprised of distinct legal regimes, such as the common law, the statutory regime and the constitutional regime. The constitutive elements of each regime, as an ideal type, are outlined. More specifically, the thesis sets out the legal personality at the core of each regime, the source of legitimacy upon which each regime rests, the theory of justice at the basis of each regime, and the interpretative methodology, institutional design and primary function of each regime. Normatively, the thesis argues that preserving the integrity of each regime and thus the distinction between regimes is important in order to allow for legal pluralism, which enhances the legitimacy of the system as a whole by allowing for critical dialogue between the communities constructed by the regimes. Thus, it is important to investigate the interaction between the regimes, so as to ensure non-assimilation and fidelity to the constitutive elements of each regime. The thesis confronts the interaction between the statutory regime and the common law by analyzing the effects a human rights code has, and should have, on the common law of anti-discrimination. The thesis argues that, when a code is silent with respect to discrimination on a certain ground, the common law is still available. The interaction between the constitutional regime and the common law is confronted by examining whether the constitutional bill of rights--the ' Charter'--applies, and should apply, to the common law. The interaction between the constitutional regime and the statutory regime is confronted by investigating the exercise of judicial review over legislative silence, through the example of the decision of the Supreme Court of Canada in 'Vriend v. Alberta', where the legislature did not include sexual orientation as a protected ground under the human rights code. (Abstract shortened by UMI.)S.J.D