Item – Thèses Canada

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Liston, Mary Ann Catherine.
Honest counsel :institutional dialogue and the Canadian rule of law.
Ph. D. -- University of Toronto, 2007
Ottawa :Library and Archives Canada = Bibliothèque et Archives Canada,[2009]
4 microfiches
Includes bibliographical references.
This dissertation takes a fresh look at a stale metaphor--institutional dialogue--in order to re-evaluate its ability to articulate the Canadian project of building a democratic rule of law. Current political science and legal literatures limit the concept of institutional dialogue to interactions between courts and legislatures within 'Charter' jurisprudence. In contrast, the thesis suggests that institutional dialogue can be applied to a descriptively broader institutional context and in a normatively deeper way. Four dimensions of institutional dialogue in the Canadian constitutional order are examined: two horizontal and two vertical. First, horizontal dialogue occurs among co-equal branches of government: the legislature, the executive, and the judiciary. Second, horizontal dialogue also takes place among co-equal partners in the constitutional order: federal and provincial governments, the Crown, and, increasingly, Aboriginal peoples. Third, vertical dialogue occurs among superior and subordinate bodies in the constitutional order, such as between the judiciary and the bureaucracy. Fourth, citizens and the state engage in vertical dialogue through a variety of institutional processes, including public law litigation. Using public law cases involving shared institutional practices as examples, the thesis argues that one underappreciated function of courts is to enhance state responsiveness along all four axes. Institutional dialogue also privileges relationships and practices that seek to minimize systemic arbitrariness, thereby supporting the integrity of the constitutional order. An ethos of justification animates this institutional reconciliation: democratic decisions falling within the boundaries of reasonable disagreement should be respected by all institutional actors, including a restrained judiciary, and be accepted as non-arbitrary by citizens, including those who disagree with a particular decision. The thesis claims that the citizen who engages in litigation as a practice of lawful unruliness constitutes a linchpin between the rule of law and democracy. On this understanding, the legal system is a site of contestation in the service of democracy, while democracy is a site for accountability in the service of the rule of law. The re-cast metaphor of institutional dialogue, then, expresses the idea of democratic legality not only within and among state institutions, but also between citizens and the Canadian state.