Policing public authorities : the use of tort and human rights as a means of requiring state action
Creators: name: Cassels, Alan McLeod
Publisher: name: University of British Columbia
Year: 2009

description: 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.