McGill Law Journal

Foreword

2024-09-04T17:14:07-04:00

* We reproduced the foreword in the McGill Law Journal Volume 1, Number 1, written by “The Editor” to honour our founding editors, one who sadly left us last year.

Nous reproduisons l’avant-propos publié dans le Volume 1, Numéro 1 de la Revue de Droit de McGill, rédigé par « Le Rédacteur » pour rendre hommage à nos rédacteurs fondateurs, dont l’un nous a malheureusement quitté l’année dernière.

Mathur v. Ontario

2024-04-26T11:47:22-04:00

In January 2024, the Court of Appeal for Ontario heard an appeal from a lower court’s dismissal of the first Canadian children’s climate case to be decided on the merits. Mathur v. Ontario alleges that Ontario’s climate change legislation, target and plan violate young people’s rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms by committing the province to dangerously high levels of greenhouse gas (GHG) emissions. This article argues that there are good grounds to allow the appeal. Some favourable findings will likely be upheld, including the court’s acceptance of climate change science, the global carbon budget, global GHG targets, the inadequacy of Ontario’s new target, the disproportionate impacts of climate change on youth and Indigenous peoples, its rejection of a de minimis defence, and its conclusion that the case as a whole is justiciable. There are, however, grounds to reverse the court’s holdings that Ontario’s share of global GHG emission reductions is not justiciable, the alleged harm is not the result of the impugned state action, the claimed right is positive rather than negative, a positive right is not warranted in this case, any deprivation of section 7 rights accords with principles of fundamental justice, and the impugned state action does not constitute age discrimination. The article also addresses some issues left unresolved by the lower court that may prove important on appeal. Whatever happens, the case will set a key precedent for Canadian environmental rights litigation.

Transgender Erasure

2024-08-29T13:58:06-04:00

This paper explores the experiences of transgender refugee claimants in Canada’s refugee status determination system by using mixed methods: quantitative analysis of data obtained from the Immigration and Refugee Board (IRB), reviews of published and unpublished decisions, country condition documentation packages and IRB guidelines, as well as interviews with refugee lawyers. Using these methods, we explore how credibility arises in transgender refugee claims, noting the impact of medicalization and country conditions materials on transgender claims, and drawing parallels between medical gatekeeping and credibility assessments in refugee claims. We identify potential explanations for low recorded numbers of transgender claims as rooted in data-gathering and decision-making practices that are misaligned with transgender experiences, and we offer policy recommendations to overcome this mismatch. Though transgender refugee claims appear to be largely successful in recent years, longstanding patterns of exclusion and erasure as policy nevertheless lead many transgender claimants to experience the refugee determination process as traumatic and transphobic, resulting in unaccounted-for complications and challenges to practice.

Les droits et la justice au guichet

2024-08-29T14:11:22-04:00

The number of unrepresented litigants in Quebec courts is on the rise. Yet, legal proceedings are complex for people with little legal experience, who turn to court personnel for assistance at every stage of their file. Court personnel, however, is only authorized to provide very general information.

Based on interviews with judicial staff at the Montréal Courthouse, the Municipal Court of Montréal, the Administrative Tribunal of Québec and the Court of Appeal of Quebec, this article paints a picture of the tribulations of unrepresented litigants who turn to the clerks of these courts. It also describes the services available to them and shows how the blurred boundary between legal advice and legal information deprives these litigants of the assistance they need to participate in the judicial process. The article also highlights the inadequacy of current services and the need to reconsider following the logic of the market, which produces deleterious effects on the judicial system and leaves a growing number of litigants out in the cold.

Jacques-Yvan Morin, GOQ, L D’H (1931-2023)

2024-08-29T14:35:22-04:00