McGill Law Journal

Best Interests or Autonomy?

2026-02-04T17:51:01-05:00

Family courts are struggling to resolve parenting disputes over children’s treatment. These cases ask judges to decide such sensitive matters as whether a young person will be vaccinated against their wishes, granted access to gender-affirming healthcare, or forced into therapy. Parenting disputes over children’s treatment implicate two distinct and potentially conflicting areas of law: family law and health law. Because family law and health law employ different legal standards and espouse different legal principles, the outcome in these cases may depend on which legal framework is applied. This article makes two contributions. First, it surveys recent family court decisions and suggests that courts are resolving parenting disputes over children’s treatment in one of three ways: (1) applying health law rather than family law; (2) drawing on health law principles in applying family law; and, most commonly, (3) applying family law rather than health law. Second, I look to larger debates around children’s welfare versus autonomy to make a case for how the apparent tension between family law and health law in these cases may be reconciled.

Volume 70 Index

2026-02-04T18:16:20-05:00

Front Matter - v. 70, no 4

2026-02-04T16:58:58-05:00

Comparer sans harmoniser

2026-02-04T18:00:15-05:00

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La compétence autochtone en matière de justice pénale adolescente

2026-02-04T17:05:48-05:00

Colonialism in Canada has profoundly shaped both youth protection and juvenile justice—two regimes that have historically operated within institutions that sought to rehabilitate youth whose families were seen as incapable of educating their own children. So-called “model” families and children were defined in contrast to Indigenous families and children, who were portrayed as needing to be civilised and assimilated into the non-Indigenous majority. Today, the Act Respecting First Nations, Inuit and Métis children, youth and families (2019) affirms the jurisdiction of Indigenous peoples over child and family services. Given this recognition, we argue that it is desirable for Indigenous communities also to begin taking charge of youth criminal justice. Four analytical components support this argument. First, there are significant overlaps, both in Canadian law and in various Indigenous traditions, between youth protection law and youth criminal justice law. Second, Indigenous communities have already begun assuming responsibility for youth protection, particularly following the coming into force of the 2019 federal legislation. Third, Canadian law regarding youth criminal justice is guided by standards that are similar to those that characterize Indigenous legal traditions—particularly rehabilitation, reparation for harm done, and community involvement in decision-making. Finally, the widespread phenomenon of young people with a dual mandate in youth protection and youth criminal justice suggests that their realities are intimately linked.

Do Pre-1970 Precedents Still Matter?

2026-02-04T17:31:05-05:00

This paper examines the contemporary relevance of pre-1970 Supreme Court of Canada decisions through quantitative citation analysis, responding to Chief Justice Wagner’s 2024 assertion that these historical decisions are of minimal legal interest. The study analyses three datasets: citations in Supreme Court decisions (1985–2024), appeal factums (2009–2024), and decisions from all Canadian courts and tribunals on CanLII. The evidence contradicts the chief justice’s assertions. Pre-1970 cases appear in over half of Supreme Court decisions and one-quarter of factums filed between 2015–2024. This engagement spans 2,100 unique pre-1970 decisions. Qualitative analysis reveals that lawyers and judges invoke these precedents primarily as binding legal authority (77.6%) rather than historical background. Contrary to claims that older precedents are irrelevant in commercial matters, this area demonstrates the highest rate of pre-1970 citations. Surprisingly, French-language factums cite untranslated pre-1970 decisions more frequently than English ones, and Chief Justice Wagner himself ranks among justices most likely to cite pre-1970 cases. The paper concludes that pre-1970 decisions continue to meaningfully influence Canadian jurisprudence, particularly in certain legal domains, suggesting that official translations would serve a valuable purpose.

Newcomers to Canada:

2026-02-04T17:39:08-05:00

Many new arrivals to Canada are victims of international crimes perpetrated by states and their agents. This article considers the reception of international law in Canada to determine whether a civil right of action exists for two crimes: crimes against humanity and the crime of aggression. It also proposes recommendations that would help remove barriers for civil redress and pave the way for victims to receive reparation orders in Canadian courts for their harm. This article is a novel addition to the subject of civil remedies in Canada for breaches of international law. While much has been written on the jurisdiction of Canadian courts to prosecute crimes at international law, the scholarship on civil remedies for such crimes is scant and outdated. This article fills this gap and proposes changes to the law in order to bring Canada more closely in line with its reputation for defending human rights on the world stage.

Thesis Survey

2026-02-04T18:10:40-05:00