McGill Law Journal

Les aventures de la Cour suprême du Canada au pays de la Grundnorm

2026-10-08T15:25:55-04:00

This article evaluates the Supreme Court of Canada’s constitutional action in light of Hans Kelsen’s positivist theory of law. Through its interpretive and sanctioning work, the Supreme Court goes beyond the negative legislator role assigned to constitutional courts by Kelsen. The Court’s use of the Constitution’s underlying principles and the inversion of rights into values are also elements that exceed the Kelsenian conception of constitutional justice. In doing so, the Supreme Court of Canada can, according to Kelsen’s positivist theory of law, be characterized as a legislative and philosophical court. Through its constitutional case law, the Supreme Court of Canada infuses substance into the basic norm, especially when she renders it explicit with the principles underlying the Constitution and the values underlying Charter rights.

Un-Chartered Territory: Using Human Rights Law to Address Climate Inequities in Canada

2026-10-08T15:53:00-04:00

This paper explores how human rights laws in Canada could address inequities arising from climate change. While climate change is increasingly recognized as a pressing human rights issue, no case brought under the Canadian Charter of Rights and Freedoms has yet succeeded on its merits. This paper examines whether human rights statutes—which aim to prevent discrimination in areas such as employment, housing, and services—could offer a more effective legal recourse. It proposes four potential human rights complaints related to climate change: (1) failing to implement adaptation measures for vulnerable groups, (2) providing accommodation for climate conscious individuals, (3) recognizing government climate mitigation efforts as a “service,” and (4) holding greenhouse gas–emitting corporations accountable. The paper concludes that while these complaints are supported by existing case law, legislative amendments would provide clearer guidance and enhance certainty in applying human rights laws to climate-related disparities.

L’intelligence artificielle et la formation du contrat :

2026-10-08T16:04:22-04:00

In this article, the author lays out a detailed analysis of the existence and validity of obligations contracted into by an AI system. Noting the impossibility of a meeting of the minds caused by the intervention of an autonomous computer system during contract formation, the author proceeds to analyze alternative solutions seeking to hold the AI system’s user liable for the economic transaction carried out in their name. The critical investigation of the main solutions serves to highlight the merit and shortfalls of transitory or definitive answers to this issue in Quebec contract law.

Covert Defences:

2026-10-08T16:36:12-04:00

This article examines the use of private placements as defensive tactics in the context of unsolicited takeover bids in Canada. While poison pills have traditionally been the main focus of regulatory scrutiny and academic debate, private placements have received little attention. Through a critical analysis of two key decisions involving private placements, the article argues that securities commissions have improperly deferred to target boards by assessing private placements through the lens of business judgment and fiduciary duties. This approach strays from the core tenet of National Policy 62-202 (NP 62-202), which prioritizes shareholder choice and seeks to prevent tactics that undermine a fair and open bid process.

The article contends that the proper focus of regulatory inquiry should be the effect of a measure on shareholders’ ability to respond to a bid, rather than the board’s stated intentions. It proposes a narrower and more precise framework: once it is established that the target company does not require financing to remain a going concern, securities commissions should assess whether a private placement was adopted during or in anticipation of a bid and whether its dilutive impact impairs shareholder choice. This effect-based standard aligns more closely with NP 62-202 and avoids entangling securities regulators in fiduciary duty inquiries more appropriately left to the courts. Reframing regulatory oversight in this manner would restore focus on the public interest, strengthen shareholder protections, and ensure that private placements do not serve as covert entrenchment tools in Canada’s takeover bid regime.

Secret, Not Sacred:

2026-10-08T16:56:11-04:00

This article explores the impact of the Supreme Court of Canada’s recognition of the constitutional protection for access to government information and avenues for securing that protection more effectively. Part I considers the various sources for the constitutional protection of access to government information, especially the unwritten constitutional principle of democracy and sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms. Part II examines the limitations of the Court’s current approach to protecting access to government information under section 2(b), as set out in Criminal Lawyers’ Association v. Ontario and Toronto (City) v. Ontario. Part III proposes an alternative approach to recognizing constitutional protection for access to government information: a holistic approach that expands beyond section 2(b) to include section 3 and the principle of democracy. The holistic approach avoids the pitfalls of rooting this protection in either of sections 2(b) or 3, providing a broader justification for the right. Having considered these approaches, the article assesses whether section 69 of the Access to Information Act, which excludes “Cabinet confidences” from the scope of the Act, violates that constitutional protection. Part IV contends that section 69 infringes the Charter in a manner that cannot be justified in a free and democratic society regardless of the approach that is applied. To remedy this infringement, the article recommends that section 69 be modified to limit the range of information captured by the concept of “Cabinet confidences” and to increase supervision of Cabinet privilege claims.

First Nations “Custom” Governance Disputes:

2026-10-08T17:05:36-04:00

Around half of First Nations in Canada regulated by the Indian Act select their “chief and council” through what is known as “custom” according to section 2 of the act. Whether they entail traditional elements or more contemporary practices, custom selection codes stand apart from the Indian Act’s provisions on elections and can embody the recognition of Indigenous self-government. When disputes about these custom processes arise, however, the Federal Court may be called on to interpret and apply them; and the federal government, despite eschewing any jurisdiction to interfere in custom governance disputes, has a number of levers that it can, and does, pull to shape the elaboration of custom codes or other key factors contributing to the dispute. Our study falls into two parts: (1) an analysis of Federal Court decisions that illustrates some of the contradictions between the objective of respecting the culture and traditions of Aboriginal peoples and the anxiety felt in relation to ensuring that First Nations communities comply with Western notions of responsible government and (2) a review of Canadian policy with respect to custom elections. Two case studies on instances of intervention, with respect to the Lubicon Cree and the Algonquins of Barriere Lake, help support the argument that this policy, and the legislative structure itself, is a form of colonial entanglement that must be understood in the larger context of claims to land and resources, and arrangements over funding and infrastructure.

Front Matter - v. 71, no 3

2026-10-08T15:41:20-04:00