McGill Law Journal

Droit canadien des entreprises à mission :

Soro Coulibaly — 2026-04-01

Front Matter - v. 71, no 2

Nicole Leger — 2026-07-20

Towards a Civil Republican Reading of the Charter?

Andrea Talarico — 2026-04-01

The evolution of freedom of association in Canada reflects a fundamental tension relating to the application of a classically liberal instrument (the Canadian Charter of Rights and Freedoms) to a private relationship (i.e., employment). To resolve this tension, the Supreme Court of Canada engaged in a series of dialogues which eventually shifted the application of the Charter from an application typical of a liberal bill of rights to one closer to a civic republican instrument. This new interpretation is consistent with Anderson and Pettit’s view of the workplace as a site of (republican) unfreedom. This article explores that tension through an examination of the Court’s jurisprudence on freedom of association.

À propos des grèves perlées, du zèle et autres actions collectives :

Martin Gallié — 2026-04-01

Recognized in 2015 as a fundamental right by the Supreme Court, the right to strike remains, ten years later, a rare privilege in both Canada and Quebec. It is still heavily contested and, in all cases, reserved for a minority of unionized workers, exercisable only during a strictly limited period and subject to numerous restrictions, including the maintenance of essential services. Moreover, it protects workers only in cases of a complete work stoppage, since alternative forms of collective action—such as work-to-rule actions, slowdown strikes, and workplace occupations—are most often treated as an unacceptable prejudice to the employer and are accordingly prohibited. Drawing on the work of the International Labour Organization (ILO) and an analysis of Quebec case law, this article questions and contests the boundaries of the right to strike. More specifically, in a context marked by “authoritarian drift,” this article defends a broad definition of that right, that is, one that protects various forms of strike action and collective action short of a complete work stoppage, in order to give meaningful effect to this fundamental right, which the Supreme Court itself has described as essential to “the fostering of democracy.”

Pardon Me? How a Typo in a Case Report Broke the Law on Pardons

Matthew Oleynik — 2026-04-01

This paper identifies an error in a 1977 case report that created a false judicial discretion in the sentencing of persons with pardoned criminal offences on their records. The error resulted in the exercise of the false discretion in reported judgments and a false rule that was promulgated throughout the legal literature. It arguably contributed to the decline in the potency of the Canadian pardon that occurred afterward. Potential remedies are discussed and an image of the original judgment is provided for future citation.

L’abolition unilatérale du serment au roi par le Québec est-elle constitutionnelle ?

Yan Campagnolo — 2026-04-01

Did Quebec have the power to exempt the members of the National Assembly from the obligation to swear an oath to King Charles III, as required under section 128 of the Constitution Act, 1867, by unilaterally amending the text of the Canadian Constitution? This article answers in the negative. Without calling into question the legitimacy of the political choice Quebec made, the article examines the constitutional validity of that choice. It argues that the legislation to abolish the oath to the King is problematic both in form and in substance. With respect to form, Quebec cannot directly amend the text of the Constitution Act, 1867, by inserting a provision—section 128Q.1—whose purpose is to exempt the members of the National Assembly from the obligation to swear an oath to the King. Pursuant to section 45 of the Constitution Act, 1982, Quebec may unilaterally amend only its own provincial constitution. With respect to substance, abolishing the oath to the King requires the consent of all the partners in the federation, by virtue of section 41(a) of the Constitution Act, 1982, and current precedents, since such an amendment concerns the “office of the [King]” insofar as it affects the “status of the Crown,” as that concept has been defined by the courts. In the event of a judicial challenge, the courts could therefore declare the legislation to abolish the oath to the King to be invalid, which would render null the votes of members who did not swear the oath. This consequence may appear minor at a time when only seven sitting members have not sworn the oath. However, the impact could be much greater after the next general election, should a majority of members refuse to take the oath. In such a case, invalidating the legislation to abolish the oath to the King would call into question the validity of all legislation passed by those members.

Failure to Adapt:

Mike Madden — 2026-04-01

This article reports on two original empirical studies of the quantitative readability levels of Canadian court decisions from specialized contexts, involving cases where we might reasonably expect to find highly readable decisions. The first study examines decisions dealing with young persons who were prosecuted in youth criminal courts. The second study involves cases where at least one party was a self-represented litigant (SRL). The results from these studies suggest that the relevant decisions are generally not written at levels that allow for the parties (or the broader public) to easily understand the decisions. To the extent that courts may already be trying to adapt the language and styles of their decisions, these studies suggest that further, or different, adaptations are probably required. The most obvious weak point arises in cases involving SRLs, where the average decision is (counter-intuitively) less readable than the average Canadian trial or appeal court decision more generally. The article concludes by identifying some of the ways in which judges who care about communicating effectively with their audiences can improve the readability levels of their decisions in order to better reach these audiences.

Richard v. The Attorney General of Canada:

Meritxell Abellan-Almenara — 2026-04-01

On 5 July 2024, the Superior Court of Justice of Ontario declared admissible a class action lawsuit against Canada’s federal government’s policy of detaining immigrants in provincial jails on the basis that it could amount to a violation of several rights protected under the Canadian Charter of Rights and Freedoms. In this article, we engage in a hypothetical exercise in which we seek to establish what would be the outcome of the case if it were to be decided under the Council of Europe’s human rights framework in general, and the European Court of Human Rights’ case law on immigration detention specifically. Building on the evidence provided by several national and international organizations, we argue that Canada’s policy of detaining immigrants in provincial jails would amount to cruel and unusual treatment contrary to article 3 of the European Convention on Human Rights. The conclusions of this article are purely speculative, yet they contribute to the painting of a more complete, critical, and complex portrait of Canada’s immigration detention policies from a European perspective. The article also highlights how the focus of both European and Canadian courts on the conditions of detention may overshadow any debates on the legitimacy of immigration detention itself.