McGill Law Journal

Infirmer Ford

Noura Karazivan — 2026-01-01

This article pursues three objectives. In the first part, it seeks to demonstrate that the decision rendered in Ford v. Québec (Attorney General) suffers from defects warranting its overruling, in accordance with the principles governing horizontal stare decisis. By failing to interpret section 33 of the Charter through a purposive analysis and instead relying exclusively on the provision’s text, the Supreme Court of Canada departed significantly from the interpretive precedents governing constitutional interpretation at the time.

In the second part, the article undertakes a constitutional interpretation of section 33 using the purposive framework. The text, the framers’ intent, the historical analysis, and, above all, the analysis of purpose and underlying constitutional principles lead to several conclusions. First, textual analysis requires Parliament or the legislatures to be as precise as possible when invoking the notwithstanding clause; they should avoid reliance on omnibus legislation and boilerplate override clauses. Second, an examination of the framers’ intent casts doubt on the thesis that section 33 was meant to be deployed mechanically—for example, in an omnibus statute—to shield an entire legislative scheme from all Charter provisions to which it applies. Third, an analysis of constitutional purpose and unwritten constitutional principles—beyond just parliamentary sovereignty—supports the conclusion that the override power should be exercised only in exceptional circumstances. While it enables pluralist constitutionalism and affirms parliamentary democracy, the notwithstanding clause must be exercised sparingly.

In the third part, the article considers what judicially enforceable limits on the exercise of the override power might be recognized in order to preserve its exceptional character. In other words, some form of review of the use of the notwithstanding clause must be acknowledged. The delineation of such limits ultimately falls to the court tasked with interpreting section 33. At a minimum, however, the legislature must be sufficiently precise in invoking the notwithstanding clause. It may also be required to have reasonable grounds to believe that a significant problem exists and, accordingly, to provide a reasonable justification for its recourse to the clause.

The Reception of International Human Rights Law in Charter Litigation:

Karinne Lantz — 2026-01-01

This article explores the reception of international human rights law (IHRL) in Canada. Focusing on the Charter context, it demonstrates that how IHRL applies in Canada continues to lack clarity despite repeated (and recent) efforts by the Supreme Court of Canada to provide it. This article argues that this lack of clarity is an important matter for the Court to address, particularly as IHRL is increasingly being invoked before courts and other tribunals around the world. It argues that the Court should adopt a methodology that: (i) endorses the “Dickson Doctrine,” according to which the “minimum protection approach” is robustly applied for international human rights that are binding upon Canada, while relevant, non-binding international human rights are considered for their persuasive value when interpreting relevant Charter rights; and (ii) uses international legal principles to interpret IHRL and to determine the interpretive weight to afford to international legal materials. In doing so, it is crucial for the Supreme Court to finally heed long-standing calls to dispel uncertainty by clearly explaining its methodology and reconciling its jurisprudence. In addition to being consistent with existing jurisprudence, this approach would assist with narrowing the gap between Canada’s international and domestic human rights obligations; acknowledge the binding nature of Canada’s IHRL obligations; respect concerns for separation and divisions of powers; and, ultimately, contribute to maintaining the rule of law while providing additional clarity regarding the scope of fundamental rights and freedoms in Canada.

Regard comparatif sur l’obligation réelle environnementale et le conservation easement comme outils potentiels de mise en commun

Yaëll Emerich — 2026-01-01

This article uses a comparative lens to examine methods of private environmental stewardship, situating them within the broader commons movement. Since 2016, French law has recognized the obligation réelle environnementale—a legal device that allows a landowner to enter into an agreement with a public authority, a public body, or a private legal person acting for the protection of the environment in order to impose both negative and positive obligations on the landowner and on subsequent owners. This mechanism enables a property owner to encumber land with an obligation serving environmental protection. It constitutes the civil law counterpart to the conservation easement, which has been recognized in common law jurisdictions for some sixty years. These are two innovative legal tools that make it possible to reconcile private property with the public interest.

This article argues that, although remaining within a proprietary paradigm may entail certain risks for environmental protection, it nevertheless appears necessary to develop tools that are grounded in the existing property framework in order to initiate a concrete transition toward the alternative framework of the commons. More specifically, the article advances the thesis that, subject to certain conditions aimed at limiting proprietary absolutism and exclusivity, private stewardship instruments such as the obligation réelle environnementale in French law and the conservation easement at common law can facilitate the pooling of certain natural resources, thereby strengthening the shift toward the commons that is required in the Anthropocene. The same could hold true in Quebec were a similar instrument to be introduced through legislative reform.

Voluntary Associations and the Rule of Law

Manish Oza — 2026-01-01

Voluntary associations (groups such as unions, political parties, and clubs) are subject to natural justice requirements in private law. When they make decisions that affect their members’ rights, they have to act in a procedurally fair way. This article is about why this is. Two well-understood sources of normative constraint fail to make sense of these requirements. First, one might argue that the requirements are an instance of the legitimacy conditions that apply to public authorities. While this view explains natural justice requirements on voluntary associations, it also generates too many other requirements. Second, one might argue, drawing from Kantian private law theory, that any limits on voluntary associations must be derived from the formal limits on property and contract rights. While this view leaves room for natural justice requirements, it does not explain why they should apply. I argue that voluntary associations organize human conduct using what Lon Fuller called “the legal principle”: authority grounded in reciprocity. To the extent that groups organize their member’s conduct in this way, they have to conform to the rule of law. Natural justice requirements are an aspect of the rule of law.

La curieuse histoire de la Loi sur les dossiers d’entreprises

Guillaume Laganière — 2026-01-01

Quebec courts have the authority to order the holding of a rogatory commission for the purpose of gathering evidence at the request of a foreign court. This power, however, is constrained by the 1958 Business Concerns Records Act (BCRA), which prohibits the removal or transmission of corporate documents in response to a request from a foreign authority. The maximalist protection afforded to corporate records is striking, particularly in an era where international comity is a guiding principle of Quebec’s private international law regime.

This article traces the historical origins of the BCRA and its expansive interpretation by the courts. It argues for an approach that strikes a balance between the statute’s underlying objectives and the need for a baseline of judicial cooperation between Quebec and neighboring jurisdictions. At the judicial level, a narrower interpretation of the BCRA remains possible, as illustrated by the approach adopted by Ontario courts in relation to comparable legislation. At the legislative level, the BCRA could be amended—or repealed altogether—given that the procedural framework governing rogatory commissions already provides sufficient safeguards to address the concerns that motivated the statute’s original enactment.

Implementing Secondary Publication Right in Copyright Law for Green Open Access to Research

Faith O. Majekolagbe — 2026-01-01

This article argues that, as the Canadian government and governments in peer jurisdictions adopt open access policies requiring researchers to provide free and immediate (embargo-free) public access to research publications resulting from government-funded research projects, the green road to open access (self-archiving) must remain a viable means of complying with these policies. This is essential to ensure that government open access policies do not create an unsustainable dependency on limited government resources. Although the gold road to open access offers immediate access, it often necessitates the payment of article processing fees demanded by publishers. In contrast, the green road to open access does not require payment to publishers for public access to a reliable version of the research publication (the author’s accepted manuscript); however, researchers frequently have limited authority to provide open access to their works in this manner when publishers acquire their copyrights and impose restrictions on republication. Such restrictions typically take the form of embargoes on republication, which undermine opportunities to use the green road to deliver immediate public access to research. Researchers often have weak, and sometimes nonexistent, bargaining power. Consequently, it is frequently challenging for them to navigate the publishing industry’s contractual framework that secures copyrights for free, prevents researchers from retaining the rights necessary to republish their accepted manuscripts on an open access basis, and limits their capacity to provide immediate public access to research by imposing embargoes on republication. To support the green road to open access as a viable option for researchers to provide immediate public access to research, I argue that Canada and other countries must implement, alongside their open access policies, a legislative strategy involving a secondary publication right within copyright law. This article proposes an ideal secondary publication right framework and advocates for its implementation in Canada and beyond.

Reclaiming Freedom While Democracy Decays and AI Surges

Martha Minow — 2026-01-01

Democratic norms decay as strongmen leaders disable checks on their power; artificial intelligence permeates every sector of societies. Although reflecting different origins and dynamics, these two trends in the first decades of the twenty-first century reflect and escalate social distrust and diminish human capacities. Reclaiming our freedom requires active resistance and actions honouring and deepening our humanity through protest, collaboration, and creativity.

Front Matter - v. 71, no 1

Nicole Leger — 2026-01-01