McGill Law Journal

Front Matter - v. 70, no 3

Nicole Leger — 2024-07-01

Corporations in the Crosshairs

Poonam Puri — 2024-07-01

Vers la reconnaissance d’une compétence autochtone en matière de justice pénale adolescente

René Provost — 2024-07-01

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.

Constitutional Labour Rights in the Gig Economy

Joel Bakan — 2024-07-01

Gig work is not new, but the introduction of digital platforms to broker its delivery vastly expands its domain. Workers can experience vulnerability in their relationships with these platforms, especially when power imbalances are acute. Collective bargaining is one way platform workers might protect themselves. However, due to their uncertain status as “employees,” platform workers are likely excluded from some, if not most, statutory collective bargaining regimes in Canada. A section 2(d) Charter right to bargain collectively could protect them from such exclusion. While early section 2(d) decisions rejected a Charter right to bargain collectively, more recent ones affirm that section 2(d) protects that right, especially for workers who experience workplace vulnerability. Many platform workers fall within that category and should therefore be entitled to Charter protection. A Charter right to bargain collectively would compel governments to act, and not act, in ways favourable to protecting those workers’ collective voice and interests.

Bending the Rules?

Maneesha Deckha — 2024-07-01

This article explores the relationship between the rule of law and the situation of nonhuman animals. A commonplace view prevails that the rule of law in anthropocentric legal systems is unrelated to how we treat animals. In those rare instances when jurists have framed the legal treatment of animals as a rule of law problem, the connection has been a limited one (i.e., the rule of law is said to be violated when governments fail to enforce existing laws for animals’ benefit). This article presses the connection between the rule of law and animal justice beyond the issue of poor enforcement of anticruelty laws to build upon nascent scholarship theorizing legal systemic animal use as presenting a constitutional problem implicating the rule of law. The article asks whether Canadian jurisprudence contains precedent for a “thicker” vision of the rule of law that can incorporate animal interests in its purview to generate a higher standard of animal protection than the very little that currently exists. The article concludes that it does. Although the “thinner” version is the one that has been more frequently articulated by the Supreme Court of Canada, the analysis charts the significant precedent for a substantive vision, arguing that such a vision could theoretically extend to animals and that this doctrinal opening should not be summarily closed by ongoing anthropocentric reasons. The article further highlights existing legal commitments outside of conventional rule of law doctrine, namely reconciliation with Indigenous legal orders and adherence to customary international environmental law and developments in transnational environmental litigation, as additional doctrinal grounds as to why Canadian legal conversations and reasoning about what the rule of law means and protects should consider an animal-inclusive vision.

Competing Constitutional Rights

Catherine Oatway — 2024-07-01

When the state limits a right protected by the Canadian Charter of Rights and Freedoms (Charter), it must demonstrate that the limitation is justified in a free and democratic society. However, in certain circumstances a Charter right may also be limited by the valid simultaneous exercise of another individual’s rights. To address these situations, Canadian courts have developed a test similar to the Oakes framework that asks: First, whether the rights conflict or overlap at all; second, if that conflict can be overcome by alternative, accommodating measures; and, if not, third, whether the proposed approach strikes a rights-respecting balance. But when they reach the third stage there is a palpable risk that they will conduct an improper balancing inquiry wherein the effects of denying one right are weighed against protecting the other, rather than the effects of limiting the right(s). Instead, if the exercise of both rights creates a true competition which cannot be accommodated, courts must reconcile the claims: They must redefine the strength of each right relative to the other’s competing claims, to the broader factual matrix, and to the Charter’s interpretative guidelines, with the objective of facilitating the meaningful exercise of both rights. A balancing inquiry is only appropriate to the extent that it assesses whether the limitations (i.e., the results of the reconciliation analysis) are proportionate.