McGill Law Journal

Front Matter - v. 70, no 2

Nicole Leger — Wed, 23 Jul 2025 00:00:00 -0400

Reflections on Equity in Higher Education

Adelle Blackett — Tue, 01 Apr 2025 00:00:00 -0400

This essay—originally delivered to the Canadian Association for the Prevention of Discrimination and Harassment in Higher Education—reflects on the ambivalent relationship between equity, diversity, and inclusion, and employment equity, canvassing both the existing literature on effectiveness and the normative imperative of achieving substantive equality. It also critically considers the vision embodied in one recent sector-specific initiative, the Scarborough Charter on Anti-Black Racism and Black Inclusion in Canadian Higher Education. It asks what frameworks enable us to prioritize the work of transforming relationships in higher education in Canada, and beyond.

Contributions civilistes à l’interprétation des lois constitutionnelles canadiennes

Jérémy Boulanger-Bonnelly — Tue, 01 Apr 2025 00:00:00 -0400

While the interpretation of Canadian constitutional laws has long been carried by a teleological wave, a textualist backlash has emerged in recent years. This article questions this trend and argues that the teleological method remains the most appropriate for constitutional interpretation.

To support this argument, the article first draws a parallel between Canadian constitutional laws and civil codes, primarily the Civil Code of Québec (the “Code”). These instruments share certain fundamental characteristics—namely, their constitutive role, their aspiration for unity and durability, as well as their often general and abstract drafting style. It is well established that these characteristics require civilian interpreters to adopt a flexible and evolving method that emphasizes the purposes and spirit of the Code beyond its text. The presence of these same characteristics in Canadian constitutional laws justifies the application of the same interpretative method, which reinforces the teleological approach and thereby rules out any textualist inclination.

The article then responds to some objections—namely, the idea that the entrenchment of constitutional laws justifies the use of a more textual method of interpretation. It further suggests that this particularity, far from hindering the application of the civilian method, provides an additional argument in its favour. Finally, it argues that the pan-Canadian reach of our constitution requires that the approaches developed in Quebec be taken into serious consideration.

The Discriminatory Use of the “KGB Procedure” by Police Against Women in Canada

Elaine Brooks-Craig — Tue, 01 Apr 2025 00:00:00 -0400

In R. v. B. (K.G.) (KGB), the Supreme Court identified the procedural criteria necessary to ensure sufficient reliability of certain types of witnesses’ police statements, such that they can be introduced for the truth of their contents. The criteria include that the statement be videotaped, taken under oath, and that the witness be cautioned regarding the severe penal sanctions they could face if they lie. The type of witnesses contemplated are accomplices, coaccused, or others whose character makes them presumptively untrustworthy, and whose statement may become necessary because of the likelihood that they will recant at trial. The Court did not intend for KGB to be used generally, and the police do not typically impose this protocol on people who report crimes. Indeed, there are two types of witnesses subjected to KGB when they give statements to the police: those the Court intended (criminally implicated, coaccused or presumptively untrustworthy witnesses) and women who allege sexual or gender-based violence. A close examination of case law, the rules of evidence, and Crown prosecution standards reveal that imposing this protocol on women who allege sexual and other gender-based violence is, in the vast majority of cases, pointless, rooted in discriminatory assumptions about women and rape, and likely to impose unnecessary harms on those who turn to the criminal justice system to respond to experiences of sexualized violence.

The Administrative Law of Section 33 of the Charter

Andy Yu — Tue, 01 Apr 2025 00:00:00 -0400

Section 33 of the Canadian Charter of Rights and Freedoms (Charter) can be used to ensure that legislation operates notwithstanding sections 2 or 7 to 15 of the Charter, but can it be used to ensure that administrative decisions made under legislation survive notwithstanding those provisions, and if so, how? This administrative law—as opposed to purely constitutional law—question has become a live one, given increasing use of section 33 and the evolving framework for assessing whether administrative decisions comply with the Charter. Yet this question is underexplored. In this article, I suggest that section 33 can, in principle, be used to ensure that administrative decisions survive notwithstanding the relevant provisions. I then examine whether section 33 can, in fact, be used in this way—and if so, how. Given the evolving framework for assessing whether administrative decisions comply with the Charter, I distinguish between two general approaches to the framework—one based on Charter rights and the other based on Charter values—and explain the effect of using section 33 in the context of administrative decisions on each approach. On the Charter rights approach, using section 33 has effects that are analogous to the effects of using section 33 in the context of legislation; at the least, it prevents a court from quashing the decision. On the Charter values approach, however, using section 33 has no effect, since using section 33 has no effect on Charter values or their enforcement.

The Republic of Dissent

Michael Ilg — Tue, 01 Apr 2025 00:00:00 -0400

This article conceptualizes academic freedom as a form of social contract, grounded in what is termed the republic of dissent. This concept rests on two pillars: a republican tradition of resisting the accumulation and centralization of power, and a classical liberal emphasis on protecting the ability to think and dissent freely. The republic of dissent model helps clarify the relationship between freedom of expression and academic freedom, which are often conflated as a matter of constitutional usage. While universities contain free speech zones, this article argues that the university, as an institution, is more accurately understood as a decentralized system designed to allow academic competition while preserving dissent. From this perspective, not all versions of freedom of expression will necessarily be compatible with academic freedom. Classical liberal versions—which treat expression as a paramount community value and require institutional content-neutrality—are consistent with the republic of dissent. In contrast, balancing models that give equal weight to competing values and rely on officials to conduct content-based scrutiny to prevent social harm are likely incompatible with academic freedom.