Of Scandals, Sources and Secrets: Investigative Reporting, National Post and Globe and Mail

Twice in 2010 the Supreme Court of Canada considered the status of confidential newsgathering sources. Each case arose from investigative reporting that exposed ethical breaches and wrongdoing at the highest levels of federal government. Rather than constitutionalize the journalist-source relationship as an element of newsgathering under section 2(b) of the Charter, the Court re-affirmed the common law Wigmore test for privilege. After rejecting the claim of privilege in National Post, the Court adopted a more source-protective approach in Globe and Mail. The Court’s lack of initiative points to the need for policy debate, leading to statutory protection for confidential newsgathering sources

Fault and Punishment under Sections 7 and 12 of the Charter

The late Antonio Lamer took the lead, under the Charter, in constitutionalizing the substantive criminal law. In that regard, the Motor Vehicle Reference may be his most important Charter decision: the re, he proposed an institutional the ory of substantive review for section 7 — a guarantee which, it is agreed, was intended only to have procedural content. Not only was Justice Lamer’s the ory of review unsound, the section 7 fault jurisprudence which followed the MVR was no more than a modest success. Yet analysis shows how the section 7 cases are linked to section 12 — and its prohibition on cruel and unusual treatment or punishment — by a shared concern for proportionality in the relationship between fault and punishment. After undertaking a critique of the section 7 jurisprudence, this paper proposes that a substantive interpretation of that guarantee be abandoned, and suggests that questions of proportionality — whether arising from a fault deficit or the nature of the punishment — be addressed by section 12

Resetting the Foundations: Renewing Freedom of Expression under Section s.2(b) of the Charter

The 40th anniversary of the Canadian Charter of Rights and Freedoms on April 17, 2022 is a time for reckoning, and an opportunity to ready s.2’s fundamental freedoms for the future. In particular, this article offers a moment of pause to invest in s.2(b)’s guarantee of expressive freedom and its renewal. The discussion begins by addressing s.2(b)’s “fault lines”, which are embedded in the jurisprudence at both stages of the analysis – breach as well as justification. What then follows is a proposal for renewal that begins, under s.2(b), with a theory or principle of freedom and a revised approach to the question of breach. Specifically, the proposal eliminates Irwin Toy’s purpose-effects test and replaces it with s.2(a)’s standard of infringement, from Syndicat Northwest v. Amselem. To complete s.2(b)’s renewal it is necessary, under s.1, to eliminate the contextual approach and re-invigorate the Oakes test. Taking these steps and engaging this process of renewal can place s.2(b) on principled foundations and constrain the power of legislatures and regulators to infringe the Charter’s guarantee of expressive freedom

Dialogue and Hierarchy in Charter Interpretation: A Comment on R. v. Mills

This case comment focuses on two issues of methodology: the first concerns constitutional interpretation and the democratic process, or the dialogue issue, and the second, the relationship between Charter guarantees, or the hierarchy issue. To set the stage, an initial section provides an overview of the Stinchcombe/O\u27Connor/Mills trilogy, and is followed by a more detailed analysis of Mills that examines the tension between judicial and legislative decision making, before considering how Parliament and the Court altered O\u27Connor\u27s model for balancing the rights of the accused and complainants. On the latter issue, though the article does not comment in detail on the mechanics of defence access to these records, some attention to particulars is necessary to show how the Court both eschewed and embraced a hierarchy among Charter entitlements. A final section returns to overriding questions of hierarchy. Beyond the substantive issue of ranking rights and interpreting s. 7 is the question of relations between institutions. There, Parliament\u27s decision to negate O\u27Connor by ordinary legislation calls into question any concept of dialogue as a demonstration of mutual respect between courts and legislatures. In that regard, it is doubtful that dialogue\u27s objective of keeping the institutional peace augurs well for constitutional rights. As the conclusion suggests, the concept is more likely to compromise entitlements and destabilize Charter jurisprudence

Does Section 2(B) Really Make a Difference? Part 1: Freedom of Expression, Defamation Law, and the Journalist-Source Privilege

The question this article poses is whether the common law must adopt Charter-specific doctrines or remedies when Charter values are at stake. The discussion focuses on the Supreme Court’s defamation decisions, but includes brief remarks about R. v. National Post, which considered whether the Wigmore test for a journalist-source privilege is consistent with the Charter

A Work in Progress: The Supreme Court and the Charter\u27s Equation of Rights and Limits

The text of the Charter separates the rights conferred from reasonable limits which may justifiably be placed on their enjoyment. Though the concepts of breach and justification serve different functions, the Supreme Court of Canada has not been faithful to the Charter\u27s structural logic. A Work in Progress examines the relationship between the rights and their limits in the jurisprudence. It shows that the boundary between breach and justification has been blurred, and that the Court\u27s methodology is complex and unworkable. The final section suggests a methodology which will enable these concepts to serve their respective functions without upsetting the balance in the Charter\u27s equation of rights and limits

A Chief and Court in Transition: The Wagner Court and the Constitution

On December 17, 2017, and after little more than five years as a puisne judge, Richard Wagner became Canada’s 18th Chief Justice. Only William Ritchie and Bora Laskin rose to office more expeditiously. When appointed, Wagner J. was less well known than Beverley McLachlin, who served 10 years on the Court before becoming Chief Justice. Between 1989 and 2000, she was a vigorous jurist, writing frequently and at times fearlessly. In part because her jurisprudence moved unpredictably between liberal and conservative outcomes, her decisions were much discussed, if imperfectly understood. By contrast, those commenting on Wagner J.’s appointment were hard pressed to cite a body of work, and focused instead on his reputation as a collegial, fair-minded, and hardworking member of the Court

Cross Cultural Reflections: Teaching the Charter to Americans

In this article, the author discusses a course in Comparative Constitutional Jurisprudence that she taught at Cornell Law School in the winter semester of 1989. She is particularly interested in the way this class of American students responded to the Supreme Court of Canada\u27s interpretation of the Charter. She presents her reflections on differences between Canadian and American constitutional culture through a discussion of the decisions in The Motor Vehicle Reference, R. v. Morgentaler, and The French Language Case