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

Book Review - The Tenth Justice: Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference by Carissima Mathen & Michael Plaxton

This short book review discusses The Tenth Justice: Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference, by Professors Mathen and Plaxton. The “tenth justice” is Justice Marc Nadon, who was appointed from the Federal Court of Appeal to the Supreme Court of Canada. The appointment inspired the Supreme Court Reference and conclusion by a majority of the Court that their colleague – as Nadon was already sworn in – was not eligible to be appointed to one of Quebec’s three positions on the Court. The Tenth Justice offers an excellent, high-level primer on Justice Nadon’s appointment and its fallout, the pivotal questions of statutory interpretation at stake, the Reference decision – including Moldaver J.’s dissent – and the decision’s political, legal, and institutional aftermath – including Prime Minister Harper’s attack on then Chief Justice McLachlin. Scholarship spotlighting landmark Supreme Court decisions and extraordinary moments in institutional history is invaluable, and The Tenth Justice is recommended reading for scholars and students of Canadian constitutional law

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

Book Review: The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed the History of Free Speech in America, by Thomas Healy

Thomas Healy’s The Great Dissent re-treads the familiar story of US Supreme Court Justice Holmes’s First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy’s book demonstrates that fresh perspectives on this vital and ever-intriguing change of mind or transformation on Holmes’s part remain possible. The review offers its own perspective by highlighting the process of “reverse mentoring” which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day – Laski, Frankfurter, Chafee – and showing how Justice Holmes’s landmark dissent in Abrams was nonetheless and indisputably a product of his own jurisprudential ingenuity

A Context of Justice: Ontario\u27s Justices of the Peace – From the Mewett Report to the Present

This paper considers the evolution of justices of the peace in Ontario, from Alan Mewett’s landmark report in 1981 – which was commissioned by the Attorney General – to the present. It explains how an office that, according to Mewett and others, was in a state of neglect and dysfunction at the time has been completely transformed through a process of reform. This process addressed key deficits in the professionalism and independence of the justices, and comprised three key steps: the legislative reforms of 1989, the establishment of remuneration commissions for justices of the peace in the 1990s, and more recent legislative reforms undertaken in 2006. As a result of this process, there is little resemblance between the office that Mewett described and today’s justices of the peace, who have been brought into closer alignment with other judicial officers in the province. The paper also considers the roles justices of the peace play, and comments on their place in the overall scheme of justice in Ontario. The paper was prepared at the request of the Association of Justices of Peace of Ontario, and forms part of its submission to the Sixth Remuneration Commission in the fall of 2013