Parliament recognized the fundamental importance of protecting access to government information when it enacted the federal Access to Information Act. When the Act came into force on Canada Day 1983, Canada was just one of a handful of countries to have legislative protection of access to government information. Now, 27 years later, over 80 countries across the globe have enacted some form of access to information legislation.

Although the world has followed Canada's lead in recognizing the importance of protecting access to government information, Canada has “fallen behind” (to borrow the descriptor used by journalist and author Stanley Tromp) and may even be “backsliding” (in the words of Laura Neuman of the Carter Center). What has gone wrong with the federal access regime? Why should legal studies scholars care? I address these questions in this article. I start by outlining the symbiotic role between academics and access to government information. I then identify three key factors that have contributed to the decline of the federal access regime: administrative resistance, legislative degeneration, and political indifference. Finally, I close by briefly discussing three ways in which scholars can continue to work to protect and promote access to information in Canada.

Academics and Access

Academics took the lead in advocating for access to government information in the 1960s and 1970s in Canada. One of the earliest advocates was Donald C. Rowat, a professor of Political Science at Carleton University. In a 1965 article entitled “How Much Administrative Secrecy?”, he summarized the key arguments in favour of protecting access to government information, writing

Socially responsible corporate governance (SRCG) is a product of the interaction of corporate governance and corporate social responsibility. These two transnational business governance schemes have converged around the principles of accountability, sustainability, and due diligence. This article will examine to what extent SRCG can be useful in promoting worker protection. It will contend that, as a reflexive regulation, SRCG is normatively indeterminate and may easily be subject to regulatory capture by the traditional actors of corporate governance. This article will argue that these risks may be alleviated by the interaction of SRCG with transnational labour law (TLL). Transnational labour law increases SRCG’s responsiveness to the value of worker protection by offering labour more direct sources of participation to strengthen SRCG’s enforcement and alleviate risks of capture. Moreover, the principles of TLL weave a coherent and meaningful framework which can be used to assess the quality of the various corporate governance initiatives.

In its judgement on the constitutionality of a unilateral declaration of independence by Quebec, the Supreme Court claimed to be guided by the implicit or explicit constitutional principles of democracy, federalism, rule of law, and respect for minorities. French-English duality, as part of a “multination” conception of Canada, was not among these, despite being crucially implicit in the Court's reasoning. Had the principle of duality been articulated, it would have enhanced the theoretical cohesion of the judgement; more importantly, it would have furthered a necessary dialogue outside Quebec, insofar as national reconciliation requires the recognition of Quebec's distinctiveness by the rest of Canada. The secession reference was therefore a significant opportunity missed.

Abstract — Examining recent (1990 to 1993) reported Canadian cases on custody and access, I document a movement toward a re-privatisation of “family” to a traditional patriarchal nuclear form. Patterns of privatisation, readily apparent in economic and social policy are also evident within family law. Custody and access determinations in a separation or post-separation setting represent a moment where these implicit tactics become visible; the result is serious limits placed on the freedom and safety of women and their children. Focus on issues of custodial mothers' mobility, wife abuse and allegations of child physical and/or sexual abuse reveals a propensity on the part of the judiciary to prioritise paternal access to children as a criterion of the “best interests of the child.” Like joint legal custody, which the Canadian courts are still reluctant to impose on unwilling parents, de facto joint custody is occurring under sole custody orders. These tendencies ensure the separated or divorced “family” will be “re-onstructed” and re-privatised along familiar patriarchal lines.

In 1942, 22,000 people of Japanese origin were expelled from their homes in British Columbia and moved to numerous incarceration sites. The expulsion, incarceration, dispossession, displacements, and deportations of Japanese Canadians were accomplished through Canadian law. In this article, I examine some of the spaces of incarceration and displacement produced through the law and the systems of power mobilized through these carceral spaces. I argue that in mapping out the spaces of the Internment, we begin to see how the nation of Canada was made through racial exclusion and processes of violence. As the spaces of incarceration and displacement become visible, so too do the subjects of these laws and processes. Their accounts of the incarcerations and displacements reveal the long-term effects of the violence of the Internment.

Antidiscrimination legislation is the vehicle most commonly used by communities to demand equality, but how should such law best be employed? In this article, the Ontario Human Rights Tribunal decision in Hogan v. Ontario (Health and Long-term Care) is examined in relation to the removal of sex reassignment surgery from the Alberta Healthcare Insurance Plan in order to better understand the legal strategies designed to remedy different kinds of discrimination. This article argues that trans issues (involving people who identify as transgender, transsexual, or trans) ought not to be seen as additions to gay and lesbian issues legally or politically. Moreover, this article demonstrates that the fight for formal inclusion in legislation as a discrete or insular minority should be rejected by trans activists, as other legal strategies are better positioned to combat the processes of transphobia, thus potentially offering important steps towards substantive equality.

This article presents first, a summary of the findings of the first phase of the human dignity and social exclusion initiative (HDSE) of the Council of Europe and second, an analysis of the implications for social policy of the four themes identified in the report's conclusions. These four themes are: i) trends in risk, ii) the changing role of the state in relation to risk, iii) convergence in social policy approaches in Europe and iv) the challenge confronting social NGOs in defending the least advantaged in risk society. Thus, the article uses the framework of risk, social exclusion and social rights to explore the implications of social policy trends for the lives of the least advantaged people and to comment on effective strategies for combating poverty and exclusion in the changing environment identified by the HDSE report.

This article draws on our qualitative study of trans unemployment to introduce considerations of the relationship between trans unemployment and the demands for workers across economic sectors to perform affective labour as integral to industrial service relations. Affective dimensions of labour are often unspoken and unconscious, rendering it challenging for anti-discrimination laws to accommodate. We demonstrate the ways that recent cases grounded on unconscious bias open spaces for further consideration of the ways that trans employment discrimination rooted in demands for affective labour can be dealt with by anti-discrimination law.

Public support is a critical component of any court’s institutional legitimacy. Understanding the roots and durability of such support is therefore crucial. This article uses survey data to explore public attitudes towards Canadian courts from 2008 to 2019. This time period is especially relevant given the comparatively tumultuous relationship between the Supreme Court and the Conservative government of Prime Minister Stephen Harper (2006–2015). Notably, partisanship now appears to be a defining characteristic of court support in Canada, with Conservative Party supporters being less likely to support the courts. While institutional trust is also found to be a strong predictor of court support, this suggests public attitudes towards Canadian courts may no longer be as well shielded from the effects of changing political circumstances as they once were.

After a judge declared its parentage regime violated the Canadian Charter of Rights and Freedoms, in 2016, Ontario passed the All Families Are Equal Act (AFAEA), which recognized LGBTQ families and parents of children born through assisted reproduction. This article analyzes the legislative hearings on the AFAEA, and highlights three factors that shaped the final policy outcome: a coordinated group of progressive witnesses with legal expertise; the presence of “rights talk” to inflate the scope of the judicial ruling; and the government’s use of the Charter as both “shield” and “sword” to minimize conservative opposition. This highlights how the Charter can shape policy outcomes not just in the courtroom, but also during the lawmaking process. It also demonstrates that activists are now using the Charter—particularly the equality rights provisions—to change policy for two groups facing discrimination: trans parents and individuals using assisted reproduction.

This article puts forward an analytical canvas for studying the effects of a divide between normality and exception in the institutionalization of power-attributing rules. The question is raised through the study of the coordination of institutional agents around issues pertaining to the specification of exceptions. The initial canvas is enriched by the re-examination of examples taken in the field of the legitimate intervention of the State against the backdrop of uncertainties about the meaning of European rules which are central to the policy of competition.

This article analyzes women’s contemporary use of rights to mobilize and pursue claims for gender equality and gender justice in the United Kingdom. Empirically, the paper explores the growth of rights discourse and activity against the backdrop of a stronger constitutionalization of women’s rights at national, European, and international levels. It does this through an exploration of individual and collective lobbying and litigation strategies in relation to violence against women. The paper first examines this in the context of the right to bodily integrity through examples of the ways in which sexual violence and domestic abuse are addressed within the criminal justice system. The paper then addresses the right to be free from violence for women seeking refuge and asylum. The research reveals the need for varied strategies that target all aspects of the legal and political systems in order to ameliorate the protection and implementation of women’s rights.

This paper contends that the chaos and uncertainty characteristic of the administration of the civil law in Lower Canada resulted fundamentally from the impact of the change in legal metropolis on the process of transfer and adaptation of a European legal system to a colonial setting, in a context of ethnic or national struggle for hegemony. After a brief look at the situation existing under the Quebec Act and the explanations previously offered, the paper examines the functioning of the two major mechanisms of legal adaptation or reform--legislation and jurisprudence--in order to analyse their failure to reduce judicial chaos between 1791 and 1840. Ethnic conflict combined with the change of metropolis acted to prevent any modernization of the law not inspired by English legal principles and thus effectively eliminated the possibility of legislative reform of the laws. In this context, a predominantly British judiciary became the prime avenue for anglicizing Canadian law and thereby increasing rather than decreasing the existing uncertainty and confusion in the administration of the civil law.

In music copyright infringement cases, forensic musicologists are often called to testify as to whether or not two songs are ‘substantially similar.’ While it is standard practice to rely on experts to dissect the works in question, this is a fairly recent phenomenon. Until the 1950s, it was not the scientific analysis of the pieces, but the impressions they left on the ‘untrained ears’ of everyday listeners that was used to determine copyright infringement. This paper presents an overview of American music copyright infringement cases to document this shift in how the question of substantial similarity has been approached. We argue that the courts’ inability to objectify what listeners hear created the need for experts who could translate music into legal evidence that could be visually witnessed. This practice of judging plagiarism according to how songs look on paper may account for why the courts have viewed musical sampling as copyright violations.

In the great majority of cases, the proper exercise of investigative or prosecutorial discretion presents little challenge and evokes little controversy. In a very small number of “high-profile” cases, however, such discretionary decisions become highly controversial and the subject of intense political, public, and media debate. It is such relatively rare cases that are the focus of this article. In such cases, two critical questions are typically at the forefront of debate: What does “the public interest” in such cases require? And who should have the final say as to what the public interest in such cases requires? The first of these questions typically reveals disagreements as to how the various commonly accepted “public interest” considerations should be applied to the case at hand; the second goes to the heart of the concept of “independence,” alleged to be a fundamental and constitutionally essential attribute of police and prosecutors in making such decisions. This article is concerned less with the details of discretionary decisions themselves than with the “political economy” of prosecutorial discretion, with particular reference to controversial high-profile cases that raise significant “public interest” considerations. Specifically, the article considers who currently does, and should, have the ultimate authority to exercise prosecutorial discretion in such cases, and why, and what such arrangements imply for the prevailing concept of prosecutorial “independence.” The author draws on four recent high-profile cases in the United Kingdom and in South Africa to illustrate the different ways in which these issues have arisen and the controversies that have developed out of attempts to resolve them.

This article explores arguments for and against proposals for statutory changes that would require Canadian judges to consider partner or “spousal” abuse when making decisions about child custody and access, in terms of the likely implications for women. The author discusses, in historic context, the relationships of social change to the evolution of social ideology and professional “knowledge” about gender and family and the influences of these on the evolution of family law, in order to demonstrate that legal changes alone are unlikely to produce positive benefits for abused women and their children. Moreover, an analysis of the legal discourse of judges as reported in the Canadian Reports on Family Law between 1983 and 1996 suggests the need for caution. Instead of judicial sensitivity to the special vulnerabilities of women in abusive situations, the case law indicates that judges are applying an “objective” incidents-based approach to assessments of abuse. Because this approach ignores the special vulnerabilities of women and makes it appear that abuse is symmetrical by gender, women may be disadvantaged if judges are required to deny or limit abuser's access to, or custody of, their children. The author concludes that, if what is intended is the protection of abused women and children, the solution lies less in giving more power to judges than in promoting social change through collective action, the evolution of professional “knowledge” that ultimately will find reflection in law, and the allocation of tangible resources for the benefit of abused women and their children.