Patrick Macklem

The security of freedom : essays on Canada's Anti-terrorism Bill

The Government of Canadas proposed anti-terrorism legislation, Bill C-36, contemplates dramatic changes to our law, in areas as diverse as criminal procedure, international relations, immigration, individual privacy, law enforcement, and charitable giving. In this collection, Canadas leading scholars in the areas of law and public policy address the potential impact of these changes on the rights and freedoms that Canadians enjoy. Based on papers presented at a conference organized by the Faculty of Law at the University of Toronto in November 2001, the essays in this book provide a permanent record of the vital legal debate surrounding Bill C-36.

Distributing Sovereignty: Indian Nations and Equality of Peoples

This article aims to provide a justification of Indian government by recasting claims of prior sovereignty in the discourse of distributive justice. By assessing the justice of the distribution of sovereignty in North America, the author offers a defense of Indian government that ventures beyond the conventional confines of the domestic nation-state and challenges traditional assumptions about the reach of sovereign state power. In Part II, he outlines the legal frameworks in which Indian government currently operates in the United States and Canada, in order to highlight similarities and differences between the two jurisdictions and, more importantly, to illustrate what is at stake in debates concerning the legitimacy of Indian government. In Part III, he examines one similarity in some detail, namely, that it is common in both jurisdictions to base Indian government on the fact of prior occupancy. He argues that the fact of prior occupancy, standing alone or as a proxy for other claims, is insufficient to meet concerns of critics of race- or culture-specific measures. In Part IV, he addresses the debate between cultural relativists and those who believe in the possibility of universal human rights, and argues that invoking cultural relativism or universalism does not assist in shielding Indian government from potential erosion. In parts V and VI, he proposes a justification for the recognition of Indian government, one that he hopes will obtain some degree of intercultural agreement between indigenous and nonindigenous people in both the United States and Canada.

The Polical Economy of Fairness: Frank Iacobucci's Labour Law Jurisprudence

Although Frank Iacobucci ran some rather large operations during his magnificent career (as provost of the University of Toronto, the largest university in the country, and as deputy minister of justice, the largest law firm in the country), and probably spent more time than he cares to remember on personnel issues, he was not a labour lawyer in his pre–Supreme Court life. But it is fair to say that he became one while on the Court. A good one. This is no mean achievement, and it is one in which Frank takes, as he has publicly admitted, some pride in having, as he put it, ‘played in a minor role in the development of an ongoing debate on this most fundamental part of our lives.’ It is no mean achievement because to be a good labour lawyer requires an overview, a coherent account, of all of the various and disparate laws (common law, employment-standards law, human-rights law, collective bargaining law – and much else) that bear upon the lives of human beings engaged in productive activity – often, not always, and decreasingly, within the legal category we call ‘employment.’ Articulating such an overarching and coherent account of the field is both difficult and a necessary precondition to principled decision making. It is a task Frank undertook with insight and passion. In what follows we first discuss this issue of the nature of labour law and Frank’s role in articulating its basic theory. Then we discuss Frank’s contributions to labour law under three headings: the common and statutory law of dismissal, the law of collective bargaining, and freedom of association under the Charter of Rights and Freedoms. Finally, we attend to several other cross-cutting themes in Frank’s judgments that strike us as significant and revealing, not only of Frank’s attitudes to law in general, and to labour law in particular, but of his attitude to life itself. Taken