It is commonly thought that the watershed Supreme Court of Canada cases on Aboriginal rights represent a gradual trend wherein Aboriginal peoples have gained increasing protection under Canadian common law. However, this paper argues the contrary. Despite judicial decisions dealing with Aboriginal rights under section 35(1), the rights of Aboriginal peoples in Canada have not gained greater protection and they certainly have not expanded to encompass the right of self-determination. Instead, it is argued that judges have introduced and applied various legal tests which have ultimately resulted in further impediments to the expansion of broad Aboriginal rights under section 35(1). It is interesting to discover that the level of political and governmental recognition of Aboriginal peoples and their rights, including the right of self-determination, has been greater than at the Supreme Court of Canada. This is despite the destructive treatment of Aboriginal peoples by the Canadian state. On the whole, the Government of Canada has been willing to recognise the inherent right of self-determination as applied to Aboriginal peoples. This is due to the changing legal status of who constitutes “peoples” under international law and the role of the Canadian government as a signatory to various relevant international covenants and declarations, alongside more recent government policy statements and developments in comprehensive land claims and self-government negotiations. Ultimately, it is argued that the Canadian government has tended toward higher levels of support for more extensive rights for Aboriginal peoples than has the judiciary, and most notably, the Supreme Court of Canada.

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 examines the values ascribed to the lives of non-citizens by the Immigration and Refugee Protection Act's security certificate process and its implications for state power and political freedom. Under the imperative of national security and the “war on terror,” the security certificate functions as a moment of legal exception for the assertion of sovereign power and legitimation. This compromises the rule of law and denies basic legal protection to non-citizen detainees. The first section of the article addresses the mechanisms and procedures of the security certificate. Special attention is paid to the use of detention and evidentiary standards in order to illustrate the manner in which the security certificate derogates the rule of law. The second section considers how eroding the rule of law opens a space of exception for the exercise of sovereign, unmitigated state power that is grounded in the discriminatory criteria of citizenship status so as to implicate foreignness in the production of danger. The final section addresses how the security certificate configures freedom as commensurate with the national security objectives of the “war on terror”, exposing the limitations of liberal freedom in relation to modern state power.

Ghana joined a group of transitional democracies in the world by establishing a National Reconciliation Commission (NRC), which started work in September 2002. The NRC was mandated to investigate past atrocities and human rights violations, recommend appropriate compensation for victims, and reconcile the nation. But expectations among Ghanaians of the ability of the NRC to heal the wounds of the past, end the cycle of vengeance and vendettas, and reconcile the nation have been mixed even after the NRC completed its work and submitted its report in October 2004. This paper makes a case for Ghana's NRC. It argues that a National Reconciliation Commission is a better way of dealing with the egregious human rights violations in Ghana's past than the alternatives available.

This paper deals with the official apology offered by governments to peoples or groups, often a minority of their own nation, who were once victims of a crime against humanity. After staying six months in Alaska with the Unangan people who, in 1988 for the first time in the country's history, received from the American Congress official apologies and financial compensation for their evacuation and internment during WWII, I have returned with a significant amount of data. They tend to show that if such apologies, although considered unanimously as a positive gesture, are not accompanied by certain essential conditions, they are viewed mainly as a political strategy and comedy. Furthermore, if this evolution results directly from recently-acquired historical, legal and political consciousness of peoples, especially of Aboriginal peoples, it represents a new kind of test for individuals and groups in our democracies who are really concerned with common welfare.

Legal scholars tend to situate the development of rights in constitutional courts. However, recent studies in the law and society tradition find that individual choices or choices by private organizations also can transform the meaning of rights. Further extending this argument, this paper hypothesizes that the transformation of rights also occurs through incremental policy changes made by subnational officeholders and administrators, including changes that “layer” new meanings onto law and rights. To examine the hypothesis, this paper uses the example of property rights and land use regulation. It concludes that Canadian officeholders and administrators engage in an ongoing development of the meaning of rights within a rationality defined by entrenched constitutive values about territoriality.

Protecting research confidentiality is an integral principle of all social sciences and humanities ethics codes. But what if a court were to want access to confidential research information, either in pursuit of civil litigation or a criminal case? In Canada, only Statistics Canada research information enjoys an evidentiary privilege—a court cannot compel its disclosure. All other researchers would have to turn to common law to defend confidential research. The onus would be on them to prove on a case-by-case basis that confidential research information should remain confidential, thereby creating the possibility that a court might order its disclosure. The first part of the article identifies five problems arising from this current state of the law. Statute-based protections of research confidentiality would go a long way toward resolving these problems. But what would these protections look like? Who would administer them? The second half of the article examines statute-based protections of evidentiary privilege, including the Canadian Statistics Act and Canada Evidence Act, and US “confidentiality certificates” (for certain kinds of health research) and “privacy certificates” (for certain kinds of criminological research) with an eye toward formulating criteria that a Canadian research shield law might emulate.