Something to Talk About: Applying the Unwritten Principle of Democracy to Secure a Constitutional Right to Access Government Information in Canada by Vincent Clayton Kazmierski A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto 2008 ABSTRACT In this thesis, I argue that the unwritten constitutional principle of democracy provides a foundation for the recognition of a constitutional right to access government information in Canada. More specifically, I argue that the principle of democracy can be used to fill the “access gap” in the written provisions of the Constitution. I begin by synthesizing the Supreme Court of Canada’s jurisprudence and the work of a number of academics to outline guidelines for the recognition of unwritten constitutional principles. I also attempt to construct a coherent account of the content and effect of the constitutional principle of democracy. I proceed to argue that recognition of a right of access to government information as part of the principle of democracy fits within the guidelines I identify as it is supported by “strong” pragmatic, historical and structural evidence. I then demonstrate how the constitutional right of access to government information may be applied to protect access to information in at least three different ways: through statutory interpretation, through the regulation of administrative discretion, and, in exceptional circumstances, through the invalidation of legislation. I rely on the work of a number of British scholars and on aspects of David Dyzenhaus’s conception of law as a culture of justification to help bridge the divide between the Supreme Court of Canada’s approach to the application of unwritten constitutional principles and the concerns raised by critics of that approach. I argue that the application of the principle of democracy respects the primary role of democratically elected representatives of the public, while establishing that the judiciary also has an important role to play in the identification and enforcement of fundamental values. I suggest that this judicial role can be effectively constrained through the guidelines sketched by the Supreme Court and more fully articulated in this thesis. Finally, I argue that the application of the principle of democracy to invalidate legislation can also be justified in exceptional circumstances where the legislation imposes substantial impediments on fundamental aspects of the democratic process. In such cases, the principle of parliamentary supremacy is properly counterbalanced by the principle of democracy.

This thesis takes a fresh look at the legal practices observed at the Sŏnch’ŏn trial, the main trial of the Korean Conspiracy Case. On 28 June 1912, 132 suspects were brought forth on charges of alleged assassination of the first Governor-General of colonial Korea, Masatake Terauchi. It is argued that if the immediate local interests of the new administration invariably affected the entire case, what determined the nature of the suspects’ treatment before and during the trial was a set of formal and informal legal practices that were transported to the colony amidst legal reforms. By analysis the trial from an empire-wide perspective, this study looks at how specific legal practices from the metropole were exacerbated in Korea through legal loopholes and the agency of legal actors and how such informal and disavowed legal practices both defined the legal system of the colony and helped sustain the Japanese colonial venture.

This thesis takes a fresh look at the legal practices observed at the Sŏnch’ŏn trial, the main trial of the Korean Conspiracy Case. On 28 June 1912, 132 suspects were brought forth on charges of alleged assassination of the first Governor-General of colonial Korea, Masatake Terauchi. It is argued that if the immediate local interests of the new administration invariably affected the entire case, what determined the nature of the suspects’ treatment before and during the trial was a set of formal and informal legal practices that were transported to the colony amidst legal reforms. By analysis the trial from an empire-wide perspective, this study looks at how specific legal practices from the metropole were exacerbated in Korea through legal loopholes and the agency of legal actors and how such informal and disavowed legal practices both defined the legal system of the colony and helped sustain the Japanese colonial venture.

An increasing number of restructuring proceedings in both the United States and Canada end in the liquidation of the debtor company. This might prejudice the rescue culture approach which is deeply rooted in both countries bankruptcy laws. At the very least, it is the expression of different economic circumstances and of a different creditors’ structure which has excited for a little over a decade. This thesis gives an overview of the different approaches available in Germany, Canada and the United States to rescue a debtor and explains what exactly is meant by a rescue culture policy. Furthermore, it examines the extent to which each legislator has embraced the rescue culture approach. Finally, it looks at the reasons and consequences of the above mentioned current North-American trend and examines the extent to which these developments may influence the outcome of restructuring proceedings in Germany.

This dissertation concerns a crucial episode in the international legal history of nation-building: the Greek-Turkish population exchange. Supported by Athens and Ankara, and implemented largely by the League of Nations, the population exchange showcased the new pragmatism of the post-1919 order, an increased willingness to adapt legal doctrine to local conditions. It also exemplified a new mode of non-military nation-building, one initially designed for sovereign but politico-economically weak states on the semi-periphery of the international legal order. The chief aim here, I argue, was not to organize plebiscites, channel self-determination claims, or install protective mechanisms for vulnerable minorities – all familiar features of the Allied Powers’ management of imperial disintegration in central and eastern Europe after the First World War. Nor was the objective to restructure a given economy and society from top to bottom, generating an entirely new legal order in the process; this had often been the case with colonialism in Asia and Africa, and would characterize much of the mandates system throughout the interwar years. Instead, the goal was to deploy a unique mechanism – not entirely in conformity with European practice, but also distinct from non-European governance regimes – to reshape the demographic composition of Greece and Turkey. I substantiate this argument by marshalling a range of material from international law, legal history, and historical sociology. I first examine minority protection’s development into an instrument of intra-European nation-building during the long nineteenth century, showing how population exchange emerged in the Near East in the 1910s as a radical alternative to minority protection. I then provide a close reading of the travaux préparatoires of the 1922-3 Conference of Lausanne, at which a peace settlement formalizing the exchange was concluded. Finally, I analyze the Permanent Court of International Justice’s 1925 opinion in Exchange of Greek and Turkish Populations, examining it from the standpoint of wide-ranging disputes concerning the place of religion and ethnicity in the exchange process. My aim throughout is to show that the Greek-Turkish exchange laid the groundwork for a mechanism of legal nation-building which would later come to be deployed in a variety of different contexts but whose precise status under international law would remain contested.

In Gonzalez et al. v. Mexico, a case decided by the Inter-American Court of Human Rights in 2009, a context of discrimination and violence against women was known to target particular subgroups of women, of which the claimants were constituent, distinguished inter alia by their age, socioeconomic and, in some cases, migrant status. Despite this, the judgment of the Inter-American Court focused almost exclusively on sex discrimination and violence against women as a broader social phenomenon. With this judgment forming the background for the critique, the author will develop an anti-essentialist framework for the analysis of discrimination and violence against women claims where the discrimination was compounded by various identity factors. Intended to assist the Inter-American Court with its articulation of norms and standards in such cases, the ultimate value of this framework should be measured in terms of the assistance it can offer the Court at the reparations stage.

This dissertation concerns a crucial episode in the international legal history of nation-building: the Greek-Turkish population exchange. Supported by Athens and Ankara, and implemented largely by the League of Nations, the population exchange showcased the new pragmatism of the post-1919 order, an increased willingness to adapt legal doctrine to local conditions. It also exemplified a new mode of non-military nation-building, one initially designed for sovereign but politico-economically weak states on the semi-periphery of the international legal order. The chief aim here, I argue, was not to organize plebiscites, channel self-determination claims, or install protective mechanisms for vulnerable minorities – all familiar features of the Allied Powers’ management of imperial disintegration in central and eastern Europe after the First World War. Nor was the objective to restructure a given economy and society from top to bottom, generating an entirely new legal order in the process; this had often been the case with colonialism in Asia and Africa, and would characterize much of the mandates system throughout the interwar years. Instead, the goal was to deploy a unique mechanism – not entirely in conformity with European practice, but also distinct from non-European governance regimes – to reshape the demographic composition of Greece and Turkey. I substantiate this argument by marshalling a range of material from international law, legal history, and historical sociology. I first examine minority protection’s development into an instrument of intra-European nation-building during the long nineteenth century, showing how population exchange emerged in the Near East in the 1910s as a radical alternative to minority protection. I then provide a close reading of the travaux préparatoires of the 1922-3 Conference of Lausanne, at which a peace settlement formalizing the exchange was concluded. Finally, I analyze the Permanent Court of International Justice’s 1925 opinion in Exchange of Greek and Turkish Populations, examining it from the standpoint of wide-ranging disputes concerning the place of religion and ethnicity in the exchange process. My aim throughout is to show that the Greek-Turkish exchange laid the groundwork for a mechanism of legal nation-building which would later come to be deployed in a variety of different contexts but whose precise status under international law would remain contested.

In Gonzalez et al. v. Mexico, a case decided by the Inter-American Court of Human Rights in 2009, a context of discrimination and violence against women was known to target particular subgroups of women, of which the claimants were constituent, distinguished inter alia by their age, socioeconomic and, in some cases, migrant status. Despite this, the judgment of the Inter-American Court focused almost exclusively on sex discrimination and violence against women as a broader social phenomenon. With this judgment forming the background for the critique, the author will develop an anti-essentialist framework for the analysis of discrimination and violence against women claims where the discrimination was compounded by various identity factors. Intended to assist the Inter-American Court with its articulation of norms and standards in such cases, the ultimate value of this framework should be measured in terms of the assistance it can offer the Court at the reparations stage.

This thesis examines the Russian Constitution 1993 and the legislation flowing from it against the background of the former (Soviet) constitutions and international human rights instruments at the beginning of Russia’s path towards democratization.Research for the thesis was conducted over a period of four years (1998 - 2002) during particular political and economic instability in the country following the financial crisis of 17 August 1998.A review was conducted of Russian laws that aim to protect, what are arguably the most fundamental rights of any democratic constitutional system - civil rights. Unlike political rights (which relate to the system of government), civil rights are the rights to liberty and equality granted to citizens of a country.The civil rights enumerated in this thesis are known as ‘natural’ rights, and include the right to life; right to personal inviolability, right to privacy; right to dignity and good reputation; the freedom of information, movement, religion, language and nationality. These rights, are also referred to as ‘personal civil rights’, which is the term used in this thesis.The thesis presents a critical analysis of personal civil rights proclaimed in the Russian Constitution, demonstrating that although their articulation accords with international standards, there are obvious problems associated with economic and political factors that limit their enjoyment by Russian people.Most of the research for this thesis was conducted in Russia, providing a specific insight into the political, social and economic peculiarities (such as enduring totalitarian idiosyncrasies, and a prevailing context of corruption) the full extent of which is difficult to perceive from outside the country. Since, these peculiarities have a direct influence on the administration of justice in Russia, the thesis refers to local literature sources that contain an intimate knowledge of the effect of these factors on Russia’s current legal system.Chapter 1 of the thesis discusses the history and modern understanding of personal rights, as well as relevant parts of the current Russian Constitution, including how these differ from the previous constitutions. Subsequent chapters (2-9) discuss selected personal civil rights, which are particularly important in the context of Russian social, political, economic and legislative development; namely the rights to life and personal inviolability, privacy, dignity; and the freedom of information, movement, language nationality and religion,. These rights are at the core of any democratic constitutional system as they are essential in securing fundamental human freedoms.The Conclusion then summarizes the extent to which the personal civil rights proclaimed by the Russian Constitution are enjoyed by Russian people in light of Russia’s present political and economic reality. For most of the rights discussed, specific problems are identified and suggestions made as to what measures may be taken in order to overcome them.

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