Comparative Law: Comparative Constitutionalism

The seminar will initiate students into what comparative constitutional law as a field of study looks like; explore methodologies for comparison; identify constitutional borrowings, transplants and migrations; consider critical perspectives; examine relationships between constitutionalism and democracy; compare defining structures such as separation of powers and federalism across jurisdictions; study specific constitutional rights across jurisdictions with reference to their formal status at law, judicial definitions and the scope of government regulation; consider the structure and functions of constitutional courts, modes of judicial interpretation and the legitimacy of the function of judicial review; and track contemporary or emerging trends in the field. The seminar will survey a variety of jurisdictions including those of Canada, the United States, Somalia, and India.

Constitutional Litigation

This seminar considers the adjudication process in constitutional litigation.  We will cover questions of procedure, evidence (adjudicative and legislative) and judicial notice. A key focus is on the importance of remedies as an initial consideration, not as an afterthought.  Debate, questions, banter and discourse are encouraged.

The seminar involves working through problems in small groups and presenting positions in class. Students will participate in the preparation of, and advocacy in, a constitutional case.  A final factum and moot before a panel of three judges will complete the course with students receiving both oral and written feedback.
Seminar topics may include: the role of the courts in constitutional litigation; commencing a constitutional case; drafting pleadings; government action under s.32 of the Charter; standing; selecting the appropriate court and procedure; mootness, interventions; role of the Attorney General; evidence in constitutional cases, proving constitutional facts, the role of experts and drafting effective affidavits, examination of government witnesses, presentation and assessment of social science data in the adversarial system; drafting constitutional arguments and presenting them effectively; oral advocacy; the importance of remedies for constitutional infringements; litigation strategies for public interest groups and case studies.

Fundamental Justice and the Charter

Section 7 has emerged as one of the Charter’s most important and challenging provisions. This seminar provides students the opportunity to examine s. 7 in depth, from historical, theoretical, doctrinal and jurisprudential lenses. Topics to be addressed include: the historical origins of s. 7; the nature of the entitlements (life, liberty, security of the person); engagement; principles of fundamental justice (including the “instrumental rationality” principles of arbitrariness, overbreadth and gross disproportionality); s. 7 and the Criminal law (e.g. right to silence, full answer and defense); the role of s. 7 outside of the criminal law (e.g. immigration, extradition); and positive & social rights (e.g. housing, healthcare, environmental rights). Wherever possible, students will be exposed to emerging s. 7 issues, including through the examination of recent and ongoing litigation.

Regulatory Offences

In this seminar students will learn the substantive and procedural aspects of regulatory offences, or public welfare or quasi-criminal offences as they are sometimes called. The course has a practical focus, examining matters that arise before courts, administrative tribunals, regulators and law enforcement agencies. Seminar topics will include: the classification of regulatory offences, evidence gathering techniques, the application of the Charter of Rights, and the unique nature of strict liability prosecutions, including the operation of the due diligence defence. Sentencing considerations and proposals for reform will be canvassed as well.

Legal Values: Law in the Time of Catastrophe

COVID-19 is the first truly global pandemic of the 21st century. Governments, climate scientists, epidemiologists, and public health researchers have warned that the viral outbreak will affect the world in myriad unforeseen ways and similar outbreaks are likely to recur. All the while that we are overwhelmed by this historical malady, we must not forget the increasing frequency and intensity with which Canada and countries around the world have been struck by forest fires, earthquakes, tsunamis, food scarcity, and historic refugee flows out of conflict and disaster-ridden landscapes. These events are likely to worsen in the coming decades.

Climate change and disasters as umbrella categories are fundamentally problems of governance. But environmental law courses traditionally struggle to make room for them. This course aims to introduce upper year law students to the relationship between law and a range of future-facing global environmental crises that are often overlooked in law school curricula. The readings are designed to: (i) bring law students up to date on social science and humanities research surrounding disasters; and (ii) critically examine a variety of international legal regimes that currently attend to specific kinds of disasters such as pandemics and food scarcity.

As possible, we will pause to examine how these issues are being addressed within Canada, both in terms of the Canadian constitutional framework as well as the concerns of indigenous communities. Like any survey, this course is designed to introduce students to a wide swathe of knowledge about a new subject. As such, there are limits to how deeply we can explore the subject-matter for each week. However, students are encouraged to choose research projects that will allow them to study any of the areas explored in the course, or other related areas, in greater depth.

The seminar will prepare students to serve as law and policy experts on significant national and international environmental concerns that are going to be in high demand in the years to come. By the end of the course, students will be able to:

·understand the socio-scientific, political, and historical context of climate change and other ‘catastrophes’ broadly stated;
·apply these insights and techniques to evaluate the quality and impact of international (and domestic) legal regimes;
·critically analyze the content of official statements, news reports, and popular narratives about disasters and emergency regulation

Sample list of topics (subject to change)
·        Climate, climate change, and disasters (as global, legal and non-legal contexts)
·        Famine and food security
·        Pandemics and global public health
·        Armed conflict and environmental Degradation
·        Small islands and sea level rise
·        Climate refugees and internally displaced persons

Comparative Law: Indigenous Legal Traditions

This seminar will introduce students to non-state Indigenous legal orders. Using a transsystemic pedagogical model and a wide range of reading materials (legal cases, methodology, pedagogy, anthropology, theory) students will critically explore the theories and practices of indigenous legal traditions through analysis and substantive treatment of: indigenous sources of law; oral histories and traditions (as legal archive); legal cases and precedent; modes of reasoning and interpretation; and authority and legitimacy.

Constitutional Litigation

In this seminar, students explore the adjudication process in constitutional litigation, consider questions of procedure, proof and remedies and discuss effective preparation of and advocacy in constitutional cases.

Seminar topics will include: the role of the courts in constitutional litigation; commencing a constitutional case, drafting pleadings, government action under s.32 of the Charter, standing, crown defendants, choice of venue, remedies, evidence in constitutional cases, the role of experts and drafting effective affidavits, discovery of governments, and interlocutory relief.

Criminal Procedure

This course will provide students with an overview of the Canadian criminal process. It will begin with an exploration of police investigative powers. The authority of Canadian police to detain, search/seize, question and arrest will all be considered in detail. Special attention will be given to the limitations imposed on each of these powers by the Canadian Charter of Rights and Freedoms. The exclusion of unconstitutionally obtained evidence under the Charter, as well as the availability of other constitutional remedies, will also be addressed. The course will then shift to a consideration of the criminal process after charges are formally brought, including intake procedures, bail, disclosure (the effects of non-disclosure and/or lost evidence), election and plea, preliminary inquiries, the right to trial within a reasonable time and plea-bargaining. The course will then focus on the trial, including trial venue, jury selection and trial procedure. This will be followed by an overview of the law of sentencing, and a brief consideration of appeals.

Indigenous Peoples and Canadian Law

This course will provide a critical survey of state law as it relates to Indigenous peoples in Canada. Topics will include: the historical context and constitutional framework; Aboriginal rights and title; self-government; treaties and treaty rights; the Indian Act; Inuit rights; Métis rights; and the authority and obligations of the federal and provincial governments.

This course fulfills the prerequisite requirements for the Intensive Program in Aboriginal Lands, Resources and Governments. It is also recommended for students who plan to take an advanced seminar on Indigenous Peoples and the Law.

Indigenous Peoples and Canadian Law

This substantive law course will explore the interactions between Canadian common law and Indigenous law, primarily Anishinaabe law. The content will be viewed through the lens of Indigenous worldviews. Topics will include, but are not limited to: Indigenous sources of law; historical context and constitutional framework re: Indigenous Peoples; Aboriginal Rights, Title and the Doctrine of Discovery; treaties; resource rights and consultation; and the Indian Act and Identity. The course will be presented from a practitioner’s perspective working within Anishinaabe communities, with attention to practical intersections between the various topics. This course fulfills the prerequisite requirements for the Intensive Program in Indigenous Lands, Resources and Governments.