Course or Seminar Category: Criminal Law

Law & Psychiatry

This seminar provides an introduction to mental health law, legal policy and practice in both civil and criminal contexts. One portion of the course focuses on the criminal justice system and mental health: fitness assessments, findings of “not criminally responsible”, Ontario Review Board dispositions, and mental health courts. The civil law portion of the course covers civil mental health detention, mandatory community treatment, as well as the law of treatment capacity and substitute decision-making. Additional topics may include: financial capacity and powers of attorney, guardianship of property and personal care, elder law, capacity to instruct counsel, ethical responsibilities of counsel when representing clients with mental health or capacity issues, criminalization of persons with mental illness, use of seclusion and restraint, sexual expression within institutional settings, occupational health and safety issues in the psychiatric facilities or long-term care homes, and the use of psychiatric expert evidence in legal proceedings (risk assessments).

Typical seminars will cover substantive law and statutory provisions, as well as policy issues and examples of practice applications. Students are expected to actively participate via class discussion and a class presentation. Guest speakers will provide unique perspectives on several topics.

Forensic Science & the Law

This course will provide students with an enriched understanding of forensic evidence as it applies to the administration of criminal and civil justice. The course will blend both novel scientific and legal issues as they apply to the modern day fact-finding mission. The course will cover the scientific and legal basics, key terminology, a summary of court decisions, and admissibility standards. The students will benefit from expert presentations given by leading professionals from both the legal and scientific community. The guest experts will provide students with a valuable insight on the capabilities and limits of their respective disciplines.

Forensic science is the application of a scientific inquiry into a criminal investigation. As the majority of court cases are decided on questions of fact, the interpretation and evaluation of scientific evidence is not taught as part of the traditional courses in law school.
This course fills this gap, by introducing students to forensic sciences and to the theories and methods that govern their interpretation in a legal setting. The interaction between science and law will be analyzed from theoretical, legal and pragmatic perspectives.

The course will examine the evolution and current position of forensic science in Canadian courts. The process of adapting scientific argument to legal argument will be explored. Expert witnesses, differing standards of legal acceptance and leading cases will be surveyed. Prominent miscarriages of justice will be examined to highlight the utility and frailties of forensic science. Course themes will include legal vs. scientific truth and science vs. junk science and legal vacuums as they relate to scientific evidence..

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.

Trial Advocacy

An introduction to the techniques of trial advocacy in civil and criminal trials. Consideration is given to pre-trial preparation and case analysis, opening and closing statements, examination and cross-examination of witnesses, evidence issues, expert evidence, tactical questions and ethical issues that confront the trial lawyer. Students perform simulation exercises in small groups under the critical guidance of experienced trial lawyers and Judges. Students conduct 1/2 day jury trials with two-student counsel acting on each side of the case. Trials are presided by Judges of either the Ontario Court of Justice or the Superior Court of Justice.

Administration of Civil Justice: Estate Litigation

This seminar will examine the substantive, procedural, and practical issues surrounding litigating certain claims by and against estates. Topics may include, depending upon available time, a detailed review of will challenges, dependant support claims, appointment and removal of estate trustees, passing of accounts, quantum meruit claims, and solicitor’s negligence in drafting wills. We will also examine the role of mandatory mediation and other negotiation techniques in resolving estate litigation. Students will also participate in a mock mediation exercise.

For each of these topics, we will explore how a client’s case is developed through the interaction of the case law, the Rules of Civil Procedure, the applicable statutes, the rules of evidence, and the psychology of the family unit.

Administration of Criminal Justice: Sentencing

In this seminar we will explore sentencing law and procedure in Canada. The course will begin with a consideration of the concept of punishment and the philosophical dimensions of sentencing, including an exploration of the purposes and principles of sentencing. The remainder of the course will be devoted to exploring the legal doctrine that governs sentencing and imprisonment in Canada and legislative and judicial approaches to sentencing. More specifically, we will consider the various sentencing options available in Canadian law, the procedural and substantive aspects of sentencing hearings and the interplay of sentencing and plea negotiations. Particular attention will be paid to the sentencing of Indigenous peoples and racialized individuals. Other topics for consideration may include Charter litigation and sentencing, the sentencing of individuals with mental disorders and victim participation in sentencing.

Legal Values: Advanced Criminal Law (Race & Racism)

Taught by a Superior Court Judge and an experienced member of the criminal bar, this seminar explores how racial inequality and in particular anti-black racism are addressed in Canadian criminal law through a critical review of landmark cases and selected secondary scholarly literature.

Students will consider how advocates have worked to bring claims of racism to the courts. The class will assess the extent to which courts have addressed claims of racism, whether systemic or individual, in their interpretation of various areas of criminal law. How has recognition of this particular piece of “social context” been integrated into judicial decision-making and criminal procedure?

Students will study key parts of the criminal trial process from start to finish including bail, jury selection, Charter and common law motions, and sentencing.

By the end of the course students will be:
i) familiar with a set of contemporary cases in which questions about of race and racism intersect with issues in criminal procedure, sections 7, 8, 9, 24(2) of the Charter, evidence and sentencing.
ii) capable of critically analyzing the responses of the Canadian criminal justice system to claims of racism, whether systemic racism or particular incidents of racially targeted state action.
iii) able to develop effective approaches to anti racist advocacy suitable for use in Canadian criminal court.

Class discussions and assignments will work to bring together theory and practice in assessing and developing anti racist advocacy in the criminal law context.

Specific topics covered include:
· Identifying race and racism as part of context, and how this does/should impact legal interpretation;
· Identifying the relevance of race/racism for the parties involved; and
· Identifying the opportune time to raise the issue

Guest speakers with expertise in a relevant area will periodically visit the class.

Legal Values: Prison Law, Policy & Reform

This 3-credit seminar will utilize a multisectoral approach to encourage critical thinking with a view of challenging preconceived notions about what prison is and why it exists. It is designed to provide students with not only a basis to understand the theories underlying the carceral state, but also the practical skills necessary to navigate prison law and advocate on behalf of those on the inside.

Students will hear from and engage in discussion with prisoners, legal practitioners, prison officials, and academics with expertise in (de)carceration. Readings, videos, and audio recordings will also be used to learn about the history and ideology behind prisons and punishment in Canada.

This seminar will examine the legislation that empowers governments to create and maintain prison systems (i.e. the Corrections and Conditional Release Act and the Correctional Services Transformation Act), as well as the regulations, directives and policies which guide the day-to-day operations. It will also review jurisprudence from all levels of court on issues such as:
· solitary confinement;
· prisoners’ right to vote;
· habeas corpus remedies;
· tort actions and civil litigation against correctional officials;
· international prisoner transfers;
· conditional release;
· prison abolition; and
· labour (union) organizing among prisoner populations.

Independent audits, coroner’s inquests, and other inquiries into jails and prisons will also feature prominently.

Legal Values: Psycho-dynamics of Advocacy & Judging

Advocates reverse-engineer cases from the outcome their clients seek, selecting the most compelling facts and the most plausible legal channel to build the chain of reasoning that will lead to that outcome. This is result-selective reasoning. By contrast, judges are expected to come to the dispute without a personal agenda beyond the call of duty to reach the just legal outcome based on the facts, the law, and their interaction.

Advances in cognitive science and psychology have led to an arms race between advocates and judges of which judges. No doubt these advances have given advocates more sophisticated persuasive techniques. In response, the task of judges is to detect the use of these techniques and avoid being lured away from doing justice according to law.There are four quite distinct and burgeoning fields of research into the psychology of judging, which are based on empirical research that lays out the cognitive infirmities that affect human beings. These could be basic materials for effective advocacy.

The first, and the one with the broadest reach beyond judging, is based on the thought of Daniel Kahneman and Amos Tversky, who explore cognitive illusions or biases that affect human cognition generally, and, therefore, judicial cognition. Second, there is a growing area of research specifically on the effect of emotions on judging, particularly empathy. Third, the study of coherence-based reasoning seeks to describe the way judges and juries think. Fourth, there is research on the effect of narrative on judicial attention, understanding, and judging. These areas are not quite silos, but they have not yet coalesced into coherence.

This course will familiarize you with these areas of thought, using an excellent recent American text: Linda L. Berger and Kathryn Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (Routledge, 2018). It is an operating manual to the judicial mind and ground-breaking. I would supplement with Canadian cases demonstrating the impact of the rhetorical techniques explored by Berger and Stanchi.

To these techniques is added the filter of ethics – judicial and lawyerly. How do judges and lawyers meet their obligations, in the course of a lawsuit, to first, do no harm; then, do the right thing, for the right reason, in the right way, at the right time, and in the right words? Do rule of law constraints work to ensure principled advocacy and adjudication?

Law of War

Was NATO’s military intervention in Libya legal? What about Afghanistan? Or the imprisonment of America’s detainees in Guantánamo Bay, Cuba? Is Russia’s military overrun of Ukraine lawful? What is the legal status of killing by drones? What happens to people who commit war crimes? What are the remedies for an illegal war? This seminar examines the international law governing war, including both questions of when war is legal (so-called ‘jus ad bellum’) and how even legal wars must be conducted (so-called ‘jus in bello’ or the laws and customs of war) and the relationship between the two types of law. It also examines the various judicial institutions that have jurisdiction over these issues, from the World Court, to the ad hoc tribunals (Yugoslavia, Rwanda, Sierra Leone), to national courts exercising ‘universal jurisdiction’ (Belgium, Canada), to the new International Criminal Court.

Case studies on the armed conflicts over Kosovo, in Afghanistan, Iraq and Libya, Ukraine, and between Israel and the Palestinians, provide the settings for concrete legal analysis and also for critical evaluation of the role of law in war.