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? 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, 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.

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.

 Note: The instructor of this course/ seminar has indicated a preference or willingness to conduct optional in-person meetings for students. All in-person meetings will be optional for students until the general return to in-person instruction that is expected for the winter 2022 term. Any in-person meetings in the fall 2021 term that cover examinable course content will be accompanied by a remote participation option, such as a separate remote class, live dual delivery, and/ or a recording of the class, at the instructor’s discretion. More information will follow from the instructor after students have enrolled; please also note that there is no guarantee of in-person instruction in any course or seminar.

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 Criminal Justice: Sentencing

This seminar 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 law, including an exploration of the purposes and principles of sentencing. The remainder of the course will be devoted to exploring 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 offenders who are Indigenous, youth offenders and offenders with mental health issues. Other topics for consideration may include mandatory and minimum sentences, Charter litigation and sentencing and victim participation in sentencing.

Legal Values: Advanced Criminal Law (Race & Racism)

Taught by two experienced members 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 or failed to consider 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.
 Note: The instructor of this course/ seminar has indicated a preference or willingness to conduct optional in-person meetings for students. All in-person meetings will be optional for students until the general return to in-person instruction that is expected for the winter 2022 term. Any in-person meetings in the fall 2021 term that cover examinable course content will be accompanied by a remote participation option, such as a separate remote class, live dual delivery, and/ or a recording of the class, at the instructor’s discretion. More information will follow from the instructor after students have enrolled; please also note that there is no guarantee of in-person instruction in any course or seminar.

International Criminal Law

Law in the face of mass atrocity reveals some of the most pressing issues confronting international law and politics. This course addresses the question of whether – and how – law can be used to regulate, humanize, and resolve political violence. Students will be introduced to the main concepts, rules and institutions of the field known as ‘international criminal law.’ It will explore the core international crimes of aggression, war crimes, crimes against humanity, and genocide, as well as terrorism. Students will gain a strong foundational knowledge of the field, including how it is situated in the broader contexts of international humanitarian law, public international law, domestic criminal law and international human rights law.

In addition, this course will help students develop a critical toolkit with which to assess the global (individualized) legal regulation of political violence. The idea of the international criminal has preoccupied the global legal imaginary, especially since the end of the Cold War. He stands in, often at one and the same time, for the human rights violator, the political enemy, and the social, philosophical and theological scapegoat. However, while the core institutions, rules and structures of this (relatively) new legal field are now established, the goals of the field remain elusive and contradictory.

International criminal law is said to, variously: subject the use of force to the rule of law; punish and deter the worst international crimes; build an accurate historical record of mass atrocity and systematic human rights violations; provide redress and reparations to victims; address threats to international peace and security; facilitate social transition from armed conflict and totalitarian regimes to democracy; facilitate the resolution of disputes between both state actors and non-state actors; and provide a common global vocabulary through which to articulate the legal regulation of acts that ‘shock the conscience of mankind.’ But these objectives do not sit easily together, either from a practical or theoretical perspective.

This course approaches international criminal law as a global policy tool with myriad and indeterminate potential effects. We will look at ‘international criminal law’ as a global criminal justice project deployed by specific actors for specific purposes. This course invites students to engage with international criminal law as active political agents, asking whether, and how, this body of law and set of institutions and practices could be strategically deployed to secure progressive ends.

To facilitate this objective, this course is being offered in Winter 2022 as part of a new e-Learning Pilot. It will be delivered entirely remotely using a combination of small group work building toward a capstone simulation exercise, pre-recorded lectures, and synchronous classroom discussion time.

Throughout the course students will be asked to concretely evaluate the stakes of international criminal justice across a variety of jurisdictional contexts, asking how – and for whom – international criminal law might be a good or a bad thing. Historical, political, theoretical, emotional, and aesthetic lenses will be deployed to challenge students to evaluate doctrine and case law in light of fundamental questions of global jurisdiction, constituency, effectiveness and legitimacy. We will particularly emphasize the place of film in the practice, scholarly study of, and activism around, international criminal justice questions.

Criminal Procedure

This course will provide students with an overview of the Canadian criminal process, with a special attention given to the limitations imposed by the Canadian Charter of Rights and Freedoms. It will begin with an exploration of police investigative powers. The authority of Canadian police to search/seize, question, detain, and arrest will all be considered in detail. The exclusion of unconstitutionally obtained evidence, 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, plea, plea bargaining, prosecutorial discretion, and the right to a trial within a reasonable time. If time allows, some trial and post-trial issues may be considered, including jury selection, res judicata, and appeals. Throughout, various theoretical perspectives on criminal law and process will be discussed. The course will also seek to introduce key historical connections and important points of comparison between criminal procedure in Canada and the United States, primarily in terms of their constitutional regulation, as well as with the common law of England.

Evidence

This course will introduce students to the law of evidence in Canada. It will examine how the common law, statutes, and the Constitution interact to govern the proof of facts in both civil and criminal trials. Topics to be addressed include: burdens of proof; the role of the trial judge in managing the introduction of evidence; methods of presenting evidence; witness competency and compellability; relevance; and the various exclusionary rules that operate to limit the kinds of proof that can be received at trial (i.e. the rules governing hearsay, privilege, expert opinion evidence, etc.). The course will engage ethical issues that arise in the context of evidence law. It will consider how some rules of evidence have evolved historically, and it will attend to the social, political, and institutional contexts in which evidence law operates. The course will encourage critical reflection on the theories, purposes, and justifications that animate evidentiary rules, and on how those rules impact different individuals and communities.  

Note: This course has been selected as an ongoing eLearning Pilot Course. It will be delivered as a fully virtual course, through Zoom. The course will be delivered using a mix of asynchronous (i.e., pre-recorded) and synchronous lectures.

Evidence

This course will provide students with an essential overview of the law of evidence. The course begins with a discussion of foundational concepts before moving on to consider the rules governing how evidence is admitted in court. Questions about who can give evidence – competence and compellability – are addressed first. Practical topics such as questioning witnesses, refreshing memory, and the introduction of exhibits will also be examined. This will be followed by a consideration of what makes evidence “relevant” – the threshold requirement for admissibility. The course will go on to examine the most common exclusionary rules and their  exceptions, including the Charter, hearsay evidence, character evidence (including the “similar fact” rule), and expert and lay opinion evidence.

By the end of the course students should have a firm grounding in the basic principles of Evidence Law in Canada and the ability to articulate the various rules and to apply them to concrete fact situations.