Legal Values: Multiculturalism and Intra-Group Vulnerability

In the last fifty years, we have witnessed a pendulum swing concerning the relationships between the liberal state, the individual, and cultural minorities. The pendulum began to move during the last three decades of the twentieth century, when assimilationist and monocultural nation-state models were contested and increasingly displaced by newer multicultural models. These new models acknowledge the recognition of cultural minority groups as a prerequisite for the ability of their members to equally enjoy their freedoms and rights. But it was not without criticism that this multicultural swing swept the Western developed world. Critical works, which are collectively known as the literature on “minorities within minorities”, have drawn attention to inequalities within cultural minority groups and the way that these groups can oppress their own internal minorities – who might be women, children, LGBTQ+ individuals, members of a lower caste, and other groups of (less powerful) members. This problem of intra-group vulnerability is the focus of the seminar.
The seminar will bridge legal and theoretical materials to inform our understanding of this problem. As key to developing such understanding, as well as considering appropriate resolutions and strategies, we will identify the role of different players (for example state agents, governments, and community leaders) in various systems of oppression, including colonialism, racism, and patriarchy. Classroom time will focus on critically examining theoretical approaches to addressing intra-group vulnerability concerns, considering their application to actual contexts (to a range of religious, immigrant, and Indigenous communities in Canada and other multicultural societies), and detecting zones of uncertainty and disagreement.
Some of the topics covered include the criminalization of polygamy and forced marriage practices, bans and restrictions on Muslim head and face coverings, and the vulnerability of Indigenous women and children to colonial oppression in the context of Indian status removal (under the Indian Act), missing Indigenous women and girls, and the continuous risks of assimilation and other harms for Indigenous children in government care. Other topics focus on the conditions of internal minorities in religious contexts, including the exclusion of 2SLGBTQ+ persons by religious institutions (as in the Trinity Western University case), the protection of children in minority faiths, as well as tensions around religious education and pluralism in schools. These issues will be considered with attention to developments that mark a perceptible retreat from multicultural and diversity-accommodating agendas across the globe – indicating yet another swing in the state-individual-minority relations pendulum.

Legal Values: Property, the Environment, and Equality

Property is at the heart of economic institutions, beliefs about freedom and security, and people’s understanding of their relationship to the Earth. The focus of this course is (1) understanding the role of property law in harm to the environment and in human relations of inequality and (2) exploring alternatives to the norms and legal forms of property. To do this, we will integrate analysis of political theory, legal theory, legal history, case law, environmental policy, and issues such as housing and homelessness. This course will explore the connections between property law and beliefs basic to the economic and political systems of common law countries. For example, we will look at how property law expresses and maintains assumptions about human superiority to other life forms, and the links between those beliefs and settler colonialism. We will (briefly) look at the legal history of property to understand evolving structures of power and inequality, and the role of property law in that evolution. Legal history provides a perspective that allows us to see that beliefs and practices dominant today have not existed from “time immemorial.” This then sets the stage for examining viable alternatives to existing property structures. In exploring those alternatives, we will look to Indigenous law, comparative law, and the potential for existing legal concepts like “trust” to be re-purposed. We will look at issues of human inequality and the ways they are interwoven with environmental harm. Hierarchies among humans and between humans and the Earth (with humans at the top of a pyramid of life forms) are interconnected through property law. Because property is so embedded in institutions and norms, transformation will require a deep rethinking of core beliefs. We will look at some of the resources for re-envisioning property and the values associated with it. In addition to Indigenous teachings (including learning from the land), these include: the invocation of spiritual traditions, such as Buddhism and Christianity, to promote care for the earth; theories of the role of competition vs cooperation in evolution and contemporary “human nature;” the importance of nature for human health. Specific topics will include: property and settler colonialism; animals as legal beings; learning to care for the earth; the history of exclusion from the land; the importance of “place” in assessing loss of property; the idea of all land held in trust for the earth community, present and future; the power and threat of the myth of absolute rights of property; property, poverty, and homelessness.

Law, Society & State: Disability, Technology and Law

What is the role of technology in advancing the rights and welfare of about a billion individuals with disabilities in the world today? Is technological advancement a catalyst for a more inclusive society? How so? Does technology enhance access for people with disabilities, and access to what exactly? Does it ultimately and unconditionally lead to fostering respect for their human dignity? Is dignity relevant here and should we be bound by a timeless and universal understanding of that in assessing the present and future impact of technology on the well-being of people with disabilities? Most importantly, does and should technology change our understanding of (dis)ability? Does technological advancement change the relationship between law and disability? How?

This course is a collective exercise in tackling these and related questions in an introductory fashion. The literature on disability rights and technology is a tripod: ethics of approaching disability (such as questions arising from medical and genetic technology, artificial intelligence, human enhancement etc.); human and civil rights of people with disabilities and their full inclusion in the society (such as questions of standards of access and meaningful participation as citizens); and disability and development (such as questions around the role of technology in reducing socio-economic barriers and power disparities or creating new unanticipated forms of those among individuals with disabilities in the world or between the disabled and able-bodied population). We will become familiar with this tripod in order to understand the evolving relation between disability, technology, and law.

Central to this new path is a fundamental focus on the future of our understanding of disability in light of inevitable and fast-growing technological changes. Could it be the case that law’s anxious choice between a medical and social approach to disability will have to come to terms with new and further sources of confusion when the enabling or further disabling impact of technology will ruffle current conceptions of (dis)ability? If those definitions are destabilized, so shall the punitive, identity-protecting labels such as ‘ablism’ that further divides the disabled from the able.

Legal Values: Artificial Intelligence (Discrimination & Surveillance)

This seminar will explore in depth the many ways in which modern computing systems — including the data they ingest, the decisions made by the folks who develop them, and their myriad and nearly ubiquitous applications — may enable, encourage, or prevent societal
discrimination and surveillance capitalism of various types. Students will learn how algorithms and artificial intelligence (“AI”) systems work, how such algorithms and systems may provide differential treatment and/or outcomes for different populations, and how they may invade privacy and cause other harms to people. Students will also consider the potential legal/regulatory, technical, and social/policy interventions that could ameliorate the harms caused by such algorithms and systems and will weigh the advantages and disadvantaged of each.

At the end of the seminar, students should be able to (i) discuss with colleagues and others the positive and negative consequences of various current AI innovations, and (ii) suggest different approaches to address systemic bias and surveillance capitalism — including legal/regulatory or social/policy changes, as well as technical solutions — and explain why certain of these approaches might or might not work in specific circumstances.

Law, Gender, Equality

This course explores the importance of gender as a category that structures identity, opportunity, and hierarchy. Gender intersects with other categories of hierarchy such as race, class, religion, citizenship status, ethnicity, sexual preference and identity, and able-bodiedness. The course will explore both theories of how intersectionality works, and the role it plays in the particular spheres of law we will focus on. The primary focus of this course is the complex role that law plays in constructing gender (understood in intersectional terms) and in both maintaining and attempting to overcome inequality. The first overarching topic is violence: Sexual Assault on Trial; Law, Gender and Violence: Theoretical and Historical Perspectives; Structural Violence and Indigenous Women. Another very basic way that gender organizes people lives and opportunities is the way gender structures who provides the basic care that all human beings rely on, and how paid work is organized. Thus, the second broad topic is how law intersects with issues of work and care: gender identity, labour law, international migration, tax law, and the global economy. We will look at issues of : Masculinity, Care, and the Legal Structuring of Gender Relations; The Intersecting Structure of Work and Care; Care, Work and “Domestic Work”; Restructuring Work and Care; Law and Gender in Global Context. The readings will provide a range of approaches from feminist theory, to legal history, to empirical studies of lawyers and courts, to doctrinal analysis, to proposals for fundamental societal transformation.

Law, Society & State: Critical Race Theory

One way of describing critical race theory (CRT), a body of work which began in the 1980s, is to say it aims to expose and explain the role of law in creating and sustaining societal structures of race and racial oppression. In this model, in contrast to the more liberal civil rights model, law is understood to be the problem, not the solution. Scholars also often describe CRT as praxis, theory that exists in how it is enacted. In this seminar, we will read key early texts from the originators of CRT and then consider more recent scholarship. Our goal will include exploring the utility of CRT as a way of understanding law and our relationship to it. Students should expect to engage with scholarly proposals and prescriptions, to understand internal and external critiques of CRT as theory and method, and to determine how and why something should be – or not be – considered part of the CRT tradition. We will carefully consider the role of the lawyer if the legal system is part of the support structure for racial inequality. Members of the seminar will be expected to engage both in class and in the form of weekly small exercises, and the classroom time will focus on efforts to carefully and deliberately consider the theory and its application, and to discern with precision zones of uncertainty and disagreement. Guest speakers including practicing lawyers will visit this classroom to discuss their experiences and teach from their expertise. This class will feature guidance through the stages of writing a research paper, including developing a research question, preliminary research, organization and argument.

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.

Comparative Law: Comparative Constitutionalism

The seminar will initiate students into what comparative constitutional law as a field of study looks like. Students will critically explore methodologies for comparison and identify constitutional borrowings, transplants and migrations. The class will interrogate the relationship between constitutionalism, liberalism and democracy across different jurisdictions. It will compare defining structures such as separation of powers and federalism across while also studying specific constitutional rights across jurisdictions with reference to their formal status at law and their valence in society. The seminar will consider the structure and functions of constitutional courts, modes of judicial interpretation and the legitimacy of the function of judicial review. Finally, the seminar will track contemporary or emerging trends in the field. The jurisdictional contexts surveyed in the seminar will be selected both from the global ‘North’ and ‘South.’

Constitutional Litigation

This is a fun course with equal emphasis on both oral and written advocacy. Debate, questions, brainstorming and discourse are encouraged.

Students will be involved in almost all of the steps of a constitutional case, from the initial claim, to cross-examinations, to arguing a preliminary motion and culminating in a final factum and moot before a panel of judges with students receiving both oral and written feedback throughout.

We will focus on a substantive area of constitutional law (ex., freedom of expression, equality or division of powers) as well as questions of procedure, evidence (adjudicative and legislative, privilege) and judicial notice. A key focus is on the importance of remedies as an initial consideration, not as an afterthought.

The seminar also involves working through problems in small groups and presenting positions in class.

Seminar topics are designed to be in service of the final moot and factum. Topics typically 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.

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.