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 & Religion in Legal, Social, and Political Perspective

Students enrolled in this seminar will engage in a close and critical examination of the complex historical and contemporary interactions between law and religion, two social forces whose relationship has shaped – and continues to shape – our modern world.  This seminar will call upon students to use the study of the interaction of law and religion as a vehicle for gaining (a) a keener appreciation of the challenges of deep cultural diversity, (b) a deeper and more complex sense of the politics of “secularism” and (c) a richer understanding of the nature of law.  Students will examine certain influential theories in the study of religion and learn about the place of religion in the historical foundations of the common law.  They will trace issues of religious difference in international and comparative perspective, and examine the structure and limits of constitutional rights through the study of doctrines of religious freedom and the general jurisprudence on minority protection.    The seminar will be overtly interdisciplinary, putting questions of history, philosophy, and religious studies alongside legal theory and analysis.

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.

Legal Values: Access to Justice

Faced with the reality of an increasingly inaccessible justice system that is failing to meet the needs of the public, access to justice has been described as a crisis by the former Chief Justice of Canada. Given the significance of access to justice as a challenge facing Canadians, it is important to examine the causes as well as the consequences of a failure to provide access to justice from sociological, philosophical, democratic, legal, and practical perspectives. By studying the problem, it is hoped that we can begin critically to explore some long-term and meaningful solutions. A recurring consideration will be the role of the lawyer, both individually and collectively, as part of the problem as well as part of the solution. Students will be encouraged to explore a critical approach in order better to understand the scope of the problem, the goals and objectives associated with improving access to justice, and the feasibility of potential solutions. Topics, to be finalized, will include an introduction to current research and thinking on access to justice from a variety of different perspectives.

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.

Administration of Criminal Justice: Justice 360

This course is designed to provide students with a unique, holistic survey of the criminal justice system from all perspectives, an appreciation that all parts of the system are interrelated, and some assessment of how effectively it contributes to a just society.

Students will hear from and engage in discussion with exceptional leaders from different parts of the justice system, including: the former Attorney General of Ontario, the former Chief of the Toronto Police Service; Judges of the Superior Court Justice and the Ontario Court of Justice; a family member of homicide victims; an offender convicted of manslaughter; a leading forensic psychiatrist; as well as prominent Crown Attorneys, defence counsel, probation and corrections officials, and representatives of the fourth estate.

Students will review selected readings covering the constellation of theory, law and policy regarding each stakeholder’s role. Each panel of speakers will provide the class with a clear idea of the theoretical role that they play in the system and how that role actually plays out “on the ground.” The class and panel will discuss what is required to close the gap between theory and practice.

Administration of Criminal Justice: Mental Illness

For the student wishing to practice criminal law, it is inevitable that they will encounter individuals with mental health issues. Studies consistently show that 1 in 5 of all Canadians will be affected by a mental illness, either personally or through a close family member. The percentage of individuals with mental health issues increases when one looks at those charged with criminal offences and those in the correctional system. Accused persons with mental health issues raise difficult and complex issues for the criminal law practitioner, whether you are a prosecutor, duty counsel, defence attorney or a judge.

This seminar will develop students’ knowledge of forensic mental health issues throughout the criminal justice system.  That objective will be achieved by enhancing students’ understanding of the nature and extent of mental illness in our society and the various legal issues that arise when a mentally disordered individual comes into contact with the criminal justice system. Students will become familiar with Part XX.1 of the Criminal Code and related sections through lectures, guest speakers and class discussion. Students will also see how these statutory provisions arise in practice through field trips (conditions permitting) to the specialized Mental Health Court at Old City Hall, the Centre for Addiction and Mental Health and/or the Ontario Review Board. The seminar will also afford students an opportunity to reflect critically on the various social, legal and ethical issues that arise as an individual with mental health issues goes through the criminal justice system, including the use of measures to divert persons away from or out of the criminal justice system.

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.

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.