Law & Psychiatry

This seminar explores the legal framework and the policy considerations linking law and psychiatry in both the 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 reviews civil mental health detention, mandatory community treatment, as well as the law of treatment capacity and substitute decision-making. Additional topics may include: emergency health treatment (e.g., during the Covid-19 pandemic), financial capacity and powers of attorney, guardianship, 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 professional responsibility concerns. Students are expected to actively participate via class discussion and a class presentation. Guest speakers will provide unique perspectives on several topics.

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” in modern secular states, 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 through Canadian constitutional history, consider questions of law and religion in international and comparative perspective, and examine the structure and limits of constitutional rights through the study of doctrines of religious freedom.  Seminar readings and discussions will canvass issues such as: the nature of “secularism(s)”; justifications for the constitutional protection of religion; religion, gender, and sexual equality; religion and education; religion and legal pluralism; religion and public reason; and law, religion, and morality.  The seminar will be overtly interdisciplinary, putting questions of history, philosophy, and religious studies alongside legal theory and analysis.

Please note that this seminar has been selected to form part an ongoing eLearning Pilot by the Law School. As a result, class meetings will take place via Zoom. The online delivery of the seminar will enable student engagement with experts in the field from around the world, with students in related courses at other universities, with one another in smaller group tutorials, and/or with online modules designed to enrich learning and class discussion.

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.

Legal Values: Equality

In the last decade equality has returned to the centre of academic and popular discussion. Following the 2008-09 global financial crisis, there has been growing concern over the impact of economic inequality both within and between states. In addition, there has been renewed and enhanced interest in the non-directly economic ways that inequality operates in society. In academic writings, in journalistic works, as well as in artistic works, people have explored race, gender and other relations as a cause of persistent inequality.
 
From an academic perspective, the growing interest in questions related to equality and inequality manifested itself in research coming from disciplines that used to have relatively little interest in the topic. In earlier decades works on equality were dominated by political and social theorists (often writers from the outskirts of academia); in the last decade, there has been a wealth of works by economists, political scientists, psychologists, historians, and others that addresses aspects of equality and inequality.

The result is a significant amount of new and often challenging information and ideas. In the seminar we will review and discuss a small sampling of these works. The aim will be to look at questions related to equality from different disciplinary and political perspectives. Among the questions we will consider: Is equality important and why? What is the standard of measuring equality? What are the social causes and effects of inequality?
As the topic is vast, the choice of readings will inevitably be selective. One thing we will not read is Canadian (or other) jurisprudence on equality. However, for their seminar paper students are welcome to take on legal questions and cases, using perspectives discussed in the seminar to analyze them.

International Human Rights Law

This seminar critically examines the central institutions and processes of international human rights law. The first part of the seminar closely examines the main theoretical debates concerning human rights, the history of the current institutional system, and
the key international and regional human rights instruments, procedures, and enforcement mechanisms. Particular human rights issues will be the focus of the second part of the seminar. Special attention will be given to the human right to life, reparation for victims of human rights violations, sustainability and environmental rights, immigration and refugee rights, and the rights of indigenous peoples in international law. Each section of the course will address practical problems to anchor the studying of the substantive law and critical discussions of the limitations of current regimes and the roles and responsibilities of governments, international organizations, private actors, and civil society. The course is designed to provide students with an opportunity to write a research paper on one international human rights law issue. Students will also write an individual communication to a human rights treaty body on a topic of their choice.

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 involve 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.

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.

Legal Values: Transnational Corporations & Human Rights

Apple’s use of child labor; Goldcorp’s operations in Guatemala; the complicity of Dow Chemical/Union Carbide in the Bhopal chemical disaster; Shell’s involvement in the executions of activists protesting the company’s environmental and development policies in Nigeria.  These are just a few examples of alleged corporate malfeasance that have emerged on the international stage.

The purpose of this seminar is to introduce students to the debate concerning the accountability of transnational corporations that are complicit in rights-violating activities.  At the international level, there has been a transition from focusing solely on rights-violations committed by governments to a detailed examination of transnational corporate conduct.  Indeed, it has now become trite to say that particular corporations have directly or indirectly participated in violations of human rights.

The seminar will begin with an introduction to corporate theory.  Students will then explore some of the key issues in the debate.  For example, whether transnational corporations can properly be included under the international law of state responsibility; mechanisms for self-regulation (e.g. voluntary corporate codes of conduct); the utility of the U.S. Alien Tort Statute and recent Canadian litigation; the advantages and disadvantages of U.N. initiatives (e.g. the work of the former U.N. Special Representative on Business and Human Rights); and the relevance of domestic corporate and securities law mechanisms (e.g. shareholder proposals and social disclosure).

The course materials are drawn from a number of sources, including documentary film; academic journals; articles in the popular and business press; reports by human rights monitoring groups; petitions filed before courts and administrative agencies; U.N. materials; and the governing documents for voluntary corporate initiatives.

Please note:
1.        Depending on circumstances, this course may be offered remotely. If so, the course will use Zoom online video conferencing and synchronous (real-time) instruction.  Class attendance at the designated time will be mandatory.  Students will require a reliable internet connection, a microphone, and a web camera.  Students will be expected to participate with video enabled for the duration of each session unless doing so would result in a significant hardship.
2.        Any non-Osgoode students enrolled in the class must adhere to Osgoode’s academic rules and policies, including the course drop deadline.
3.        The information above is provided for course registration purposes only and is subject to change at any time.

Class Actions

Class actions have become a key element of the Canadian civil justice system. Building on the tradition of public interest litigtation, they promote access to justice, judicial economy and behaviour modification, while supporting traditional procedural values. The interface between these aspirations has generated considerable interest and debate among practitioners and academics alike.

In this seminar, we welcome a series of leading counsel, judges and professors to discuss with us topics such as the roles of class counsel and defense counsel, and related ethical issues; costs (who should pay and when and how much) and principals of funding and financing; the role of court-approved settlements in maximizing value for the class; the role of the representative plaintiff and the ways in which the interests of the class can best be served; and parallel and overlapping cross-border class actions.

This is an excellent seminar for those considering a career in civil litigation and for those interested in the way class actions are transforming the role of civil justice in society.