2016 NCA Foundations of Canadian Law Syllabus

Federation of Law Societies of Canada
National Committee on Accreditation
Syllabus
Foundations of
Canadian Law
(Revised July 2015)
(Effective for October 2015 Exams)
Candidates are advised that the syllabus may be updated from

time-to-time without prior notice.
Candidates are responsible for obtaining the
most current syllabus available.
World Exchange Plaza 1810 - 45 O'Connor Street Ottawa Ontario

Tel: 613.236.1700 Fax: 613.236.7233 www.flsc.ca
K1P 1A4
Foundations of Canadian Law

Objectives of the course:
To provide NCA applicants with an introduction to and an overview of Canadas legal system and the
role of law in Canadian society;
To review various legal theories as they apply to Canadian law;
To introduce the overarching legal framework within which the particular areas of law studied in other
courses operate;
To acquaint applicants with the various sources of Canadian law;
To compare the different branches of Canadian government and to analyze the relationships between
and among them;
To provide applicants with an understanding of the Canadian treaty-making process and the
implementation of international law into domestic law;
To provide applicants with an understanding of the special relationship Aboriginal Peoples have with the
Canadian State, and to enable applicants to critically assess the impact of the Canadian legal system
upon Aboriginal and other minority communities;
To provide applicants with an understanding of the nature and function of judicial review and of the
basic approaches to statutory interpretation.
Evaluation:
Evaluation for this course is based on a 100% open book examination.
The exam will consist of short answer questions, and/or short essay questions, and/or problem questions.
Short answer questions test candidates ability to succinctly and correctly evaluate statements about
material listed in the syllabus.
Essay questions test whether candidates have critically engaged with the material listed in the syllabus
and have started to form their own opinions about the strengths and weaknesses of the arguments,
principles, and doctrines discussed in those materials.
Problem questions test candidates ability to identify legal issues, accurately state the applicable legal
rules, apply those rules to novel situations, and draw conclusions supported by analysis. In other words,
problem questions require the exercise of independent judgment grounded in the application of general
rules to specific fact situations.
Core Materials:
Forcese, Craig et al, Public Law: Cases, Commentary, and Analysis, 3rd Edition (Toronto: Emond
Montgomery, 2015). http://www.emond.ca/public-law-analysis-cases-and-commentary-3rd-edition.html
Required Canadian case law is indicated following each component and is available free of charge
from CanLII: http://www.canlii.ca/
Supplemental Materials:
For those interested in reading further on these topics, you may wish to consult the following list of sources
available at most Canadian law libraries:
Gerald Heckman. The Role of International Human Rights Norms in Administrative Law (Chapter 14 of
Flood and Sossin, eds., Administrative Law in Context, 2nd Edition, Emond Montgomery 2013).
Eisenberg, M., The Nature of the Common Law, (Cambridge, Mass: HUP, 1991)
Fairlie, John & Philip Sworden, Introduction to Law in Canada (Toronto: Emond Montgomery 2014).
Forcese, Craig & Aaron Freeman. The Laws of Government: The Legal Foundations of Canadian
Democracy, Second Edition (Toronto: Irwin Law, 2011) - publication details at http://www.irwinlaw.com/
store/product/656/the-laws-of-government--the-legal-foundations-ofcanadian-democracy-second-edition
Forsey, Eugene A. How Canadians Govern Themselves, 8th ed. (Ottawa: Library of Parliament, 2012)
(online) http://www.parl.gc.ca/About/Parliament/SenatorEugeneForsey/book/preface-e.html
Sasha Baglay, Introduction to the Canadian Legal System, (Toronto: Pearson, 2015)
Hogg, Peter W. Constitutional Law of Canada, 2013 Student Edition (Toronto: Thomson
Carswell, 2013).
Justice Canada, Canadas System of Justice www.justice.gc.ca/eng/csj-sjc/just/img/courten.pdf
Schauer, F., Thinking Like a Lawyer: A New Introduction to Legal Reasoning, (Cambridge, Mass: HUP,
2012)
Waddams, S.M., Introduction to the Study of Law, 7th Edition, (Toronto: Carswell, 2010)
Components:
1. Basic Theories of Law:
Positivism and Natural law
Feminist Perspectives on Law
Critical Legal Studies
Law and Economics
Required Readings:
- Forcese, Chapter 2
- Carol Aylward, "Intersectionality: Crossing the Theoretical and Praxis Divide" (2010) 1:1 Journal of
Critical Race Inquiry http://library.queensu.ca/ojs/index.php/CRI/article/view/3549/3560
- Andrei Marmor, The Nature of Law (2011): http://plato.stanford.edu/entries/lawphil-nature/
- Webber, Jeremy. "Legal Pluralism and Human Agency." (2006) 44:1 Osgoode Hall Law Journal
167-198. (online) http://digitalcommons.osgoode.yorku.ca/ohlj/vol44/iss1/8
2. Indigenous Peoples and the Law:
Aboriginal Rights and Title
Indigenous Self-Government Aspirations
The Modern Treaty Making Process
Required Readings:
- Section 91(24) of The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c. 3
- Section 35 of The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11
- Summary of the Final Report of the Truth and Reconciliation Commission of Canada, Honouring the
Truth, Reconciling for the Future
http://www.trc.ca/websites/trcinstitution/File/2015/Exec_Summary_2015_06_25_web_o.pdf
Required Readings Re: Aboriginal Rights:
- R. v. Sparrow, [1990] 1 S.C.R. 1075
- Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650
Required Readings Re: Aboriginal Title:
- Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010
- Tsilhqotin Nation v. British Columbia, 2014 SCC 44
- McNeil, Kent, Reconciliation and Third Party Interests: Tsilhqotin Nation v. British Columbia (2010)
8:1 Indigenous Law Journal 7-26
http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1805&context=scholarly_works
Required Readings Re: Aboriginal Treaties:

- R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220, 2005 SCC 43, 2005 SCC 43 [2005]
3. Sources of Canadian Law:
1. The Common Law and Civil Law Traditions
Reception of European Law
Bijuralism
Common Law Method: Precedent and Equity
2. Statutory Law
3. International Law
Required Readings:
- Marie-Claude Gervais and Marie-France Seguin, Some thoughts on Bijuralism in Canada and the
World (2001) Department of Justice Canada
http://payequityreview.gc.ca/eng/rp-pr/csj-sjc/harmonization/hfl-hlf/b2-f2/bf2.pdf
- Grimard v. Canada [2009] FCA 47
http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36311/index.do
- Debra Parkes, Precedent Unbound? Contemporary Approaches to Precedent in Canada (2007)
32:1 Manitoba Law Journal 135-162
http://dunraven.cc.umanitoba.ca/mlj/images/Articles/32v1/parkes-precedent%20unbound.pdf
- Gerald Postema, Classical Common Law Jurisprudence (2002)
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=462941
- Henry E. Smith, Why Fiduciary Law is Equitable, 2013.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2321315
- Frederick Schauer, Precedent, 2011: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1836384
- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (skim headnote for
factual context, read paragraphs 69-71, 78-81)
- De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436
- Gib Van Ert, "Canada" in Sloss and Jinks (eds.), The Role of Domestic Courts in Treaty
Enforcement: A Comparative Study (Cambridge University Press, 2009)
http://www.litigationchambers.com/pdf/vanErt-domestic-courts.pdf
- Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433, paragraphs 1-12
and 72-107
4. Fundamental Principles of the Canadian Legal System:

1. The Constitution of Canada
2. Principles Underpinning Public Law
Rule of Law
Constitutional Supremacy
Parliamentary Sovereignty
Federalism
Separation of Powers
Judicial Independence (Overview)
3. Constitutional Amendment
Required Readings:
- Singh v. Canada (Attorney General), 2000 CanLII 17100 (F.C.A.), paras. 13-44
- Ken Dickerson, Omar Khadrs Rights, Prerogative Powers and Canadian Diplomacy After the
Supreme Court Decision, University of Alberta, Centre for Constitutional Studies (February 2010)
http://ualawccsprod.srv.ualberta.ca/ccs/index.php/constitutional-issues/the-charter/legal-rightssections-7-14/35-omar-khadr-s-rights-prerogative-powers-and-canadian-diplomacy-after-thesupreme-court-decision
5. Parliament and its Components:
The Monarch and Governor General
Senate
House of Commons
Required Readings:
- Barnes et al., Reforming the Senate of Canada: Frequently Asked Questions, Background Paper,
Library of Parliament (2011) http://www.parl.gc.ca/content/lop/researchpublications/2011-83-e.pdf
6. Functions of Parliament:
Summoning
Prorogation
Dissolution
Key Actors
Parliamentary Procedure and Law-Making
Required Readings:
- Wheeldon, Johannes, Constitutional Peace, Political Order, or Good Government? Organizing
Scholarly Views on the 2008 Prorogation, (2014) 8:1 Canadian Political Science Review, 102-107,
113-121
http://ojs.unbc.ca/index.php/cpsr/article/view/566/499
7. The Executive and its Functions:
The Functions of the Executive
Sources of Executive Power
Executive Institutions and the Political Executive
Required Readings:
8. The Courts and the Judiciary:
Structure of the Canadian Court System
Judicial Appointments
Judicial Independence
Required Readings:
9. Statutory Interpretation:
Approaches to Interpretation
The Modern Approach to Interpretation
Required Readings:
- Forcese, Chapter 10, pp.425-480; 506-518
- S. Beaulac & P-A Ct, Driedgers Modern Principle at the Supreme Court of Canada:
Interpretation, Justification, Legitimization (2006) 40 Revue Juridique Thmis 131
(online) https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/1352/BeaulacC%C3%B4t%
C3%A9RJT40-1.pdf
10. Constraints on Legislative and Administrative Action:

Judicial Review in a Democratic Society
Judicial Review of Administrative Action
Required Readings:
- E Jordao and S Rose-Ackerman, Judicial Review of Executive Policymaking in Advanced
Democracies: Beyond Rights Review (2014) 66:1 Administrative Law Review 1-72
http://ssrn.com/abstract=2419994

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What are the objectives of the Foundations of Canadian Law course?

What are the objectives of the Foundations of Canadian Law course?

What are the core materials and supplemental materials listed for the course?

What are the core materials and supplemental materials listed for the course?

Federation of Law Societies of Canada

National Committee on Accreditation

Candidates are advised that the syllabus may be updated from

World Exchange Plaza 1810 - 45 O'Connor Street Ottawa Ontario

Federation of Law Societies of Canada

National Committee on Accreditation

Foundations of Canadian Law

Federation of Law Societies of Canada

National Committee on Accreditation

Federation of Law Societies of Canada

National Committee on Accreditation

Federation of Law Societies of Canada

National Committee on Accreditation

Required Readings Re: Aboriginal Treaties:

Federation of Law Societies of Canada

National Committee on Accreditation

4. Fundamental Principles of the Canadian Legal System:

Federation of Law Societies of Canada

National Committee on Accreditation

Federation of Law Societies of Canada

National Committee on Accreditation

10. Constraints on Legislative and Administrative Action:

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