This document provides a syllabus for the Foundations of Canadian Law course. It outlines the course objectives, which include providing an introduction and overview of Canada's legal system, reviewing legal theories as they apply to Canadian law, and examining the relationship between different levels of Canadian government. The syllabus also describes the open book exam evaluation and lists core and supplemental reading materials covering topics such as legal theories, Indigenous peoples and the law, and sources of Canadian law.
This document provides a syllabus for the Foundations of Canadian Law course. It outlines the course objectives, which include providing an introduction and overview of Canada's legal system, reviewing legal theories as they apply to Canadian law, and examining the relationship between different levels of Canadian government. The syllabus also describes the open book exam evaluation and lists core and supplemental reading materials covering topics such as legal theories, Indigenous peoples and the law, and sources of Canadian law.
This document provides a syllabus for the Foundations of Canadian Law course. It outlines the course objectives, which include providing an introduction and overview of Canada's legal system, reviewing legal theories as they apply to Canadian law, and examining the relationship between different levels of Canadian government. The syllabus also describes the open book exam evaluation and lists core and supplemental reading materials covering topics such as legal theories, Indigenous peoples and the law, and sources of Canadian law.
This document provides a syllabus for the Foundations of Canadian Law course. It outlines the course objectives, which include providing an introduction and overview of Canada's legal system, reviewing legal theories as they apply to Canadian law, and examining the relationship between different levels of Canadian government. The syllabus also describes the open book exam evaluation and lists core and supplemental reading materials covering topics such as legal theories, Indigenous peoples and the law, and sources of Canadian law.
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 K1P 1A4 Tel: (613) 236-1700 Fax: (613) 236-7233 www.flsc.ca Foundations of Canadian Law
OBJECTIVES OF THE COURSE
To provide NCA applicants with an introduction to and an overview of Canada’s 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 covered 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.
Page 2 CORE MATERIALS
Forcese, Craig et al, Cases, Commentary, and Analysis, Third 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 16 of Flood and Sossin, eds., Administrative Law in Context, 3rd Edition, Emond Montgomery 2018). 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, 2017 Student Edition (Toronto: Thomson Carswell, 2016). Justice Canada, “Canada’s System of Justice”- http://www.justice.gc.ca/eng/csj-sjc/just/ 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, 8th Edition, (Toronto: Carswell, 2016)
Page 3 COMPONENTS:
1. Basic Theories of Law
Positivism and Natural Law
Feminist Perspectives on Law Critical Legal Studies Law and Economics
Required Readings: Forcese, Craig, Chapter 2 Faisal Bhabha, “Islands of Empowerment: Anti Discrimination Law and the question of racial emancipation” (2013) 31 Windsor Yearbook of Access to Justice 39: https://ojs.uwindsor.ca/ojs/leddy/index.php/WYAJ/article/view/4412/3615 Scott Shapiro, “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed”: https://ssrn.com/abstract=968657 Lisa M. Kelly, “The Work of Ideology in Canadian Legal Thought” (2016) 74 SCLR (2d) 27:https://www.academia.edu/28697707/The_Work_of_Ideology_in_Canadian_Legal_T hought
2. Indigenous Peoples and the Law
Aboriginal Rights and Title
Indigenous Self-Government Aspirations The Modern Treaty Making Process
A. Required Readings: Forcese, Craig, Chapter 3 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: www.trc.ca/websites/trcinstitution/File/2015/Exec_Summary_2015_06_25_web_o.pdf John Borrows, “Seven Gifts: Revitalizing Living Laws through Indigenous Legal Practice”, (2016-2017) 2:1 Lakehead Law Journal: https://llj.lakeheadu.ca/article/view/1490/825
Page 4 The following two excerpts only (from UNDRIP Implementation below): i) Oonagh Fitzgerald and Risa Schwartz, “Introduction”; and ii) Sarah Morales, “Braiding the Incommensurable: Indigenous Legal Traditions and the Duty to Consult”, from UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws – Special Report, ed. J. Goyder, Centre for International Governance Innovation (2017): www.cigionline.org/sites/default/files/documents/UNDRIP%20Implementation%20Sp ecial%20Report%20WEB.pdf Current Status of Bill C262: An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples: https://www.parl.ca/LegisInfo/BillDetails.aspx?billId=8160636&Language=E Thomas Isaac and Arend J.A. Hoekstra, “Implementing UNDRIP in Canada: Challenges with Bill C-262”: www.casselsbrock.com/CBNewsletter/Implementing_UNDRIP_in_Canada__Challenges _with_Bill_C_262?utm_source=Mondaq&utm_medium=syndication&utm_campaign=Vie w-Original Meeting of the Standing Committee on Indigenous and Northern Affairs, Tuesday March 27, 2018, read Evidence by Perry Bellegarde and Craig Benjamin, from 16:05 to 16:50 in the transcript: www.ourcommons.ca/DocumentViewer/en/42-1/INAN/meeting- 100/evidence Alicia Elliot, “A Memo to Canada: Indigenous People are not Your Incompetent Children” The Globe and Mail, January 5, 2018: www.theglobeandmail.com/opinion/indigenous- memo-to-canada-were-not-your-incompetent-children/article37511319/
B. Required Readings - Re: Aboriginal Rights:
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., [2017] 1 SCR 1099 Canada v. Mikisew Cree First Nation, 2016 FCA 311
C. Required Readings Re: Aboriginal Title:
Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 Brown v. Canada (Attorney General) 2017 ONSC 251
Page 5 D. 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
The Common Law and Civil Law Traditions
i. Reception of European Law ii. Bijuralism iii. Common Law Method: Precedent and Equity Statutory Law International Law
Required Readings: Forcese, Craig, Chapter 4 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 Revisited: Carter v Canada (AG) and the Contemporary Practice of Precedent” (2016) 10 McGill Journal of Law and Health 123: https://mjlh.mcgill.ca/issues/volume-10-issue-1-101-special-issue-2016/precedent- revisited-carter-v-canada-ag-and-the-contemporary-practice-of-precedent/ Jeremy Waldron, “Stare Decisis and the Rule of Law: A Layered Approach” (2012) 111 Michigan Law Review 1: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1095&context=mlr Alastair Hudson, “Conscience as the Organising Concept of Equity” (2016) 2(1) CJCCL 261: http://www.cjccl.ca/wp-content/uploads/2016/08/A7.-Hudson-Alastair-Conscience- as-an-Organizing-Concept-for-Equity.pdf 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
Page 6 4. Fundamental Principles of the Canadian Legal System:
The Constitution of Canada
Principles Underpinning Public Law i. Rule of Law ii. Constitutional Supremacy iii. Parliamentary Sovereignty iv. Federalism v. Separation of Powers vi. Judicial Independence (Overview) Constitutional Amendment
Sources of Executive Power Executive Institutions and the Political Executive
Required Readings: Forcese, Craig, Chapter 8
8. The Courts and the Judiciary
Structure of the Canadian Court System
Judicial Appointments Judicial Independence
Required Readings: Forcese, Craig, Chapter 9
Elaine Craig, “Judging Sexual Assault Trials: Systemic Failure in the Case of Regina v. Bassam Al-Rawi” 2017 CBR, Vol 95: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2949992
Alice Woolley, “The Resignation of Robin Camp: Background and Reflections”,
Approaches to Interpretation The Modern Approach to Interpretation
Required Readings: Forcese, Craig, Chapter 10, pp.425-480; 506-518 Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313
Page 8 10. Constraints on Legislative and Administrative Action
Judicial Review in a Democratic Society
Judicial Review of Administrative Action
Required Readings: Forcese, Craig, Chapter 11 Canada (Attorney General) v. Bri-Chem Supply Ltd., 2016 FCA 257 http://www.canlii.org/en/ca/fca/doc/2016/2016fca257/2016fca257.html David Stratas: “The Canadian Law of Judicial Review: A plea for Doctrinal coherence and consistency” (2016): https://papers.ssrn.com/sol3/papers2.cfm?abstract_id=2733751
Lorne Sossin, “Dunsmuir – Plus ça change Redux” (2018):
Naiomi Metallic, “Deference and Legal Frameworks Not Designed By, For or With Us” (2018): http://www.administrativelawmatters.com/blog/2018/02/27/deference-and-legal- frameworks-not-designed-by-for-or-with-us-naiomi-metallic/
Page 9 Canadian Publishers
Carswell (Thomson Reuters) Tel: 416.609.3800 or 1.800.387.5164
Corporate Plaza Email: [email protected] 2075 Kennedy Road URL: http://www.carswell.com/ Scarborough, ON M1T 3V4
Irwin Law Inc. Tel: (Canada & U.S.) 416.862.7690 or 1.888.314.9014
14 Duncan St. Fax: 416.862.9236 Toronto, ON M5H 3G8 Email: [email protected] URL: http://www.irwinlaw.com/
(For printed material only and Tel: 905.415.5823 or 1.800.668.6481 not for access to Quicklaw) Fax: 905.479.4082 or 1.800.461.3275 Email: [email protected] URL:http://www.lexisnexis.ca/en-ca/home.page
Canada Law Books Tel: (Canada & U.S.) 416.609.3800 or 1.800.387.5164
240 Edward St. Email: [email protected] Toronto, ON L4G 3S9 URL: http://www.carswell.com/
Online Resources
The majority of case law and legislative resources needed by NCA students are available on CanLII, the free legal information resource funded by the Federation of Law Societies of Canada (www.canlii.org). That includes all decisions of the Supreme Court of Canada, and all federal, provincial, territorial and appellate courts.
Your registration fee also includes free access to the Quicklaw resources of Lexis Nexis. Your ID and password will be arranged and emailed to your email address on file a few weeks after the end of the registration session.
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