Communities and Public Law

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The main written component in this course is a short (6-8 pp.) argumentative essay on one of the
nine topics listed below.
The essay should use a minimum of six good-quality sources, including government or NGO
sources (e.g., statutes, Supreme Court or provincial superior court decisions, reports, discussion
papers, etc.) and/or scholarly sources (i.e., books or book chapters published by a scholarly press,
articles published in a law review or in a peer-reviewed academic journal).
The essay should be written in a standard academic format (i.e., it should be double-spaced and
use a 12-point font, one-inch margins, pagination, etc.) and make correct use of a recognized
style of scholarly citation (e.g., APA, Chicago, MLA).
Get started early!

1. Some activists and scholars have proposed “treaty federalism” as a new way of thinking
   about the Canadian constitutional order and the place of Aboriginal peoples within it.
   Treaty federalism is a concept that identifies the historic treaties signed after the Royal
   Proclamation of 1763 as integral parts of the Constitution of Canada. Could fully
   integrating treaties into the Constitution of Canada mark a path toward reconciliation
   between the Crown and Aboriginal peoples? Why or why not?
2. The Supreme Court Act requires that at least three of the nine Supreme Court Justices be
   from Québec, to ensure there is always sufficient knowledge of the province’s distinctive
   civil law tradition on the Court. Convention has long held that all the country’s regions
   should be represented, too (although developments in the last few years suggest this
   convention may be giving way to more demographically oriented convention regarding
   representation and diversity on the Court). Has the time come to also institute a
   requirement, either by statute or by convention, that at least one of the Supreme Court
   Justices have an Indigenous background and/or demonstrated knowledge of Canada’s
   diverse Indigenous legal traditions? Why or why not?
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3. Human Rights Watch and Amnesty International have criticized Canada’s continuing
   practice of indefinite immigration detention as an affront to internationally recognized
   standards for the humane treatment of immigrants and refugees. Detainees and their
   advocates in Canada have also mounted a series of legal challenges to the practice of
   indefinite immigration detention on both administrative law and constitutional grounds –
   with mixed success. Do you think Canada should abandon indefinite immigration
   detention? Or could the practice be reformed in such a way as to eliminate some of its
   worst excesses?
4. In Charkaoui v. Canada (Citizenship and Immigration) the Supreme Court struck down
   the “security certificate” scheme which allowed immigration officials to detain a foreign
   national or permanent resident based on secret evidence and without any chance for
   appeal or judicial review. However, an amended version of the scheme allowing for the
   representation of detainees by “special advocates” was later upheld by the Court in
   Canada (Citizenship and Immigration) v. Harkat. Critics argue that the amended scheme
   is still a form of arbitrary detention and call for Canada to deal with its security concerns
   using criminal law instead of immigration law. Should the security certificate scheme be
   eliminated? Why or why not?
5. In Haida Nation v. British Columbia (Minister of Forests), the Supreme Court identified
   the Crown’s “duty to consult” whenever government action potentially threatens an
   Aboriginal right. Some critics allege that the Crown too often delegates this duty to
   administrative agencies (e.g., the National Energy Board) and sometimes even to private
   resource development companies, undermining the spirit of nation-to-nation negotiation
   the duty to consult was originally meant to foster. How much of a problem is the
   delegation of the Crown’s duty to consult? What could be done to improve the
   effectiveness of consultation as a means of advancing reconciliation between the Crown
   and Aboriginal peoples?
6. In a pair of decisions handed down last week, R. v. Sullivan and R. v. Brown, the
   Supreme Court struck down s. 33.1 of the Criminal Code, a controversial provision
   which precluded the defence of automatism for any general intent, bodily integrity
   offence committed while the accused was in a voluntary, self-induced state of “extreme
   intoxication”. The Court found that s. 33.1 instituted “a regime of absolute liability that
   undermines many of the core beliefs used to structure our system of criminal law” and
   violated s. 7 of the Canadian Charter of Rights and Freedoms. Should Parliament accept
   these decisions as settled law? Or do we need a provision like s. 33.1 in the Criminal
   Code to ensure that violent offences committed while the accused is intoxicated do not go
   unpunished?
7. After Gerald Stanley, the man who shot and killed Colten Boushie, was acquitted of
   second-degree murder by a jury that had no Indigenous people sitting on it, the federal
   government moved to enact legislation eliminating peremptory challenges from the jury
   selection process. The constitutionality of this legislation was upheld by the Supreme
   Court of Canada in its decision in R. v. Chouhan. What further measures could be taken
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   to make juries in criminal trials more diverse and more representative of the population
   than they are now? Which of those measures do you think would be most effective?
8. Despite little evidence that they are effective and a great deal of evidence that they are a
   major factor contributing to the overrepresentation of Indigenous and Black offenders in
   the criminal justice system, legislators and judges cannot seem to resist the temptation to
   create mandatory minimum sentences for crimes that receive a lot of media attention. The
   Alberta Court of Appeal’s imposition of a nine-year “starting point” minimum sentence
   for fentanyl trafficking in two recent decisions is just one high-profile example. Do
   mandatory minimum sentences serve a valid purpose in the criminal law? Or should they
   be eliminated to allow judges to fully exercise their discretion when sentencing
   offenders?
9. Although s. 10(b) of the Charter guarantees the right to retain and instruct counsel upon
   arrest and detention, there is no general right to legal aid in Canada. Many critics of the
   criminal justice system argue that the conditions in which the right to legal aid is
   triggered are too narrow and leave far too many accused persons without proper legal
   counsel. What, if anything, should be done about this situation? Would the introduction
   of something like a US-style system of public defenders in the provinces be a good idea?