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).
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  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?
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