Canadian Public and Constitutional Law

Course Number and Title: Canadian Public and Constitutional Law

Term: Fall 2015
Prerequisite/Co-requisite: None
Course Instructors:

Sunil Mathai (Ministry of the Attorney General, Crown Law Office Civil):
sunil.mathai@ontario.ca
Jackie Esmonde (Income Security Advocacy Centre): esmondja@lao.on.ca

Time and Location: 1 Dundas Street West Suite 2602

Tuesday September 8; 7-10
Tuesday September 15; 7-10
Tuesday September 22; 7-10
Tuesday September 29; 7-10
Tuesday October 6; 7-10
Tuesday October 13; 7-10
Tuesday October 20; 7-10
Saturday October 24; 10-1
Tuesday October 27; 7-10
Tuesday November 3; 7-10
Tuesday November 10; 7-10
Tuesday November 17; 7-10
Saturday November 21; 10-1
Tuesday November 24; 7-10
Tuesday December 1; 7-10
Tuesday December 8; 7-10
Expanded Course Description:
This course provides an introduction to basic principles of Canadian Constitutional Law and
Public Law with a focus on:
1.
2.
3.
4.

Canadian Charter of Rights and Freedoms

Aboriginal rights
Division of powers between Federal and Provincial governments
Legal avenues for challenging government decisions

The class format will consist of lectures and class discussions. Discussions will be incorporated
throughout each class, following instructor review / summary of assigned readings. Students are
encouraged to actively participate in discussions. Power point presentations prepared by the
instructor will be posted to the course website in advance of class.

Course Learning Objectives:

(1) To introduce students to, and promote critical thinking about, various components of
Canadian constitutional and public law;
(2) To explore some of the key jurisprudence in relation to ss. 91 and 92 of the Constitution
Act, 1867; the constitutional rights of Aboriginal peoples; and the Canadian Charter of
Rights and Freedoms, including controversies and problems in the ongoing development
of Canadian constitutional jurisprudence;
(3) To introduce and use key theoretical perspectives on the law;
(4) To encourage an interactive exchange of views; and
(5) To give students an opportunity to develop and refine their critical legal writing skills

Course Text/Readings:
P. Hogg, Constitutional Law of Canada, Student Edition (Toronto: Carswell, published in a
revised version annually)
J. Fairlie & Philip Sworden, Introduction to Law in Canada (Toronto: Emond Montgomery
Publications, 2014)
Date
Week One:
Tuesday September 8
7-10

Topic
Overview of the Course

(Mathai & Esmonde)

Basic Architecture of the

Canadian Legal System

Readings
Hogg:
Chapter 1, Sources

Sources of Constitutional Law

Reference re Secession of
Quebec, [1998] 2 S.C.R.
217
Chapter 7, Courts
Chapter 9, Responsible
Government, ss. 9.4-9.5

Optional Reading:
Reference re Senate Reform,
[2014] 1 SCR 704, 2014 SCC
32 (CanLII),
<http://canlii.ca/t/g6mfs>
Reference re Supreme Court
Act, ss. 5 and 6, [2014] 1 SCR
433, 2014 SCC 21 (CanLII),
<http://canlii.ca/t/g67w2>

Week Two:
Tuesday September 15
7-10

Common Law Method

Fairlie & Sworden:

Fundamentals of the Canadian

Legal System

Chapter 3 The Reception

of Common Law and Civil
Law in Canada

Chapter 9 Private Law I:

Torts, Contracts and
Related Areas

Chapter 10 Private Law

II: Property Law, Family
Law and Other areas

(Mathai)

Week Three:
Tuesday September 22
7-10

Introduction to the
Constitution and Federalism

Constitution Act, 1867, ss. 9195

Paramountcy

Constitution Act, 1982, s.52

Division of Powers: Peace

Order and Good Government

Hogg:

(Mathai)

Chapter 5 Federalism
Chapter 15 Judicial
Review
Chapter 16 Paramountcy
Chapter 17 Peace, Order
and Good Governance

Quebec (AG) v Canadian

Owners and Pilots Assn, 2010
SCC 39
R. v. Crown Zellerbach
Canada Ltd., [1988] 1 S.C.R.
401
Optional Reading:
Bruce Ryder Equal
Autonomy in Canadian
Federalism: The Continuing
Search for Balance in the
Interpretation of the Division
of Powers (2011), 54
S.C.L.R. (2d) 565

Week Four:
Tuesday September 29
7-10

Division of Powers: Criminal

Law, Property & Civil Rights;
Trade and Commerce

(Esmonde)

Theory: Law & Economics

Hogg:
Chapter 18, Criminal
Law, ss. 18.1-18.2,
18.11-18.13
Chapter 20, Trade and
Commerce, ss. 20.1, 20.3
Chapter 21, Property and
Civil Rights, ss. 21.121.4, 21.6, 21.8
Quebec (Attorney General) v.
Canada (Attorney General),
2015 SCC 14 (CanLII),
<http://canlii.ca/t/ggv8w>
(majority opinion only)
Reference re Securities Act,
[2011] 3 SCR 837, 2011 SCC
66 (CanLII),
<http://canlii.ca/t/fpdwb>
Engle, Eric (2009), Law and
economics: theoretical
puffery, exaggerated claims
and counterfactual models,
The Journal Jurisprudence
(Feb. 2009)
Optional

Week Five:
Tuesday October 6
7-10
(Mathai)

Introduction to the Charter of

Rights and Freedoms
(application, override of
rights, s. 1)

Rahmatian, Andreas (2013),

A fundamental critique of the
law-and-economics analysis of
intellectual property rights,
Marquette Intellectual
Property Law Review,
Summer, 2013, Vol.17(2),
p.191(39)
Hogg:
Chapter 32 Charter of
Rights
Chapter 37 Application
of Charter
Chapter 38 Limitation of
Rights
R. v. Oakes, [1986] 1 S.C.R.
103

Greater Vancouver
Transportation Authority v.
Canadian Federation of
Students, 2009 SCC 31
Alberta v. Hutterian Brethren
of Wilson Colony, 2009 SCC
37
Optional Reading:
Peter Hogg et al. Charter
Dialogue Revisited Or
Much Ado About
Metaphors (2007) 45
Osgoode Hall L.J. 1
Andrew Petter Taking
Dialogue Theory Much Too
Seriously (or Perhaps Charter
Dialogue Isnt Such a Good
Thing After All) (2007) 45
Osgoode Hall L.J. 147
Errol P. Mendes, Section 1 of
the Charter after 30 Years:
The Soul or the Dagger at its
Heart?, (2013), 61 S.C.L.R.
(2d) 293 - 336

Week Six:
Tuesday October 13
7-10
(Esmonde)

Aboriginal and Treaty Rights

Hogg:
Chapter 28, Aboriginal
Peoples
Tsilhqotin Nation v. British
Columbia, [2014] 2 SCR 256,
2014 SCC 44 (CanLII),
<http://canlii.ca/t/g7mt9>
Grassy Narrows First Nation
v. Ontario (Natural
Resources), [2014] 2 SCR
447, 2014 SCC 48 (CanLII),
<http://canlii.ca/t/g80bn>
Canada (Indian Affairs) v.
Daniels, 2014 FCA 101
(CanLII),

<http://canlii.ca/t/g6kgv>

Week Seven:
Tuesday October 20
7-10

Freedom of Conscience and

Religion

Borrows, John (2013),

Aboriginal and treaty rights
and violence against women
Osgoode Hall law journal,
Vol. 50(3) 699 -736
Hogg:
Chapter 42, Religion
Loyola High School v.
Quebec (Attorney General),
2015 SCC 12 (CanLII),
<http://canlii.ca/t/ggrhf>

(Esmonde)

Mouvement laque qubcois

v. Saguenay (City), 2015 SCC
16 (CanLII),
<http://canlii.ca/t/gh67c>
Trinity Western University v
The Law Society of Upper
Canada, 2015 ONSC 4250
Trinity Western University v.
Nova Scotia Barristers
Society, 2015 NSSC 25
(CanLII),
<http://canlii.ca/t/gg386>

Week Eight:
Saturday October 24
10-1
(Mathai)

Freedom of Expression

Choudry, Sujit (2013), Rights

Adjudication in a Plurinational
State: the Supreme Court of
Canada, Freedom of Religion,
and the Politics of Reasonable
Accommodation 50 Osgoode
Hall L.J. 575
Hogg:

Chapter 43 Expression

Montreal (City) v. 2952-1366

Quebec Inc., 2005 SCC 62
Saskatchewan (Human Rights
Commission) v. Whatcott,
2013 SCC 11
Kent Roach and David

Schneiderman, "Freedom of
Expression in Canada" (2013)
61 S.C.L.R.

Week Nine:
Tuesday October 27
7-10

Life, Liberty and Security of

the Person

Hogg:

Theory: Critical Legal Studies

(Esmonde)

Chapter 47, Fundamental

Justice, ss. 47.2, 47.4,
47.7-47.10, 47.15-47.18(a)

Canada (Attorney General) v.

Bedford, [2013] 3 SCR 1101,
2013 SCC 72 (CanLII),
<http://canlii.ca/t/g2f56>
Cameron, Jamie (2002),
Positive Obligations Under
Sections 15 and 7 of the
Charter: A Comment on
Gosselin v. Quebec SCLR
Vol. 20, pp. 65-90.
Roach, Kent (2012), Section
7 of the Charter and National
Security: Rights Protection
and Proportionality versus
Deference and Status 42(3)
Ottawa L.R. 337
Matsuda, Mari J. (1987),
Looking to the Bottom:
Critical Legal Studies and
Reparations, 22 Harv. C.R.C.L. L. Rev. 323
Alexander, Michelle (20112012), The New Jim Crow
Ohio State Journal of
Criminal Law 7.

Week Ten:
Tuesday November 3
7-10

Equality Rights

Hogg:

Theory: Feminist Perspectives

on Law

Chapter 55, Equality, ss.

55.4-55.14

(Esmonde)
Quebec (Attorney General) v.
A, [2013] 1 SCR 61, 2013

SCC 5 (CanLII),
<http://canlii.ca/t/fvsc0>
(majority opinion only)
Young, Margot (2010),
Unequal to the Task:
Kapping the Substantive
Potential of Section 15,
Supreme Court Law Review
Vol. 50, 183-219.
Brooks Whitman, Christina
(1991), Review Essay:
Feminist Jurisprudence
Feminist Studies 17, pp. 493507.

Week Eleven:
Tuesday November 10
7-10

Freedom of Assembly
Charter rights and the criminal
justice process

Williams, Patricia J. (1988),

On Being the Object of
Property, Signs: Journal of
Women in Culture and Society
14, pp. 5-24.
Hogg:

Chapter 44 Assembly
and Association

Chapter 47
Fundamental Justice
ss. 47.20 -47.21

Chapter 47.21- 47.22

(Mathai)

Saskatchewan Federation of
Labour v. Saskatchewan, 2015
SCC 4
Health Services and Support
Facilities Subsector
Bargaining Assn. v. British
Columbia, [2007] 2 S.C.R.
391
Mounted Police Association of
Ontario v. Canada (Attorney
General), [2015] 1 S.C.R. 3
United Nurses of Alberta v.
Alberta (Attorney General),

[1992] 1 S.C.R.
R. v. Stinchcombe, [1991] 3 S.C.R.
326

R. v. Kokopenace, 2015 SCC

28
Section 8, 10 and 11 of the
Canadian Charter of Rights
and Freedoms

Week Twelve:
Tuesday November 17
7-10

**Case Comment Due**

Hogg:

Language Rights

(Esmonde)

Chapter 56, Language

Association des parents de

lcole Rose-des-vents v.
British Columbia (Education),
2015 SCC 21 (CanLII),
<http://canlii.ca/t/gh9nr>
Conseil scolaire francophone
de la Colombie-Britannique v.
British Columbia, [2013] 2
SCR 774, 2013 SCC 42
(CanLII),
<http://canlii.ca/t/fzsvv>

Week Thirteen:
Saturday November 21
10-1
(Mathai)

Charter Remedies

Nguyen v. Quebec (Education,

Recreation and Sports), [2009]
3 SCR 208, 2009 SCC 47
(CanLII),
<http://canlii.ca/t/2669q>
Hogg:

Chapter 40 Enforcement
of Rights
Chapter 41 Exclusion of
Evidence

Vriend v. Alberta, [1998] 1

S.C.R. 493
Vancouver (City) v. Ward,
2010 SCC 27
Doucet-Boudreau v. Nova

10

Scotia
(Minister of Education),
[2003] 3 S.C.R. 3
Little Sisters Book and
Art Emporium v. Canada
(Minister of
Justice), [2000] 2 S.C.R. 1120
Schachter v. Canada, [1992] 2
S.C.R. 679
Nova Scotia (Workers
Compensation Board) v.
Martin; Nova
Scotia (Workers
Compensation Board) v.
Laseur, [2003] 2 S.C.R. 504
Optional:
Choudhry, Sujit, and Kent
Roach, Putting the Past
Behind Us? Prospective
Judicial and Legislative
Constitutional Remedies
(2003), 21 S.C.L.R. (2d) 205
Kent Roach, Enforcement of
the Charter Subsections
24(1) and 52(1) (2013) 62
S.C.L.R. (2d) 473
Week Fourteen:
Thursday November 24
7-10
(Mathai)

Government Accountability:
judicial review and statutory
interpretation

Fairlie & Sworden:

Chapter 12 Public Law

Judicial Review Procedures

Act, RSO 1990, c J.1
http://www.ontario.ca/laws/sta
tute/90j01
Setia v Appleby College, 2013
ONCA 753
Dunsmuir v. New Brunswick,
[2008] 1 S.C.R.

11

Canada (Attorney General) v.

Mavi, 2011 SCC 30, [2011] 2
S.C.R. 504
R. v. Conway, 2010 SCC 22,
[2010] 1 S.C.R. 765

Week Fifteen:
Tuesday December 1
7-10
(Esmonde)

The application of
international law in Canada
and the treaty-making process

Wood v. Schaeffer, 2013 SCC

71
United Nations Declaration on
the Rights of Indigenous
Peoples
http://www.un.org/esa/socdev/
unpfii/documents/DRIPS_en.p
df
Truth and Reconciliation
Commission (2015), Summary
of the Final Report, pp. 1-21,
241-244, 249-260
http://www.trc.ca/websites/trci
nstitution/File/2015/Findings/
Exec_Summary_2015_05_31_
web_o.pdf
R. v. Hape, [2007] 2 SCR 292,
2007 SCC 26 (CanLII),
<http://canlii.ca/t/1rq5n>
(majority opinion only)
Kazemi Estate v. Islamic
Republic of Iran, 2014 SCC
62 (CanLII),
<http://canlii.ca/t/gdwht>
(majority opinion only)
Bhabha, Faisal (2013),
International Human Rights
in Canada: At the juncture of
law and politics,
International Journal of Legal
Information Vol. 41
Metcalf, Cherie (2014),
Climate law in Canada:
international laws role under
environmental federalism,
University of New Brunswick
Law Journal vol. 65

12

Week Sixteen
Tuesday December 8
7-10

Review and Exam Prep

(Mathai & Esmonde)

Evaluation:
10% participation
20% Critical Case Commentary (due November 17)
70% Final Exam (3 hours open-book examination including analysis of case scenarios and short
answer questions)
Critical Case Commentary
Students will be required to submit one critical case comment.

The case comment should select one case from the class readings and offer a critical
analysis of one or more dimensions of the case, putting the case into the conceptual,
historical and/or thematic context of the other course readings and discussions.
The case comment should be between 2,000 2,500 words (inclusive of footnotes) and a
word count should appear on the assignments. Assignments less than 2,000 words or over
2,500 words will be considered incomplete and will not be accepted.
Please submit the comments double-spaced and in 12 point font.
The case comment will be evaluated on the basis of the quality of the writing and
argument, the originality and insight of the analysis, and the demonstrated ability to
engage with themes raised in readings and/or discussions.
Use of legal theories discussed in class is strongly encouraged.
Late assignments will be subject to a penalty of 1 mark out of the 20 available for each
day, or part thereof, that the assignment is late.
The case comment is due no later than 5 p.m. on November 17 and should be emailed
directly to sunil.mathai@ontario.com and esmondja@lao.on.ca.

Significant Research Paper

Students who elect to write a Significant Research Paper in this course must notify the instructor
as soon as possible to secure permission and topic approval. The Significant Research Paper will
stand in as the sole means of assessment for the course. The page length must be 30 pages/8,000
words, double spaced with one inch margins. SRPs are due on the same date at the final
examination.
Grading
The only letter grades that are permitted by the Faculty of Graduate Studies are the following:
A+, A, A-, B+, B, C and F.

13

IMPORTANT COURSE INFORMATION FOR STUDENTS

All students are expected to familiarize themselves with the Professional LLM Student
Handbook, which can be found at the MyOPD portal
(https://abstract.osgoode.yorku.ca/myopd.nsf/studentportal) under Graduate Program
Regulations, Schedules and Publications. Further information on policies affecting graduate
students can be found in York Universitys Faculty of Graduate Studies Faculty Regulations
http://gradstudies.yorku.ca/current-students/regulations/).
Video and Audio Lecture Capture
OPD policy regarding access to video or audio recordings of courses is available on the MyOPD
Student Portal
Academic Honesty and Integrity
All students are required to maintain high standards of academic integrity and are subject to
York Universitys Senate Policy on Academic Honesty and the Faculty of Graduate Studies
Procedural Guidelines on Academic Honesty:
1. http://www.yorku.ca/univsec/policies/document.php?document=69
2. http://gradstudies.yorku.ca/current-students/regulations/academic-honesty/
3. http://gradstudies.yorku.ca/files/2014/06/academic-honesty-guidelines.pdf
York University has developed resources on academic honesty, which all students are expected
to review:
http://www.yorku.ca/academicintegrity
As an investigative aid, OPD utilizes the text matching tool Turnitin and follows the guidelines
of York University found at:
http://www.yorku.ca/academicintegrity/textmatching-guidelines.htm
Access/Disability
York provides services for students with disabilities (including physical, medical, learning and
psychiatric disabilities) needing accommodation related to teaching and evaluation
methods/materials. Additional information is available at www.yorku.ca/disabilityservices.
Ethics Review Process
All Osgoode students are required to abide by the Osgoode Hall Law School Procedures for
Ethics Review of Student Research Involving Human Participants as well as York Universitys
policy (http://gradstudies.yorku.ca/current-students/thesis-dissertation/research-ethics/).
Research includes questionnaires, interviews and surveys. For more information, please see the
full details of the Procedures.

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Religious Observance Accommodation

York University is committed to respecting the religious beliefs and practices of all members of
the community, and making accommodations for observances of special significance to
adherents. Should any of the dates specified in this Course Outline pose a conflict for you,
please advise your Instructor as early as possible.