PUBLIC LAW I
AS/POLS 3135 3.0 (F) SECTION A
(Crosslisted to: AK/POLS 3135 3.00, AK/SOCI 3135 3.00,
GL/POLS 3135 3.00, AK/PPAS 3135 3.00)
THE CONSTITUTION AND THE COURTS IN CANADA
FALL TERM 2008
Course Director: Ray Bazowski
Office: 131 McLaughlin College
Office Hours: T, 1-2 pm, R, 10:30-11 a.m,
F, 1:30-2 p.m., and by appointment
Contact: (416) 736-2100 ext. 20723
rbazk@yorku.ca
Lectures:
Fridays, 2:30 – 4:30 TEL 0016
Tutorials:
01
02
03
04
05
06
F
F
F
F
F
F
11:30 SLH 107
11:30 ACE 006
9:30 R S102
10:30 R S102
9:30 TEL 0015
10:30 VH 1158
THE COURSE:
This course will examine the role of the courts in the governmental process in Canada, and
particularly in relation to leading Supreme Court of Canada decisions regarding the Division of
Powers between the federal government and the provinces. Attention will be paid to formal
constitutional interpretation, the politics of the judicial process, and the relation between law, public
policy and administration in Canada.
Relation Between POLS 3135 and POLS 3136: Most students who take Public Law I (3135) also
take Public Law II (3136) (though there is no requirement to do so). Public Law II is taught during
the Winter Term in the same time period and focuses on Supreme Court of Canada decisions
relating to the Charter of Rights and Freedoms.
For an electronic version of this outline go to: http://www.arts.yorku.ca/polsci/rbazk/
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Please note that the last day to withdraw from this course without receiving a grade is
November 7. Please consult the “Refund Table” at the following address to determine the
portion of fees that will be refunded at different drop dates: http://www.yorku.ca/osfs/ug0809Refund.shtml
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READINGS:
Required:
Peter Russell, Rainer Knopff, Thomas Bateman & Jane Hiebert. The Court and the
Constitution: Leading Decisions. Toronto, Edmond Montgomery, 2008.
Recommended:
Peter W. Hogg, Constitutional Law of Canada Student Edition.
Joanne Buckley, Fit to Print: The Canadian Student’s Guide to Essay Writing (Toronto:
Harcourt, 2001).
Web Resources
Supreme Court of Canada homepage:
http://www.scc-csc.gc.ca/Welcome/index_e.asp
Reported decisions of the Supreme Court:
http://scc.lexum.umontreal.ca/en/index.html
Canadian Legal Information Institute (a search engine for reported court cases in all Canadian
jurisdictions)
http://www.canlii.org/en/index.html
Osgoode Hall Law School sponsored blog containing commentaries on and discussions of Supreme
Court decisions:
http://www.thecourt.ca/
Homepage of the Canadian Judicial Council:
http://www.cjc-ccm.gc.ca/article.asp?id=5
Homepage of the Office for the Commissioner For Federal Judicial Affairs:
http://www.fja.gc.ca/fja-cmf/index-eng.html
Legal Information Institute (Cornell University Law School), a legal resource for U.S. constitutional
law:
http://www.law.cornell.edu/
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3
ASSIGNMENTS AND GRADING:
Assignments and Grades:
Mid-Term Examination (October 24)
Case Commentary (due November 14)
Tutorial Participation
Final Examination
(scheduled during examination period)
20%
40%
10%
30%
Note: All assignments are mandatory. Failure to hand in an assignment will result in an
incomplete for the course.
Grading Breakdown: For the purpose of averaging grades on assignments to arrive at the final
course grade, the following numerical equivalents for letter grades will apply:
A+
B+
C+
D+
E
90-100
75-79.9
65-69.9
55-59.9
40-49.9
A
B
C
D
F
80-89.9
70-74.9
60-64.9
50-54.9
0-39.9
Academic Honesty: Students who cheat on exams or written assignments will receive an F in
the course and may be subject to expulsion from the university. Please familiarize yourself with the
Faculty Policy on academic dishonesty.
Students With Special Needs: Students with physical, psychological or learning disabilities
may request reasonable accommodations in teaching style or evaluation methods, as outlined in the
York University Senate Policy on Students with Special Needs. They should advise the Course
Director and the Teaching Assistant at the earliest opportunity, so that appropriate arrangements
may be made.
Religious Observances:
Should students require accommodation because of religious
observance reasons, please contact the Course Director or Teaching Assistant at the earliest
opportunity.
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4
Lecture Schedule
September 5:
Course Introduction and Preliminary Observations on the Law
Lecture: Objectives of the course are explained. This lecture will introduce
some of the distinctions in law and explain the various sources of law. It will
also provide some observations on the nature and functions of the law.
September 12
Structure of the Courts and Basic Constitutional Principles
Lecture: The structure and hierarchy of the courts will be explained. Basic
constitutional concepts will also be explained.
Required Reading:
Department of Justice, Ottawa. Canada’s System of Justice.
Accessible at: http://www.justice.gc.ca/eng/dept-min/pub/just/
Department of Justice, Ottawa. Canada’s Court System.
Accessible at: http://www.justice.gc.ca/eng/dept-min/pub/ccs-ajc/
Recommended Reading:
September 19:
Hogg, Chapters 1-3, 9 and 12
The Structure of the Canadian Constitution and the Quebec Legal
System
Lecture: The structure of the Canadian Constitution will be explained. An
overview of the Quebec Legal System (which is based on the Civil Law
System) will be provided.
Required Reading:
Eugene Forsey, “A Federal State,” How Canadians Govern
Themselves. Parliament of Canada, Ottawa accessible at
http://www.parl.gc.ca/information/library/idb/forsey/fed_state_01e.asp
Wolfgang Koerner, Foundations of Canadian Federalism.
Library of Parliament, Ottawa, 1988 accessible at:
http://www.parl.gc.ca/information/library/PRBpubs/bp187-e.htm
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5
September 26:
The Role of the Courts
Lecture: The overall role of the courts in the legal process will be explained.
Topics that will be covered by this lecture include: judicial independence,
stare decisis, statutory interpretation and natural justice.
Required Reading:
Reference re Remuneration of Judges of the Provincial Court
(P.E.I.), [1997] 3 S.C.R. 3 is accessible at
http://csc.lexum.umontreal.ca/en/1997/1997rcs3-3/1997rcs3-3.html
Recommended Reading:
October 3:
Hogg, Chapters 15-16.
Judicial Interpretation of “Peace, Order and Good Government”
(POGG)
Lecture: The Judicial Committee of the Privy Council’s early cases
involving the interpretation of POGG will be discussed.
Required Reading:
Russell v. The Queen (textbook, p. 38)
Local Prohibition (textbook, p. 46)
Re Board of Commerce Act (textbook, p. 52)
Toronto Electric Commission v. Snider (textbook, p. 57)
October 10, 17:
POGG II
Lecture: The Judicial Committee of the Privy Council’s later cases
involving the interpretation of POGG will be discussed. The Supreme Court
of Canada’s decisions involving POGG will also be discussed.
Required Readings:
Employment and Social Insurance Act (textbook, p. 67)
A.G. Ont. v. Canada Temperance Federation
(textbook, p. 81)
Johannesson v. West St. Paul (textbook, p. 57)
Reference re Anti-Inflation Act (textbook, p. 94)
The Queen v. Crown Zellerbach (textbook, p. 127)
Recommended Readings:
October 24:
Mid-Term Examination
5
None.
6
October 31:
Property and Civil Rights Versus Trade and Commerce
Lecture: The Province’s powers over Property and Civil Rights (s. 92(13) of
the Constitution Act, 1867) will be compared with the Federal Government’s
power over Trade and Commerce (s. 91(2) of the Constitution Act, 1867).
Required Readings:
Citizens Insurance Co. v. Parsons (textbook, p. 33)
Chicken and Egg Reference (textbook, p. 86)
Labatt v. Attorney General of Canada (textbook, p. 119)
General Motors v. City National Leasing accessible at
http://csc.lexum.umontreal.ca/en/1989/1989rcs1-641/1989rcs1641.html
Recommended Readings:
November 7:
Hogg, Chapters 20-21.
Criminal Law and Co-operative and Executive Federalism
Lecture: The Criminal Law Power (s. 91(27) of the Constitution Act, 1867)
and the Provincial Regulatory Power (s. 92(15) of the Constitution Act, 1867)
will be examined. Co-operative and Executive Federalism will also be
examined.
Required Readings:
R. v. Hydro Quebec (textbook, p. 145)
Reference re Firearms Act (2000) accessible at
http://csc.lexum.umontreal.ca/en/2000/2000scc31/2000scc31.html
Westendorp
v.
The
Queen
http://csc.lexum.umontreal.ca/en/1983/1983rcs1-43/1983rcs1-43.html
P.E.I. Potato Marketing Board (textbook, p. 478)
Aeronautics Case (textbook, p. 61)
Radio Case (textbook, p. 145)
The Labour Conventions Case (textbook, p. 70)
Recommended Readings:
Hogg, Chapter 18
CASE COMMENTARY DUE NOVEMBER 14
November 14:
The Regulation and Taxation of Natural Resources, The Environment
and Other Division of Powers Issues
Lecture: Examination of the taxation of natural resources and the
environment.
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7
Required Readings:
Canadian Industrial Gas and Oil (textbook, p. 107)
R. v. Hydro Quebec (textbook, p. 145)
Friends of Oldman River v. Canada accessible
http://csc.lexum.umontreal.ca/en/1992/1992rcs1-3/1992rcs1-3.html
Recommended Readings:
November 21:
at
None.
Criticisms of the Judicial Interpretation of the Division of Powers
Lecture: Criticisms of how the courts have interpreted the Division of
Powers will be examined.
Required Readings:
Frederick Vaughan, “Critics of the Judicial Committee of the Privy
Council: The New Orthodoxy and an Alternative Explanation,” Journal of
Political Science, Vol. 19, No. 3 (Sep., 1986), pp. 495-519 is accessible
electronically through the York University library.
See also the responses to Vaughan’s article from Alan Cairns
and Peter Russell and Vaughan’s reply to his critics in the same
journal article.
Recommended Readings:
November 28:
None.
The Political Dynamics of Constitutional Reform 1981-Present
Lecture: The difficulty in reforming the Canadian constitution will be
examined. Has the process of constitutional reform contributed to an
irreparable alienation of Quebec from Canada? Does the constitution confer
identities on peoples?
Required Readings:
Peter H. Russell, “The End of Mega Constitutional Politics in
Canada?” PS: Political Science and Politics, Vol. 26, No. 1 (Mar., 1993),
pp.33-37 is accessible electronically through the York University library.
Reference re. Secession of Quebec
is accessible at
http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2217.html
Recommended Readings:
7
None.