Module SXL-3153:
Canadian Constitutional Law

Module Facts

Run by School of Law

20 Credits or 10 ECTS Credits

Semester 1 & 2

Organiser: Dr John Olsson

Overall aims and purpose

The aim of this module is to teach the student the theory and practice, and critical appraisal, of Canadian constitutional law and legal issues arising in relation to it, beginning with the country’s evolution from colony to dominion to sovereign status. The student will not only become aware of how the constitution works, but also will be able to critically analyse constitutional aims and outcomes, separate rhetoric from reality, and present viable arguments for and against constitutional questions. Of necessity, the module will include the historical development of the constitution and the legal system from the period prior to the Treaties of Utrecht (1713) and Paris (1763), through to the British North America Acts of 1840 and 1867, the latter beginning the process of patriation of the constitution to Canada from Britain which occurred in 1982 when the Canada Act was passed by the UK Parliament. Students at this level will critically examine the arguments for and against patriation presented by the key constitutional players at the time. Case law is particularly important in this module, and students will study cases relating not only to individual rights as provided for in both the Canadian Bill of Rights and the Charter of Rights and Freedoms, but also to the division of powers between the federal government and the provinces and the constitution’s role in protecting the rights of indigenous peoples, including a critical evaluation of the effectiveness of the constitution in doing so, as well as the development of constitutional doctrines. As a result of the above, the student will gain a critical theoretical and practical understanding of the scope of the Canadian Constitution and its unique legal position. In addition, the student will learn to analyse the constitution in depth by comparing it with other constitutions, notably the UK and US constitutions for the purpose of evaluating the extent to which parliament is sovereign, and the extent to which powers are truly separate. As a result of studying this module, the student will have a critical appreciation of the interaction between statute law and constitutional matters, interpretation by the courts of constitutional provisions, and the extent to which their intended supremacy in law is given effect.

Course content

Governance in the period prior to colonisation by Europeans, i.e. up to approximately 1600. Governance under French rule - 1600 to 1763. Provisions under the Royal Proclamation, 1763, especially land rights of indigenous peoples. The new constitutional arrangements of 1791, and the power of the Legislative Councils of Upper and Lower Canada. The British North America Act, 1840, re-unification of the provinces, discriminatory measures. The British North America Act 1867; a new constitutional dispensation, federal structure, provincial powers; limitations on foreign policy. Later British North America Acts; rights to expansion, minerals, land usage. The pre-patriation period - 1867-1982, and its effect on constitutional arrangements. Key cases relating to the Bill of Rights and the Charter of Rights and Freedoms. Post-patriation constitutional issues, including resource allocation and indigenous people's rights. Key Canadian doctrines, e.g. pith and substance, subsidiarity, double aspect, paramountcy.

Assessment Criteria

C- to C+

C-to C+: Critically understand and analyse key doctrines and concepts in relation to the constitution, especially regarding the tensions between governmental power and indigenous rights, particularly with reference to the distribution of natural resources and the protection of ancient liberties.

excellent

A- to A*: Demonstrate comprehensive knowledge and detailed understanding of the area of law, including familiarity with relevant case law, legislation, academic debates and any recent or anticipated developments. Be able to identify all legal issues and apply relevant law. Demonstrate extensive background study as appropriate to the assessment method, using appropriate sources, including case law, legislation and academic commentary such as journal articles, law books and authoritative reports. Be well structured, including the coherent development of arguments and the use of an introduction and conclusion, and highly focussed on the question asked, including the ability to determine what is relevant and the omission of superfluous information/material. Contain logically presented and defended arguments, which are based on appropriate research and legal analysis. Be completely free from substantive legal errors. Include significant elements of original interpretation, including depth of analysis and the ability to present arguments based on sound legal reasoning. Be presented to very high standards with very accurate communication, including the use of language and grammar, layout of the text, footnote referencing, bibliography and adherence to the stipulated word limit.

good

B- to B+: Demonstrate strong knowledge and understanding of most of the area of law, including familiarity with relevant case law, legislation, academic debates and any recent or anticipated developments. Be able to identify most legal issues and apply relevant law. Demonstrate evidence of background study, using appropriate sources, including case law, legislation and academic commentary such as journal articles, law books and authoritative reports. Be well structured, including the coherent development of arguments and the use of an introduction and conclusion, and focused on the question asked, including the ability to determine what is relevant and the omission of superfluous information/material. Contain coherently presented arguments, which are based on appropriate research and legal analysis. Be mostly free from substantive legal errors. Include some elements of original interpretation, including depth of analysis and the ability to present arguments based on sound legal reasoning. Be presented to high standards with accurate communication, including the use of language and grammar, layout of the text, footnote referencing, bibliography and adherence to the stipulated word limit.

threshold

D- to D+: Demonstrate a very basic knowledge and understanding of some of the key case law/legislation and principles in the area of law. Be able to identify some legal issues and apply relevant law. Demonstrate some, if only limited, evidence of background study, using appropriate case law and legislation. Attempt to present an answer on the question asked, with only some irrelevant material and weaknesses in structure. Attempt to present relevant and coherent arguments, which are based on appropriate legal analysis. Not contain a large number of substantive legal errors. Demonstrate an attempt to avoid major weaknesses in presentation and accuracy, albeit with some errors in referencing, spelling and grammar, or bibliography present.

Learning outcomes

  1. Understand and analyse key doctrines and concepts in relation to the constitution, especially in relation to the balance between governmental power and indigenous rights, particularly with reference to the distribution of natural resources.

  2. Analyse, understand and evaluate the role of the Canadian constitution, its doctrines, procedures and mechanisms for ensuring its supremacy.

  3. Be able to critically analyse the role of the major institutions of State in the constitution.

  4. Demonstrate a good understanding of case law in order to analyse the tensions between federal vs provincial power and the resources and mechanisms for resolving these.

  5. Demonstrate a thorough understanding of how the need for the Canadian constitution to continue being a ‘living tree’ is given effect in judicial decisions and in statute law.

Assessment Methods

Type Name Description Weight
INDIVIDUAL PRESENTATION Individual Presentation

Presentations will consist of independent work by each student demonstrating an understanding of the key constitutional elements as reflected in the learning outcomes.

25
ESSAY Written assignment

The summative assessment will consist of one piece of written work, usually in the form of an essay question on a topic dealt with in the module in lucid and reasoned prose. The essay will count towards 1/3 of the final mark for the module. The quality of the essay bibliography/reference section is critical to obtaining a good grading for this assignment.

75

Teaching and Learning Strategy

Hours
Seminar

Two x two-hour seminars over 11 weeks.

44
Private study 156

Transferable skills

  • Literacy - Proficiency in reading and writing through a variety of media
  • Computer Literacy - Proficiency in using a varied range of computer software
  • Self-Management - Able to work unsupervised in an efficient, punctual and structured manner. To examine the outcomes of tasks and events, and judge levels of quality and importance
  • Exploring - Able to investigate, research and consider alternatives
  • Information retrieval - Able to access different and multiple sources of information
  • Inter-personal - Able to question, actively listen, examine given answers and interact sensitevely with others
  • Critical analysis & Problem Solving - Able to deconstruct and analyse problems or complex situations. To find solutions to problems through analyses and exploration of all possibilities using appropriate methods, rescources and creativity.
  • Presentation - Able to clearly present information and explanations to an audience. Through the written or oral mode of communication accurately and concisely.
  • Argument - Able to put forward, debate and justify an opinion or a course of action, with an individual or in a wider group setting
  • Self-awareness & Reflectivity - Having an awareness of your own strengths, weaknesses, aims and objectives. Able to regularly review, evaluate and reflect upon the performance of yourself and others

Subject specific skills

  • Develop the ability to interpret legal rules and employ techniques of legal reasoning competently and efficiently in order to offer a range of solutions and conclusions to actual or hypothetical complex legal problems, all supported by relevant academic literature, jurisprudence and legislative research. Such solutions will be clearly communicated and presented
  • Develop the ability to analyse complex legal issues, set against the background of the political, social, economic or cultural contexts in which they may arise
  • Develop those skills which are necessary for scholarship and research in legal subjects, namely the ability to identify relevant primary and secondary legal sources and to retrieve accurate legal information using paper and electronic sources

Courses including this module

Optional in courses: