Reading guide

1) What is Public Law?

a. What are the main differences between Public Law and Private Law?

b. Identify the different branches of Public Law?

c. The distinction between Public Law and Private Law is clearly a Western distinction, which does not exist in many non-Western legal traditions. Choose a non-Western legal tradition and discuss how the legal system deals with what we refer to as Public and Private Law issues in Western legal systems.

d. The civil law understanding of the distinction between Public Law and Private Law differs from the common law understanding of this distinction. Identify these differences. Give some examples.

e. What is the role of the State in Public Law?

f. Some authors have been advancing the idea of that Public Law has influenced Private Law, e.g., punitive damages in torts, restrictions to contractual freedom, etc. Do you think that a similar phenomenon, i.e., Private Law influence on Public Law occurs? If so, discuss some examples of this influence.

2) Analyze the underlying principles and the unwritten Constitutional principles in the Canadian Constitution.

a. Discuss the use/abuse of unwritten constitutional principles by Canadian courts.

3) Briefly analyze the historical origins and structure of the Constitution Act, 1867

a. Discuss the division of powers and Canadian Federalism. What is Peter W. Hogg’s main argument? Can you identify any flaws in Hogg’s argument?

4) Discuss the Judiciary as an institution.

a. What are the main aspects of the Judiciary?

b. Compare the selection of judges for the Supreme Court of Canada to the selection process in another country.

5) Briefly analyze the following decisions of the Judicial Committee of the Privy Council: (i) Citizens Insurance Co. v. Parsons, 1881; (ii) Russell v. The Queen, 1882 ; (iii) Local Prohibition Reference, 1896 ; and (iv) Employment and Social Insurance Act Reference, 1937.

a. In your analysis, try to identify any significant patterns.

6) Analyze the House of Commons procedure and practice outlined in the chapter written by Robert Marleau and Camille Montpetit.

a. In your analysis, please include some examples not mentioned in the book.

7) Briefly analyze the historical origins and structure of the Constitution Act, 1982.

a. What was Quebec’s position with respect to the Charter?

b. Discuss the amending procedures and the Constitutional Amendments Act

c. Discuss the Charlottetown Accord Draft Legal Text

d. What are some of the barriers to Constitutional renewal in Canada?

e. What is the role of constitutional culture according to Alan C. Cairns?

8) Analyze the aboriginal provisions in the Canadian Charter of Rights and Freedoms.

9) Discuss the notions of secession and unity.

a. Discuss the Quebec Referendums

b. Analyze the Quebec Secession Reference and the Clarity Act.

c. What are the main flaws in the Supreme Courts’ arguments in the Quebec Secession Reference?

10) Read the following article, which is available from the Wishart Library’s databases, such as Hein and Lexis, “Philosophical Analysis and the Criminal Law” by L.A. Zaibert, published in 4 Buffalo Criminal Law Review, p. 101 et seq.

a. What is a philosophical analysis of Law?

b. According to the author, what is the different approach followed by civil law and common law in philosophical analysis of law?

c. Discuss Jimenez de Asua’s scheme of Criminal Law mentioned in the article.

d. What is the fundamental approach to criminal liability followed in the Model Pena Code?

11) Choose a branch of Public Law other than Constitutional/Charter Law and Criminal Law and analyze it.

a. What are the main characteristics of the selected branch?

b. What does it regulate?

c. Are there any significant differences between the regulation of the selected branch in common law and civil law?