Instructor(s): David Dyzenhaus, Karen Knop

For graduate students, the course number is LAW7036HF.

Note: This course satisfies either the Perspective or the International/Comparative/Transnational course requirement.

Note: The Blackboard program will be used for this course. Students must self-enrol in Blackboard as soon as confirmed in the course in order to obtain course information.

In contrast to the United States, Germany and various other democracies, there is relatively little debate in Canada over the constitution’s implications for the conduct of foreign affairs. The executive’s prerogative power is assumed to be practically absolute, with little constitutional role for the legislature or the courts in controlling foreign affairs decisions (such as the use of force and entering into treaties). Likewise, the complex relationship between the federal government, the provinces and Indigenous peoples in foreign affairs is relatively under-studied. While scholars have critically examined the role of international law in Canadian courts, many conclude that the Supreme Court of Canada lacks a coherent understanding of how international law relates to domestic law.

This course seeks to challenge the received wisdom on the Canadian constitution and foreign affairs and to develop a better understanding of the relationship between the different branches and levels of government and sources of law. It will address the roles of the federal executive, legislature and judiciary in foreign affairs; the relationship between federal, provincial and Indigenous governments in foreign affairs; and the relationship between Canadian and international law, as defined by the Canadian constitution and Canadian courts. Students will go “beyond the case law” through a critical examination of current issues and the history of Canadian foreign policy from a legal perspective that will include some discussion of the debates between “monists”, “dualists” and “pluralists” about the relationship between legal orders.

Evaluation
(1) 5,500 word paper (80%) (2) Outline (10%): this 1,000 word note, in preparation for your paper, will briefly discuss the main sources you plan to discuss and will sketch the direction of argument that you plan for your paper. The outline will be compiled late in the term after a discussion with one or both of the course instructors. It will be returned with comments. (3) Class participation (10%): class participation will be evaluated on the basis of general participation over the course of the term, and two short (500 word) comments on the readings assigned for class.

At a Glance

First Term
Credits
3
Hours
2
Perspective course
ICT

Enrolment

Maximum
25
17 JD
8 LLM/SJD/MSL/NDEGS/SJD U

Schedule

W: 2:10 - 4:00