CASE COMMENTARY

POLC68 – Summer UTSC

Case Comment Assignment (25%)

*Due June 24th (before class 3pm) *-online submission (turnitin enabled) & hard copy in class (title page + stapled). Essay dropbox: HL 261.

-5% per day late penalty applies – Let us know early re. accommodations/extension.

Length- Students will write a short comment for their chosen case, and a bibliography of works and cases cited. Length – approx. 6-7 double-spaced pgs, or about 1700 words.

Overview- A case comment, as the name suggests, is an extended commentary on a particular court case. The purpose of a case comment is to give a writer the opportunity to assess not only how a specific case was disposed of in court, but also (1) to survey the development of that area of the law represented by the selected case and (2) socio- political consequences of the decision. A case comment should therefore be regarded as a type of short interpretative essay which focuses on a particular case, but which is not limited to a simple exposition of its details.

A successful case comment combines description and analysis. The case itself needs to be described succinctly. At the same time the judgment must be analyzed. The analysis will be helped by some understanding of the state of the law with which the case in question is concerned, i.e. division of powers or Charter issue. Understanding the state of the law means having some knowledge of legal precedent decisions in the area under investigation. Hence a commentary will almost invariably include a brief chronicle of how the court has decided similar cases. The point of supplying such a legal context is to help determine not only what the law has been in a certain area but also the extent to which the subject case affirms or departs from a line of precedents.

In short, a legal history helps highlight why the chosen case is important. How does one determine the legal history of a particular subject matter that has come before the courts? To begin with, the Judgment you are examining invariably will contain a list of cases which the Court considered when reaching its decision in the present case. These cases are in one way or another relevant precedents so you can quickly look at them to see what courts have decided in the past in this particular area of the law. (read summaries & your textbook (Monahan) has explanatory details about Court decisions).

Describing the details of a case and its legal context do not exhaust the requirements of an effective case comment. For cases have not only a legal but a social and political significance. In other words, court rulings often have weighty social and political

POLC68 – Summer UTSC

consequences, which indeed, may not be understandable outside the social and political environment that gave rise to them. Hence in most instances a successful case comment will draw on a wider political and social context, to better explain and analyze a specific ruling. Such a wider context may help illuminate where, why, and how certain legal controversies arise. The broader social and political context may be key to identifying why a case is important enough to warrant an extended commentary.

Organization:

. 1) A case comment is not unlike a conventional essay insofar as its general structure is concerned. It must begin with a concise introduction wherein a problem is clearly identified--the thesis statement that is so crucial to a well-written essay. The body of the essay must be illustrative of the thesis statement, and the conclusion must be well-grounded in what has come before. Because case comments often deal with controversies within the law, students should be prepared to take a strong position when analyzing a case. This means that students should feel free to criticize court judgments if those judgments seem inappropriate (though criticisms should be grounded in argument.) �

. 2) While there is no established set of rules as to how to write a case comment, the following sets out some broad parameters which may prove useful when contemplating how to proceed: �

. 3) The paper should be arranged according to a number of specific subject headings (of the author's own choosing). The attraction of using subject headings is that they can serve as a convenient map for the writer thereby facilitating the planning of the essay. As well, subject headings may prove to be useful in deterring some of the most common problems in essays, including the problems of repetition and irrelevant information. �

. 4) A sensible set of initial subject headings for just about any case comment would include: �

a) Introduction: which sets out the context for the discussion by establishing why a specific case has been selected for commentary. Why is the case important? What exactly will be focused on in the commentary? What is

POLC68 – Summer UTSC

the controversy? What needs to be explained? (It is often better to begin writing your paper with a provisional introduction and rewrite it after you have completed the paper.) �

b) Background to the Decision

-Facts: Furnish a brief digest of the facts of the case (which are to be found in the body of a court ruling.) �

-Briefly discuss the legal history of the case. �

-Main issues: Discuss the main issues raised by the case. The main legal issues of a �case are summarized in the brief synopsis that follows the heading of a reported case. You should be prepared to go beyond this synopsis when describing the main issues. This may be an occasion when you might want to introduce extra-legal issues you think are relevant to the case. �

-Judgments: be prepared to report accurately the judgment in the case. This means explaining what was decided, by whom (e.g. was it a majority), was there a minority (dissenting) written opinion?

c) Analysis

-Critically reflect of the way the judges rationalized their decisions – look for inconsistencies, ambiguities, etc. -Discuss the socio-political implications and consequences of this case

-Discuss the development of the law prior and after this decision

d) Conclusion: End the comment with a clear conclusion.

N.B. In researching your paper, be prepared to read not only court cases but a few academic analyses of these cases. While there can be no hard and fast rule on how many references are adequate to an exercise like this, it would be prudent to refer to at least three academic sources in addition to the cases you will cite. Helpful information on how to research legal literature can be found in Castel and Latchman, The Practical Guide to Canadian Legal Research.

-Grading will mirror these subheadings and take into consideration: understanding and summary of case and judgment, overall analysis, format, spelling/grammar, & references.

POLC68 – Summer UTSC

Miscellaneous Hints:

a. Decisions by the Supreme Court can be accessed directly through the internet at �http://www.scc-csc.gc.ca/case-dossier/judgment-jugement-eng.aspx �

b. A number of decisions of lower courts in Canada can be accessed at �http://www.canlii.org/en/index.html �

c. Samples of brief case comments can be found at The Court, an Osgoode Hall Law School-sponsored blawg containing discussions of Supreme Court decisions: http://www.thecourt.ca/ �

d. The best way to learn how to do a case commentary is to read a few. Case commentaries can be found in legal journals like the Supreme Court Law Review or Osgoode Hall Law Journal (one of many university law journals—this one is accessible online through the University library system). The former is an invaluable guide to legal research because it contains a review of the Constitutional law decisions of the previous Supreme Court term. Other law journals also attempt to supply accounts of the evolving state of the law in a variety of areas. Some other Canadian reviews and journals of note include the Canadian Bar Review and the National Journal of Constitutional Law. Two Canadian legal indexes which will prove to be essential in your researches are: Index to Canadian Legal Literature and Index to Legal Periodicals and Books,. Both these indexes are available online through the Library electronic resources section.

e. You should attempt to read entire cases rather than summaries. To get a sense of what the established jurisprudence is in the area of law you are investigating, look at the cases cited by the Court (majority) in support of its ruling in the subject case. Also, look for case commentaries in the academic literature. �

f. It is useful to note any dissenting opinions (if written) because these opinions can give you some indication of how controversial the majority decision is, and may persuade you of a line of criticism of the majority. � For other questions, please contact the TA- [email protected] or myself.

POLC68 – Summer UTSC

To write your assignment, choose a case from the following:

1. The Queen v. Hauser, 1979 (S.C.C.) https://scc-csc.lexum.com/scc-csc/scc- csc/en/item/6159/index.do �This is one of two cases the Supreme Court heard concerning the constitutionality of the federal Narcotics Control Act. �

2. Westendorp v. The Queen, [1983] https://scc-csc.lexum.com/scc-csc/scc- csc/en/item/1/index.do �This case involved a municipal-by law which prohibited standing in the street for the purpose of prostitution. �

3. Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783 https://scc- csc.lexum.com/scc-csc/scc-csc/en/item/1794/index.do �This case involves the federal firearms legislation and the Canadian gun registry. �

4. Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188 � https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2213/index.do �A case involving a provincial government’s attempt to regulate tobacco advertising. �

5. Charkaoui v. Canada (Citizenship and Immigration), [2007] https://scc- csc.lexum.com/scc-csc/scc-csc/en/item/2345/index.do A Charter case involving Legal Rights

6. Vriend v. Alberta [1998] https://scc-csc.lexum.com/scc-csc/scc- csc/en/item/1607/index.do An important case of Equality Rights

7. R v. Sharpe [2001] https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1837/index.do A charter case about fundamental freedoms of expression