“The Problem of Prostitution” – Problem-based learning in Constitutional Law: some reflections on colonialism

gillianIn the 2014-2015 academic year I revised the methodology of my first-year Constitutional Law class to centre “problem-based learning.” And the problem that I chose to ground the year, federalism, Indigenous laws, and the Charter, was the “problem of prostitution.”

If anyone is interested in thinking through what a shift to problem-based learning might look like, I have lots of resources from my year that I am super happy to share. Just email me at gcalder@uvic.ca. It is the best thing I have done to challenge my own perceptions and teaching in a long time. Here are a couple of articles about problem-based learning that I found helpful when I started my own rethinking:

  • Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts” (1998) 16(2) Journal of Professional Legal Education 271-298
  • Shirley Lung, “The Problem Method: No Simple Solution” (2009) 45(4) Williamette Law Review 723-766.

However, what I want to say briefly here in the context of how law schools should respond to the TRC, is that one of the problems I have faced in teaching Constitutional Law is the volume of materials, but also the silos. I have tended to teach the course in three separate chunks, and evaluate those three chunks separately as well. What I found this year using a thick, messy, political, economic, social, ethical and multi-legal problem like “prostitution” was that the integrated questions of jurisdiction, colonialism, and rights remained present throughout all components of the course.

And in particular, the issue of who is affected by the sex-trade and the correlation between colonialism, murdered and missing Indigenous women and girls, and law’s engagement with prostitution, was something we returned to throughout our learning process. And while there are Indigenous issues in federalism and in the Charter, here the engagement and the learning was deep-learning. And, as a result, discussion in class and work, collaborative projects and work on evaluations engaged with questions of colonialism in a way that I have never experienced teaching Constitutional Law before.

The resources that I drew upon in teaching the Indigenous component of the course included:

I also had Guest lectures by  Val Napoleon, John Borrows.  The students also listened to this phenomenal podcast, by UVic law grad (and singer-songwriter) Tara Williamson (please use with acknowledgement to Tara and to UVic Law): https://www.dropbox.com/s/81jgawpfl7h5zx1/Podcast%2014%20intro%20to%20s7.m4a?dl=0

I also tried to challenge the pedagogy used in each class, with an aim to use movement, the visual, art, and the diversity of learning styles of my students, to connect their learning and their emotions.

The questions that students were asked to answer as part of their evaluation included:

 Question one: Amongst other goals, this section of the course has asked you to think about the relationship between Indigenous Laws and the Canadian Constitutional order. To explore this relationship you are asked to choose one source (for example, an article, a book, or a film) that is external to our course materials and to offer a critical review of that source. Your analysis should draw on at least three of the sources our course has addressed with the goal of examining the tensions that exist between Indigenous and non-Indigenous legal orders. Do we truly live in a multi-juridical country? What happens when one set of legal orders can’t hear the other? How does your source contribute to a shifting understanding of law?

An example of an external source might be: Louise Erdrich’s novel The Round House (New York: Harper Collins, 2012); Christy Jordan-Fenton and Margaret Pokiak-Fenton’s children’s book Fatty Legs: A True Story (Toronto: Annick Press, 2010) or the Inuit film, Atanarjuat (The Fast Runner), Zacharias Kunuk, 2001.

Question two: Amongst other goals, this section of the course has offered you the opportunity to critically engage with s. 35 of the Constitution Act, 1982, primarily through the cases that have interpreted that provision. In the SCC’s recent Tsilhqot’in Nation v British Columbia, 2014 SCC 44 decision, the Court held as follows:

[42] There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.

With attention to at least three sources that we have studied this term, how is the Court’s concern with a “culturally sensitive approach” reflected in Canadian law? Is the Court moving the jurisprudence in a new direction? What underlies this critical aspect of the judgment? What obstacles or concerns do you foresee with this approach?

 Question three: Amongst other goals, this section of the course has asked you to think about the role that colonialism plays in the “problem of prostitution.” Indeed, an argument of our course is that that the passion and creativity of the Idle No More movement has brought legal issues to light that might have otherwise lain dormant. With attention to at least three sources that we have studied together this term, what does looking at “the problem of prostitution” through the lens of the Idle No More movement bring to the surface? What systemic issues inherent in our study of the sex trade this term are elucidated through a colonialist or postcolonialist lens? How have the stories of Indigenous women been reflected, or not, in our journey through Constitutional law to date?

But significantly, issues of Indigeneity, colonialism, and being a residential-school survivor, were issues that were part of the student’s final evaluation, a factum that was to either challenge or defend Bill C-36. Teaching law in an integrated way, centring problem-solving as the primary skill, can lead to unexpected results.

I have never seen this kind of quality work from students in a first year class before, it was exhilarating and humbling to be part of – and I think there is lots to learn for how we approach the challenge the TRC recommendations set for law schools.

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2 thoughts on ““The Problem of Prostitution” – Problem-based learning in Constitutional Law: some reflections on colonialism

  1. Gillian, thanks for this inspiring post, and for generously sharing your materials and approaches to evaluation. For the past few years, I’ve been using case-based learning in Evidence Law, including an Aboriginal rights case. This will be the focus of my next post. But what you have achieved in constitutional law is much richer and more interdisciplinary than what I have done. You brilliant folks at UVic raise the bar for all of us.

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  2. Emma! Thank you for the lovely response. It amazes me how little we know about the great things our colleagues are doing in the classrooms, big and small, and how much we can learn from sharing with each other, particularly in light of the challenge to the law schools from the TRC. I look forward to your post on evidence!

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