Ultra Vires Volume 22, Issue 3 – November 2020

ULTRAVIRES.CA

November 25, 2020

VOL. 22, ISS. 3

THE INDEPENDENT STUDENT NEWSPAPER OF THE UNIVERSITY OF TORONTO FACULTY OF LAW

No Change in Start Date for Winter Term Classes U of T Law opts to carry on as planned SABRINA MACKLAI (1L JD/MI)

THE LAW SCHOOL REMAINS LARGELY EMPTY WITH THE COMPLETE SHIFT TO ONLINE CLASSES. PHOTO CREDIT: JACQUELINE HUANG

Annual Faculty Council Meeting on Tuition and Budget SLS addresses disappointment over tuition; brings attention to the recent passing of Jamal Howlader ANGELA GU (2L JD/MBA) On Wednesday November 18, Faculty Council held its annual discussion on tuition and budget, this time via Zoom. This was Dean Edward Iacobucci’s last Faculty Council as dean of the law school.

Students’ Law Society (SLS) Updates

SLS President Robert Nanni (4L JD/MBA) began with brief remarks, noting the stressors faced by the law school community as the end of the term draws near, with 1Ls facing law school exams for the first time, and other students writing exams remotely once again. He drew attention to mental health concerns, and asked attendees to check in with each other, and for faculty members to check in with students.

Nanni also spoke about the recent passing of

Jamal Howlader, a member of the JD class of 2020, and noted the heartwarming response of the law school community in coming together.

Denna Pourmonazah Jalili (4L JD/MBA), began fundraising efforts for a Faculty of Law bursary in Howlader’s honour, and contributions from the community quickly surpassed the $25,000 minimum that U of T requires for a named bursary. Dean Iacobucci added that he had been in touch with the family, and expressed that the bursary was a “lovely tribute” and would help future students.

Graduate Law Students’ Association (GLSA) Updates

Anil Nair, President of the GLSA, noted that the distancing effect of remote learning is more

salient for graduate students, like himself, as many are only at the Faculty for a year. The GLSA is working on ways to improve graduate students’ social experience at the Faculty.

Budget and Tuition

Dean Iacobucci prefaced the discussion on budget and tuition by noting that Faculty Council does not have authority over the law school’s budget. The Office of the Dean, in consultation with the Faculty’s Chief Administrative Officer Annette Henry, and others, creates a budget plan that is subject to the approval of the Provost and the Governing Council. Dean Iacobucci stated that he provides the budget presentation as a courtesy, that it will be at the next

ALSO IN THIS ISSUE EQUITY WORK IN THE WAKE OF BLM PROTESTS AND COVID-19 PANDEMIC PAGE 4

RIGHTS REVIEW PAGE 18

Continued on Page 8

On November 20, t he Un iversit y of To ronto’s President Mer ic Ger t ler infor med t he un iversit y commun it y t hat many pro g rams w i l l ex per ience a sh ift from a Januar y 4 star t date for upcom ing w inter ter m classes to Januar y 11. W h i le a l l f irst- ent r y underg raduate d iv isions w i l l resume classes a week later t han or ig ina l ly planned, t he star t date for g raduate and professiona l prog rams w i l l var y to ensure t hat “st udents in t hese prog rams can complete t heir courses in a t imely manner as planned.”

Shor t ly fol low ing t h is announcement, Dean Edward Iacobucci clar if ied t hat t he Facu lt y of L aw w i l l not move t he w inter star t date. A s or ig ina l ly planned, classes w i l l resume Januar y 4 for f irst year st udents and Januar y 11 for upper year st udents.

President Ger t ler cited t he change as “prompted by t he fact t hat we’ve a l l been under an ext raord inar y amount of st ress for mont hs now, because of t he burdens imposed by t he COV I D -19 pandem ic.”

T he pur pose for an ext ra week of w inter brea k wou ld be to a l low st udents an op por t un it y to “rest and recharge, and to ma ke t he most of t he upcom ing hol iday brea k.”

T h is change came not long a fter a pet it ion to extend w inter brea k for U of T st udents in it iated November 16 by a g roup of underg raduate st udents received over 8,0 0 0 sig nat ures from across t he un iversit y commun it y. T he organ izers of t he pet it ion cited t hat t he extension wou ld a l low for st udents to “recover from a d if f icu lt ter m,” and be able to v isit fam i ly over t he brea k “w it hout m issing school for quarant ine and endanger ing ot hers.” Ot her un iversit ies across Canada have a lso opted to delay t heir w inter ter m star t date, including McMaster Un iversit y, Waterloo Un iversit y, and Carleton Un iversit y, among ot hers.

I n h is ema i l to t he law school commun it y, Dean Iacobucci cited a number of reasons as to why t he Facu lt y w i l l not post pone t he star t of w inter ter m.

First, t he Facu lt y cannot change t he date of its intersession, t he intensive onecred it upper year courses t hat r un from Januar y 4 to 8, and are pr imar i ly taught by v isit ing professors. T he Dean ex pressed concer n t hat an extended w inter brea k wou ld resu lt in cancel l ing intersession a ltoget her, causing “uncer ta int y and d islo -

Continued on Page 4

REFLECTIONS ON AMY CONEY BARRETT’S CONFIRMATION PAGE 23

2 | November 25, 2020

ultravires.ca

UV INDEX

EDITORS NOTE 84 Queen’s Park Crescent Toronto, ON M5S 2C5 Ultra Vires is the independent student newspaper of the University of Toronto Faculty of Law. We provide a forum for diverse viewpoints on topics of interest to our readers. We aim to foster dialogue on academic and social issues between students, the faculty, and the broader legal community in Toronto, Ontario, and Canada. Our content does not necessarily reflect the views of the Editorial Board. We print six issues per year. Ultra Vires is printed by Master Web Inc.

EDITORS-IN-CHIEF Vivian Cheng & Angela Gu NEWS EDITOR Alexa Cheung ASSOCIATE NEWS EDITOR Ivy Xu FEATURES EDITOR Alisha Li ASSOCIATE FEATURES EDITORS Angela Feng & Jacqueline Huang OPINIONS EDITOR Annecy Pang ASSOCIATE OPINIONS EDITORS Natasha Burman & Sabrina Macklai DIVERSIONS EDITOR Adrienne Ralph ASSOCIATE DIVERSIONS EDITOR Harry Myles EDITORS AT LARGE Safa Bajwa & Graham Rotenberg LAYOUT EDITOR Alexandra Fox RECRUIT EDITOR Hussein E.E. Fawzy PHOTOGRAPHERS Katrina Keller & Jacqueline Huang

ADVERTISING If you are interested in advertising, please email us at business@ultravires.ca BUSINESS MANAGER Austin Ray ERRORS If you notice any errors, please email us at editor@ultravires.ca.

SUBMISSIONS If you would like to submit a tip, letter, or an article, please email us at editor@ultravires.ca.

Ultra Vires reserves the right to edit submissions.

Dear law school community, It’s November! With days getting darker earlier, full lockdown looming, and exams approaching, it’s an especially stressful time.

We wish you the best for f inals and hope that you are kind to yourselves. We’ll all make it through together.

In this issue, you’ll f ind a recap of this month’s Faculty Council, an inter view with Joshua Morrison from the Future of Law Lab, and a student’s perspective on academic stress. A nd to keep your spirits up, we’ve included recipes for wine cocktails, our editors’ thoughts on eggnog, and a wholesome poem for exam season.

As always, if you have comments or stories to pitch, get in touch with us at editor@ultravires.ca.

Happy holidays, and thanks for reading, — Vivian Cheng & Angela Gu Co-Editors-in-Chief, Ultra Vires

NEWS

RIGHTS REVIEW

Annual Faculty Council Meeting on Tuition and Budget

1

No Change in Start Date for Winter Term Classes

1

The (New) New York Recruit

3

Preventing “Zoom-Bombing” at the

An Interview with Professor Sophia

18

Moreau An Interview with Benjamin Ries: the Right to Housing in the Pandemic

19

3

The Repression of the Free Press Under Lukashenko

21

Equity Work in the Wake of BLM Protests and COVID-19 Pandemic

4

Nestlé & Cargill v Doe: Lessons from Nevsun

22

All Eyes on Mi’kma’ki

7

OPINIONS

Faculty of Law

FEATURES Privacy and Cybersecurity Law Group Discusses PIPEDA Reform

10

How to Keep Calm and be a Law Student

10

The Future (of Law) is Here Faster Than You Think

12

CLSA Blog in Print: Against the “Height of Injustice”

14

Vino Cocktails

16

Breaking the Stereotype

23

With Amy Coney Barett’s Confirmation, the Infection Became Complete

23

A Different Perspective on Academic Stress

24

Eggnog: Eggcellent or Not All It’s Cracked Up to Be?

24

DIVERSIONS Law Follies 2021 Update

25

A Recap of the 2020 U.S. Election

25

‘Twas the Night Before Exams

26

The Best Reality Dating Shows for This Winter

27

ultravires.ca

NEWS

November 25, 2020 | 3

The (New) New York Recruit Formal OCI process put on hold amidst uncertain times GRAHAM ROTENBERG (2L) ber 28, the Faculty of Law’s Career Development Office (CDO) sent out an update outlining how the New York recruiting process would be different.

The Traditional Process

2020 has been a scary, strange, and different year. The halls of the Faculty of Law – normally bustling with nervous, sleep-deprived students dreading the all-too-quick approach of exams – are largely empty. Before COVID, “zooming” was a camera function, not a classroom.

The nervous anticipation of finding jobs for

after law school, however, remains. This year’s recruit will be very different. For students trying to go south of the border hoping to land a job at a New York law firm, the recruitment process will be no exception to the general rule. In fact, there won’t even be on campus interviews (OCIs) at all for New York applicants. On Octo-

Traditionally, a number of firms travel from New York to Toronto prior to the Toronto recruit and conduct a first round of interviews on campus. Some firms invite students for dinners, and in-firm interview offers are sent out on a rolling basis.

According to Brian Huang (3L), who will be joining New York’s Paul Weiss Rifkind and Garrison LLP (Paul Weiss), in-firm interview offers came a couple of days, or in some cases weeks, after OCIs. At that point, if the student was lucky enough to have multiple in-firm opportunities, that student chose a “host firm” to bill all expenses to. The firm covered flights, hotels, and provided a daily food allowance.

And students also got to spend a day or two in the Big Apple on somebody else’s dime.

The final round process, or in-firm, consisted of four interviews each 30 minutes in length.

Huang interviewed with two partners and two associates at each of the firms, and an associate or member of the recruitment team escorted him from interview to interview.

Job offers were received on a rolling basis. If students were fortunate enough to get more than one offer, they could be flown back to New York to take “a second look at the firm.”

This Year’s Process

This year, according to Neil Dennis, the director of the CDO, the New York recruiting

process is shifting from an OCI program to a résumé collection program that will allow the CDO to “directly distribute applications to employers between January 20-22.” Rather than scheduling interviews via the CDO, employers will contact students directly for interviews, which could be either a preliminary screening or callback interview.

Huang thinks that this only poses “minor disadvantages to students.” He said, “OCIs are a first screening for the firm with given slots for U of T students. Once you pass through the OCI stage, you have people who interviewed you ‘batting’ for you going into the in-firms.”

Huang felt that some of the connections he formed in the OCI process were especially helpful. Namely, he was able to connect with partners who interviewed him and were hoping he would succeed in the process. However, according to Huang, the direct application route – applying early to target firms directly – was, and still remains, the strongest option for receiving an offer at a New York firm.

Generally, Huang offers the following advice to students about navigating the OCI process: 1. Do your research. Check out Chambers which provides perspective about different firm’s cultures, hours, pro bono, and diversity and inclusion efforts.

2. Prepare. Interviewing is about describing certain stories in detail, having good answers, but also ensuring that your answers are responsive to the question and don’t sound canned.

3. Ensure you put your best ~virtual~ foot forward. Ensure your WiFi and audio visual setup is professional and competent.

Preventing “Zoom-Bombing” at the Faculty of Law Panel discussion by U of T Law student group disrupted by Internet trolls SABRINA MACKLAI (1L JD/MI) The Faculty of Law is home to a large number of student-run clubs catering to a variety of interests. This year, due to indoor gathering restrictions caused by the COVID-19 pandemic, club events are held entirely online, typically over Zoom.

On October 30, the University of Toronto Women & the Law student organization, with support from the Students’ Law Society (SLS), hosted a panel discussion centered on working as a woman in public interest law.

The panel consisted of three female-identifying lawyers: Melissa Jean-Baptiste Vajda, Kelly Doctor, and Angela Chiasson.

In anticipation for the panel, the Zoom link was posted on the off icial Women & the Law’s Facebook event page, which advertised the event as a public, online event.

At the beginning of the panel, unidentif ied Zoom attendees directed a variety of harmful slurs to the panelists and club executive members both verbally and through the chat function. According to the Women & the Law’s off icial statement, these slurs contained anti-Black, anti-Indigenous, antitrans, and misogynistic rhetoric. Following this disruption, the meeting was locked by the host and after several minutes, the disruptive attendees were removed and the event continued.

That same evening, the Women & the Law posted an off icial statement on their Facebook and Instagram pages where they acknowledged the intrusion and extended a “heartfelt apology to everyone who attended [the] event or was affected by [it],” claiming

that “none of what was said represents Women & the Law.” In their statement, they also indicated that they intend to meet with the Faculty of Law’s administration to discuss how to ensure “a safe space for all attendees” for future events.

Moving forward, all Faculty of Law events now require organizers to email attendees the Zoom link for the event to their school email, and ensure that the participants are indeed members of the Faculty or known guests. The meeting session URL may no longer be shared on public platforms. These recommendations echo Zoom’s best practices on how to keep uninvited guests out, which have also been adopted by the University’s Faculty of Medicine and Faculty of Applied Science and Engineering. Leaders of

student clubs were notif ied of this new protocol for running Faculty-aff iliated events in a November 9 email by Sara-Marni Hubbard, the Student Life and Inclusivity Program Manager.

“Zoom-bombing,” the act of uninvited attendees entering and disrupting Zoom meetings, is not unique to events run by the Faculty of Law. Student groups at the University of Western Ontario faced similar Zoombombing earlier this year, and their recommendations to prevent future incidents were very similar to the Faculty of Law’s.

While it is unfortunate that security measures like these limit previously public events to just U of T law students, these precautions are necessary to keep meeting calls secure and to avoid Zoom-bombing.

4 | November 25, 2020

NEWS

ultravires.ca

Equity Work in the Wake of BLM Protests and COVID-19 Pandemic SALSA Co-President shares thoughts after meeting with PM Trudeau IVY XU (1L) The University of Toronto’s South Asian Law Students’ Society (SALSA) attended a virtual town hall with Prime Minister Justin Trudeau on October 28. Bardish Chagger, Minister of Diversity, Inclusion and Youth, hosted the discussion. The event was for women leaders of South Asian descent from various professional backgrounds to come together and celebrate October as Women’s History Month.

Speakers discussed personal barriers and community struggles driven by the pandemic.

The South Asian Bar Association (SABA) emphasized the difficulties women of colour face in the legal profession. The Toronto Chapter Board members, Melissa Krishna and Richa Sandill, pointed out that no visible minority has ever been appointed to the Supreme Court. For women specifically, they noted their lack of representation in senior management of law firms. According to the panelists, female lawyers of colour are also questioned more often about their qualifications.

The Prime Minister did not mention any specific measure to address the concerns but promised that he has heard them and is working on solutions.

SALSA Co-Chairs, Dhriti Chakravarty (2L) and Vanshika Dhawan (2L), received invitations to the town hall. Ultra Vires sat down with Chakravarty to discuss her takeaways from the event as well as thoughts on equity work at the law school.

Ultra Vires (UV): What are some of your takeaways from the speakers at the townhall?

Dhriti Chakravarty (DC): Speakers from charities talked about the struggles underprivileged communities face due to the pandemic. Child poverty is intertwined with remote education. Food banks’ increased demand due to COVID-induced joblessness. And women facing domestic violence, for example, have a much harder time adjusting during the quarantine; and because of immigration law, some can’t even take a stance against their abusers. COVID has really posed new challenges for non-profits and social justice organizations.

A SCREENSHOT FROM THE MEETING, POSTED BY BARDISH CHAGGER ON TWITTER @BARDISHKW

UV: How did these discussions inform your view on your own work at SALSA? DC: Equity work can be very draining, especially for persons of colour. I sometimes feel that it is double the work – as a law student, you are doing what your peers do; and simultaneously you need to advocate for yourself or your equity group to make sure that you’re actively dismantling the barriers your BIPOC peers are facing. Naturally, this means equity work involves occasional burnouts. It felt very inspiring to hear fellow South Asian women

speakers’ share their work with the groups they serve and see them advocate directly to the Prime Minister of Canada for further changes.

UV: How do you think the legal profession fits within this bigger picture of social justice?

DC: The event helped me see the legal profession as part of the leadership for the broader society. I think the amount of social capital and influence the profession holds almost creates a reciprocal duty to provide space for equity-facing groups when we move up in academic or professional fields. Perhaps a reason why many law students later enter politics is that we are provided so much information about the inner workings of a common law nation and its government within our degrees; it becomes almost natural to participate. That knowledge is a privilege and can be put to good use to serve the community as a whole.

gether and began reflecting on how we can be better allies to each other. This applies both to the equity work we do, and how we, as individual law students, go about our legal education and professional development.

UV: What are some highlights of SALSA’s advocacy efforts this year?

DC: We worked with other equity-facing groups at the law school on an open letter to the Dean about diversity and inclusion. The Students’ Law Society (SLS) also supported this effort. The equity groups also urged the Dean to release an official plan or statement in response to concerns raised by BLM movements. As we follow the Faculty’s response to this letter, we continue to do our small part in diversifying the decolonized perspectives available to law students, by bringing in diverse panelists who can speak to students about the profession.

UV: What role does SALSA play in the law school or the broader community?

UV: Do you think the discussion on equity issues will continue beyond BLM protests?

DC: I think in the past we’ve focused almost exclusively on offering networking opportunities and organizing study materials. This year we’re trying to do more advocacy- and equity-based work.

This change was set into high gear after the Black Lives Matter (BLM) protests over the summer, which has inspired lasting conversations at the law school. The equity-facing groups came to-

DC: Definitely. Part of our role as leaders of equityfacing groups is also to preserve institutional memory. SALSA is aiming to build a consistent social media presence this year as an example. This is important because advocacy work needs continuity: we want all the resources to be available for future reflection so people can build upon what has been discussed or achieved.

No Change in Start Date continued from page 1 cat ion for t he hund reds of st udents present ly enrol led in t he intensive courses.” It wou ld a lso be a log ist ica l n ight mare to move t hese st udents into ot her courses so t hat st udents may st i l l obta in t he cred it necessar y to g raduate.

Secondly, the Dean stated that “for academic, Law Society and University reasons,” the Faculty cannot reduce the number of classes in the term. If the Faculty did postpone the start date for winter term classes, this would result in having make-up sessions for f irst-year courses in “an already crowded schedule during the semester,” or shortening

the gap between the end of classes and the examination session, or both. The Dean noted that doing so would undoubtedly create stress and dislocation for students.

Finally, the Dean stated that a postponement in starting winter term classes would “inevitably create frustrations and conf licts for students and instructors,” in the GPLLM program where students and instructors plan their schedules well in advance.

In their November 20 email to law students, the Students’ Law Societ y (SLS) clar if ied the Facult y’s decision follow ing a discussion w ith A ssociate Dean Chr isto-

pher Essert. The Law Societ y of Ontar io imposes minimum classroom instruction hour requirements which the Facult y must adhere to in order to remain accredited. A s the Universit y did not allow changes to the end of classes nor the beg inning of the examination per iod, a late start would result in meeting the same requirements dur ing a shorter per iod of time. Even if the examination per iod may be delayed, the SLS noted that this may result in students hav ing to f inish their courses while starting summer jobs or delay their employment.

Add it iona l ly, t he SL S noted t hat t he

w inter ter m wou ld be d if f icu lt to rest r uct ure as it includes moots, recr uits, and intersession. T hey stated t hat “as a professiona l prog ram par t ia l ly reg u lated by a professiona l body, we do not have t he same inter na l f lex ibi l it y as some ot her f irst- ent r y underg raduate prog rams.”

W h i le t h is may be a d isappoint ing outcome, it is ev ident t hat it is a resu lt of t horough considerat ion. A s st udents at t he Facu lt y w i l l not ex per ience an extended w inter brea k, t he SL S is look ing at ot her ways to encourage t he Facu lt y to pr ior it ize reducing t he upcom ing ter m’s st ressors.

Why did you choose McMillan?

As a student, I saw the opportunity at McMillan to work with incredible people who would mentor me and be committed to my success. Access to high caliber work gave me the opportunity to build upon my strengths, elevate my profile and continue to advance within the firm.

Sandra Zhao Partner, Capital Markets, M&A Group and China Practice Group

2017 • 2018 • 2019 • 2020 Take the lead in your career.

McMillan LLP | Vancouver | Calgary | Toronto | Ottawa | Montréal | Hong Kong | mcmillan.ca

ultravires.ca

NEWS

November 25, 2020 | 7

All Eyes on Mi’kma’ki U of T Law students organized teach-in on the lobster fishery dispute IVY XU (1L) dents’ activism on social issues?

LF: Professor Kent Roach and Indigenous Initiatives Officer Amanda Carling were both very involved with the event, and some of our other professors and school staff members attended the event. Many students attended and were very supportive.

KN: Amanda Carling is such an incredible support for these events and for Indigenous law students in general. It was also great to see some allyship from speakers like Angela and Kent and from all our attendees. I also echo Lava’s observation that the absence of the Dean and other members of the law school administration was, as always, disappointing.

UV: What is your advice for someone organizing a teach-in at the law school?

EVENT POSTER. CREDIT ILSA

The latest lobster fishery dispute in Nova Scotia has generated discussions around Aboriginal rights and the role of policing in protecting Sipekne’katik fishermen and Indigenous communities overall. Indigenous Law Students’ Association (ILSA) and the Indigenous Initiatives Office (IIO) at the University of Toronto organized a teach-in about the conflict on October 22.

The fishery disputes were rooted in the Supreme Court of Canada’s 1999 Marshall decision, which held that Mi’kmaq fishers are entitled to a “moderate livelihood”. The Court did not define the term.

In September this year, members of the Sipekne’katik First Nation, a Mi'kmaq band, opened their first commercial fishery. Non-Indigenous fisheries believed that its operation violated federally regulated commercial season.

Vandalism and violence ensued against Indigenous fisherpeople. The RCMP failed to protect them from the mob.

Against the backdrop of these events, Elder Constance Simmonds opened the teach-in with a ceremony over Zoom and shared her wisdom and teachings. Angela D’Elia Decembrini, lawyer at First Peoples Law Corporation and legal counsel for Sipekne’katik First Nation, gave attendees the background of the conflict. Faculty of Law Professor Kent Roach discussed the relationship between the RCMP and Indigenous communities.

The teach-in was well-attended with roughly 100 participants in real time. The recording of the event on the IIO YouTube page has generated over 280 views at time of writing.

Ultra Vires interviewed the student organizers of the teach-in: Karlie Nordstrom (2L), CoPresident of ILSA, Lavalee Forbes (2L), and Tomas Jirousek (1L), all members of ILSA. Ultra Vires (UV): What inspired you to organize this event? When did the idea first come up?

Karlie Nordstrom (KN): Tomas brought the idea of a letter writing event to ILSA and based on the success of past teach-ins hosted by ILSA, we decided to pair the letter writing with an education piece as well.

Tomas Jirousek (TJ): We figured that the pairing would generate the most potent support of the Mi’kmaq, as we could achieve the dual tasks of educating future lawyers on the history of the impact while also showing support from the student community for the Mi’kmaq fishers.

UV: How did the panel come together? What perspectives were you looking for when you invited the speakers?

Lavalee Forbes (LF): A group of ILSA members met over Zoom to figure out what kind of event we wanted to put together. Amanda Carling joined the Zoom call shortly after and offered to reach out to Angela D’Elia Decembrini. We thought she would be able to give a good overview of the legal issues involved in the fisheries dispute because she was working on the case.

Given Professor Kent Roach’s knowledge of criminal law, and in particular, policing, we decided to ask him to speak on the role of the RCMP in the fisheries dispute.

KN: I had come across a really great article by Angela D’Elia when doing my own research on the topic, and we were so excited when Amanda was able to secure her as a speaker. Kent Roach has been a great ally to Indigenous communities and he also seemed like a great fit.

Finally, we were happy to have Lava and Elder Constance join the event and offer their insights as Indigenous women. We’re hoping to keep the conversation going as we move through the year and have been chatting about a followup event focused on the voices of community members.

UV: What was your most important take-away from the teach-in from the speakers?

KN: It was great to have such a multi-faceted discussion of this issue. It was especially great to hear from Elder Constance and Lava – they did a great job of reminding our attendees that these issues aren’t just another abstract concept that form a part of our legal education. The continued violence faced by Indigenous communities across Turtle Island is the result of the racism and colonialism that is so deeply embedded in the very foundations of this country. It’s important for us not just as law students, but as human beings, to recognize this and to do the work to dismantle these systems.

TJ: I thought it was brilliant to highlight the importance of a variety of different experiences.

Both Lava and Elder Constance were able to offer insight into the Indigenous perspective on the conflict, while Professor Roach offered a more in-depth discussion of the legal history of the conflict. I think this approach reflects the importance of highlighting both the common law perspective as well as the Indigenous legal approach to these issues.

UV: Were there any behind-the-scenes anecdotes while putting together the event or obstacles you had not expected?

KN: I still can’t believe how smoothly this event came together. Tomas brought up the idea on Sunday night and we held the event on Thursday. It meant a lot to see so many people come together to make it happen.

TJ: I think the event speaks to the versatility and strength of our organizing team. The IIO and ILSA had a limited amount of time to make this event happen, with the added stress of organizing over Zoom, but we managed to pull together an event which appropriately honored and supported the Mi’kmaq fisherpeople.

UV: What type of support have you received from the law school in running this event? Do you think the school has done a good job in supporting stu-

LF: Ensure that no one is able to Zoom bomb the event, since Toronto has the largest urban population in Canada and members of the Toronto community have been known to join events and disrupt them. You can prevent this by limiting access to the Zoom link and making registration mandatory.

Last year, during the Wet’suwet’en teach-in, some people were verbally abusive to ILSA over Facebook as well. If you do decide to make a Facebook event for a teach-in, it helps to limit who can comment on the event page.

TJ: Make sure there is an ‘actionable’ component. Plenty of students will learn new facts which might cause them to want to take action on a particular issue. It’s important to have some sort of productive outlet for allies to have a forum to channel their creative talent and emotions into.

UV: Only around two percent of U of T law students self-identify as Indigenous or Aboriginal. What are some good ways to be an ally to the Mi'kmaq People or Indigenous communities in general?

LF: Show up to teach-ins, get informed through reading academic articles, follow reliable news stories (be careful to watch out for bias), don’t let racist comments go if you hear a friend, acquaintance or family member say them, examine and self-reflect on your own role in colonialism.

KN: We had a great turnout for this event, but there are still a lot of students that do not attend events put on by the law school’s various equityfacing groups, including ILSA. I think a lot of folks feel that these issues just aren’t their problem. But they are your problem – you live on Indigenous land and benefit from the oppression of racialized and otherwise marginalized folks every day. Showing up to these events is a great start – listen, learn, and offer tangible support in any way you can. Don’t rely on marginalized folks to do the work for you.

TJ: People should be showing up for the events for sure, but you can also get involved in activities like legal observing with the Movement Defense Committee. There are plenty of events organized by Indigenous advocates which require the skills that law students possess, and as a legal observer you can help provide a safe platform for Indigenous people to share their stories and experiences.

NEWS

8 | November 25, 2020

ultravires.ca

Annual Faculty Council Meeting on Tuition and Budget continued from page 1 dean’s discretion to continue or discontinue the practice, noting that these reports were initially proposed as a forum for discussing the impact of tuition increases on the law school community.

The Big Picture

U OF T’S 2020-2021 BALANCED BUDGET

Dean Iacobucci f irst presented U of T’s 2020-2021 balanced budget to contextualize the environment in which the law school operates.

The bulk of revenue from tuition and fees comes from U of T’s international students.

Dean Iacobucci noted that tuition and fees across the university at large have remained robust despite the pandemic, but heeds caution as winter term enrollment may change.

However, Dean Iacobucci noted that U of T’s projected revenue growth rates are falling, independent of the pandemic. The growth rate of domestic tuition is regulated

by Ontario’s provincial government, which implemented a 10% decrease in domestic tuition in 2019-2020 and the tuition freeze for the 2020-2021 school year. Much of the revenue growth had been driven by international students’ tuition, which had been rising at approximately 10% year over year across U of T’s three campuses. Dean Iacobucci noted that there was little room for further increases, as U of T’s tuition rates for international students in the Faculty of Arts and Science draw close to the rates charged by top American universities.

Dean Iacobucci conveyed a lack of conf idence regarding provincial grants. The Strategic Mandate Agreement for Ontario Universities and Colleges governs the operating grants received, with performance-based funding. He stated that meeting performance targets will defend an institution from getting less funding, however, exceeding targets will not promise additional funding.

While Dean Iacobucci acknowledged that performance metrics are diff icult to formulate, he said that the metrics used by the province “are a real grab-bag.” He noted that some metrics, like the size of a university relative to the community in which it sits, appear to be geared towards economic development in smaller communities, which he recognizes as “a valid goal,” albeit “nothing to do with academic excellence.” Dean Iacobucci said “to call us a public university at this point is a bit of a misnomer,” and that it is “anachronistic,” suggesting that U of T be called a “publicly-supported university” instead.

The Faculty of Law Structural Budget Challenge

Dean Iacobucci noted that while the Faculty has been able to balance the budget despite challenges in recent years, it faces a “structural budget challenge” and if a steady state persists, the Faculty will face a def icit.

Dean Iacobucci gave an overview of the law school budget for 2020-2021. While government grants and university support has remained f lat, Dean Iacobucci explains that they are in fact declining, when inf lation is taken into account.

Operating Grants:

THE FACULTY OF LAW’S 2020-2021 REVENUE SOURCES

Dean Iacobucci said that government grants for the JD program have never been adequate, as it is allocated on a per capita

basis and that the same amount is allocated per student regardless of program of study.

He noted that it is far costlier to educate law students with the Faculty’s largest class sizes hovering around 70 students, compared to the undergraduate program in the Faculty of Arts and Science, which famously has class sizes exceeding a thousand students, holding lectures in Convocation Hall.

University Fund and Transfers:

Since U of T’s decentralized New Budget Model launched in 2007, the Faculty of Law has been a net benefactor of the University Fund, a central fund that redistributes funding from a pot that each university division pays into, and receives payments from. However, the amount redistributed to divisions does not grow with inf lation rates, and applications for additional funding are not consistently approved.

Recoveries:

The law school adds recoveries to its budget when professors take extra unpaid leave, or works as an administrator in another university division. The law school gets compensated for professors’ time away in secondments.

Endowments:

Prior to Dean Iacobucci’s tenure, the law school’s endowment was $64.3 million, it is now $84.5 million. Once pledges have been fully paid, that number will rise to $91.4 million, which equals an annual budget of approximately $2.2 million.

Dean Iacobucci noted that the Faculty’s endowments pale when compared to leading U.S. law schools, but recognized the signif icant impact on the operating budget. He noted that there is “a long way to go, and it should be a priority going forward.”

Tuition:

Dean Iacobucci further noted that tuition is the law school’s largest source of revenue, and that it is a “big wildcard,” largely dependent on the provincial government’s decisions. Additionally, Dean Iacobucci noted that the Faculty is part of a university-wide budgeting process and needs to respect that, especially since the Faculty faces f inancial pressures and its costs are subsidized by the University’s other divisions.

Dean Iacobucci highlighted some of the law school’s efforts to mitigate the impact of budgetary challenges. He noted that while other law schools in Ontario have expanded their respective JD programs, U of T Law chose to grow the GPLLM program, which is “interesting and rewarding academically and professionally,” and has room for expansion that the JD program lacked.

Dean Iacobucci also mentioned the increased fundraising efforts for f inancial aid, namely, the Campaign for Excellence without Barriers which now has an impact of over $53 million. The campaign was started

by Dean Iacobucci at the beginning of his tenure as dean in 2015.

He also mentioned other efforts to increase revenues, such as monetizing physical space. While the pandemic has affected the law school’s ability to rent out space, Dean Iacobucci notes that there is future potential especially as the law school buildings are signif icantly underused in the summer months.

NEWS

ultravires.ca Expenses

Dean Iacobucci highlighted the growing expenditures in compensation, university-wide costs, and financial aid. The law school has a new arrangement with U of T Central Libraries for funding the Bora Laskin Law Library.

Dean Iacobucci presented the following numbers, stating that average net tuition has dropped by $1000 over a five-year period.

“This, I hope, gives you a sense of how the change in macro numbers play out at the individual level,” he said. “Our neediest students are better off today than six years ago.”

November 25, 2020 | 9

other programs are primarily funded by outside sources. The IHRP is also unique in that it receives a large discretionary envelope from the faculty.

“There was more freedom to cut further there, compared to other programs. But the IHRP is important to us, it matters to us, as other programs matter to us, so we treated them the same way as other programs,” said Dean Iacobucci.

He emphasized that all programs were asked to cover their cost of space, and the IHRP’s budget as a whole was decreased by 8 -9% to reflect that.

The change was executed as a 37% decrease in cash dispensation, which led many to interpret the change as a 37% budget cut, said Dean Iacobucci.

Annual SLS President’s Speech on Tuition

THE FACULTY OF LAW’S 2020-2021 EXPENSE PLAN

Compensation:

Dean Iacobucci stated that neither he nor the faculty control the year over year increases in compensation for staff and faculty since it is centrally negotiated by unions and associations, with the University. He noted that there are instances where he has discretion over increases in faculty compensation, but those are rare. Additionally, Dean Iacobucci said “we’ve made some hard, heart wrenching decisions to reduce staff ing,” where necessary, and that it has helped the bottom line.

Dean Iacobucci also noted that the law school has been prudent in adding faculty members, having only hired three new faculty members in the past seven years, and that the school has had more retirements than appointments. He notes that while faculty is an academic priority, he would personally continue to be careful, but that decisions would be up to the next dean.

“These efforts, jointly and separately, have let us continue on and expand in signif icant ways, despite recent challenges to our budget,” said Dean Iacobucci.

University-Wide Costs:

Dean Iacobucci also stated that the Faculty has no control over the payment of university-wide costs, which include those incurred by Central Libraries and the President’s Off ice. University-wide costs are divided among divisions according to metrics such as faculty, staff, and student headcount, and square footage taken up by each division. Decreasing university-wide costs would also be undesirable, both academically and f inancially, as that would require a reduction in headcount.

Financial Aid:

Additionally, the Faculty’s expenditure on f inancial aid has been growing, as a policy decision in recent years. While tuition has been growing at a cumulative annual growth rate (CAGR) of 1.49%, below the Bank of Canada’s target inf lation rate of 2% as Dean Iacobucci remarked, the law school’s f inancial aid budget has grown at a CAGR of 4.53%, three times the tuition growth rate.

The law school’s f inancial aid is funded through operating income and income from its aforementioned endowment. Dean Iacobucci said that he planned to allocate $0.30 for every $1 increase in tuition to f inancial aid, had the Ontario government not implemented the tuition cut and subsequent freeze.

The budget and tuition meeting ended as per tradition with a speech from SLS’ President.

Nanni acknowledged the importance of working through the numbers to gain a fuller understanding of the budget. He pointed out that tuition has been a common thread throughout the years, with each speech impelling the Dean to action.

“As I reflect on this process, and in considering the limited movement this Faculty has made on the tuition front, I’ve decided that I do not have a call to action this year. Instead, on behalf of the

2014-2015

2019-2020*

Tuition

$30,230

$33,040

Average Financial Support

$9,209

$13,126

Average Net Tuition

$21,021

$19,914

Largest Bursary

$15,523

$22,413

Smallest Net Tuition (excluding interest support)

$14,717

$10,627

*THE 2019-2020 NUMBERS WERE PRESENTED, AS THE 2020-2021 FINANCIAL AID NUMBERS HAVE NOT YET BEEN FINALIZED.

JD Tuition and Financial Aid at the Faculty of Law

Dean Iacobucci closed his presentation by expressing regret that the law school exists in a world that is tuition-dependent, and that despite the challenges, the Faculty has made improvements with faculty appointments, co-curricular programming, and mental health programming.

Additional developments include the Leadership Skills program, Rotman at Law courses, Black Future Lawyers, the Investor Protection Clinic, the Future of Law Lab, Schwartz Reisman fellowships, and expanded externship offerings.

Dean Iacobucci then opened the floor to questions. Professor Mohammad Fadel first recognized the dean’s commitment to making a legal education affordable for students, then asked about the blended net tuition (accounting for those who do not receive financial aid), as well as the blended average salary of graduates.

Dean Iacobucci replied that over the past few years there has been a 96% articling placement rate, and that data for salaries post-articling “gets murky.” He also mentioned the Faculty’s postgraduate debt relief fund, a unique program among Canada’s law schools. The fund is meant to support graduates if they remain in low-income situations, with debt forgiveness available.

Dean Iacobucci noted that the law school budgets under $300,000 annually for this fund and does not exhaust this, even with graduates earning $80-90,000 annually who collect from the fund, and said that “the best way to learn more about how our graduates are doing is to look at those numbers, and the numbers suggest they’re doing well.”

Professor David Schneiderman asked the dean about the cuts to the International Human Rights Program’s (IHRP) funding. Dean Iacobucci said that while the law school incurs costs for all programs, from space occupied to HR costs and more, the IHRP is unique in that it is funded almost exclusively by the faculty while

student body, I’ve decided that the theme of my speech is disappointment,” said Nanni.

Nanni listed the reasons for which students were disappointed, beginning with the Faculty’s lack of communicated compassion for the difficulties faced by students during the pandemic.

“While the pandemic is hardly the Faculty’s fault, its response speaks volumes about how students are viewed and valued in this system,” said Nanni.

Nanni said that tuition has not reflected the diminished quality of experiences in educational and student life that contribute to the value of a JD from U of T Law. He noted that even as students struggle with mental and physical health, financial losses, and stressors from general uncertainty, they continue to advance journals, clinics, and extracurriculars that contribute extraordinarily to U of T Law’s reputation. He stated that the law school has done little to recognize the value students contribute to the Faculty.

Furthermore, “there has been no engagement of the precarious financial situations that students have found themselves in.” Nanni compared the Faculty to U of T’s Rotman School of Management, which gave MBA students a $1,000 “tech bursary” to alleviate the difficulties of studying from home. He also pointed to Western Law, which partnered with Torys LLP to raise $400,000 for a new bursary, with $150,000 set aside to help students financially impacted by COVID-19.

“In recognition of the impacts of COVID-19, could our Faculty have done the same? Perhaps. [...] There has been no acknowledgement of the uncertain economic market moving forward.

When it comes to tuition specifically, there has been no communicated compassion nor understanding about the different ways in which this pandemic has deeply hurt students,” said Nanni.

Nanni also cited disappointment in the Faculty’s continued reliance on the financial aid program as a justification for high tuition, character-

izing it as a band-aid solution to a structural issue.

He noted that the Faculty’s financial aid policy is not responsive to “general economic downturns” and that students whose parents have lost jobs due to COVID-19 do not fall within the typical financial aid program considerations.

Nanni also highlighted the lack of consideration for additional costs incurred by students in preparing workspaces at home.

“On a one-time basis, in recognition of the pandemic, the financial aid program had the opportunity to show students that the reality of their lived experiences through this unprecedented time is being taken seriously. But given the choice between responsive compassion and silence, the Faculty has chosen silence.”

Finally, Nanni said that the uncertainty about future tuition has placed students in a difficult situation, and quoted from last year’s SLS President’s speech by Morgan Watkins ( JD 2020): “from students’ perspectives, it’s disappointing that leaders — the universities, government, regulators, and employers — blame each other, say they can’t work together but also can’t do anything on their own, and that students feel stuck in the middle.”

Nanni expressed disappointment at the Faculty’s lack of meaningful engagement with students on the tuition issue, especially during Dean Iacobucci’s tenure. “To borrow the sentiment [the Dean] has shared with the SLS at every one of these budget Faculty Councils: his hands are tied and he cannot bind future deans.”

“If the next Dean of this law school is in this Faculty Council meeting, please take the issue of tuition seriously. Please take students’ concerns seriously. Because the students at this faculty are a driving force for our success and reputation as an institution. By ignoring students on one of the issues that matters most to them, the Faculty of Law fails to show us the compassion and respect that should be expected from a world-renowned institution.” Nanni concluded by voicing hope of more productive conversations about tuition with the future dean.

In response, Dean Iacobucci said “I too, share your disappointment.” He had hoped that students would feel heard. He emphasized that the financial constraints faced by the law school are “not made up,” and “just facts of life.”

“I’m disappointed in what you’re saying, that nothing’s changed, even though significant things have,” said Dean Iacobucci, “I’m also disappointed in some of the particulars you said, that were wrong-headed.”

Dean Iacobucci emphasized that the law school could have done as Rotman did by distributing $1,000 to all students, but chooses to prioritize need-based funding. Furthermore, he added that the Faculty had set aside a financial aid contingency plan this year, but that financial need had not increased significantly.

“We’ve worked to make the [financial aid] program more progressive, not less progressive,” said Dean Iacobucci, “I’m always looking for solutions, I’m sure the next dean will look for solutions.”

Dean Iacobucci also added that the Financial Aid Committee is responsive to changes in students’ parental income, and there is an appeals process. 2L StAG Representative Branden Cave said “that’s a very gross oversimplification of how the process works on the committee.”

Conversations about changing financial circumstances “require all members of the committee to take different perspectives and come to terms with the lived experiences of students, it’s a responsibility that we don’t take lightly,” added Professor Benjamin Alarie, Chair of the Financial Aid Committee.

Professor Brian Langille noted that the meeting had gone past its allotted time, remarked that it was Dean Iacobucci’s last Faculty Council as dean, and expressed appreciation for his work, saying “Thanks for being our rock through the extraordinarily hard times. Thanks Ed.” Dean Iacobucci adjourned the meeting. There was a chorus of thanks as participants left the Zoom call, while “dissent” was said by an unidentified speaker.

FEATURES

10 | November 25, 2020

ultravires.ca

The Faculty’s Privacy and Cybersecurity Law Group Discusses PIPEDA Reform Experts weigh in on potential changes to Canadian privacy law NATASHA BURMAN (1L)* AND ANNECY PANG (2L) On November 12, the Faculty’s Privacy and Cybersecurity Law Group (PCLG) held the second event in their Digital Discussion Series: a panel discussion on potential reforms of The Personal Information Protection and Electronic Documents Act (PIPEDA).

PIPEDA is Canada’s private-sector privacy legislation that governs the collection, use, and disclosure of personal information in the course of commercial activities.

The panel was moderated by Professor Lisa Austin and featured four accomplished industry professionals: Louisa Garib (legal counsel at the Office of the Privacy Commissioner of Canada (OPC)), David Fraser (partner at McInnes Cooper), Brenda McPhail (Director of the Canadian Civil Liberties Association’s Privacy, Technology, and Surveillance Project), and Holly Shonaman (Chief Privacy Officer at RBC).

Prof. Austin asked about the “daily life of the PIPEDA” and solicited the panelists’ opinions on which critical areas of PIPEDA need to be reformed.

The panelists were also asked about the biggest PIPEDA-related issues facing their clients or organizations, and how they would potentially structure a new PIPEDA. Some of the panelists wished to see Canada move away from the consent-based administration of PIPEDA. Others sought clarity on how minors are impacted by the legislation, and the point at which children are able to provide informed consent. Further, one panelist took the position that PIPEDA and the OPC ought to become a more independent regime in order to effectively seek justice against those who violate the privacy rights of individuals. Follow-

ing the moderated discussion, audience members raised questions around the technological neutrality of the legislation, the government’s COVID-19 contact tracing app, and the tension between privacy and competition law.

Sophie Barnett (3L) and Madeleine Gottesman (4L JD/MBA) started the PCLG to allow students to engage in questions around privacy and cybersecurity. The co-founders first learned about PIPEDA in Prof. Austin’s Data Governance class last year.

After rotating through the privacy groups at their firms this summer, they gained an appreciation for how clients may struggle to navigate their data protection obligations. Barnett and Gottesman commented, “we realized that although PIPEDA’s need for reform has long been accepted, what is less discussed is what the new PIPEDA should look like. We thought it would be interesting to hear from different stakeholders on what they think is likely to happen and what they wish to see.”

The event was timely as Bill C-11 underwent its first reading at the House of Commons on November 17. Bill C-11 introduces the Consumer Privacy Protection Act (CPPA) to replace the PIPEDA and the Personal Information and Data Protection Tribunal Act to establish an administrative tribunal to hear appeals of certain decisions by the Privacy Commissioner.

Prof. Austin believes the most important aspects of the PIPEDA reform are the provisions regarding order-making powers, penalties and fines, and the establishment of a Data Protection Tribunal. The reform has the potential to change the landscape of privacy law in Canada, and she highlighted four key areas to watch as the Bill moves through the House

of Commons.

First, there is a new major exception for consent under s.18(1) of Bill C-11 if the collection or use of the personal information is “made for a business activity.” Prof. Austin generally supports the move away from relying upon an idea of implied consent for some of the listed activities. However, she worries the exceptions may catch too many activities within its scope. Under s.18(2)(e) for example, an activity “in the course of which obtaining the individual’s consent would be impractical because the organization does not have a direct relationship with the individual” would be characterized as a “business activity” that falls under s.18(1)’s exception.

Second, there is an exception for consent under s.

39 where personal information is disclosed to some kinds of organizations for a "socially beneficial purpose," with a requirement that the information is deidentified. While this may be beneficial for activities such as university research, Prof. Austin believes the provisions as drafted still raise a lot of questions and require more scrutiny.

Third, there is a newly added definition of “deidentify.” Bill C-11 proposes that de-identify means “to modify personal information — or create information from personal information — by using technical processes to ensure that the information does not identify an individual, or could not be used in reasonably foreseeable circumstances, alone or in combination with other information, to identify an individual,” per section 2.

While the move towards de-identification is welcome, Prof. Austin believes that the definition as drafted still relies too heavily on the idea of modify-

ing personal information rather than including other methods that focus on access, like trusted computing environments or privacy-protective methods of analysis.

Finally, the proposed law may make it easier to establish data governance models like data trusts.

However, much remains to be seen as the work involved will happen largely through regulations.

These four aspects are just a few highlights of the proposed law discussed by Prof. Austin. Undoubtedly, Bill C-11 has the potential to drastically alter privacy law in Canada and the balance of individual privacy rights against commercial interests.

To stay updated on privacy and cybersecurity issues, Barnett and Gottesman recommend joining the PCLG’s Facebook group, where members share interesting articles and “geek out” over current events. They also suggest taking advantage of the many opportunities available at the Faculty, including courses like Data Governance, Governance of Artificial Intelligence, and the externship at the Citizen Lab. For those in the JD/MBA program, there may be opportunities to work with cyber or privacy startups through the Creative Destruction Lab. Joining the Canadian Bar Association’s Privacy and Access to Information Section is also a good way to receive the latest privacy news.

In the meantime, the PCLG intends to host more events in its Digital Discussion Series and has partnered with the Legal Hackers club to host a privacy and cybersecurity focused legal hackathon in 2021.

Editor’s Note: Natasha Burman is an executive member of the PCLG.

How to Keep Calm and be a Law Student Self-care tips for stressful times JACQUELINE HUANG (1L) This article was written based on a couple of mental health themed lectures and discussions held in November. Special thanks to Terry Gardiner, Kara Hardin, Dr. Rumeet Billan, Stacey Barroso, and Charlie Williams for their helpful advice.

It is no secret that studying law can be stressful, and working in the legal profession is even more so.

Lawyers and law students are more prone to mental health issues and COVID-19 makes it ever more important to take care of yourself. During this busy time of year, here are some things you can do to keep your mind healthy.

Know More About Yourself “Why do you want to study law?” There might be an answer that you knew very well before coming to law school. But it is easy to lose track of what you are looking for in the daily grind of classes and readings.

Many of your peers work around the clock for good grades and good employment prospects, so you might feel compelled to do the same. And, for some mysterious reason, they all seem to be handling it better than you.

There is nothing wrong with trying to improve.

However, having a clearer idea about who you are helps you stay steady amid a competitive environment.

Here are some inquiries that can help you hold on to yourself. “Who am I?” “What are my hopes and dreams, values and interests?” “What are my needs, strengths, and vulnerabilities?” Take note of the answers as they come to your mind; you might be surprised that you have so many things to talk passionately about. With that in mind, have a look at your

lengthy to-do list, and think about why you wrote things down in the first place: is it because you think everyone else is doing them so you should do too, or do they truly motivate you and help you grow, or is it something else entirely?

Another way to get to know yourself is to take note of your emotions. In a profession that prizes rational thinking, emotions can feel “inconvenient” — they stand in our way when we want to focus and get the work done. Often we feel the emotions but don’t know what they are related to or how to describe themhis is the time to be inquisitive about them rather than shoving them away. Recognizing what it is that you are feeling, what circumstances or thoughts trigger the feeling, and what these emotions prompt you to do, helps you understand patterns of your reaction and be prepared next time it comes around. This feelings wheel is a handy tool to identify your emotions if you need some help to pinpoint them.

Zoom Out To Life Outside Law “Zoom” is probably one of the most mentioned words just after “COVID” in 2020. Video conferences are an integral part of our lives now. Jumping from one Zoom meeting to another from the comfort of home, albeit convenient, can blur the fine line between work and life and lead to a sense of overwhelmingness. Here are some ways to zoom out from the meetings and reconnect with your life.

• Create a routine and stick to it. The pandemic creates a lot of uncertainty, which in turn creates anxiety. Building up a schedule that promotes

physical and mental health — for example, eating and sleeping regularly and setting some time for the things you enjoy — can help offset some of the uncertainty outside of our control.

• Get physically active. Not only is it good for your body, it refreshes your mind so that you gain more clarity and energy when you come back to work too. Being active does not mean that you have to go out for a run or lift some weights though; walking around the dining table when you are on a call counts too — you can be creative as long as it helps get you up from the chair once in a while.

• Connect with friends and family. It is more important than ever to hear from each other when we have to keep two metres apart and hide our faces behind masks. Regular and consistent social connections help you feel supported and alleviate the sense of isolation: find some time to talk to your family and friends, sharing the good things or the not-so-good ones, in any form of communication you like.

Habits We Want To Break Away From We’ve all been there: get up ambitiously in the morning, fully motivated to tick off a number of todos on the list, but struggle to hit our goals at the end of the day. So you decide to stay up late to finish them “within the day,” but the sleepiness kicks in just in time to derail your focus. You might find yourself sinking in the chair, scrolling social media and simul-

taneously feeling guilty for slacking off.

Working late to compensate for the lack of productivity in the day is not a good idea. When you try to make the day more productive by giving up much needed down time, you are essentially borrowing energy from the next day. It does not make you more productive. In fact, it is more likely to decrease productivity and make you feel bad about yourself.

When it’s time for sleep, it’s better to put down the work and pick them up tomorrow. If you often find it difficult to complete your goals for the day, the reason might be that your goal is a bit too ambitious, rather than because you are not productive enough.

Apart from school work, the constant flow of information from news and social media can be a big stressor too. It is not your fault that you find it hard to put down the phone sometimes — that little gadget is engineered to grab your attention as much as possible. Try putting your phone away for some time and see if it makes you feel better. It is unlikely that you are going to miss out some big news anyway.

Helpful Resources If you need help, don't hesitate to reach out.

The Faculty has a wealth of health and wellness resources, including accommodation services, mindfulness sessions, and counselling appointments. You can also talk to your peers through Law Chats or the Peer Mental Health Support Program. It might sound like a cliché, but in terms of mental health, it’s good to keep in mind that “we are all in this together.”

FEATURES

12 | November 25, 2020

FEATURES

ultravires.ca

The Future (of Law) is Here Faster Than You Think A conversation with Joshua Morrison AMY LIN (2L) In The Future is Here Faster Than You Think, futurists Peter Diamandis and Steven Kotler examine everything from autonomous vehicles and Virtual Reality (VR) advertisements to the use of Aritif ical Intelligence (AI) in healthcare and f inance. We are living in a world where technological progress accelerates at an exponential rate and science f iction is quickly becoming science reality. These emerging technologies and new innovations are rapidly transforming the legal landscape, challenging the way law is practiced, and creating new f ields and roles to be f illed. According to Forbes, “one of our biggest struggles in the future of the law profession is [that] law schools…[are] still generating 20th-century lawyers when what we need is 21st-century lawyers.”

At the beginning of this semester, the Faculty of Law welcomed Joshua Morrison as the Director of the newly minted Future of Law Lab (the “Lab”). According to its website, the Lab is designed to become “a hub of interdisciplinary inquiry and activity providing initiatives and information about the changing face of the law and legal profession.” I sat down with Morrison over Zoom to discuss how law students can prepare for their careers in light of the changes generated by the explosion of technological advancement and innovation.

According to the McKinsey Global Institute, existing technology can automate 23% of legal work. This percentage will likely increase as AI-driven software becomes more powerful, thereby rendering legal analytic tools more effective and eff icient. Professor Maura R. Grossman demonstrated the potential power of machine learning during electronic discoveries at the Lab’s inaugural event held last month. Using an algorithm she created to recognize and prioritize documents based on inputs from a lawyer, Professor Grossman showcased how the technology was able to sort through over 290,000 emails to produce the 38 message exchanges that were relevant to a mock scenario.

Over the last couple of years, many f irms have embraced innovative legal technologies in their practice, creating initiatives such as Osler Works. However, this does not necessarily mean that lawyers will be replaced by

AI. Rather, technology is freeing up our time and changing the way we engage with legal issues and clients. Morrison believes that soft skills, like the ability to communicate with clients from different industries, will rise in importance as future lawyers spend less time on administrative tasks and document review.

Technological growth has also led to the creation of new and non-traditional legal career paths. Precedent Magazine notes that the “types of jobs that law-school graduates can pursue are also in a state of f lux.” We can expect to see changes ranging from the continued expansion of non-traditional law-f irm roles to the increase in legal-tech entrepreneurialism. Morrison commented on emerging roles, such as legal project managers who can take advantage of legal analytic tools to proactively manage performance outcomes and make strategic decisions. Being well-positioned for what is to come would likely require some tech-savy and ref lection on where the industry is going.

A ll of this exciting, but may also feel daunting at f irst, especially given the myriad of tech jargon and complex algorithms involved. However, Morrison encouraged students to not be intimidated by the tech world. "It's okay to jump in with no background," he said. "No one is expecting you to be an expert from day one." Morrison then went on to share his own story. Prior to becoming Director of the Lab, he worked at a family law dispute resolution start-up and was the Program Manager at Ryerson’s Legal Innovation Zone.

"I had no previous development experience. I was not an entrepreneur," Morrison noted. "I had a traditional business and legal background like many of the students at the law school right now."

Morrison encouraged students to seek out opportunities in an incubator or accelerator to observe f irst-hand how diverse teams are built and to witness the challenges that startups try to address. He said that becoming “part of that ecosystem” was eye-opening for him and credited the time he spent working in an incubator as a “critical period of growth” in his career.

As the practice of law changes and new op-

THE INTROVERTED ATTORNEY

portunities open up to young lawyers, legal education must also evolve. In addition to continuing the Lab’s speaker series, which is set to feature future guest presenters such as Catherine Lacavera (VP Litigation at Google), Morrison shared that the Lab is currently looking into other exciting initiatives.

While nothing is set in stone yet, Morrison hinted at the possibility of running legal design thinking workshops that teach law students how to use design thinking when solving legal issues. For the outgoing 3Ls who are disheartened that they may not get the chance to partake in upcoming initiatives, Morrison stressed that the Lab seeks to ensure alumni

involvement in future events.

I am also hopeful that the Lab will create more spaces at the law school where law students can learn alongside and innovate with other students from different disciplines and backgrounds, like computer science, engineering, business and design. This appears more crucial than ever, as the lawyers of the 21stcentury need to be more agile and able to thrive in diverse, and perhaps, non-conventional teams and in novel environments. At the end of the day, Morrison commented, it is about "being willing to step out of your comfort zone and jump into an area that you're not an expert in […] yet."

Explore | Engage | Learn Developing Future Leaders in Law

BennettJones.com/Students

14 | November 25, 2020

FEATURES

ultravires.ca

CLSA Blog in Print: Against the “Height of Injustice” In conversation with Bhavan Sodhi of Innocence Canada on the causes of Canadian Wrongful Convictions NICK BUHITE (2L) defence counsel.

One significant issue is the pressure placed on many defendants to plead guilty before trial. The people Innocence Canada represent, those convicted of homicide, generally have not had the luxury of trial where the evidence against them was tested and heard. In 90% of criminal cases, people find it is easier just to plead out. Eyewitness identification also poses challenges. The Innocence Project estimates that roughly 70% of wrongful convictions are partially attributable to eyewitness identification error.

Finally, the same system that leads to the disproportionate mass-incarceration of racialized and Indigenous accused appears to also decrease their willingness or ability to seek exoneration. “[W]hen you look at the exonerees that Innocence Canada has had, the vast majority, quite frankly, are white men, and that doesn't necessarily represent the populace that's currently incarcerated,” Bhavan says. “I highly doubt [the] reason is that these individuals haven’t been wrongfully convicted.”

PHOTO COURTESY OF BHAVAN SODHI.

The Criminal Law Students’ Association (CLSA) interviewed Bhavan Sodhi, Innocence Canada’s Legal Director and Director of the Innocence Project at Osgoode Hall Law School. Innocence Canada takes on the daunting task of investigating allegations of wrongful convictions and pursuing acquittals for the wrongfully convicted. As Bhavan made clear, a wrongful conviction — that is, the conviction of a person who is factually innocent — is the highest injustice our system can and does produce.

Although Bhavan took an indirect path to her current work, her reputation as someone who wanted to “do good” with her law degree served her throughout her career. She pursued an undergraduate degree in economics and international business. She never anticipated going to law school but ended up attending Osgoode after taking the LSAT on a whim. She joined the Innocence Project at Osgoode through her first-year criminal law professor and was hired back to work as an executive assistant.

After law school, impressed by their work on the Kaufman Inquiry into the wrongful conviction of Guy Paul Morin, Bhavan articled with Cooper Sandler Shime and Bergman LLP where she had the opportunity to work on other commissions of inquiry and systemic policy initiatives. She eventually found herself working as an Assistant Crown Attorney on youth and domestic matters when Kirk Makin contacted her asking her to join Innocence Canada. One of her former professors called her a “fanatical student who had a keen interest in wrongful convictions” and recommended her. Within a week, the Dean at Osgoode Hall Law School remembered the same thing and contacted Bhavan when the professor running the school’s Innocence Project retired. Bhavan

has been in those complimentary roles ever since.

The Common Causes of Wrongful Convictions According to Bhavan, the most important thing to know about wrongful convictions is that they are not anomalous. Wrongful convictions are a recognized by-product of the criminal justice system. Further, specific policy choices can influence the number of wrongful convictions.

Most of what we know about wrongful convictions derives from the U.S.A. A wide variety of factors can lead an innocent person to be convicted, including: eyewitness identification, false confessions, Mr. Big stings, guilty pleas, systemic discrimination, forensic errors, jailhouse informants, prosecutorial misconduct, and tunnel vision by police, prosecutors, and

Failures of Policy and Recommendations for Reform As I had hoped, Bhavan had a lot to share regarding how the Canadian legal system can improve in combating wrongful convictions.

She specifically highlighted Mr. Big Operations, false confessions, jailhouse testimony, eyewitness identification, and the unreliability of forensic evidence as barrier to justice and drivers of wrongful convictions.

Mr. Big Operations A particularly Canadian cause of wrongful conviction is the Mr. Big operation.

A Mr. Big operation generally consists of police constructing a false criminal enterprise in which the accused is persuaded to discuss elements of their alleged criminal history with a fictional criminal kingpin in order to become accepted into their fictitious criminal organization. These operations are understandably controversial given the incentives in place for

an accused to embellish or fabricate elements of their criminal history, prejudice, and police misconduct born from inducing someone to speak freely on false pretenses. In R v Hart, the Supreme Court noted that these “confessions” are often extracted amid an “aura” of violence and inducements.1 Bhavan explained that Mr. Big stings are a “recipe” for false confessions and wrongful convictions because police have “tunnel vision” in attempting to extract a false confession. Mr. Big operations are often used in homicide cold cases where the police have a specific suspect they want to accuse but lack the evidence to convict. As result, the police concoct a fictitious criminal conspiracy with the sole purpose of ensuring one suspect will confess. In Bhavan’s view, barring supporting evidence substantiating the testimony acquired in these stings, are not reliable enough to be admissible in court.

I asked whether the Supreme Court’s decision in Hart goes far enough in limiting Mr. Big stings as evidence. The Hart court held that barring indicators of reliability (such as specificity, use of non-publicly known information, and confirmatory evidence)2, Mr. Big confessions are presumptively inadmissible. Bhavan believes the Hart ruling is fair, but she is disappointed that few trial courts use the Hart standard to exclude Mr. Big statements, even when there is no confirmatory evidence available.

False Confessions Bhavan also offered opinions on the cases of the so-called “interrogation trilogy.” In the “trilogy” cases the Supreme Court outlined basic acceptable parameters for police in interrogations.

In the first case, Oickle, the Court described how the voluntariness of confessions is assessed, including whether police trickery would “shock the community.” 3 In the second, Singh — in which the accused asserted their right to silence eighteen times but confessed after the police refused to halt the interrogation — the Court rejected the idea that the right to silence

INNOCENCE CANADA HELPS SHED LIGHT ON INJUSTICE OR PROCEDURAL UNFAIRNESS IN CLIENTS' CASES BY FILING APPLICATIONS TO THE MINISTER OF JUSTICE UNDER S 696 OF THE CRIMINAL CODE

ultravires.ca

FEATURES

November 25, 2020 | 15

could halt police questioning.4 Finally, in Sinclair, the Court found that that suspects do not have a right to counsel in the interrogation room, and held they are only guaranteed a right to re-consult with them when there has been a change in circumstances. 5 Bhavan’s main concern with the case law on voluntariness is whether it is adequately tailored to the vulnerabilities of the person being interrogated. Confessions are highly persuasive evidence to a jury, so it is vital they be voluntary and true. Those with mental health vulnerabilities or from marginalized communities often are more susceptible to police pressure. Bhavan also worries that police may have too much leeway to present false evidence to the accused. “There is a fine line between eliciting and inducing a confession.”

I asked Bhavan if she believes the Court made a mistake in Sinclair and Singh by not pursuing a more Miranda-style rights framework, with counsel in the room and limited rights for an accused to pause interrogations. Bhavan says she understands why police prefer our system. However, she has worries when interrogations become an endurance contest between a suspect and police, when an accused may not know all their rights, and when they do not have access to their lawyer unless the circumstances change. “[F]or me, it’s worrisome because the voluntariness is highly questionable in those circumstances,” Bhavan says.

Jailhouse Testimony Jailhouse informants have been a source of over a hundred wrongful convictions in the United States. I asked Bhavan if the Canadian situation was comparable. She said that while Canada unfortunately still uses jailhouse testimonies, it uses it far less than the U.S. “[T]his is testimony that cannot be trusted,” Bhavan explains. “Time and time again, in many wrongful conviction cases, we've seen how susceptible juries are to the evidence of a jailhouse informant. We've seen that it has been a cause of wrongful conviction and we’ve seen that this evidence can't be trusted.” Accordingly, Bhavan believes that nothing short of a presumptive ban on admissibility would be sufficient. “I think that we really need to take a very strong stance on this type of evidence.”

Eyewitness Identification Following up on the ubiquity of false eyewitness identification in wrongful convictions, I asked Bhavan if she sees a jurisprudential or policy-driven route out of the problem, or whether human error will always be a concern.

Bhavan suggested there are some systemic ways to reduce the problem.

Eyewitness testimony — someone saying “I saw who did, they are here in the courtroom, and they are over there” — will always be seen by a jury as strong evidence. However, the court can mitigatea jury’s willingness to jump the gun if they give judicial notice to some of the literature of eyewitness frailties, or if they allow expert evidence to opine on the dangers of giving such testimony too much weight.

Bhavan is glad to see increased recognition of this issue in Canada and Ontario and that the frailties of eyewitness testimony are now more frequently mentioned in jury charges. The next step is to have experts offer evidence on eyewitness testimony. Bhavan believes that while a court “might see it as redundant,” it really would be valuable. “[T]here's something to be said where you have an eyewitness that is before the court in person, and then also at the same time, there’s someone who will be able to, not necessarily refute, but also to kind of flag the evidence with another person who has an expertise in that particular area,” Bhavan explains.

Forensic Science With respect to forensic science, Bhavan was clear that criminal lawyers need to know more.

We may not be doctors, but we have a duty to understand, scrutinize, and question scientific information put before the court.

We know bad forensic science is an important cause of wrongful convictions. Moreover, even if the Crown is using well regarded methods such as DNA evidence, there are still failure points. Wrongful convictions have oc-

INNOCENCE CANADA ADVOCATES FOR THE WRONGFULLY CONVICTED AND PROMOTES COMMUNITY EDUCATION ABOUT THE CAUSES OF WRONGFUL CONVICTION IN THE LEGAL SYSTEM.

curred because of DNA forensics done improperly. Despite the lure of scientific objectivity, it is always important to scrutinize the evidence as part of a human system. Counsel and the trier of fact need to think about forensics in relation to other evidence, not to see it as the evidence. If things do not add up, that needs to be considered and questioned.

the capacity to expand its case roster, the cause of justice in both Ontario and Canada would be greatly advanced. As it stands, it is important that the public and legal community not only continue to support, but expand our support, of the vital work Innocence Canada does.

The Importance of Innocence Canada’s Work

This series by the Criminal Law Students’ Association introduces the law student body to the wild, wild world of criminal law and criminal justice. Articles will be published in print in Ultra Vires as well as on

I came to Bhavan seeking insight into the systemic failures that cause wrongful convictions, but I would be remiss if I did notaddress one factor that allows them to persist: our failure to adequately support the groups that fight them. At the end of the day, Innocence Canada is a non-profit organization. The lawyers who work there depend heavily on a team of volunteer counsel and case-reviewers, and they could not operate without public funding, which has at times been short on supply. Although they currently focus primarily on homicide convictions for triaging reasons, Bhavan says there are strong reasons to believe wrongful convictions may be more common for lesser offences. If Innocence Canada ever has

Editor’s Note: this is an abridged version, read the full article on the CLSA’s website.

the CLSA’s website, uoftlawclsa.weebly.com/blog. To pitch an article to the CLSA blog series, please contact the CLSA Blog Editor, Teodora Pasca, at teodora. pasca@mail.utoronto.ca.

1

R v Hart, 2014 SCC 52, at paras 59, 68.

Hart at para 105.

3 R v Oickle, 2000 SCC 3, at paras 66 – 67.

4 R v Singh, 2007 SCC 48, at paras 13, 47 – 48.

5 R v Sinclair, 2010 SCC 35, at paras 37-42, 65.

2

16 | November 25, 2020

FEATURES

Vino Cocktails

ultravires.ca

Angela Gu

In Vino Veritas KIMIA VEISI NEZHAD (3L)

There are a few fun things to do outdoors during winter in Canada: You can go ice-skating, visit the Light Festivals, or check out Christmas Markets to get into the holiday spirit. But nothing cures the long hours, gloomy skies, and chilly temperatures like sipping on a fancy cocktail. Being in quarantine for most of 2020, we have gotten creative with our wines and tried mixing them into crafty cocktails. Below are some recipes that passed the taste test (plus pictures for inspiration)!

For a warm and cozy cocktail to drink by the f ireplace, check out Tom’s Mulled Pomegranate Warmer or Reya’s Red Wine Hot Chocolate. If you prefer a festive, bubbly cocktail, try Angela’s Champagne Cocktail or Kimia’s pink version of a “French 75.” For those of you who would rather escape the Canadian cold and sip a cocktail somewhere far away, try making Amy’s White Wine Mojito and imagine that you are vacationing in Cuba, or let your taste buds travel to Eastern Asia while sipping on Angela’s Umeshu cocktail!

Amy Lin

PHOTO CREDIT: ANGELA GU

Champagne Cocktail There’s something inexplicably festive and fun with bubbles, and any sparkling wine will do for this easy cocktail. I used a Bottega Prosecco - it worked really well with the brightness of the lemon zest. This drink looks best in champagne f lutes, but any shape will do. Mismatched glasses are just f ine, there’s some charm in that.

To make this drink, you’ll need: sparkling wine, sugar cubes, Angostura bitters, and a lemon. You’ll need one sugar cube per drink. Place your sugar cubes on some surface, they don’t go in the glasses just yet. Dash a few drops of the bitters onto the sugar cubes. Now take your lemon, and remove generous strips of zest with as little pith as possible. Make lemon twists if you know how, don’t fret if you don’t. Pour the sparkling wine. Then drop the bitter-soaked sugar cubes into the glasses — this will make a very satisfying f izzle. Express the lemon zest over the glasses, and plop the strips in. Start sipping!

There will be quite a bit of undissolved sugar remaining at the bottom of the glass — this just invites a top-up with more wine. Go for it!

PHOTO CREDIT: AMY LIN

White Wine Mojito A spin on the classic Cuban favourite, the white wine mojito is refreshing and easy to make.

All you need is a bottle of white wine, lime, fresh mint, simple syrup, sparkling water, and ice.

Start by combining a couple of mint leaves and 1/4 of a lime into a glass, and muddle gently.

Remove the lime wedge and add ice. Next, f ill the glass with wine until it’s half full and add a couple splashes of sparkling water along with two teaspoons of simple syrup. A friend recently gifted me a bottle of Ceder’s Crisp (a distilled blend of juniper, cucumber and camomile) and I added a shot of it into the cocktail to enhance the f lavour complexity. Mix well and garnish with a cucumber slice, lime, and fresh mint.

I would personally recommend a fruity white for this cocktail. I chose a bottle of the Petit Blanc from Le Vieux Pin, which boasts notes of lychee. This is a great sipping wine on its own so leftovers from your mixology session will not go to waste. Perfect for a little post-exam celebration. Put on some music and close your eyes — it almost tastes like a vacation.

PHOTO CREDIT: ANGELA GU

Umeshu Cocktail Plum wine, also called umeshu, isn’t really wine, but it’s pretty yummy and can be used like vermouth, so I had to include it here. I wanted to try making a Plumdog Millionaire but couldn’t f ind lavender soda anywhere, so I ended up making a slight variation of this gingery cocktail instead. It calls for 4 parts vodka (I used Absolut), 1.5 parts plum wine (I used Gekkeikan), and 1 part lemon juice. Shake with ice. Strain into glasses. How much you pour will depend on how strong you want your drink to be. Top with ginger ale for a sweet and spicy concoction, or tonic water for a milder taste. Garnish with what you see f it: here, I made one version with lemon zest speared with dill; the other one is lemon zest with mint. I can see these f lavours also working with smoked rosemary.

ultravires.ca

FEATURES

Reya Manerikar

November 25, 2020 | 17

Kimia Veisi Nezhad

PHOTO CREDIT: REYA MANERIKAR

Red Wine Hot Chocolate Red wine and chocolate: a classic combo. This fun recipe combines the two into a decadent drink that’s perfect for a chilly day.

Start by making your own hot chocolate (a pre-made mix would work too if you’re feeling lazy!). In a medium saucepan, whisk together 1 cup of milk, 3 tbsp cocoa powder, 2 tbsp sugar, and a pinch of salt. Bring to a boil on medium heat. Lower the heat. Add ¼ tsp of vanilla extract and 1 cup of a dry red wine, (I used an inexpensive Malbec) and gently warm to the desired temperature. Serve in your mug of choice. I chose to top mine with whipped cream and a sprinkle of cocoa powder, but you could also throw in some marshmallows.

Tom Russell

PHOTO CREDIT: KIMIA VEISI NEZHAD

Pink 75 Pink 75 is inspired by a classic cocktail named “French 75”, but with a few fun twists. The ingredients of French 75 include Champagne, gin, lemon juice, and sugar. To make the Pink version, I switched Champagne for Sparkling Rose (I used Yellow Tail Sparkling Rose, which you can f ind at Loblaws or the LCBO). I also added some strawberry puree to the mix, and switched sugar for agave syrup (purchased from the Cocktail Emporium) to make it more nuanced. I also used the purple-coloured “Empress Gin” (purchased from the LCBO) to add a vibrant colour to the cocktail mix. The result is a delicate, light, and refreshing drink that would be perfect for brunch.

To make two glasses of Pink 75, you will need the following ingredients: a bottle of semi-dry sparkling rose, 2 shots of gin, half a dozen ripe strawberries, juice of a large lemon, one tablespoon of agave syrup, f ive ice cubes, and some edible f lowers for garnish.

Begin by chopping the strawberries into small pieces. Add the strawberries and lemon juice to a cocktail shaker, and use a muddler to pulverize the mixture. Next, add the gin, agave syrup, and ice to the mixture and shake for 30 seconds. Pour the mixture through a f ilter into the glasses and top with chilled sparkling rose. Garnish with some edible f lowers (ask your f lorist about which f lowers to use). Enjoy!

Mulled Pomegranate Warmer

PHOTO CREDIT: TOM RUSSELL

Mulled wine is a personal favourite of mine during the Christmas season, and I appreciate a recipe that aims to provide a new twist on it. To make this cocktail I used a recipe by Colleen Graham at thespruceats. com and made a few adjustments.

For the red wine, I recommend a full-bodied wine like a Cabernet Sauvignon, Zinfandel or Syrah. For the pomegranate liqueur I used Pama, which is available at the LCBO for $29.95. The original recipe calls for 2 cups of sugar, but I do not recommend following that. I recommend using 1 cup of sugar and then adding some sugar at the end to tone down the acidity. I recommend 14 whole cloves and 5 cinnamon sticks (a bit more than the original recipe) in order to make the flavour more interesting and less dependent on sugar.

What Will You need?

You will need 2 (750 mL) bottles of red wine, 1 cup of Pomegranate Liqueur, 1 cup of sugar, 1 ¼ cup of water, ½ teaspoon of ground nutmeg, 14 whole cloves, 5 Cinnamon sticks, 4 sliced lemons, and 2 sliced oranges.

How do you make it?

Place a large saucepan over medium-low heat. Combine the Pomegranate liqueur, red wine, water, 1 cup of sugar, nutmeg, cloves, and cinnamon sticks. Stir until the sugar and nutmeg are dissolved. Next, add the lemon and orange slices. Simmer for 15 – 20 minutes and do not allow it to come to a boil. Add additional sugar to taste. Your aim should be to tone down the acidity. However, be careful because pomegranate liqueur is already very sweet. Remove the saucepan from the heat. Strain the mulled wine into a bowl through a fine-mesh strainer to remove all the fruits and spices. Pour the mulled wine back into the saucepan and put it over low heat to keep warm. Serve warm and enjoy!

18 | November 25, 2020

ultravires.ca

RIGHTS REVIEW

The International Human Rights Program at the University of Toronto Faculty of Law An independent student-led publication Editors-in-Chief: Rachel Bryce (4L JD/MGA) and Abdullah Jamshed Khan (2L) Senior Editors: Taskeen Nawab (2L) and Sabrina Sukhdeo (2L) Junior editors: Martha Côte (1L) and Sterling Mancuso (1L) Graphics Editor: Yuxuan Wu (2L) Social Media Editor: Ellen An (2L)

AN INTERVIEW WITH PROFESSOR SOPHIA MOREAU PROFESSOR SOPHIA MOREAU SPEAKS ABOUT HER RECENT BOOK FACES OF INEQUALITY: A THEORY OF WRONGFUL DISCRIMINATION AND ITS IMPLICATIONS TO THE RIGHT TO EQUAL TREATMENT TODAY

By Rachel Bryce (4L JD/MGA) and Sterling Mancuso (1L) This interview has been edited for clarity and concision.

Professor Sophia Moreau is a professor of law of philosophy, cross-appointed in the Department of Philosophy as well as a Faculty Associate at the University of Toronto Center for Ethics, and at Victoria College. Professor Moreau’s book Faces of Inequality: A Theory of Wrongful Discrimination, presents a unique pluralist theory of when and why discrimination wrongs people.

Rights Review (RR): How do you summarize your book, and what do you see as the key lessons you hope to impart to your readers?

Sophia Moreau (SM): Faces of Inequality tries to elaborate on what the subtitle says. It’s a theory of what makes discrimination wrongful and when it is wrong. The book doesn’t assume that discrimination is always wrong, but it’s trying to give some explanations of why it’s wrong in the many situations where it seems to be morally objectionable.

The book starts from the idea that we have this moral phenomenon: wrongful discrimination.

My idea is that part of what makes wrongful discrimination wrong is that it fails to treat certain people as the equals of others. The idea underlining the book is that this is a kind of common thread running through all cases of really objectionable discrimination. The problem is, really, that some people have been treated as inferiors — they’ve been subordinated to others.

But of course, to say they’ve been subordinated to others isn’t that helpful on its own. So the book [examines] three different ways in which a law or an individual act can treat a person or a group as though they are inferior to others. One way is by contributing to social subordination: by perpetuating a state in society where one social group has generally more privileges, attracts more deference, and their needs are responded to more quickly than the needs of other groups.

A different way in which you can treat someone as inferior is by denying them certain forms of important freedoms. For instance, you may have heard recently about the controversies surrounding female athletes who have naturally high levels of testosterone, and there are questions about whether they should be allowed to compete as women. Many of these athletes have said that the regulations that bar them from competing as

women discriminate wrongly against them, primarily because they force these women to live their lives in a way that isn’t authentic to who they are. They want to be able to live their lives as women and run as women. I try and capture that by saying sometimes discrimination wrongs people and treats them as inferiors because it denies them a certain kind of important freedom that I call a “deliberative freedom.”

Lastly, I talk about a set of cases where people are denied access to certain kinds of basic goods. One such example would be the Indigenous water crisis in Canada. There, we have so many Indigenous communities lacking access to clean water, and I think this is important not just for reasons of health and sanitation, but also for its impact on Indigenous women, who are in many Indigenous traditions, the keepers of clean water.

The book also aims to argue that indirect discrimination that often doesn’t explicitly mention the name of the group it disproportionately disadvantages is equally morally problematic. Many people think that direct discrimination is somehow worse or that it requires more urgent rectification. I argue that we can see both direct and indirect discrimination as involving each of the wrongs that I’ve just identified. Both can contribute to social subordination, can deny people’s autonomy or deliberative freedom, and can leave people without access to basic goods. So really, it’s a mistake to think that something of great moral importance hinges on which category you’re putting a certain case into.

Lastly, the book poses a more general question: when do we have a right to be treated as equals and not as other peoples’ inferiors? Our legal protections against discrimination protect us from acts by the government and also acts by certain people who stand in special, more public roles towards us. But there are lots of social contexts in which the law doesn’t impose an obligation to treat everyone as equals. And most importantly, there are no discrimination laws that apply in the private sector that affect the family or relationships between friends. I argue that we may want to rethink some of this, because the family and the home can be sites of oppression for many people.

RR: Could you speak to how you see your work applying to the racial justice movement sparked PHOTO CREDIT: OXFORD UNIVERSITY PRESS

ihrprightsreview

ihrp.law.utoronto.ca/page/rights-review-magazine

uoftrightsreview

ultravires.ca

by the murder of George Floyd over the summer and how you see it applying to the experiences of Indigenous peoples in Canada?

SM: I think we’re at a crucial moment in our understanding of discrimination. I feel like we really have an obligation to everyone in society, and particularly to historically underprivileged groups, to understand and remedy the discrimination that they have faced for years and to understand what White privilege involves.

There’s a section of the book about White privilege. I feel like this is an infelicitous term. It somehow suggests that White privilege is just “a bit extra” over and above what everyone else has when, of course, White privilege is a whole way of structuring social relationships in such a way where certain people get noticed and others don’t. Certain people’s actions are painted in a certain light and others’ are not. It’s not about what you have, it’s very deeply about who you are seen as and who you are able to become.

I try to address this problem in a couple of ways.

I try to emphasize the structural and systemic effects of discrimination. It’s a big mistake to think that what’s wrong with discrimination just lies in prejudice and the mental state of the discriminator. The problem is, in part, the stereotypes perpetuated by certain policies. The ways of thinking that are inherent in what we pay attention to and what we don’t pay attention to really sustain these relations of subordination.

It’s really important to think about discrimination from the perspective of the discriminatee. Especially in the early years of our analysis of discrimination, a lot of our emphasis was placed on

RIGHTS REVIEW

the discriminator — their prejudices and their motives. I feel like this is focusing the lens in the wrong place. We need to think about the impact of discriminatory policies and acts on those who they influence and affect — the discriminatee.

The Indigenous water crisis is a good example of that. If you looked at the crisis from the standpoint of an outsider, you might just say, “Oh, what are Indigenous people lacking? The basic good they’re lacking is clean water. Why do they need it? Well, for reasons of sanitation.” Only when you understand more about particular Indigenous cultures and the role that water plays symbolically and culturally will yoube able to draw a real picture of what lacking access to this basic good really means and how it impacts these particular people. In many of these cases, it’s only then that you’ll see how it truly prevents groups from being seen as equals.

RR: How do you see inequality and discrimination arising in COVID-19, surrounding the health, economic, and social upheaval in which we find ourselves?

SM: I wrote some blog entries about this for the Pea Soup Blog — a philosophical blog. It has become even clearer that lockdown policies protect privileged people. I feel like our governments have done relatively little to help those who are already disadvantaged and vulnerable — those who have no choice but to go out to work every day, those who live in crowded housing situations and have no viable alternatives. I would have liked to see us as a society ameliorate these massive disparities. I just don’t think we’re doing nearly enough.

Another group that doesn’t have enough of a

voice in this situation are people with disabilities who are being denied necessary surgeries, because again, not enough funds are being directed towards medical resources. I feel that there are lots of issues surrounding the pandemic’s unequal impact on social groups.

RR: How do you envision states and institutions changing to better acknowledge and address the wrongfulness of discrimination, and do you envision individuals upholding the duty to treat others as equals?

SM: I don’t have any magic answer, but I have a few thoughts.

In my discussion of group-based subordination, I talk a lot about what I call “structural accommodations.” The idea is that a part of what makes one group socially subordinated to another is the existence of a whole set of different policies in different social contexts that privilege the needs of certain groups and render underprivileged groups and their needs invisible. Part of the solution lies in making their needs visible and wanting to see the impact of our policies on everyone. In many cases, we won’t be able to prioritize everyone’s interests. But I feel like if the underprivileged groups’ needs were rendered visible, we would then have a more meaningful discussion.

I do feel like our awareness of the political impact of policies on different marginalized groups is far more than it was even 20 years ago. We are slowly making progress in that direction. A lot of my colleagues working on discrimination theory, like Kasper Lippert-Rasmussen, have done a lot of work on what they call “prioritarian” views.

There’s also a wonderful political theorist at Ox-

November 25, 2020 | 19

ford, Shreya Atrey, doing work on “prioritarianism.” These philosophers have argued that we need to identify all the groups that are affected by a particular policy and amend the policy [to] raise the level of those who are worst off. Again, to do that, we need to make visible all of the groups that are disadvantageously affected by particular policies.

RR: For any reader or listener to Rights Review who’s interested in learning more and reading your book, where can they look?

You can find it at OUP online on the library system on your own computer. My book is now also available online. There will also be an article on my book applying this theory specifically to gender discrimination, to discrimination against women, in a new anthology that Rebecca Cook is editing called Frontiers of Gender Equality.

RR: Do you have any final notes?

SM: There are a number of different books in recent years that have written about wrongful discrimination. Deborah Hellman from the University of Virginia has a terrific book called When is Discrimination Wrong? She argued that it’s wrong when it demeans people, although she has changed her view subsequently, and now thinks we need to think about systemic discrimination. Tarunabh Khaitan, a scholar at Oxford, has a terrific book focusing more on denying people the conditions for autonomy. His book is called A Theory of Discrimination Law. Joseph Fishkin has a terrific book called Bottlenecks.

He’s thinking more about systemic discrimination and the way in which it creates bottlenecks in opportunities, and certain social groups get stuck in the bottleneck.

AN INTERVIEW WITH DOWNTOWN LEGAL SERVICES HOUSING STAFF LAWYER ON THE RIGHT TO HOUSING IN THE PANDEMIC WHILE UPHOLDING THE RIGHT TO HOUSING IS MORE IMPORTANT THAN EVER, THE COVID-19 PANDEMIC HAS BROUGHT FORWARD NEW AND EXASPERATED EXISTING CHALLENGES IN HOUSING LAW

By Martha Côté (1L)

The right to housing is enshrined in the Universal Declaration on Human Rights and recognized in a number of treaties ratified by Canada. The National Housing Strategy Act reaffirms that “adequate housing is a fundamental human right affirmed in international law,” and that “housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities.” Locally, the City of Toronto’s HousingTO 2020-30 Action Plan recognizes housing as a human right, and commits to a rights-based approach to responding to housing and homelessness issues.

In 2008 the “Right at home: Report on the consultation on human rights and rental housing in Ontario” found that “a wide range of consultees expressed significant concern that people protected under [Ontario’s Human Rights Code] are disproportionately excluded from suitable rental housing despite international protections.”

Over ten years later, a 2019 report by the Canadian Centre for Policy Alternatives (CCPA) found “no neighbourhoods in Canada’s biggest cities,” including the Greater Toronto Area, “where a fulltime minimum wage worker could afford either a

ihrprightsreview

modest one- or two-bedroom apartment.”

What’s more, NOW Magazine reports that there are “more than 10,000 people currently unhoused in Toronto any given night,” effectively identifying one of the groups hit hardest by the COVID-19 pandemic.

The economic effects of the pandemic, coupled with challenges posed by physical distancing have given rise to new issues and exacerbated existing ones that Toronto housing advocates already grappled with daily. In addition to ramping up their work on behalf of low-income tenants, the city’s legal clinics find themselves holding government agencies at the provincial and municipal levels accountable for ensuring access to justice and protecting the right to housing. One of these clinics is Downtown Legal Services (DLS), where Benjamin Ries supervises the Housing Law division.

This interview has been condensed and edited for clarity.

Rights Review (RR): In October, the Advocacy Centre for Tenants Ontario (ACTO) published a report outlining concerns about the Landlord Tenants Board (LTB), which DLS signed on to.

Could you talk about how the pandemic has affected the LTB?

was only booked the day before, and so on and so forth.

Benjamin Ries (BR): It started before the pandemic, really, in a very challenging climate for the tribunal itself to function. The whole of access to justice was recast as the problem, the speed bumps, what’s slowing things down.

I think the main concerns that were highlighted in the [ACTO] report, and by our colleagues in the clinic system, is seeing unrepresented tenants given a maximum of ten minutes to separately connect with the lawyer serving as duty counsel that day to get advice, which often can't be delivered in ten minutes. Then, they try to reconnect, and in some cases are not able to.

When the pandemic began, the tribunal was at very low capacity to begin with. It had a huge backlog already and then [came the] eviction moratorium — a case the DLS is directly involved in. Since August, [when the moratorium was lifted] the tribunal has had to deal with an existing backlog, a pandemic-based backlog, and one of its lowest ever adjudicator complements. All of that has been funneled towards this effort to push through eviction hearings within minutes through Microsoft Teams. Stories have started to accumulate since those hearings got going in earnest in September: tenants who don't have a stable Internet connection use the phone — well, they can't see anybody while everybody else is looking at each other — or tenants are not getting admitted [from the waiting room], or tenants are not receiving their notice of hearing because it

ihrp.law.utoronto.ca/page/rights-review-magazine

The conclusions are kind of simple: a certain number of those applications are being processed as uncontested. There have always been tenants who didn’t go to their hearing, but now we have reason to think those are not because the tenants decided not to participate, but because they haven't been given notice or encountered technical problems that prevented them from talking to adjudicators who only wait for a few minutes. None of that really looks like procedural fairness to us. What we hear is that the LTB does not really treat the pandemic as a reason to exercise discretionary relief from eviction.

RR: You mentioned you were involved with litigation around the moratorium order on evictions.

uoftrightsreview

20 | November 25, 2020

RIGHTS REVIEW

ultravires.ca

Can you say more about the latest decision dismissing the ACTO’s motion to represent unknown tenants with an interest in the proceeding?

BR: It's admittedly a difficult case to understand but I think there's a lot there for international human rights aficionados. The Attorney General (AG) filed an application on March 19 styled as Attorney General of Ontario v Persons Unknown [Ont. S.C., March 19, 2020], where “persons unknown” was all parties, individually, to residential rental and homeowner evictions. [The order was varied to end the moratorium at the end of July 2020.]

All those people were too numerous to identify and serve, so the AG got an order broadly suspending the regular application. That seemed to open up an interesting new area of jurisdiction outside of the LTB that was kind of the final say on whether eviction should happen. It seemed to be based on guidance from the World Health Organization, based on broad concerns for the health and safety of the community at large.

I'm used to hearing my international human rights colleagues say that forced evictions in particular are a violation of the right to housing. I've always thought, aren't all evictions, by definition, forced?

It's a traditional Anglo-perspective that an eviction is a writ of possession and all writs from the court come with “the force” — the force of law, the rule of law. But I think separating out the decision that a person’s interest in their tenancy should be ended from brute government-led force that physically removes them from the property, as we briefly did in March, is what the international right to housing calls on governments to do. That area of jurisdiction now seems to have come to a close.

Our case [Attorney General for Ontario v. Persons Unknown, 2020 ONSC 6892] was desperately seeking a chance to ask, how did that area of jurisdiction come to a close by another ex parte motion that nobody was given a chance to argue? The individual tenants that were trying to bring that motion have since been evicted themselves, so [the judgement] was a refusal to allow the ACTO to be appointed as a stand-in for all of those other “persons unknown.”

RR: In April 2020, the UN Special Rapporteur on the right to adequate housing released a National Protocol for Homeless Encampments in Canada, which affirms that in cases of eviction, including breaking up encampments, the right to housing mandates the government offer a suitable alternative. Just before the pandemic, Toronto also adopted a human rights-based approach in their HousingTO 2020-30 Action Plan. Would you say housing alternatives available, including shelters and crisis centres, align with a rights-based approach?

BR: I’ve worked in domestic, low-income tenant litigation my entire career and I've always been a skeptic —not of international social, economic, and cultural rights themselves — but of the current generation of executive branch commitments to these. Working on the ground, I've rarely seen anything actually get better or change as a result.

I think two cases that we saw this summer, [Sanctuary et al v. Toronto (City) et al., 2020 ONSC 6207] and [Black et al. v. City of Toronto, 2020 ONSC 6398, (Black)], really demonstrate that when the rubber hits the road, there's a far more limited set of things municipalities are prepared to do. I don't think the improvement of shelter standards during the pandemic is because the city is waking up to its human rights obligations. I think that's frankly because hotel rooms have become cheaply available. How much of that is going to go away when we get a vaccine and those hotels are back in business? I think it's not a long-term plan or part of a serious rights-based approach.

RR: Do you see these changes to shelter standards carrying into a post-pandemic setting or

ihrprightsreview

RESIDENTIAL BUILDINGS IN TORONTO’S ST. JAMES TOWN NEIGHBOURHOOD. PHOTO CREDIT: ABDULLAH KHAN

informing future access to housing measures?

BR: After the pandemic is over, I think we’ll be able to say that things previously thought impossible might not be so. One positive step will be to ask ourselves: are we really ready to go through the process of taking these people in these cityoperated hotel spaces and moving them back into congregate shelter spaces? And there is a public interest in housing issues, I think, like never before in my career — maybe in my lifetime.

We'll have to see.

RR: Going back to Black, the application of the RJR-MacDonald test for injunction appears to shed light on the conflict between the rights of people living in public park encampments and the rights of the general public to enjoy the public spaces of the city. Do you see this as a conflict exacerbated by COVID? BR: I don't know that I would find the language in the Black decision as worrying as one might think. It embraced [precedent to the effect] that the Charter is engaged by homelessness and, in particular, by bylaws that restrict the freedom of homeless people to move about an encamp-

ment. I think what you see is that the case was decided on [the majority of plaintiffs] having been offered hotel rooms. I do think that it's a good thing for the city to offer people something more than a shelter bed in a crowded concrete space.

Actually offering them a hotel room or something more self-contained — is the best strategic response to litigation that puts the whole park bylaw at risk.

However, I think the experience of my colleagues more generally over the summer would be to see bulldozers, the police, encampments being dismantled.Only when the camera turns on does the person in the tent get offered the hotel room, and as soon as the attention shifts, there's some concern that other people are removed from their encampments with a lot less support offered. So then, should we worry that it's only through a certain combination of public scrutiny and legal threat that people actually get these entitlements?

RR: How has DLS’ work on housing changed in response to the pandemic?

The eviction moratorium case is a good example

ihrp.law.utoronto.ca/page/rights-review-magazine

of where we've actually taken advantage of the slowdown in the board’s attentiveness to our primary files — as much as it's rushing to get through eviction applications, in many cases, on the [application for] tenant rights side, they’ve been [silent] through the pandemic so far. We’re using this temporary capacity to try to support partners in the clinic system by supplying research and maybe stepping into a province-wide advocacy role with ACTO to augment and connect the work other clinics are doing.

We did the same thing with Bill 184 this summer. Changes to the Residential Tenancies Act didn't necessarily immediately affect our individual clients but allowed us to partner with larger tenant unions in the city to help them form an opinion about the legislation and convey that opinion.

Tenant organizing work is something we've also really been able to continue online. You take a dozen tenants who were all isolated and, remarkably, in a time when it's not safe for people to gather in big meetings, they've still found a way to get to know each other, connect, get on the same page, and all watch each other’s backs.

uoftrightsreview

ultravires.ca

RIGHTS REVIEW

November 25, 2020 | 21

THE REPRESSION OF THE FREE PRESS UNDER LUKASHENKO AND ITS CORRESPONDING EFFECT ON THE 2020 BELARUSIAN PRESIDENTIAL ELECTION ANALYZING THE SYSTEMATIC SILENCING AND VIOLENCE IN BELARUS SURROUNDING THE 2020 BELARUSIAN PRESIDENTIAL ELECTION

By David Côté (1L JD/MPP)

PROTEST IN MINSK, BELARUS ON AUGUST 16, 2020.PHOTO BY CC BY-SA 4.0,

In August 2020, Belarus held their quinquennial presidential election. Despite apparent widespread disapproval, the 26-year incumbent Alexander Lukashenko, nicknamed “Europe’s Last Dictator,” won re-election in a landslide victory.

According to an independent online poll conducted by the Institute of Sociology of the National Academy of Sciences of Belarus and the Belarusian Institute of Strategic Studies, Lukashenko’s approval rating stood at 3.8 percent, contrasting a 24 percent approval rating by official polls. These results were in stark contrast to the election exit polls, which showed Lukashenko winning with over 80 percent of the vote. When these results were announced, many Belarusians believed the election was rigged and protests immediately erupted.

Ever since, the nation has been in a state of unrest. This November 15 weekend marked the 14th straight week of protests, whereby tens of thousands of Belarusians gathered in Minsk. Belarusain security forces have reacted violently to the protests and have been accused of torturing protesters. Furthermore, Lukashenko has issued threats including, “if someone touches a serviceman… he must leave at least without hands.”

The legitimacy of Belarus’ election cannot be established due, in part, to constraints on the media. Unconstitutional legislation allows state regulation of the media and criminalizes criticism of the government, effectively stripping the press of

ihrprightsreview

any ability to investigate the validity of the election. The Belarusian Constitution of 1994 protects free expression, and protects against censorship and the monopolization of the mass media by the State, as articulated under Article 33:

Belarus.” Moreover, the Belarusian government has the power to terminate a mass medium’s accreditation under Article 51. Collectively, this law’s provisions provide the government with the power to precisely select who may contribute to the Belarusian media landscape.

“Everyone is guaranteed freedom of thoughts and beliefs and their free expression. No one shall be forced to express one's beliefs or to deny them. No monopolization of the mass media by the State, public associations or individual citizens and no censorship shall be permitted.”

Even if a media outlet is able to secure accreditation, criticism of government officials can amount to defamation — a criminal offence. Articles 367, 368, and 369 of the Belarusian Criminal Code criminalize defamation of the president, insult of the president, and insult of a public official. Past charges have been made under these aforementioned sections of the Criminal Code for accusing the government of corruption and criticizing Belarus to international organizations/states. Therefore, if journalists have contrasting views to those of the president, they must choose between engaging in self-censorship or risk being charged for thoughtcrime.

However, recent legislation has encroached on these constitutional rights. In 2008, the Belarusian House of Representatives enacted a new media law, formally Law No. 427-Z of July 17, 2008. Under article 1(1) of the 2008 media law, mass media platforms need government accreditation in order to “cover actions organized by state bodies, political parties, other public associations, other legal persons as well as other events taking place in the territory of and outside the Republic of Belarus.” Article 38 (1.3) provides the government the power to refuse accreditation if mass media outlets disseminate “information aimed at propaganda of war, violence, cruelty, extremist activities or containing appeals for such activities, as well as other information dissemination of which is prohibited by the present law, other acts of legislation of the Republic of

The 2008 media law is not the first to contradict the country’s Constitution. The mechanics of this legal maneuver are described in an article from the East European Constitutional Review: “In order to circumvent the Constitution and various laws adopted during the first years of independence, Belarusian legal scholars introduced a novel twist into jurisprudential theory: the distinction between “legal” and “nonlegal” laws. If a law corresponds to the public’s intentions, they reasoned, it should

ihrp.law.utoronto.ca/page/rights-review-magazine

be deemed a “legal” law; if, on the other hand, it contradicts the public’s mood and the president’s intentions, it should be considered a “nonlegal” law and may be ignored altogether.”

The Belarusian government has used the above powers to regulate media coverage of the election. Access to websites covering the presidential election have been blocked and critical journalists have been arrested. Using these powers, the government prevents journalistic investigation into the legitimacy of the election and the state may propagate its desired narrative.

The Republic of Belarus deserves global attention. Canada, among many other countries, has been quick to support the pro-democracy movement in Belarus. Minister of Foreign Affairs, François-Philippe Champagne stated on October 15, 2020: “Canada continues to stand in solidarity with the people of Belarus as they struggle to restore human rights and achieve democracy in their country.” More importantly, global focus must turn to the rights-violating repression of freedom of speech and government control of the media. This small country in Eastern Europe has the opportunity to emerge as Europe’s newest democracy and its government should not be allowed to forcibly maintain its habitual state of authoritarianism. If the people of Belarus are muted, the rest of the world must speak up on their behalf.

uoftrightsreview

RIGHTS REVIEW

22 | November 25, 2020

ultravires.ca

NESTLÉ & CARGILL V DOE: LESSONS FROM NEVSUN AND THE MEANING OF CORPORATE ACCOUNTABILITY A SUMMARY OF THE ALIEN TORT STATUTE AND ITS APPLICATION TO CORPORATE SOCIAL ACCOUNTABILITY, JUSTICE FOR VICTIMS OF INTERNATIONAL CRIME, AND HUMAN RIGHTS VIOLATIONS

By Sabrina Sukhdeo (2L)

Indeed, the U.S. Supreme Court may be persuaded to draw inspiration from the Canadian context. Nevsun highlighted the absurdity in automatically singling out corporations for immunity from international human rights law — after all, “states and individuals act through corporations.” The majority clarifies in this vein that there are no categories of liable and non-liable actors in international law. Rather, such law identifies violations of human rights and entrusts the state with determining the remedy.

On this point however, the Court refused to comment on whether the Eritrean workers should be awarded damages for the alleged breaches of international law. True, this particular question was not before it. But, perhaps this is another nugget to consider from Nevsun. Even where corporate liability is possible in theory, it is not obvious how a successful claim might (ever) be litigated. Nor is it clear how corporate accountability may be realized with a view toward justice for the plaintiffs and beyond.

Accountability, justice, and the law Amnesty International announced this October that the Eritrean plaintiffs in Nevsun had reached a settlement with the Canadian mining company for an undisclosed amount after five years of litigation. No doubt, this is a relieving outcome for the former mine workers who can now focus their attention on their lives outside the courtroom.

However, this conclusion also sadly highlighted the limitations of the law in promoting corporate accountability for human rights abuses.

COCOA PODS ON A TREE. PHOTO CREDIT: PIXABAY

Much of the world’s chocolate is the product of a global supply chain that operates on forced labour. This horrific fact forms the backdrop of an ambitious lawsuit that is currently before the U.S. Supreme Court.

Nestlé & Cargill v Doe is the story of three Malian citizens who were trafficked as children to Côte d'Ivoire. There, they were forced to work on cocoa plantations that supplied and were serviced by two U.S. based corporations, Nestlé USA and Cargill. This December, the Court will hear arguments on whether the two companies should be held liable under the Alien Tort Statute (ATS) for aiding and abetting forced labour.

borders.

However, in 2013, the U.S. Supreme Court reigned in this modern application by imposing a presumption against extraterritorial application.

To the Court in Kiobel v Dutch Petroleum, nothing suggested that the framers of the U.S. constitution intended the ATS to redress wrongs that occurred in foreign countries. At the time, this decision seemed to sound the death knell for corporate liability.

The Alien Tort Statute: then and now

Nonetheless, the Court left a sliver of hope: the presumption could be rebutted if the claim “touched and concerned” the U.S. This test affixed to an existing one laid out in Sosa v AlvarezMachain that required two other considerations for a cause of action to proceed under the ATS. First, the violation must be of a “specific, universal, and obligatory” norm under international law.

And second, “prudential factors” must not weigh in favour of non-justiciability.

A 1980 case rescued the ATS, which was first adopted in the late 18th century, from obscurity under a new interpretation that allowed foreign nationals to seek remedies in U.S. courts for human rights violations committed beyond American

In Nestlé & Cargill v Doe, the defendant corporation in Nestlé submitted that the place of injury and impugned conduct is Côte d’Ivoire, which clearly disqualifies the claim under the ATS. Furthermore, there is no peremptory norm of corpo-

Importantly, Nestlé will articulate once more the willingness and capacity of our legal institutions to hold accountable the corporations that thrive in the crevices of the law.

ihrprightsreview

rate liability since international law has long been confined to individuals.

However, the Malian plaintiffs argue that the conduct at issue is the aiding and abetting of forced labour, which occurred on American soil through funding and policy decisions made at Nestlé’s and Cargill’s headquarters. It follows, then, that the relevant peremptory norm is not as to who can bear liability. Rather, it is a norm against aiding and abetting slavery that must be established under international law.

Implications of Nevsun Nestlé is just the latest in a string of corporate liability cases around the world. Just this year, three Eritrean refugees paved the way for Canadian corporations to be held liable for violations of customary international law. Nevsun Resources Ltd v Araya et al. was a landmark decision by the Supreme Court of Canada that spurned many oft-cited barriers against imposing corporate liability. The IHRP had the privilege to intervene in the case, successfully arguing that one such barrier, the act of state doctrine, had no place in Canadian common law.

ihrp.law.utoronto.ca/page/rights-review-magazine

There is no amount of money that can begin to compensate for the indignity and cruelty the mine workers have endured at the hands of their government and Nevsun’s opportunistic greed.

Nor would there have been justice in forcing the plaintiffs to describe and defend the details of their suffering through a lengthy trial—a retraumatizing process with no guarantee of “success”.

Both of these realities gesture to a more glaring problem: Can litigation truly hold Nevsun, Nestlé, or any company indicted for similar atrocities, “accountable”? The sites of exploitation — the plantations, mines, sweatshops, and so on — continue to lodge deeply unjust working conditions, yoked to a structure of dependency that guts the Global South to stuff the wallets of Western-owned companies. So long as these multinational corporations exist, empowered to impose themselves and their appetite for slave labour abroad, the violence will continue.

Thus, even at its sharpest, the legal system is a spindly stand-alone tool for challenging the conditions that incentivize harm — to both the people and the land — for corporate profit. It seems that our understanding of corporate social accountability must stretch beyond the law and seek out different imaginings of justice on the long journey towards corporate liability.

uoftrightsreview

ultravires.ca

OPINIONS

November 25, 2020 | 23

Breaking the Stereotype

U of T Law students rip pages out of library books, send notes with deliberate errors, and hoard articling positions — right?

SABRINA MACKLAI (1L JD/MI) While the University of Toronto Faculty of Law boasts a favourable reputation as one of the world’s top law schools, students at the Faculty aren’t necessarily viewed under the same positive light. Overly competitive, individualistic, and just f lat-out mean, are just a few terms that come to mind when others picture a U of T law student. But how true is this stereotype?

It is true that given the Faculty’s extremely selective admissions process, the students here are academically “the strongest student body in the country.” It makes sense to extrapolate that the students who occupy the top and want to stay at the top of the top would adopt a cut throat nature. But having f inished three quarters of my f irst semester at the law school, I’m not convinced.

Everyone I’ve met thus far at the law school — fellow 1Ls and upper years, f irst generation students and students with family lines of law yers, and people who share my beliefs and those who dif fer — have all been eager to share resources, provide advice, and generally be kind.

Although the Faculty does not currently allow recording of lectures, I’ve found that students in my class are more than willing to share their lecture notes if you happen to miss a class.

With exams just a month away, I’ve already received many offers by my peers to share their outlines and maps. The Students’ Law Society is also brimming with study materials provided voluntarily by upper year students.

Beyond resources, however, the students here are very open about the dif f iculties of

law school and take action to provide support to one another. I’ve personally benef ited from the many mentorship opportunities the Faculty provides, including the peer mentorship program, the academic success program, and the peer mental health support program. In all these programs, upper years volunteer their time and expertise to assist 1Ls in their transition to law school.

Outside of school, my peers have been earnest in getting to know one another, which can be dif f icult when starting a new program during a pandemic. Nonetheless, students in my class have created inclusive group chats, formed study groups, and invited each other to virtual hangouts.

Though many of us haven’t met in-person, we’ve become more than just a black screen

on Zoom to each other.

Sure, students here are graded on a curve which can make it compelling for students to withhold resources and actively compete against one another to ensure they’re within the top 15% of their class. But in reality, students here seem very willing to lend a helping hand to any classmate in need.

Forging friendships rather than making enemies may in fact be a better strateg y to perform well at law school.

There will always be some students who are solely here for themselves, but that is likely the case in any law school, not exclusive to the University of Toronto. So while it may seem like U of T Law is full of snakes, I’m happy to share that at least my experience has been the opposite.

With Amy Coney Barrett’s Confirmation, the Infection Became Complete Reflections on a diseased democracy AVNEE PARANJAPE (3L) With a leader refusing to relinquish his grasp on authority after a def initive election and an uncontrolled virus ripping through the population at a rate of nearly 2000 deaths a day, America has become unrecognizable.

But if you’re surprised, as the smug refrain goes, you haven’t been paying attention.

In the bleary aftermath of an election day stretching improbably over 107 hours, it may be challenging to cast one’s mind back to the September passing of Justice Ruth Bader Ginsburg. Yet, in the following frantic weeks, it became clear that authoritarianism had now invaded all three branches of American democracy, destroying it from within like an autoimmune disease. In those weeks, Senators abandoned principle and precedent in favour of partisanship, conf irming with astonishing eff iciency a replacement Supreme Court Justice in the waning days of the presidency, thereby securing a 6-3 conservative majority on the bench for years to come.

Justice Ginsburg was not even buried before Senate Majority Leader Mitch McConnell pitched Amy Coney Barrett to the President as a replacement. In a farce too ridiculous for a sitcom, the nomination announcement hosted at the White House — during a pandemic — became a superspreader event. Most egregiously, when Justice Barrett was hurriedly conf irmed by a margin of 5248 votes in the Senate, she became the f irst Supreme Court nominee since 1869 to be conf irmed without a single vote from the opposing party.

Amy Coney Barrett’s nomination raised a

number of red f lags. For progressives, Justice Barrett’s past writings and decisions represented a threat to reproductive freedom, LGBTQ2S+ rights, the Affordable Care Act, and gun control. Her resume was on the thin side: while judicial nominees are asked to detail 10 prior cases they have worked on, in her 2017 conf irmation hearing for the 7th Circuit Court of Appeals, she could only remember three from her two years of practice. During her Supreme Court conf irmation hearing, she refused to answer a question on whether presidents must commit to a peaceful transfer of power. Most troubling was the fact that the presidential election was mere weeks away, and she could be conf irmed just before the government lost the mandate to make another lifetime appointment to the highest court in the land.

The 52 Republican Senators who voted to conf irm a new Supreme Court Justice eight days before the presidential election paid no mind to the unprecedented timeline, the nominee’s relatively weak credentials, and the sheer hypocrisy of having denied the opportunity to Obama’s SCOTUS nominee nine months before the election based on the notion that the electorate should have a say.

So much for the will of the people, the separation of powers, and public trust in the judiciary.

“They won’t be able to do much about this for a long time to come,” McConnell gloated on the Senate f loor. Cementing a conservative judiciary triumphed above all other values: with Barrett’s conf irmation, the found-

ing principles of the American republic gave way to the will of the autocrat in the White House.

In so doing, the Senate enabled the slow creep of the authoritarian disease through the executive and the legislative and into the judiciary. Less than two hours after the vote, Justice Barrett was sworn in to the Supreme Court under bizarre circumstances, in a ceremony held at the White House under the cover of darkness at 9 p.m. “A judge declares independence not only from Congress and the President, but also from the private beliefs that might otherwise move her,” Justice Barrett incredibly — ludicrously — proclaimed from the South Lawn of the White House, minutes after Senators sealed her rushed conf irmation vote. Evidently, irony died alongside the American democratic dream.

As I watched Justice Barrett posing with the President on a balcony above a cheering crowd, complete with glaring stage lights, a triumphant fanfare, and an excess of f lags, it felt like watching a sinister parody of American patriotism: bloated with pageantry and power, exuberantly performative in its nationalism, and fatally exploding in a brilliant spectacle.

When aff licted with an autoimmune disease, the body’s own defensive and protective mechanisms are recruited in an assault against the integrity of the whole. It is this character that makes these diseases particularly insidious and diff icult to treat. Similarly, it is this character that we have wit-

nessed as we watch America’s emblems, patriotic myths, and fundamental institutions become perverted against the very principles upon which the republic was built: equality, liberty, and democracy. The Constitution is totemically invoked by legislators while voter suppression continues in the background. Chillingly altered American f lags f ly high at rallies that foment hatred and feed a sickening personality cult.

Countless surrogates — from politicians, to public servants, to media f igures — enabling the President’s desperate grasps at power under the guise of preserving electoral integrity is merely a further symptom of a disease that has been spreading for years, coming to its most virulent potency in the past months. And unlike the virus that has already killed over a million globally, there is no discernible vaccine around the corner.

But what to make of Amy Coney Barrett?

Propelled inelegantly to her post in the last gasps of an incompetent presidency, her tenure risks becoming another stain on the shroud of a dying democracy. Yet she bears an opportunity to rehabilitate public trust in the American judiciary, to remind the country that the judiciary can remain an impartial arbiter of the law, regardless of the political forces inf luencing its composition.

Americans can only hope that Justice Barrett holds true to her words and her oath.

But, as the Republican Senators who swore to uphold the Constitution have shown us, oaths, like words, are cheap.

OPINIONS

24 | November 25, 2020

ultravires.ca

A Different Perspective on Academic Stress Hey, at least it’s not workplace stress!

JENNIFER SUN (1L) I vowed never to go back to school after f inishing my graduate studies. Yet here I am, just a few years after working as an urban planner. Despite the academic stress we all inevitably feel, the weight on my shoulders has lessened considerably compared to when I was working earlier this year. With f inal exams fast approaching, I thought this was an opportunity to share my thoughts and hopefully ease some people’s stress. If anything, this piece will serve as a reminder of my positive state of mind in the event I fall into a never-ending spiral of anxiety later on.

The mountains of case readings, the terror of cold calls, seemingly smarter peers, grades on a curve, and not to mention the COVID-19 pandemic make none of this year easy. How can this not be stressful? It is, but I would like

to offer my perspective on this stress.

I comfort myself in knowing that I am stressed because I chose to be here. I want to be better. I want to learn more. I am doing this for myself. And to me, knowing that any failure on my part only affects myself is a huge relief. Like many, my worst academic fear is an LP. However, I know how to avoid that: ask questions, study harder, discuss with peers, and etc. There are so many ways to prevent a poor outcome.

The same couldn’t be said for work. I worked in consulting with a dynamic similar to the legal profession. I remember there were days I went in prepared at 9 a.m. just to have my fully-planned work schedule thrown out the window because of some urgent client requests. I also remember when we headed

into negotiations on behalf of our clients without anticipating the outcome. The uncertainty was nerve-wracking and there was nothing I could have done to mitigate that.

The worst part was that I knew the outcome was not just for myself. I was working for my f irm and my clients. Everything I did impacted them. A big enough mistake could create irreversible damage without remedy.

The stakes were so much higher.

That world is not behind me. That overwhelming level of responsibility and accountability will undoubtedly return after law school. In the meantime, however, I am at ease. I am no longer kept awake at night worrying about how to approach my client the next day to let them know that there is no perfect solution to their problem, that we actually

disagree with their opinion, or that we need an extension to their deadline. Now, I just need to finish my readings, prepare for the next class, and maybe embarrass myself a little when I can’t answer a question during the cold call.

When I don’t receive the best grade for an assignment, I know I can improve on the next assignment or the final. I will have so many chances before graduation to make it work.

For the record, I loved what I did at work.

Nonetheless, my craving for knowledge and intellectual challenge drove me here. If there is the added bonus to have a break from the overwhelming stress of work, then all the better. I would take academic stress over that any day. Let’s hope I actually remember this mentality after my f inal exams and begin a fresh semester.

Eggnog: Eggcellent or Not All It’s Cracked Up to Be? Editors’ Corner VIVIAN CHENG (2L), ALEXA CHEUNG (2L), ANGELA GU (2L JD/MBA), ALISHA LI (2L), ANNECY PANG (2L), AND ADRIENNE RALPH (2L) Welcome back to the monthly article where members of the Senior Editorial Team espouse their views on a controversial foodstuf f. This month, given the approaching holiday season, we address a quintessential winter drink: eggnog.

Annecy Pang I got two little bottles of eggnog at the St. Lawrence Farmers Market because there was a buy one get one free deal. Later that evening, I poured some out and added a healthy amount of rum to the cup. It was creamy and tasted vaguely egg-like. I’m not sure if this is an eggnog-specif ic issue, if I didn’t shake the bottle enough, or if it’s because this eggnog is made from non-homogenized milk, but every now and then I would taste a slippery mass in my gulp. It reminded me of getting pudding as a topping in bubble tea: it’s mostly liquid but the solid pieces surprise you. This eggnog experience was just okay. I’m a little bit fearful of the texture so I haven’t opened the second bottle yet.

Adrienne Ralph Like A lexa, I have also never tried eggnog, and don’t really feel any particular inclination toward trying it. I was not a fan of eggs when I was younger, so the concept always icked me out a little. Even now as a connoisseur of Eggs Benny, I still can’t get interested, much to the joy of my lactose intolerant stomach. A lso, whoever came up with the name “eggnog” in the 18th century def initely didn’t have a marketing degree.

Vivian CHeng

I have never tried eggnog and I have no desire to try it. For a winter-y alcoholic drink, my cocktail of choice is a heavily spiked apple cider.

I dif fer on all of the perspectives here.

Eggnog is delicious — it’s sweet, rich, smooth, and creamy. It reminds me of a lot of other holiday drinks that are heav y on milk products. Since I make my own eggnog, I modify it to my desire and strike a balance between richness and sweetness.

Personally, I think it’s everything you’d want in a holiday drink. There’s also a kick added with the alcohol. What’s not to love?

Angela Gu

Alisha Li

Alexa Cheung

EGGNOG: A HOLIDAY STAPLE THAT CAN’T CAPTURE OUR HEARTS

Flaky egg tarts are great. But eggnog, not so much. Eggnog is far too saccharine for my taste. I’ve picked up the habit of bestowing the compliment of “not too sweet” on my favourite desserts, and eggnog fails to spark joy in its unadulterated form. It’s much better stirred into a glass of milk.

I’m a fan of egg y and custardy desserts.

It’s too sweet.

DIVERSIONS

ultravires.ca

November 25, 2020 | 25

Law Follies 2021 Update No press interns were harmed as a result of this announcement GIANCARLO DISCENZA (2L), ZAC KROLL (3L), ASHLEY QIAN (3L), AND CLAUDIA SHEK (3L) This semester, many of you have asked about our plans to present Law Follies amidst the ongoing COV I D -19 pandemic.

Some have expressed fears that we would pr ior itize student health over the law school’s annual comedy rev ue.

Follies is now proud to announce that, despite COV I D restr ictions, the show must go on. Thus, we have established a partnership that w ill allow students to enjoy a night of laughter and revelr y in a pr ime location.

Law Follies 2021 w ill be hosted at one of the most prestig ious Four Seasons locations in the Toronto metropolitan area. Just steps away from Queen Street East* and in close prox imit y to attractions such as Wet’n’Wild Toronto and Clairev ille Ranch, the park ing lot of Four Seasons Site Development Ltd. is sure to prov ide showgoers w ith the opportunit y to enjoy live, open-air comedy at a safe social distance from the heart of Brampton.

The location announcement comes as a response to student cr iticisms from years pr ior. Because of past complaints about the distance students had to travel on the

T TC, our production team has selected a location which w ill require students to spend less time on the T TC and more time on Brampton public transit. Furthermore, students concerned by the v ulgar it y of past shows w ill be happy to learn that this year’s Follies w ill feature innovations in live censorship, w ith randomly selected jokes being drowned out by f lyovers from nearby Pearson International A ir port.

To assuage any remaining concerns, we have collected the follow ing testimonials: “T he staf f assured me that the facilities are totally COV ID safe, as nobody has actually set foot in this neighbourhood for several years.”

– Zac K roll, Follies Creative Director “Worthy of hosting some of Canada’s brightest future leaders, featuring great networking opportunities for those interested in labour and employment law.”

– Giancarlo Discenza, Follies Head Wr iter “It was cheap.”

– BLG

THE FOUR SEASONS, WHERE FOLLIES 2021 WILL TAKE PLACE. PHOTO CREDIT: GOOGLE STREET VIEW

In the event that the venue is doublebooked for Doug Ford’s impending COV I D lockdown system version 6.4 (now w ith tw ice as many classif ication colours), Follies w ill proceed w ith an online show in mid-March, w ith further details to follow. *A K A Peel Reg ional Road 107. Not to be confused w ith the other, infer ior Queen

Street East, which does not prov ide access to Brampton at all.

Editor’s Note: Zac Kroll and Claudia Shek are the directors of L aw Follies. G iancarlo Discenza and Ashley Qian are the head writers of L aw Follies.

A Recap of the 2020 U.S. Election As told through the five stages of President Trump’s grief: Denial, Anger, Bargaining, Depression, and Acceptance HARRY MYLES (1L) November 3 has come and gone, and now we must start to pick up the pieces. To say this American election cycle has been less than conventional is an understatement. To begin: we’re in the middle of a pandemic.

Next: the election results took four agonizing days to conf irm. Finally: the sitting President has (unsurprisingly) refused to recognize the results and instead seems bent on delegitimizing the American electoral system. But how has President Trump been doing? His behaviour over the past few weeks can be described through the f ive stages of grief: Denial, Anger, Bargaining, Depression, and Acceptance.

Stage 1: Denial Night of November 3: in a stunning turn of events, President Trump did not win by a landslide before the mail-in ballots were counted. The election was left undetermined and the world held its breath.

November 4: key states, including Nevada, Pennsylvania, and Georg ia, were still undecided. In response? Trump tweeted “ We are up BIG, but they are tr y ing to STE A L the Election. We w ill never let them do it. Votes cannot be cast after the Polls are closed!” Welcome to the f irst

stage of gr ief: Denial.

November 5-7: President Trump continued to spiral through denial, posting what seemed like 50 tweets an hour and racking up an equally astonishing collection of f lagged tweets for misleading information.

As Trump’s lead in the battleground states began to slip, so did his grasp on reality.

Breitbart articles populated his Twitter page mixed with Fox News clips and the occasional “STOP THE COUNT!”.

Stage 2: Anger November 7: the election is called for former Vice President Joe Biden. A travesty for President Trump. Let the Anger stage commence.

A press conference was called immediately at the Four Seasons Hotel to respond to the ‘clear’ electoral fraud that had occurred. Correction, at Four Seasons Total Landscaping where you can browse for fertilizer, watch Rudy Giuliani spew conspiracy theories, and pick up an adult book or arrange a cremation at the businesses next door. Did a member of the President’s legal team actually arrange for a press conference to be held in the parking lot of a landscaping f irm? Yes. Welcome to 2020 everyone.

November 7-10: let the tweets continue!

Trump leaned into the A LL CA PS tweets following the election loss and proclaimed “I WON THIS ELECTION, BY A LOT!” on November 7, truly embracing the Anger stage. Three days later, it seemed like Trump may have been prepared for the next stage of grief: Bargaining. He tweeted on November 10 “WE W ILL W IN”, a stark shift from his previous declarations of victory.

Stage 3: Bargaining November 10 -17: false alarm, Trump was not prepared to bargain with his grief. On November 15, President Trump tweeted “I WON THE ELECTION” and continued to ram through his lawsuits and recounts. The President proceeded to claim the Radical Left stole the election and quoted Tucker Carlson on November 17, tweeting “DEA D PEOPLE VOTED.” Forget about faulty ballots, now we have ghosts to worry about?

This election just keeps getting worse and worse. It seems like Trump might skip the Bargaining phase and move straight into Stage 4, Depression. However, given his string of business bankruptcies, it seems like Trump may not be that great at bargaining anyways.

Stage 4: Depression According to ‘insider sources’, President Trump has been quite withdrawn since losing the election. Besides Twitter, he has not made many public appearances and seems to be hunkering down in the White House.

Perhaps he is coming to terms with his own defeat or perhaps he simply can’t be bothered to run a country that doesn’t like him.

Either way, it seems like he might cycle through the Anger and Depression stages for quite some time until the f inal lawsuit gets quashed.

Stage 5: Acceptance Hopefully we’ll hit this stage by January 20, 2021, but based on how things are going, it seems like Acceptance will elude President Trump for the rest of his life. In all seriousness, this refusal to accept defeat and allow for a peaceful transition of power is a terrifying threat to the American electoral system...but there is one benef it that came out of this circus. We had the privilege of seeing Rudy Giuliani return to the courtroom after almost 30 years. If Rudy’s performance didn’t put a smile on your face and inspire self-conf idence in your own legal fortitude, I don’t know what will.

26 | November 25, 2020

DIVERSIONS

ultravires.ca

‘Twas the Night Before Exams A wholesome poem for this exam season HARRY MYLES (1L) 'Twas the night before exams, when all through Flavelle, Not a student was sleeping, not even a 1L. The outlines were writ with the utmost of care, In hopes that an HH would soon prevail.

JENNIFER SUN (1L)

The profs were nestled all snug in their beds, While hypotheticals danced in their heads.

In Laskin, I sat down for a long all-nighter, To try to work out this federalism matter.

When on the back lawn there came a pitter-patter, I leapt from my chair to see what was the clatter.

I ran to the window and peered outside, And boy did my eyes sure grow wide.

To my complete surprise, there was Dean Iacobucci, With a bundle of outlines and a side of sushi.

The Dean had come to save the night, And now I knew everything would turn out alright.

Contracts, Torts, Admin, and Crim all lie in wait, On Examplify when it’s your given date.

But to all the 1Ls, 2Ls, 3Ls, and 4Ls, too, On the night before exams, Dean Iacobucci will surely come through.

JENNIFER SUN (1L)

DIVERSIONS

ultravires.ca

November 25, 2020 | 27

What to Watch: The Best Reality Dating Shows for This Winter Make it through the winter with the power of love, loss, and drama HARRY MYLES (1L) With exams approaching, the start of our six-month w inter, and a looming lockdown, odds are we need some way to pass the time in the coming months. Don’t fear, Ultra Vires has you covered! To help get you through this w inter, I’ve collected some of the best (well, most enjoyable) realit y dating shows from recent years. W hat better way to spend these dark days (f ig uratively and literally) than watching strangers compete for love in wonder fully warm tropical locations? In no particular order, these shows are sure to g ive your brain a break as you stop think ing about stare decisis and, instead, ponder if Tayshia w ill ever f ind love.

Disclaimer: These choices are from my personal watch histor y which tend to include North A mer ican and Br itish productions. I’m still explor ing the many dating shows out there, so I hope to have a more internationally-represented list soon! U V is also not sponsored by any of the following productions, although we are open to receiv ing any and all free merch ( Love Island personalized water bott les, I’m looking at you).

The Bachelorette (available through CityTv.com for free, with ads) A tr ied-and-true classic, T he Bachelorette is a go-to show on the realit y-t v circuit. For those that don’t know, T he Bachelorette and its companion show, T he Bachelor, involve a group of contestants competing for the affection of the bachelor (or bachelorette) w ith the hopes of secur ing a marr iage proposal. This season of The Bachelorette has

been quite the spicy ordeal. The season began f ilming in March w ith Clare Crawley, a long-time Bachelor Nation contestant, but then the pandemic hit! W ho could have expected that? Filming initially stopped and recommenced later in the summer at an isolated resort. The season premiered October 13 and introduced us to Dale, the former football player w ith a w inning smile. Clare fell in love almost immediately and they were engaged by episode three!

Tayshia Adams then took over as the Bachelorette and it seems like Tayshia respects the “process” a litt le more than Clare did, so we probably won’t see an engagement soon but there’s sure to be plent y of drama.

Love Island (British Version; any season, although I personally prefer Season 3) Next up, we have another classic. L ove Island is an obsession across the pond and was recent ly introduced to the North A mer ican market w ith L ove Island USA in 2019. However, if you want the true L ove Island exper ience, you must stick w ith the or ig inal Br itish program. To set the scene, imag ine a group of twent y-somethings living in a v illa 24/7 attempting to couple up w ith each other. Oh, and the w inning pair receives a large sum of money. In the UK, the show airs ever y day, so there are plent y of episodes to watch (across the six seasons, there are 244 episodes). Sit back, learn some Br itish slang, and feast on the inev itable passive aggressive showdowns.

Too Hot to Handle (available through Netflix) Many of you may have already seen Too Hot to Handle when it came out this Apr il.

However, if you haven’t seen this Netf lix Or ig inal yet, I recommend it for a quick eight-episode commitment w ith many interesting characters as the ver y diverse cast includes Br its, A mer icans, a Canadian, an Australian, and an Ir ishwoman.

The concept of Too Hot to Handle is part ly inspired by the Seinfeld episode “The Contest” and involves the contestants forming couples w ith the hope of splitting a cash pr ize in the end. But wait, there’s a catch! A ny form of sexual activ it y reduces the overall cash pr ize, so each k iss or caress w ill literally cost you. With such high stakes, how can you stay away?!

Are You the One (available through MTV, lol) For those of you that enjoy probability, Are You the One is the show for you! The premise: the producers pair up contestants using a top-secret matchmaking algorithm.

The contestants then live together and try to f ind each other’s perfect matches; if the entire group f inds their partner, then they share a whopping $1 million. The best part?

When the group thinks they’ve found a match, they send the couple into the Truth Booth where a biometric scanner tells us if they’re meant to be. If not, the couple is sent back and the group has to try again, narrowing down the possible pairings each time. Being American, Are You the One has

some high-octane drama compared to the more reserved Brits on Love Island. Crunch the numbers and try to f igure out everyone’s match! If you can do this, I’ll personally give you $1 million (generally, there are over 30,000 possible combinations). Are You the One gets bonus points for breaking the typical heteronormative model by including exclusively LGBTQ2S+ and sexually f luid contestants on the eighth season.

Honourable Mentions The follow ing are a collection of shows I have not personally watched, but have heard many good things about (my eternal thanks to ever yone who of fered recommendations for this list).

L ove is Blind ( Netf lix): Part social exper iment, part realit y show where people f irst speak to prospective partners in an enclosed pod before seeing them. Ever yone’s conventionally attractive, though Indian Matchmaking ( Netf lix): A docu ser ies that follows famed matchmaker Sima Tapar ia as she helps young Indians, both in India and abroad, f ind partners for life Ex on the Beach ( M T V ): Based on a Br itish version of the same name, the show features other realit y T V stars liv ing on a beach w ith their exes Dating Around ( Netf lix): A n in-depth exploration of human connection as one person goes on dates w ith multiple dif ferent people and must choose one person to go on a second date w ith L ove on the Spectrum ( Netf lix): A more wholesome dating show w ith less drama but more compassion

Intra Vires

Totally real news from lockdown #2 ADRIENNE RALPH (2L)

Faculty of Law Adds 47 New Course Offerings A fter receiv ing many complaints about the inadequate course of fer ings for the 2020/21 school year, the Facult y of Law is adding 47 new courses. These were announced in an email sent to students at 11:27 p.m. on Fr iday, November 13, ask ing students to indicate their interest by 11:59 p.m. on Fr iday, November 13. They include partnerships w ith schools across the globe, w ith some classes starting as early as 3 a.m. Toronto time. Exciting new of ferings include Pandemic Law, Law and Pandemics, and Pandemics and the Law.

CORRECTION: Love Island Season 3 is Not the Best

Diversions Reigns Supreme

Despite being the entire backbone of U V ’s Diversions section this month, A ssociate Diversions Editor Harr y Myles (1L) made a grave mistake in his piece “ W hat to Watch: The Best Realit y Dating Shows for This Winter.” Season 3 of Love Island UK is objectively not the best season, as conf irmed by several experts. Diversions Editor and dedicated Love Island UK binger Adr ienne Ralph (2L) explains: “I could barely make it to the f inale of Season 3; Season 2 is clearly the most elite. Cultural commentar y on double standards, well-deser v ing w inners, and cheaters getting yelled at in posh accents, what more could you want? Disclaimer: this cr itique is of ever ything about Season 3 except Islander Camilla Thurlow, who is a, if not the, top-tier Islander.” Further, according to a highly scientif ic article in Bust le, Season 3 ranks fourth out of the f ive seasons that had aired at the time.

For probably the f irst time in U V ’s histor y, Diversions is the section w ith the most pieces this month. 2020 has been a year of plot tw ists, and this may just be the biggest one. We are honoured and humbled to be in this position, and w ill be accepting any and all congratulations g ifts, just email editor@ultrav ires.ca to arrange deliver y.