Ultra Vires Vol 1 Issue 2: 1999 October

Page 1

The Student Newspaper of the University of Toronto Faculty of Law

Volume 1 Issue 2 5 October 1999 www .law. utoronto.ca/ultravires

Grand Moot a resoun.---

success

Wilson, Peacock, DeLuca and De Champlain argue sex tourism provisions BY }EFF TORKIN

& KATHY LIPIC

stigma.

From the moral high ground, counsel De Luca and De Champlain appealed to the Described by Dean Daniels in his Ope!Jing address as "the premier event of the court's sense of compassion for the vulnerable position of children whose concerns are mooting season," this year's Grand Moot (held at 4:00 p.m. on 29 September) drew an au- "all too often swept aside." One of the more memorable messages of the evening was dedience truly reflective of an event held in such livered by De Luca who, quoting Hilary high esteem. In fact, it was standing room only for those who didn't arrive at the Moot Clinton, stated that "it takes a village to raise Court Room early enough to haggle for a seat a child" and added that "today we live in the with students leaving Professor Drassinower's global village." At a McCarthy Tetrault-sponsored wine first year property class. At the Supreme Court of Flavelle, the and cheese following the Moot, the circulatcase was presided over by Mister Justice Frank ing panel of JUStices had only glowing comIacobucci of the Supreme Court of Canada, pliments for the Moot participants. "It was a Mister Justice Robert Sharpe of the Ontario delight for me to come and sit on the bench," said Justice lacobuccr. He continued, "it's Court of Appeal, and Madam Justice Gloria Epstein of the Ontano Superior Court. Coun; striking to me that law students can come up sel for the appellant were Andrew Wilson and to that level of ability and demonstrate such Noel Peacock. Counsel for the respondent knowledge and po1se in dealing w1th queswere Kelly De Luca and Karine De Champlain. tions from the bench." Justice Sharpe agreed - --nT.,.,he Moot, 1ntroducect by Lisa Tomas, Ch1ef wholeheartedly: "I thought It was a gfeat moot THO lfiVfit or ort~r ZJrgument ve<y h gn. ~ trte"MC>OFC5l'Ji'f; ~eart With legal Justice Epstein said, "I was blown questions relating to the sex tourism amendaway by the students' poise under pressure. I ments to the Criminal Code. can appreciate the pressure on the mooters, The scenario involved a Canadian because as a trial judge sitting among juswoman, Monica Springs, who, while travelling on business in a foreign country, engaged tices from the Court of Appeal and Supreme in sexual relations with a local thirteen-year Court, I feel like each and every move I make old named William. (For those who missed is being equally scrutinized." Many first year law students were simiout on the fun, this was just the first of the Monica/Bill references.) Although the age of larly awed by the confidence and preparation consent for sexual relations in the country was demonstrated by the four members of countwelve years, the age of consent under Cana- cil. When asked what impressed her most dian law is fourteen. Several months after her about the Moot, first-year student Jen return to Canada, Springs was arrested by the Weinberger replied, "both s1des argued in an RCMP, who had been presented with the cli- extremely illuminating way and I was really ent list of a child sex tourism operation from impressed with how well prepared they were to respond to questions from the bench." the foreign country naming her as an offender. Several first-year students, however, At trial, Springs brought two motions. First, she claimed that Flavelle did not have were disappointed w1th the Moot. There appeared to be somewhat of a consensus that JUrisdiction over her action. Secondly, shearwith only three weeks of law school under gued that s.150.1(4) of the Criminal Code violated her Charter-guaranteed rights. These their belts, the Moot was difficult to follow motions were granted in the first instance but and, correspondingly, "just a little on the dull side." It seems that for those students whose appealed by the Crown and overturned. The performance of all the mooters favourite court room moments include Jack was superb and, in the words of Just ce Nicholson's declaration that Tom Cruise "CAN'T HANDLE THE TRUTH" in A Few Good Iacobucci, "brought credit to the law school." Men, or John Cage's indiosyncratic clicking Wilson argued a d1fficult position persuasively. Under tough judicial scrutiny he argued that noises on Ally McBeal, their first face-to-face a coherent reading of the Code required "read- encounter with the practice of Canadian law ing-In" Double Criminality. Peacock defended was just too tame. Perhaps when their day the accused's nght to a defence based on a comes to moot, and Justice Iacobucci desubjective standard where the offence was ac- mands from them "a final pearl" to leave the companied by an extremely high level of bench with, the adrenaline rush will finally kick in.

w-

Best free stuff at the Job Fair 1. Fraser Milner stainless steel coffee mug 2. Cassels, Brock & Blackwell flashl1ght 3. McM1IIan Binch loot bag (including floppy disc case and fndge magnetl

4. 5. 6. 7.

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Above: Mootcrs Kelly De Luc;1, Noel Peacock, Andrew \Vibon and Kanne De.: Champlam, assisted by the ~pirit of former Dean Cecil Wright. Below: justices Gloria Ep,tcin, Fr:mk Iacobucci :md Robert Sharpe.

Hot tiJnes at Swnmerfob Fair BY LoRI STEIN

24 September 1999 - Second-year law students descended upon the Toronto Hilton for the second annual Summer Job Fair. Over thirty prospective employers attended, crowding the convention room to its capacity. As expected, the majority were downtown Toronto law firms; however, representatives from the Ontario Court of Appeal, Ministry of Health, and Department of Justice rounded out the options. Christine Burnell, the Faculty's Career Officer, was delighted by the excellent turnout and success of the event. She described the Fair as ''a fabulous opportunity for second year students interested in working in a Toronto law firm this summer to meet firm representatives and current articling students. It was also a great way for students to obtain information that isn't in a brochure or on a web s1te." Many students agreed, and took advantage of the Fa1r as a chance to get a "feel" for the strengths and cultures of different firms. ~I actually thought it was a bit too

short," confessed Jason Brock. "By the time I had talked to four or fiVe firms, it was over." Other students got the1r fill and were ready to depart at 6:00 p.m. "I thought it was less overwhelming (than Art1cl1ng Day last year)," commented Penelope Hansen, ''but after a white 1t got oppressively hot." Some students fell that the Job Fair was really superficial - an opportunity to "schmooze" w1th lawyers and display a phony grin. "I thought the whole thing was counterproductive," Jessica Smith commented. "I don't see how sending 150 of us in suits into a room that small is conducive at all to establishing some kind of meanrngful dialogue." Students were also put off by the class lists behind the booths at some firms which representatives used to check off names of students who had visited them and poss1bly write comments. Many were content to grab firm brochures, pens, and T-sh1rts, gobble down a few cookies, and head out for beers afterward. While opinions on the usefulness of the Fair varied, all agreed that the coveted Fraser Milner coffee mugs were the event's highlight.


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2

Ultra Vires

No room at the·inn This fall marks an all-time low for student housing availability at the University of Toronto- a problem affecting many students here at law school. Much of the problem is attributed to the delays in construction of the new graduate residence at Harbord and Spadma. Originally scheduled to open Hs doors to incoming students on 1 September 1999, "moving day" for residents has been postponed several times. "With every followup phone call, the moving date gets later," remarked first year law student Donna Aronson. "First November, then midDecember...Now they're telling us January, but when I look at the building, I find it hard to believe." Even when the new building is complete, Glen Greer of U ofT Housing Services predicted that next year, only twenty-eight spots will be available for law students. If Toronto's pricey rental climate remains inhospitable to law students on tight budgets, demand IS likely to exceed supply again next fall. To accommodate the housing shortage, the Faculty of Law made the decision to

re-open two of the fou r law houses that were this house was 1n such poor condition it was retired as a res1dence. reportedly turned over to the University's real estate division in September, allowing for Temporarily-housed law students are anxious to move into their new home, but U housing for nine first-year law students. ofT has given first priority to the reported one Victoria College lent its residence house on Charles Street to the faculty, housing an addihundred undergraduate students currently livtional nine students. Thirteen law students ing in hotels. While law students respect the were temporarily placed in the old graduate school's priority system, this arrangement was residence on St. George Street, until the new not anticipated in a facility reserved for graduresidence opens. ates. "It's going to be difficult at exam time to While some students cling to the be living with a bunch of frosh," one student speculated. hope that in January, the new building will really open its doors, housing offers were withMany first-years were also disapdrawn from others. One first-year law stupointed in Housing Services' failur~ to live up dent recalls being placed first on the waiting to its promise to group law students together list for the graduate residence. A housing adin suites in their temporary accommodations. Housing Services also seems to be backing ministrator told him not to worry, he was "virtually guaranteed" a spot. In mid-summer, the away from its guarantee to pay all moving tentative offer was rescinded, and the student costs of students moving into the new building. "They l1ed to the students," remarked a was left in search of independent housing. Several other studen ts who were allotted member of the school's administration who rooms in the new residence were simply told wishes to remain anonymous. "It was to "find accommodations" for the months prior awful. .. They're lying to them still." to the building's completion. Others are stayContributing to the on-campus housing with family in the city. One group is residing problem are Toronto's record low vacancy Ing in a former law house under a separate rate and prohibitively high rents since the new agreement with the University. A member of Tenant Protection Act removed rent controls Student Hous1ng Services reports that because for new tenants. Suitable alternative housing

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Law student discusses Pro Bono summer in Thailand BY EMILY WINTER

While the Canadian legal community was working through the provisions of the new young offenders statute, two other students from the Faculty of Law and I were dealing with many of the same issues this summer in Bangkok, Thailand. We were sent for ten weeks by the Law School's Bangkok Working Group to assist a non-governmental organization called the Human Development Foundation in the establishment of the first legal clmic for street children in South East Asia. Although neither the other students, Niamh Harraher and Diya Nijhowne,nor I speak a word of Thai, we were welcomed into the Human Development Foundation which was established over twenty five years ago The Foundation operates over thirty schools, an AIDS hospice, four children's homes and vanous other programs. We were given a room, with much needed air conditioning, in the home for little girls with whom we played and danced on many evenings. During the ten weeks we spent in Thailand, we worked with the Thai legal team in the slums of Bangkok. Our work involved setting up procedures, promoting the chn1c and mvestigating the situation in Thailand for children. We visited schools, NGOs, embassies, government officials, courtrooms,

laws already on the books. My point isn't that Canada's social problems are dire or that they reach "third world" levels. It certa1nly isn't my mtention to imply that the problems facing the residents of Bangkok's slums and sex districts aren't huge. My point is that one shouldn't be too quick to Judge the legal and soc1al systems of other countries, particularly those typically painted as having major problems. The legal and social problems being faced by the legal clinic we worked with in Bangkok, although dire, are in many ways just magnifications of the kinds of problems we face here in Canada. The problems with poverty, drugs and prostitution in Thailand are certainly not insignificant, but there are dedicated, intelligent people there working to improve the situation. There is a lot to be learned from working alongside these individuals.

The Bangkok Clinic Working Group at the law school sprang from last year's Orientation Week Pro Bono Speaker, children's rights activist Peter Dalglish. A group of about thirty students worked with Pro Bono directors Catherine Bickley and Valerie Oosterveld to research Thailand's law, culture and legal issues and to investigate the possibility of sending students to work there over the summer. Funding for the internships was provided byTory Tory Deslauriers & Binnington and the law school. This year the Working Group hopes to join with UNICEF to conduct research on children's criminal justice issues in Thailand and the region, bring in speakers, hold fundraisers and send more students to Bangkok next summer. All students are welcome to join. Contact Emily, Niamh or Diya for more detai ls, or look for not1ces in Headnotes about the next meeting.

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is difficult to find, and even harder to afford. A second· year law student tells her own story of finding a four bedroom apartment in the Yonge and Eglinton area where the landlord requested a minimum annumal income of $100,000 of any potential tenant. Both her parents and fiance were subjected to credit checks, were asked to show proof of income and had to co-sign the lease before she was approved as a tenant. "I know it probably violates the Human Rights Code, but I had no choice. Last summer I had to take time off work to look for housing and even then I barely found a place in time. It ended up being kind of a bad spot and I had to move out in December. I just wasn't going through all of that agam." Michael Finlayson, U of T's Vice President of Administration and Human Resources, described plans to develop a student housing project on the current Varsity Stadium Site which will house 500 U ofT students in lieu of previous plans for a luxury hotel and condominiums. However, this plan is still embryonic, and chances are that by the time' construction starts, most current law students will have graduated.

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Helping Bangkok street children McDonough

LaJv students confront campus housing shortage while administrationpromises spaces by winter m K ARLA O'REGAN

·- -----

What I discovered was that while there are ="""""~~certa1nly adults and children in Bangkok who deal with very harsh realities, their problems ra ise many of the same debates we face in Canada when dealing with our own poverty and drug problems. Residents of the slum communities the legal clinic serves are extremely poor, with extended families living in tiny homes just steps away from open sewers. It was not uncommon to see rats runn ing around, and the saddest looking dogs on the planet live in Bangkok's slums -I guarantee 1t. AIDS, drugs and prostitution are real problems in Bangkok. Thousands of adults and kids are sacrificed to them each year. The clients of the Legal Clinic are generally 15- and 16-year-olds who have been convicted for running drugs and are sittmg in children's prisons until someone gets them out. The youngest client, however, was an e1ght year old girl who was charged with possession of 1,800 amphetamine pills which she had been running for her mother. She was s1tting in what amounts to a prison, until the clinic staff had her released into their custody. While all of the above is true, the picture it paints isn't exactly a fair one. The people we met were very poor, but their homes were clean and and the~r community spirit was strong. They faced hardships, but we heard lots of stories of neighbours and family members taking in each other's children and helping each other. The Thai principles of sanuk - "fun" -and mai pen rai- "never mind" demonstrate the people's emphasis on enjoying what they have and working for today. The lawyers we met recognize where the laws need to be improved and there are lots of reforms in place to add to the many progressive

speaks at AIW Day "You-Te on your ow.n, J ack,, she says of today'sp olitics BY } AMEs

Alexa McDonough, leader of the federal New Democratic Party, spoke to one hundred students and alumni at Advocates for Injured Workers Alumni Day. The event, sponsored by Sack Goldbatt Mitchell, marked the 25'h anniversary of AIW and its predecessor, Union of Injured Workers (UIW). Brian Langille, professor of labour law, introduced Ms. McDonough. In her characteristic down-to-earth manner, she presented the NDP perspectives on many recent events in Canadian politics. She said that the dom inant message of today's political cl imate is: "You're on your own Jack." Of particular interest to the AIW crowd , she drew attention to recent changes in the Workers' Compensation Act , now the Workplace Safety and Insurance Act. The remova l of the word "workers" has symbolized the antilabour direction of the Harris government. Substantively, this agenda has meant, among other things, a $6 billion transter hom worl<.ers' insurance \unds \o reduce em9\o~er compensa\ion

Top left: Emily Winter, Diya Nijhowne and Niamh Harrahcr. Top right: Bangkok children Bottom: Bangkok's poverty.

Recycling at your clinic BY N ATASHA

AMorr

If you don't collect recyclable materials together properly (i.e., papers w1th paCITIZENS' E NVIRONMENT W ATCH pers, glass with glass), you are contaminating your recycling. When waste technicians Toronto is running out of space to put pick up a box of recycling that's contaminated, its garbage. In 1983, former Metropolitan it's likely going to end up in the landfill and Toronto began disposing of its garbage in the not the recycling depot. Keele Valley Landfill - 250 sprawling acres Rather than throw out paper that has m the community of Maple in the City of only been used on one side, collect it and use Vaughan. Fifteen years later, Keele Valley was it again. Consider all the drafts and internal nearing its capac1ty level. In order to buy· some time while new waste disposal strate- communications that are generated at your gies and sites could be developed, Toronto clinic - couldn't all of this paper be used as the main source of paper in your machines? began exporting 1ts waste. On 1 January Take a pile of one-sided paper and cut it into 1998, the first shipment went to Arbour Hills quarters, staple, and you've got free message Landfill in Michigan. pads. Currently, the largest material contriRemember that these paper products bution to landfills is something that everyone cannot be recycled: tissues, waxed paper, milk at law school likely uses an excessive amount and juice cartons with a waxy coatmg, foil of- paper. Next time you're recycling, rememwrap, and windows from boxes such as tisber the following tips: sues.

HoFFNER

pa~men\s.

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when the WSIB 1s dealmg Willi an unfunded liability and has meant tha! injured workers are experiencing increased resistance in having their claims met for time loss benefits and medical and vocational rehabilitation. On the recent smuggling of people from China to B.C., Ms. McDonough unequivocally described those messages calling for tougher immigration and refugee policies and for the return of the Chinese as "hate mongering." Ms. McDonough sa id that · Canada has been built on immigration and richly rewarded for it. Ms. McDonough spoke about the need for a greater sense of community among Canadians. Community means the greater sharing of wealth. It also means that governments cannot let market forces alone d1ctate the economic organization of Canada. Referring to the Air Canada/Canadian merger talks, Ms. McDonough called upon the federa l govern· ment to take a greater role and to protect noninvestor stakeholders, namely the workers and industries vulnerable in the reorganization. In the mid-19705, a group of U ofT law students and others formed UIW to help injured workers. Particularly vulnerable were those in the construction trades, who were not unionized, and also tended to be postwar immigrants. In the late 1980s, the UIW moved to Kensington-Bellwoods Commun ity Legal Services and changed its name to Advocates for Injured Workers. Just last year, AIW moved in with the Industrial Accident Victims Group of Ontario, wh1ch specializes in workers compensation. AIW's client base largely consists of non-unionized workers and recent immigrants, whose workplaces tend to be dangerous and provide little support for compensation claims.

CLUBS. & CLINICS


Ultra Vires

4

ULTRA VIRES

Editorial

Letters

Faster financial aid A lot of students here, especially those of us 10 f1rst and second year, came to U of T's law school because of 1ts h1ghly touted fonanc1al aid program, conf1dent that high tuItion fees would not be a barrier. This goal seems to have been met; many good things can be sa1d about the financial aid program here. The comm1ttee, composed of students, faculty and administration, seems to make fair decisions; few complaints have surfaced that the amount of fmanc1al a1d provided has been msuff1c1ent. The back-end debt relief program is be•ng put mto place, a laudable innovation that should ensure a large degree of career choice for indebted graduates (presuming that the details are someday publicized). However,real problems remain. Most of these problems stem from the Scotiabank loan program wh1ch the Faculty has chosen for students to use. Foremost among these is the timeliness of the awards. It may make sense for the admmistratlon to begin processing applications in late September, once things are running smoothly. For students, however, expenses accrue Immediately upon beginning school. Summer paycheques are quickly exhausted. OSAP. particularly this year, is often late. By the time applications begin to be considered, many students are in dire straits indeed. The process itself can take forever. Several students last year did not receive funds

unt1l the sprmg. Some students were rejected by Scotia bank outright, while others required guarantors to vouch for the debt. While the Faculty attempted- often unfortunately and unsuccessfully- to persuade Scotiabank to reconsider, some students floated in financial limbo. Wh:'e the blame for much of last year's problems rests w.th Scotiabank, those who found themselves m those categories last year are being asked to go through a seemingly futile process again this year, creating a frustrating and unnecessary delay in providing them with promised financial support. The process should change. If the Faculty truly has the confidence in its students that it claims to have, it might consider alternatives. Could the Faculty of Law borrow, in its own name, a large amount of money from Scotiabank and loan it, in turn, to students? Can the Faculty of Law not serve as guarantor of the debt, as an expression of its confidence in us, where Scotiabank requires a guarantor? Can the Faculty, at the very least, begm the process of evaluation early enough that students do not have to borrow from friends relatives, or use emergency bursaries befor~ their loans arnve? A dialogue needs to begin about the realities of being a student on financial aid. U ltra Vires encourages \he Faculty of Law to publicly contemplate some changes in the Financial Aid program.

Ultra Vires welcomes letters or articles on issues of interest to the law school community for possible publication. Please consult the masthead for details on how to submit your letters or articles.

Congratulations Congratulations on a fantastic publication - it is very professional in both its appearance and content. It's hard to believe you are not all in the field of journalism. But then again [Toronto Star publ1sherJ John Honderich is one of our grads. Jane K1dner Alumni and Development Officer

"The early bird catches the worm.'' Perhaps. But should we take even as anc•ent an adage as this at face value? Have you ever wondered how early is too early? Furthermore (and here's a tough one for the philosophers), what if all the birds after evolving into a more astute and com~etitrve speCies, start coming out early? What happens to the poor worms then? I don't know about you, but the pressure is on for me. Barely out of that hazy reonentat1on period where you juggle summer·has-come-to·a-brutal-end disorder with the usual whoopee-it's-good-to-be-back delirium, 1! suddenly hits you that your classmates are walking around in suits and bemg 1nterv1ewed for summer jobs in Boston or New York City. For next summer. !Note to self: Stop howling like a banshee, remove head from gas oven, and attempt to retain dignity by proclaiming allergic reaction to Amencan pop culture .... J Breathe. Now ask yourself: Is it commonplace to worry about obtaining a sum-

mer job eight months before the summer? More to the point, is it remotely normal? We all know what is really behind this summer job paranoia. The Career Development Office has reminded us often enough that these interviews are recruitment efforts. Firms will only hire you for the summer if they believe that you'll return to article with them (work With them, grow with them, live with them ... die with them?) Can this really be true? A brief look at the statistics says it all. Over 60% of students who summer at a firm end up working there after graduation. Hooray to the guaranteed hireback trap! Job security in exchange for your pledge to explore no other options and fall neatly into the firm's corporate mould. Coleridge's Xanadu (or Kane's? -Ed.) itself could not have been more beautifully advertised. For fairness' sake, let's look at it from the firms' point of view. They want the best students and they want them before anyone else can shake a fist full of money (read: $U.S ) at them. Before the students themselves know what they want. Before the stu-

EDITORIAL

EDITOR-IN-CHIEF

Melissa Kluger BuSINESS MANAGER

I am a second-year undergrad who has been aiming at law school (the LLB/ MBA program in particular) for some time, and was so happy to see the first issue of Ultra Vires! Congratulations on your hard work! Good luck with the year ahead. Congrats once again.

Rebecca Wickens

NEWS

EDITOR

Lori Stein EDITORIAL PAGE EDITOR

Brendan Van Niejenhuis

Regards, Carrie Lun

OPINIONS AND LEGAL ISSUES EDITOR

Ron Levy

Unsung heroes I am speaking not just for myself, but other administrative staff who did not get a mention on the "Who's Who" page of people who run the school [Ed: in the Orientation supplement, Sept. 8 issue]. We all work very hard- everyone from Cheryl _ 1n the Commun1cat1ons otf1ce to Dean Daniels at the top of the heap. It's a shame that only a few people made the list. Celia Genua Registration and Records Officer

COMMENTARY EDITOR

Linda Melnychuk

& CLINICS EDITOR Kathy Lipic

CLUBS

1

~

DIVERSIONS EDITORS _ Andrew Ashenhurst & Eileen Costello

& DESIGN Adrian Willsher

dents can promise their souls to a rival firm. Why else? Why not just g1ve up the pretence and simply hire us in June, right after first-year grades come out? That's all that counts anyway, isn't it? We accept the necessity of making these early decisions without question. In a law school that prides itself on diversity, whatever happened to following individual interests? In the nineteenth century, John Stuart M1ll wrote that the object toward which every human being must ceaselessly direct his efforts is the "individuality of development." A hundred years later, the message is still valid. It may be hard to swim against the tide, but it would be even harder to commit yourself too early to a plan that does not provide enough time for personal choice and exploration. We live in a time when all the birds come out early to prey on the worms. If you're not ready to be caught, don't panic. I believe Christopher Morley was right when he said "There is only one success- to be able to spend your life in your own way."

Through the backdoor in Baker Intemational human rights law in the Canadian courts: a discussion with Professor Craig Scott BY BoRIS NEVELEV When the Supreme Court issued its decision in the case of Baker v. Canada the result was unanimous: Mavis Baker, a Jamaican woman whom immigration authorities had ordered deported, could have her application, such that she m1ght be permitted to stay in Canada But Justices Cory and Iacobucci distanced themselves from the majority opinion of Justice L'Heureux-Dube, who relied in part on a relatively novel source 1n Canadian law - international human rights treaties wh1ch Parliament has not yet incorporated into law. Professor Craig Scott of the University of Toronto Faculty of Law acted as counsel for an intervener in the Baker appeal. Ultra Vires recently spoke with Professor Scott on the issues touched on in the case. UV: Professor Karen Knop has suggested that Baker may signal a paradigm shift in the way Canadian courts treat international human rights law. Do you agree that Baker is the beginning of a new trend?

CS: Baker raised two issues. The first was whether one can use interpretively international human rights treat1es that have not themselves been put in the Canadian legislation to constrain the exercise of discretion by an administrative official. While the [lnternationafl Convention on the R1ghts of the Child (CRC) did have some very important influence in L'Heureux-Dube's reasons, she was careful not to overemphasize it. Instead, she highlighted a whole set of values that she felt were already present in the legal system and that JUSt happened to overlap and draw sustenance from the CRC. The second issue was whether international human rights can flow into our system through the Charter as a vehicle of reception. This was the doctrine of the previous Supreme Court case of Slaight Communications. Though the Court decided that they did not need to touch the Charter in this case, L'Heureux-Dube took care to add to the Slaight Communications doctrine that mternational human rights law provides "a critical influ-

ence" on the content of the Charter. I would suggest that we should thmk of these carefully chosen words as a nugget. The question is whether the Court will make good on this evocative terminology in future cases. [. .. TJhough there are a lot of signals in Baker and, earlier, in Ewanchuk, that indicate that we may be on the cast of Professor Knop's reference to a paradigm shift, we won't know it until there are more cases in the ptpe line. Everything depends on the attitude and knowledge of judges. If judges are willing to engage the international human rights system, to learn about it, to change their decisions once they know more with the passage of time, then mternat1onal human rights can truly become a living law in Canadian law. Otherwise, we can get a lot of rhetorical references that are not formally necessary for the reasons but are there just as a window dressing. UV: Ideally, how would you want the body of international human rights law to be received in the Canadian legal order at this point?

Jew-dicial activism H ow does a three thousand year-old religion shed its sexism andhomophobia?

PRODUCTION

ADVERTISING MANAGER

Eileen Costello

A hard look at the early interview process BY DINA BOGECHO

is the student newspaper of the Faculty of Law at the Umversity of Toronto. Our goal is to provide a forum in which students can exchange their ideas. We hope to foster a sense of community withm the Faculty of Law, the University as a whole, and the greater City of Toronto. It is our mission to increase student awareness of legal and social issues and, m turn, to encourage our peers to contribute to the many commumties of which we are a part.

5

5 October 1999

COPY EDITOR

Mary Liston

Volume 1, Issue 2

5 October 1999

Ultra Vires is an editorially autonomous newspaper working in cooperation with the Faculty of Law's Students' Law Society (SLS). Ultra Vires is open to contributions which reflect diverse points of view, and its contents do not necessarily reflect the views of the Faculty of Law, the SLS or the editorial board. The editors welcome contributions from students, faculty and other interested persons, but reserve the right to edit submissions for length and content.

Inquiries, submissions and letters to the editor should be directed to the Communications Centre in Falconer Hall, 84 Queen's Park Crescent, Toronto, Ontario, M5S 2C5, ore-mailed to ultra.vires@utoronto.ca. Advertising inquiries should be made to Eileen Costello at eileen.costello@utoronto.ca. Ultra Vtres is published monthly. The next issue will be published on 9 November 1999. Ultra Vires is printed by Weller Publishing in Toronto. Circulation 2000. www.law.utoronto.ca/ultravires

BY ALISON ENGEL The time surrounding Rosh Hashana (the Jewish New Year) and Yom Kippur (the Jewish Day of Atonernent) is, for Jewish people, a time of self reflection. At the beginning of the new year, we examine the positive and negative aspects of our lives and are given the opportunity to create a recipe for positive change. Being in a reflective state over the holidays this year, I wondered about the place of the homophobic and sexist Yom Kippur afternoon Torah readings from Leviticus 18 better known as the "sexual morality laws.': The laws include such statements as, "thou shalt not lie with mankind as thou dost with womankind; 1! is abomination" and "thou shalt not approach unto a woman to uncover her nakedness, as long as she is unpure by her uncleanness." In addition to being overtly homophobic and sexist, it is clear that the audience for whom these laws were intended did not include the sexually vulnerable; they are laws for privileged adult males. How are these archaic proscriptions, then, relevant to the process of positive change encouraged at Yom Kippur? In order to answer this question, it is useful to examine the way in which Torah passages are interpreted and re-interpreted - a process that is strikingly s1milar to common law judicial practise. Just as judges writing current legal decisions must follow the legal boundaries set out in a given statute or pre-

cedent, current rabbis' interpretations of the Torah must be consistent with interpretations set out by rabbis of the past. For both the secular legal system and the system of Judaism, this process generally works well, providing consistency and remaining true to the goals or purposes of the given law. There are some cases, however, where the purpose of the law gets lost as the interpretative process shifts its focus, and where it may be necessary for judges to stop, reexamine the issue and challenge the error. In contract law, judges decided cases for years based solely on rules of expectation, 1gnonng principles of reliance and restitution mtegral to fair contracting. In the 1962 House of Lords case of Midland Silicones Ltd. v. Scruttons Ltd., for example, Viscount Simonds acknowledged that strict adherence to this doctrine might be mistaken; yet, he disregarded his own recognition of the error in focus deferring instead to authority. "Heterodox~. or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform," he wrote. "The law is developed by the application of old principles to new circumstances." Viscount Simonds noted that a mistake had been made. Academics, too, have noted that contract theory is incomplete without the consideration of both reliance and restitution. Should the fact that previous judges failed to notice this purpose behind contract law prevent current judges from effecting change?

OPINIONS

&

We may similarly ask whether omissions by rabbis past should limit the way Torah is interpreted today. Many progressive congregations have omitted readings of Leviticus 18 from the Yom Kippur Torah passages because of its homophobic and sexist overtones. However, rather than ignoring the issue, I propose that we remain true to the Jewish tradition of questioning. Thus it should be asked: "Is there a purpose or goal of the sexual morality laws that has been lost here?'' Jud.th Plaskow, in her essay, "Sexuality and Teshuva: Leviticus 18," tells the story of a member of a congregation who was upset at the elimination of the sexual morality laws from Yom Kip· pur because, as an incest survivor, she "wanted to hear her community connect the theme of atonement with issues of behaviour in intimate relationships." This woman's anger brings us to a new recognition of the purpose underlying the concrete sexual morality commandments - a purpose that had previously not been observed. The focus may be shifted from a support for homophobic laws to a call for personal responsibility in sexual and intimate relationships - whatever that may mean in each community or partnership. There is more than one way to interpret Jewish law. When current spiritual lawma~ers recognize omissions from the past, their focus should shift away from the traditional readings. Their inquiries should shed light, instead, on alternative, progressive possibilities.

CS: We need a two-track approach. We need the Canadtan courts under the leadership of the Supreme Court actively and generously interpretmg the Charter in accordance with the Slaight Communications presumption But, even through the Charter, there wil be limits to what the courts can do without the legislature itself fashioning a more detailed legislation to which the Court can respond. One way the legislatures can take their ro'e more seriously is by explicitly incorporatmg the international human rights treaties into Canadian law as a reference point both for future legislation and for interpreting exrsting legislation. Hopefully, we will ultimately end up with a healthy dialogue between the legislatures and the courts in Canada and between the Canadian legal system and the international system. UV: Why is it a good idea for Canadian law to embrace international human nghts law? One can also see it as a product of behind-thedoors bargainmg at d.plomatic conferences between governmental bureaucracies trying to advance their interests and reconc1le competing values. Or, is it closer to a modern restatement of natural law? CS: On 1ls surface, intemat1onal human nghts law is fashioned in a process that is not a lot different from other treaties. States indeed do bargain hard for their own interests. But when it comes to international human rights treaties, there comes a point at wh1ch the discourse constrains the states to present only ideal arguments from their culture or national tradil1on's perspectives. International human rights treaties are a product of convergence and overlapping of different 1deals. Further, these broad and fundamental statements of values are meant to apply systemically across

''Ifj udges are willing to engage the international human rights system ...tlzen international human rights can truly become a living law in Canadian la w.'' L----------------_J all other subject areas. And, rf we thmk about the fundamental aspirations for protectmg human dignity as being at the core of our legal system, then a different reception of international human nghts treaties is just1fied. That said, you cannot ignore the fact that there will always be a residual problem of democratic legitimacy; that IS partly what Justice Iacobucci was putting his finger on in Baker. Until the legislatures get involved, the courts will always want to wait a little btl unt1l there is a certain degree of enlightenment on the part of the legislatures. Otherwise the Courts will be perceived as directly using the Charter to get around our general norm of [international human rights instrument) reception.

LEGAL ISSUES


Ultra Vires

6

Ch

the face of a profession

Will the Lan' Society's diversity initiatilres transform the practice oflaw? BY DERA NEVIN

sense, integrated within the Law Society's operations. Some c1ted as an example that an With only a little fanfare, the Law Soapparent conflict between merit and equity ciety of Upper Canada (LSUC) is changi ng. maintained and expressed even within the disOr, at least, 1t is trying to change. After ten cussion document - remains a live debate years of study, the Law Society has determined within LSUC recruitment practices. that some of its members face systematic Participants also claimed that the law barriers to entering and thriving within the Society seems unapproachable to many eqlegal profession. Having identified the probuity-seeking groups. There were ca lis for more lem, the Law Society has been mandated by events such as the lesbian and gay pride rethe profession to correct it. Now the LSUC, ception (usually to coincide with Pride Week the governing body for Ontario lawyers, has in June) and the Aboriginal heritage day reundertaken a major equity and diversity iniception. tiative. Other criticisms were directed at the Headed by Charles Smith, the law seeming internal focus of the discussion docuSociety's Equity Advisor, the Treasury Equity ment to the Law Society. This was cited as a Advisory Group (TEAG) has been appointed concern because many persons within the bar to act as an expert on equity issues facing the do not understand the role the Law Society profess1on and to formulate plans to remove should play in promoting equity initiatives. barriers to equal opportunity within the legal Participants felt that there was some need for profession. Originally formed as an ad-hoc the law Society to take leadership and work committee in response to issues raised by the with law firms and law schools to achieve Bar Admissions Appeal Procedure, TEAG is consistency rn Implementing the eqUity and now a permanent lSUC committee. This comdiversity benchmarks. Desire was expressed mittee is unique to the law Society because for the law Soc1ety to go to private offices to its membership of 15 includes both Benchers, educate on equity and diversity and to enmembers of the profession elected to govern force compliance with any equity initiatives the profession, and non-Benchers. Members undertaken. Participants also thought the law hold their positions for a two-year term and Society should take a leadership role in enthese are staggered among participants. couraging law firms to extend benefits to In deciding how best to proceed, lSUC same-sex partners where this is not already has started in its own backyard. It has adopted done. a vision statement that demonstrates a comSimilar concerns were raised regardmitment to ensunng that its workplace, and ing the Law Society's seeming unwillingness \h~ Qro\~ssion, are tree hom harassment and to enforce equity Initiatives at law schools. discrimination. While this is a laudable goal, One participant called on the law Society to take a leadership role in ensunng law school the real accomplishment will be to develop a strategy that realizes campuses were accessible. The hope was also the vision. expressed that To this end, the lSUC "Tite Law Society has adopted a would require the lSUC has asked each of its departvision statement that demon- firms to make the hiring and ments to conduct a strafes a commitment to ensuring arti thorough assessment cling proof its policies , proits workplace, and the profession, cesses more grams, services and are free from harassment and transparent. resources to determine Finally, discrimination. While this is a participants exhow concerns about equity and diversity laudable goal, the real accom- pressed conare integrated into its cern that the plishment will be to develop a equity initiative day-to-day operations. The results of that eqstrategy that realizes the vision." was not better Uity assessment were publicized. made public earlier They called on this year in a discussion document, and are TEAG to communicate the progress of the ininow the subject of a series of consultations tiative more frequently, not only with the eqwith Francophone, Aboriginal and eqUity-seekuity-seeking groups in attendance, but also ing groups. with the profession as a whole. Participants I attended a consultation on 29 July also desired the lSUC to publicize this effort 1999 on behalf of UTOIL (U ofT Out-In-law), more generally, so that the public would be which was also attended by representatives made aware of the LSUC's stated position on of approxi mately forty other groups. At this equity and diversity w1thm the profession. meeting, Sm1th explained that the LSUC's next The result of this consultation was the steps would include: consultations with lSUC identification of three priorities: the establishstakeholders; development of equity and diment of an arm's length ombuds for the LSUC; versity "action plans"; and, integration of all greater education on equity within the orgaequity i01tiat1ves with LSUC budgeting. He nization and the profession; and, the need to then invited comments on the discussion establish credibility for equity initiatives within document (the equ1ty assessment) from parthe organization and the profession. t icipants. Although the first round of consultaThe comments covered many themes. tions has been billed a success, the concerns Chief among the criticisms of the document raised by participants point to the d1fficulty the Law Soc1ety will face in implementing its was that the Report merely confirmed that equity initiatives in the future. equity initiatives were not, in any concrete

In particular, the implementation committee will need to better articulate the impact it hopes this initiative will have on the profession. To date, the impact of the equity initiative on the profession has only been presented m terms of enforcing compliance with lSUC equity policies in law firms. This position risks polarizing the profession (and the LSUC) from equity-seeking groups and compels the law Society to make difficult decisions about the extent to which it will intervene in the day-to-day operations of private firms to ensure compliance. A more desirable option would be to involve law firms in the consultation process so they develop a stake in ensuring eqUity initiatives are integrated in their management practices. This must be done, however, in a manner that does not alienate equity-seeking groups. Further, the law Society should commit itself to timelines and deliverables. Although it has undertaken the rnit1ative and

has outlined its "next steps," equity-seeking groups and the public at large have not been promised particular results at particular times. Ind icating, for example, that it commits to ensuring law schools will be ready to accommodate students with physical disabilities by the year 2005 will give more people a stake in the process which, in turn, might galvanize more people into participating in the equity initiative. Finally, the consultation process should be expanded. Greater participation in the process by members of the public could lead to a focussing of the techniques and strategies behind how the Law Society will achieve its vision. It is clear that the means of getting from the v1sion to the result need to be solidified. More input into how the vision will be achieved can only accelerate the process and keep the Law Society accountable to its principal clients - the public.

Hurricane rallies first-year class Race is subtext for Orientation '99 BY JASON BROCK Like it or not, orientation week sets the tone of first year class for the entire year. last year, the first year experience was dominated by corporate jockeymg and anx1ety about grades. It was initiated, unfortunately, by the well-meaning emphasis of a few upper year guides on the importance of Christmas exams for hiring, in the context of a plethora of firm sponsored events. So what was the tone set for this year? Officially, the tone was enthusiastic: "welcome to the best law school in the land, where people are friendly and prospects are bright." And indeed, for the most part, people are friendly and prospects are bright. But the tone in the trenches was different. The unannounced theme for Orientation '99 was set early in the week during one upper year panel discussion when some brave soul announced that only white males could expect to get jobs. Welcome to first year. Fittingly, the week ended with a speech by Rubin "Hurricane" Carter, a former boxer wrongly convicted of murder who now works extensively in the area of pro bono legal work. Mr. Carter is African-American. Among his other positions, he serves as a board member of the Southern Centre for Human Rights in Atlanta, Georgia. The standing-room-only crowd, wh1ch had gathered on the back lawn, was shocked to hear him describe how it is now customary for lawyers defending African-Amencans in capital cases in Georgia to first request that the Confederate flag be removed from the courtroom. Heavy disbelief hung in the air as Mr. Carter went through the motion of tearing down and stomping on the official flag of Georgia. Clearly then the unannounced theme of orientation week was race and equality. Well bravo. Mr. Carter's motto: "wear your outrage proudly", must have been a more salutary start to law school than "which

COMMENTARY-

firm is better, Torys or McMillan Binch?" Mr. Carter advised us that we should "hold up the United States as a mirror of what not to be." He was speaking in connection with the death penalty, addressing in particular "the rac1srn 111 1ts selective "PPII<;dllon.- No o"" in the crowd would quarrel with that. However, Mr. Carter's clarion struck an odd caesura. Near the end of his talk, he launched i nto political metaphysics: "There is no democracy, no plutocracy, no aristocracy. All we have is nationalism . There are six tri bes on earth ... " He then proceeded to explain how the "white tribe" is currently in power, how the "black tribe" used to be in power, how the "red tribe" is almost extinct", and how in addition to the "yellow" and "brown" tribes, there is a sixth "mixed" tribe of everyone else. There was a palpable feeling of shock in the crowd . A few people left. Many, I suspect, called to mind freedom of speech and bit a politically correct tongue. The metaphysic rankles, nonetheless. I wonder whether paying attention to race requires seeing the world as essentially racial. Having lived in the southern U.S. for a time, I know that race can sometimes mhabit everyday consciousness so fundamentally that it becomes the most salient feature of social interaction. When I hold up the mirror of the United States, that is one feature I think Canada should avoid. Mr. Carter's nat1onalism, however, seems like the first step down that road. • At the end of question period, Catherine Bickley, the National Director for Pro Bono Students Canada, presented Mr. Carter with a t-shirt from orientation week. And rightly so - his address likely set the tone for an entire first year class. As the crowd filed out of the tent and into the sun, I thought to myself that if the class of 2002 adopts as its pet anxiety this unannounced theme, then Orientation '99 will have been quite a success.

7

5 October 1999

Sports Division I soccer team edges Grads BY BRAD MOORE The Faculty of Law's Division I soccer team began thei r season on a winning note on 20 September with a big 1-0 win over the highly touted Graduate squad - last year's league finalists. The win was a serious boost for the team in light of the fact that the regular season schedule consists of only six games. "We're thinking playoffs" player-coach Derek Abreu later hinted , an indication that expectations are high for this year's team. Although Law emerged from the match with a win, the first half saw little offensive spark from that side. In fact, it was the Grads who carried much of the play while Law struggled to adjust timing and co-ordination up front. For the most part the Law defenders were able to contain the slick Grad strikers, but a few chances arose that forced keeper Raj Gandesha to be sharp. On the whole, however, the opening frame was a frustrating one for the Law squad, and a scoreless draw seemed the most likely of outcomes at the half. After some halftime retooling and inspirational words from Abreu, the team appeared to be new team in the second half. Strikers Glynn Spellisky and Ramsey Ali swarmed the Grad goal, narrowly missing and causing some distress among the opposing defenders. Within minutes the pressure from

Bloor Cinema enjoys revival BY MELISSA KLUGER How many t1mes have you thought about going to a movie, thought about the $9 .50 you must part with, and then thought "forget it"? Well, what would you say to a $2 movie? Located at Bathurst and Bloor (about a twenty minute walk west of law school), the Bloor Cinema is an independent movie theatre that serves the Annex community by providing a collection of interesting films at affordable prices. The once rather run-down crnema has recently undergone considerable renovations and has been restored to its original art deco style. New seats have been installed. The snack bar has been improved. And faster flushing toilets decrease the post-movie lineups. According to Carm Bordonaro, who owns the theatre along with h1s brother Paul, the Bloor's facelift is not yet complete. Carm talks of plans to open a cafe and host parties in the lobby. His enthusiasm in the theatre is evident when he speaks of bringing the internet into the movies and up on the screen. The Bordonaro's connection to the Bloor can be traced back to 1979 when the

You oughta know: UV at the Alanis and Tori show

th_.L-.w-.quod"N(I3"':neerfy OUI'I•t•nt4 A

of corner kicks from Matt Duffy found recipients ms1de the box, with the resulting attempts missing by increasingly small margins. In the forty-fifth minute forward Steve luck got his head on a Sonja Felderhof for what would be the match's only goal. In other action, the law Division II men's squad was credited with a win in their opening game by default.

The Ultimate report BY MARCUS SHANTZ Law trampled Victoria 14-4 in an inelegant Ultimate season opener on the crowded confin~s of the Robert Street field on Sunday, 26 September. The nov1ce Victoria squad faced a frightening Law team combining grizzled "Leech Brain" veterans such as "Domi" Graser with startling new talent fresh from the tough Vancouver Ultimate scene, includmg Justin Young. Showing the benefits of Law's gruelling training camps, several rookies more than pulled their weight in a game that offered high hopes for playoff glory. Law's famous sportsmanship was demonstrated by "OJ Steady Rock", who managed to restrain his sarcastic instincts fol lowing a dispute with an ill-informed Victoria player following a controversial "pick" call. During the dispute, the Vic player loudly denounced the law Squad as "lawyers" and "girls". Mr. Rock's restraint in the face of these baffling accusations avoided a potentially ugly scene. Commented Rock, "I don't really have a problem w1th lawyers or girls, so I wasn't really offended."

Show me a woman under thirty who doesn't know all the words to "You Oughta Know." Even the moms were singmg along at the Alanis & Tori show (Tuesday, 7 September) at the Molson Ampitheatre. The only Canadian date on the 27-city 5 1/2 weeks tour, the house was undersold and the forecast was rain. But those of us who braved the elements, bundled into raincoats and sneakers, were among the devout. I have always thought that Tori is one of the most talented songwriter-musicians ever. Despite a few high points like the lovely "Northern Lad" and her "Precious Things" encore, however, her live performance lacked the gut-wrenchmg intensity of her recordings. Still I have to respect a woman who can play a piano like that, and was also the homecoming queen. But Alanis - I love this chick. She worked the twelve-to-sixteen.set w1th the professionalism of a mouseketeer, and still wailed enough to keep the rest of us on our feet. Everything about her show - from her outfit (beaded saffron tunic over jeans) to the light show (the floods snapped onto the audience at climactic confessional moments, making you feel all uneasy and exposed) was so very Alanis in that narcissistic, self-effacing style. She managed to make "You Oughta Know" spine tingling again by mixing it up w1th an eerie orchestral intro (a Ia Puff Daddy), and ended with a sing along "Ironic" (no really, it wasn't cheesy, it was beautiful). Leaving the concert, I felt immensely more girl-power and love of my fellow women than if I had spent the evening reading Germaine Greer. How 'bout honouring your divinity?

cinema first opened with Carm as a co-owner. After one year and much politics, Carm gave up his part of the ownership and left it in the hands of those who would go on to open a string of independent theatres across Toronto. It is evident, in speaking to Carm, that walking away from the theatre was like giving up a dream. When the cinema faced financial difficulties last year the brothers were able to buy back the Bloor and pick up where they started 20 years ago. Excited by this new venture , the Bordonaro's are working hard to make the Bloor a crnema for all tastes. Carm has a real interest in promoting Canadian films and giving screen time to non-Hollywood fi lmmakers. He explains, "A lot of films fall through the cracks, we want to expose our audience to those films that didn't get picked up for

one reason or another." In keeping with this goal, the Bloor will be premiering the Canadian film Boozecan later this month. Other things you can look forward to on the Bloor's eclectic calendar are: South Park, Casablanca , The Blair Witch Project and a special Halloween screening of The Rocky Horror PICture Show. • A student membership to the Bloor costs $3. Tickets are $4 for members and $7 for non-members. Throughout each month, the Bloor offers "Student Daze" where movies are just $2 . So the next time you find yourself going stir crazy in the library head over to the Bloor. You won't just be catching a flick, you will also be supporting local business and independent film making - all for less than the cost of a rental.

Get out there, cheaply We here in the Diversions section of Ultra Vires are always looking for new and exciting ways to get you, our comrades in the pursuit of legal knowledge, out of the library and off the east side of the campus so that you can experience a little something of the wide world that surrounds us. With that in mind, we have done our own brand of investigative journalism to create a list of Interesting places where you can go to broaden your mind, enjoy a little culture, and perhaps learn a little ... without opening a textbook. The Royal Ontario Museum is a great place to spend a rainy afternoon and in addition to the very cool Bat Cave the ROM i ntroduces a new exhibit about every six months. Student admission is only $7 and on Friday evenings from 4:30 to 8 p.m. admission is pay what you can. In our opinion this has "great first date" written all over it! Has anyone actually been in the Bata Shoe Museum? Those of us who have done more that just check out the neat moving figures in the window were presently surprised - shoes do tell a story about the people who wore them and the times in which they lived. Admission is $4 for students and the first Tuesday of every month is free. At the Art Gallery of Ontario, located at the corner of Dundas and Beverly (the street that St. George turns 1nto s9uth of College)

admission to the General Gallery is always pay what you can (recommended amount is $6). For the current special exhibit, "Old Masters," student admission is $8, but 1t includes admission to the general gallery as well . The Tarragon Theatre, located at 30 Bridgman Street just north of Bathurst and Dupont, delivers amazing local theatre at great rates. On Sundays their performances are pay what you can. Call the box office at 531 1827 for upcoming plays and limes. The Hummingbird Centre (formerly known as the O'Keefe but that is a whole other art1c1en, \ocat~d at the comet o\ rron\ and Yonge, begins to sell tickets to each evening's performance at 50% off from 5 p.m. Usually the very best seats are already sold but it's possible to get fairly good balcony seats at a great rate. You have to go in person but you can call ahead to the box office at 872- 2262 for shows and times. If live theatre or the opera is not your style, or you just need to vegetate with a silly movie, then you might want to head down to the Cineplex movie theatres at the Eaton Cen: tre. True, the screens are tiny and they have not heard of stadium seating yet, but with 14 theatres and an adm1ss1on price of $2.50 all the time it is hard to beat.

Contact Sally Woods, Dr rector, Professronal Personnel

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