Ultra Vires Vol 17 Issue 3: 2015 November

NOVEMBER 26, 2015 | ULTRAVIRES.CA

RECRUITMENT SPECIAL PAGES 8-13 TORT OR NO TORT?

MEET THE NEW IHRP DIRECTOR

LSUC: A LOVE LETTER

PAGE 18

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ILLUSTRATION BY ALEX WONG (3L)

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

EDITORIAL/FEATURES

2 | NOVEMBER 26, 2015

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The Most Wonderful Time of the Year BRETT HUGHES (3L) Dear first-year students, it’s the time of year you were warned about during orientation week, when your happiness hits the minus 1-2 range en route to minus 5 happiness units. Usually this comes as a shock to law students, but forewarned is forearmed. You had advance warning that exams are less fun than summer. You knew December wouldn’t be all puppies and yoga and muffins and intramural sports. Oh wait.

Why is it, exactly, that law students are such buzzkills over these well-meaning initiatives?

I think the answer is the same as ever—these exam-time de-stressors are seen by many as merely a fig-leaf relative to the many larger issues at the school. For example, in a recent letter to U of T Law alumni, Dean Iacobucci euphemistically wrote that “Pressures on tuition will not abate,” signalling that it will continue to rise well past next year’s $35,000 mark. Those darned pressures on tuition. (We have it on good authority that one of the largest pressures is none other than the author of said letter, one Ed Iacobucci—Dean

and highest-paid faculty member at U of T Law.) Doggy days are nice, but they can only do so much in the face of $100,000+ debt loads, 100% final exams, grading on a curve, a competitive job market, and being surrounded by Type A overachievers.

So what does one do?

Study off campus. Make time to relax, watch Netflix, see friends, etc. Most importantly, don’t be afraid to ask for help. Ask your upper-year mentors and friends for summaries, maps, and advice, or to take a look at drafts of your papers. Also ask your classmates for help when you have questions, and offer help. Rely on and be kind to each other.

Relationships matter, and you will do far more for these by helping than by withholding information

in an attempt to protect your position on a curve.

Some students need more than just moral support. If you need accommodations, or think you might, ask. Don’t feel bad. Despite the admin’s dislike for granting accommodations, you’re not getting an advantage over others—you’re getting a level playing field. Consider approaching U of T’s Health and Wellness Centre, or going to the Assistant Dean’s office in Falconer. Ask the Students’ Law Society (SLS) Equity Officers, Adam Wheeler and Madeeha Hashmi, if you need help navigating the accommodation process.

This is, of course, also our annual recruitment issue. We owe a huge thank you to our Special Features Editor, Simon Cameron, for poring through the survey responses and other data sources to highlight some of the most interesting findings. Thank you as well to Alex Wong for her fantastic cover image.

Ultra Vires doesn’t publish again until January.

However, if you feel inspired to write something timely during this exam season, let us know and we will post it on our website.

Otherwise, best of luck with exams, and we’ll see you in the new year!

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Truth and Reconciliation at the Law School CHELSEY LEGGE (1L) After six years of studying Canada’s residential school system and collecting survivors’ stories, the Truth and Reconciliation Commission of Canada (TRC) released the summary of its final report in June. Incorporating discussions of the history and legacies of residential schools, the summary makes 94 Calls to Action that should improve the lives of Aboriginal people in Canada and help to build a mutually respectful relationship between the Aboriginal and non-Aboriginal peoples of Canada.

There are two Calls to Actions explicitly directed at the Federation of Law Societies and law schools: 27. We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-

based training in intercultural competency, conflict resolution, human rights, and anti-racism.

28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal– Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

Professor Kent Roach, who spent two years working with the TRC, said these Calls to Action are “demanding” and that they “will require the faculty to make considerable and perhaps painful changes and investments.”

Other Calls to Action are also relevant. For example, #7 addresses the educational gap between Aboriginal and non-Aboriginal people in Canada. Professor Roach pointed out that “of the eight offers we made to Indigenous students last year, only two decided to attend. We

need to listen to Indigenous students past, present and prospective to learn how the faculty can become more welcoming and respectful.”

The Aboriginal Law Students’ Association (ALSA) here at U of T Law has consistently advocated for the inclusion of Aboriginal law and Indigenous laws in the Faculty’s curriculum, programming, and resources. This past summer, following the release of the TRC summary, ALSA sent a letter to the Dean’s Office calling on the Faculty of Law to implement the Calls to Action. In response, the faculty created an advisory committee which will make recommendations to Dean Iacobucci on how to move forward.

The advisory committee will meet later this month. The chairs are Professor Mayo Moran, who served as Dean of the Faculty of Law from 2006 until 2014, and Professor Douglas Sanderson, the Aboriginal Students’ Faculty Advisor. Representatives from ALSA and the

SLS are sitting on the committee, as is Promise Holmes Skinner, the acting Aboriginal Law Program Coordinator. In preparation for their first meeting, all of the committee members have been reading and reviewing the TRC’s summary.

During discussions held in March, ALSA suggested a mandatory first year Aboriginal law course (UBC has one), but the response was “not optimistic.” ALSA Co-President Autumn Johnson says they were told “a number of considerations would need to be taken into account but that there may be other ways to include Aboriginal law in the general courses. Specific concerns were that requiring first year professors to cover Aboriginal law in their curriculum raises issues of academic freedom and the issue that not everyone is comfortable in this area of law.” Professor Sanderson suggested that when the first year professors meet in groups, they could discuss

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Ultra Vires is an editorially independent publication. We are open to contributions which reflect diverse points of view, and our contents do not necessarily reflect the views of the Faculty of Law, the Students’ Law Society, or the editorial board.

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Brett Hughes Matt Howe & Alex Redinger Lisana Nithiananthan & Rona Ghanbari Alex Carmona & Geetha Philipupillai Clara Rozee & Amir Eftekarpour Nick Papageorge, Maud Rozee, and Justin Khorana-Medeiros Alex Wong, Roxana Parsa, and Holly Sherlock Harrison Cruikshank Simon Cameron Becca Howes Andrew Ngo Trevor Snider

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The next issue of Ultra Vires will be published on Wednesday, January 27 and submissions are due by Wednesday, January 20.

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FEATURES

NOVEMBER 26, 2015 | 3

Meet the IHRP’s new Director RONA GHANBARI (2L) Let’s start by talking about your background and your work at Human Rights Watch.

I’ve been with Human Rights Watch for the past seven years. I initially started off as a researcher for Iraq and the UAE, and recently—for the past three and a half years—I’ve been working for the Women’s Rights division as an emergencies researcher. I go on missions to conflict and post-conflict countries, documenting and investigating abuses but also making sure that we end these abuses by advocacy and by other mechanisms. It’s been a great few years, and I think we’ve had a lot of impact. I’ve been very lucky to be working for them for so long.

And before Human Rights Watch?

Before Human Rights Watch, actually before law school, I was a journalist at the Globe and Mail in Toronto for a few years. I decided that I was more interested in making the news than reporting on it. I was still young—in my early 20s—and back then once you were at the Globe it was kind of a permanent position. I had this great job, but I didn’t want to be stuck there forever, so I applied to law school.

After that I worked in corporate law for a bit before doing my masters in law. I then worked briefly for the UN in East Timor in the Serious Crimes Unit, investigating war crimes during the referendum in East Timor. After that, I went to work in Iraq as a consultant for the government. I was an advisor to the Prime Minister’s Office and Cabinet Office. From there, I worked on a book in Rwanda looking at sexual violence fifteen years after the genocide, before starting at the Human Rights Watch as the Iraq researcher.

That’s an incredible career path. How do you think it led you to this point?

(Laughs.) Well, as you can tell, I never really planned my career. I sort of took opportunities as they came. Students always ask me, “How did you get your job at Human Rights Watch?” and I tell them I don’t know because it wasn’t really a plan. As lawyers we are all sort of risk averse, but when you are young it’s great to seize these opportunities as they come your way, and it’s funny how one thing leads to another. It really hasn’t been a smooth or logical flow. Hodge-podge may be the best way to describe it. (Laughs).

I’ve always had social justice and human rights in mind in terms of most of my career opportunities, but at the same time, I haven’t just focused on that. When I was at the Globe I was working as a reporter for the Business section even though I was an environmental

studies major. Right after law school I was in Boston as a corporate lawyer even though my heart was in social justice. I think it’s great to have a varied experience—it’s nice to be able to experiment. If you work hard and you’re committed to the work that you do, then opportunities arise. The most difficult thing is getting that first job, and after that it sort of just snowballs. It’s been a fun ride.

You are a U of T Law alumni. What is your relationship with the law school, and what it is like to be back?

Yes! I started in 2000 so it’s been 15 years since I’ve been on campus. It was a great place to go to law school. I was actually a transfer student from U Vic—I transferred here my second year. This is the place where I got the confidence and the skills to launch my human rights career, so it’s amazing to be back and see some of the faculty. It’s a top-notch school, and it’s great to be around such amazing ideas and people again.

What excites you the most about your new position at the IHRP? I’m really excited to be working with students. It’s something that I’ve tangentially done as a researcher at Human Rights Watch, but just having that energy and drive that I’ve seen from students so far is incredible. It’s great to be helping students figure out projects, and to be doing advocacy on so many different fronts. I think we are a powerhouse here at U of T, and there’s so much room for impact. Hopefully now that I’ve been doing this type of work for a few years I have some skills

and knowledge to impart. I think it’s going to be a great experience for me!

I know this is a little pre-emptive, but do you have any changes in mind so far for the program?

Of course I want to be thorough and think things through before making any changes to the program. It’s such an excellent program

already, and I think the main goals are to maintain the excellence of our products, make sure the reports that we put out are at the highest levels, and try to determine the places that we can have the most impact. One thing I would like to do is to expand on some of our areas of interest—I’m particularly interested in women’s rights and Indigenous issues. I think there’s scope there to think of new projects.

Another idea I’m really keen on is trying to expand our reach, and using social media and other media to showcase the work the IHRP is doing. I think more people outside of U of T need to know about the wonderful things students do with the program. We have so many people writing excellent pieces, and I think there is a lot of potential to reach more people.

Ultimately I hope to continue to grow the program, making sure that we are responsive to students’ needs, and giving students a fantastic experience and a platform to launch their human rights career.

Has anything stood out to you so far in your short time here?

It is a bit difficult jumping right in—it’s amazing how much there has been to do to catch up and get up to speed. I was lucky that

I had some transition time before Renu left.

Renu is also probably the most organized person I’ve ever met. The way that she left everything meant that it was easy to pick it up. I think the funniest thing for me has been my family. For years they had been encouraging me to find “a real job.” (Laughs.) They saw my job as Human Rights Watch as volunteering.

They didn’t see how someone could have a career doing what I did there, so they are happy that I actually have a grown-up job now where I’m responsible and not venturing off into crazy places. Especially since I have young kids.

The great thing about working at Human Rights Watch was that you would have intense periods when you’re on a mission, but otherwise you could work from home, and I would just have to wear a dress shirt on Skype but it would otherwise be pretty casual. Battling the TTC every day has been a huge change! It’s been a while since I’ve had a 9-5 job, so that’s been a bit of an adjustment.

Also, coming in at a time when all the leaves are changing—even though it’s been 15 years I still have that anxiety of exams being around the corner. That seems to still be deep in my psyche! Even though I’ve survived places like Iraq and Somalia, the trauma of exams still seems to haunt me! (Laughs.) I have to remind myself that I’m no longer a student, so the changing leaves mean something different now!

What advice do you have for students who aspire to have an international human rights career?

The first step is getting involved in the International Human Rights Program! It is an amazing experience. There’s so much to offer with internships and with the clinic. It’s a great place to learn the practical side of human rights not only in terms of investigation, but also in terms of advocacy. We’ve developed some amazing partners over the years, and we have a great network of alumni who have come through the program and are now doing really interesting things.

Students should feel free to get in touch with me and see how they can fit in with the program. We are lucky to be at an institution with a program like this, so take full advantage of it! That’s really the first step. When I worked in East Timor, that was my first human rights job, and it was through the IHRP. It was an informal internship that they helped me get. It can be difficult to find social justice jobs as law students, so it’s great that we have this resource.

Explore TO - AGO First Thursdays SAM LEVY (2L) Welcome (back) to Toronto! After a summer featuring the immensely successful Pan-am Games and a soaring Blue Jays team, Toronto is continuing to cement itself as one of the world’s best cities (sorry Montreal).

The idea for First Thursdays came about in 2012, where a team at the Gallery envisioned a space for emerging artists in Toronto, which they would showcase to a diversified, younger audience. At the same time, they knew that any venue could have a party, but what the AGO offered was chance to also have a mean-

ingful, sometimes critical dialogue too.

Enter First Thursdays, where on the first Thursday of each month, the AGO opens its doors late into the night, with drinks, food, live music and a range of programming interspersed throughout.

One example of a theme was the ‘Basquiat First Thursday,’ which was centred not only around the Jean-Michel Basquiat exhibition, but also the tragic civil unrest in the US. At the event, over 500 people took the time to sit in on a panel discussion on issues of race in

partnership with the Black Lives Matter Coalition.

Another great theme was this September’s ‘Nostalgia Canadiana.’ The theme was based on the AGO’s ‘Picturing the Americas’ exhibition, and featured music by the Rheostatics in honour of their CD, Music Inspired by the Group of Seven.

The AGO is engaged in a global conversation, with museums and galleries trying to bridge the gap between them and people in their twenties and thirties. With a capacity

crowd even when it increases the available tickets, First Thursdays shows that the AGO has tapped into a group that wants to have a good time, but also wants to connect to the important conversations happening in our city today. O’Neill hopes that as the event grows there will be ever more flexibility to go deeper, take more risks and offer more to patrons.

Like the Basquiat exhibit name announces, now’s the time.

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FEATURES

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How the TPP Would Harm Canada's IP Regime MAUD ROZEE (1L) The Trans-Pacific Partnership (TPP) is a big deal, literally. The version recently released to the public is approximately 6,000 pages long. According to U of T Law’s Innovation Chair in Electronic Commerce, Associate Professor Ariel Katz, its provisions would have a significant impact on Canadian intellectual property (IP) law.

Professor Katz—who has a quote taped to his door calling him an “anti-copyright ideologue with the long-term vision of a mole”—is strongly opposed to the TPP’s IP provisions.

In a recent op-ed for the Toronto Star, he argued that the TPP’s IP provisions may unconstitutionally limit our freedom of expression.

Although he acknowledges that copyright and the TPP have their benefits, he contends that increasing copyright protection would “not [be] something [the government] could easily justify.”

The TPP would extend the term of copyright protection in Canada from the author’s life plus 50 years to the author’s life plus 70 years. Katz argues that this term extension would rob Canadians of their cultural heritage by keeping works which would have otherwise entered the public domain under copyright. According to studies by American and European scholars, copyright terms create a

“black hole” in the availability of works to scholars and the public.

Books from the 1880s outnumber books from the 1980s in availability on Amazon.

Some digital archives contain more cultural works from before 1940 than from the following 60 years. If Canada extends its copyright term, this IP black hole will grow. Katz also noted that strict copyright laws can be used as tools of censorship. For example, courts are more likely to grant injunctions to remove information for a copyright action than for a defamation action.

Others have claimed that the TPP’s changes to Canada’s IP laws are not cause for concern. Nathaniel Lipkus, an IP lawyer at Osler, recently wrote in the Globe and Mail that the changes from the TPP could help Canadian innovators compete internationally. He argued that since Canadian entrepreneurs are competing with businesses in Silicon Valley, matching Canadian IP regulations to their American counterparts would level the playing field.

Even if the TPP’s IP provisions were inconsequential, Professor Katz says that signing the TPP would still be “a big and very bad deal.” If Canada signs the TPP, changing regulations contained in it would require a diffi-

cult re-negotiation process involving all the signatories. “We have no reason to assume that what we think is optimal today is going to remain optimal,” Katz stated. “These agreements narrow and constrain our policy space.”

In addition to its substantive provisions, the TPP reaffirms Canada’s IP commitments under previous international treaties. Instead of merely repeating the commitments, however, the TPP restates them using slightly different language. Katz argued that the new language could make it easier for the United States Trade Representative—the department that monitors the United States’ trade partners’ adherence to their agreements—to find Canada in violation of its IP treaty obligations.

Commentators have also voiced concerns about the new investor-state dispute settlement (ISDS) arbitration mechanism, which would allow foreign companies to recover lost profits from the Canadian government for regulations or decisions which harm the company’s investments. Professor Katz points out that companies already have this ability under the North American Free Trade Agreement (NAFTA), but that the TPP would allow companies to recover for new kinds of losses—e.g.

NAFTA does not explicitly mention intellectual property investments. This ability is not

symmetrical, Katz says: “When courts find in [a company’s] favour, nobody can bring a claim saying ‘you expropriated the right of the public.’ […] There is no countermeasure, it only goes in one direction.’”

The TPP’s IP provisions may just be the cost of doing business with Canada’s trade partners, but Professor Katz worries that they are part of a harmful trend. “Historically, it’s almost universally a uni-directional ratchet— more protection, for a longer time, for more subject matter. […] In order to innovate, you need access to knowledge. The more restrictions you have on existing knowledge, the more you narrow the space in which you can innovate.”

Katz thinks that Canada’s copyright term of the author’s life plus 50 years, the minimum allowable term under Canada’s current treaty obligations, is “already too long.” Adding the TPP’s stricter, almost-unchangeable, IP provisions on top would “make things even worse.”

Justice Brown – An Alumnus on the Supreme Court ALEX REDINGER (2L) During this past summer, Justice Russell Brown was appointed to the Supreme Court of Canada. He is Stephen Harper’s last appointee, replacing Harper’s first appointee, retired justice Marshall Rothstein. Brown rapidly ascended the judicial hierarchy, serving on the Alberta Court of Queen’s Bench for just thirteen months, then on the Alberta Court of Appeal for eighteen months before being tapped for the Supreme Court. Prior to becoming a judge, Brown received his LLM (’03) and SJD (’06) degrees from U of T, making him the third judge on the current court to be an alumnus of our law school ( joining Rosalie Abella and Michael Moldaver).

Professor Bruce Chapman co-supervised Russell Brown while he worked on his doctoral degree, and he thinks very favourably of the new Supreme Court justice. In response to inquiries about Brown’s academic work as a U of T Law student, Chapman stated, “Brown is an independent self-starter. It felt like we were equal interlocutors, working on problems together.” Towards the end of Chapman’s supervisory period, “Brown was able to return [to western Canada] and independently write much of his thesis.” Since “Brown’s rightsbased account of tort law resonated well with the school of thought at U of T,” it was “very much a symbiotic relationship.” Brown’s doctoral research, focusing on economic loss, has since been published, and according to Chapman, “[it] is excellent.” With regards to Brown’s judicial appointment, Chapman be-

lieves it is “good news for the Supreme Court of Canada because of [Brown’s] expertise in private law…he is legally principled, so he will likely be non-political.”

However, the justice’s political beliefs have been the source of some controversy, due to a series of blog posts he published while a law professor at the University of Alberta.

Brown’s blog posts indicate that our newest SCC justice has a dry wit, for instance remarking about an amendment of the Criminal Code which would include suicide bombings under the definition of terrorist activities: “[one] can only hope that the courts will follow Parliament's lead and impose the severest possible sanctions on people who kill themselves.” The posts include other rather unjudicial remarks, such as fretting that Bill Clinton would “[skulk] around,… [smell] up the [White House] toilet,…etc.” if Barack Obama had chosen Hillary Clinton to be his running mate. Brown also voiced his concern that “optics matter when it comes to appointing [Supreme Court] judges,” ironic

given that his own appointment was opaque – Harper ceased public hearings for SCC appointees following Marc Nadon. Most of the controversy was centred on blog posts which indicate that Brown is deeply conservative.

For instance he stated that he “[harboured] some hope for a [Harper majority government] hidden agenda” (this was probably also meant to be humourous, given the media craze about Harper’s “hidden agenda”). He also derided the prospect of Justin Trudeau as a candidate for Leader of the Liberal Party as “unspeakably awful.” When discussing political issues, Brown was generally similar to his US Supreme Court counterpart Antonin Scalia, couching his conservatism in literalistic legal neutrality. For example, he expressed his opposition both to affirmative action in general and the Canadian Bar Association’s support for releasing Omar Khadr from Guantanamo Bay on the ground of neutrality. He acted on this belief in his capacity as an advisor to the Justice Centre for Constitutional Freedoms, a legal non-profit

which defended an anti-abortion club at the University of Calgary, acted as an intervenor throughout Trinity Western University’s legal battles to gain accreditation for its law school, and published endorsements from Ezra Levant.

Whether Russell Brown’s ideology will influence his Supreme Court jurisprudence remains to be seen. Harper’s other appointees have shown little compunction ruling against the erstwhile prime minister’s interests – most dramatically when the entire court except Rothstein rejected Harper’s attempted appointment of Marc Nadon to the SCC, as well as on recent landmark cases such as Bedford (prostitution) and Carter (assisted suicide). If Harper was trying to transform the SCC into a more overtly politicized body he failed to do so, and it may be unfair to single out Brown by virtue of his corpus of blog posts. In an interview for Lawyers Weekly, University of Alberta emeritus dean David Percy echoed Bruce Chapman’s belief that Brown will be non-political, stating, “I think…[he will be] a very well-educated, thoughtful, principled judge.”

Regardless, Brown’s friends and foes alike should get comfortable with Russell Brown – the 50-year-old is the youngest Supreme Court justice, and as such can potentially remain on the Supreme Court of Canada for another twenty-five years before facing mandatory retirement.

FEATURES

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NOVEMBER 26, 2015 | 5

Viva Voce LISANA NITHIANANTHAN (3L) A series totally not inspired by Humans of New York, providing a glimpse into the lives and thoughts of students (and faculty) at the Faculty of Law.

Whenever I feel like I’ve got no redeeming qualities, I can take comfort in knowing that at least I’ll probably meet the Law Society’s good character requirements.

- Matthew Howe (3L)

Feels a bit surreal. I guess when you’re getting an affidavit commissioned saying that you are who you say you are. And you’re going to be licensed to be a professional. Feels like a new step. Finally feel like an adult at 25.

I think I’ve gained a better sense of purpose. In terms of what I want to do, I’ve never felt this sure about what I want to do with my future. I want to do criminal defence. Like I’m 100% sure that’s what I want to do.

- Jordan Stone (3L)

- Solange Davis (2L)

Greatest struggle? Not blaming past me for being such an idiot.

- Giorgio Traini (2L)

When I get the chance to sleep, I TAKE IT. I haven't been this successful a sleeper since I was a baby.

- Malini Vijaykumar (3L)

Staying motivated with graduation in sight.

- Taylor Cao (3L)

My greatest struggle? Making it through the term.

This is a very hard term. I’m teaching a lot and these courses are really tough. You guys keep asking me really good questions, that’s why!

- Professor Vincent Chiao

Better Know a Court: Canada’s Courts Martial TAHA HASSAN (2L) Those interested in criminal law and procedure may find it interesting to acquaint themselves with Canada’s courts martial. Governed by the National Defence Act, the court martial system provides a comprehensive way to prosecute and punish criminal-type offences in a military context. An independent system is required because of the unique emphasis military law places on enforcing strict discipline: offences that seem trivial to civilians may be detrimental to the culture of unquestioning obedience and respect for authority that is necessary for the operation of an effective military. A prosecuting and punishing mechanism that recognizes this need for strict discipline is therefore necessary. The result is a court martial system with broad application, reduced safeguards in prosecution, and severe punishments.

Broad Application The broad applicability of the court martial system derives from the range of offences listed under the Code of Service Discipline.

Some offences are of course expected, as they would be in any civilian criminal code: examples include striking a superior officer, stealing, and injuring another person. Other acts, while not cause for much alarm (and

rarely a criminal conviction) in the civilian context, are offences in military law: these include disobedience of a lawful command, insubordinate behaviour, and injuring yourself.

The most common offences also belong in the latter category: failure to show up for work (35% of all charges in the last reporting year), shortfalls in maintenance of personal equipment, quarters, or appearance (25%), negligent discharge of a weapon (15%), and drunkenness (9%). For reference, around 1700 charges were laid last year.

When abroad, personnel continue to be held liable under Canadian military law, as well as the laws of the jurisdiction in which they are serving. Personnel also remain liable for offences under the Criminal Code. Notably, civilians accompanying a military unit also become subject to the military’s

disciplinary system.

Reduced Safeguards It may be helpful to explain the distinction between “courts martial” and the “court martial system”. The “court martial system” encompasses a range of disciplinary proceedings, from “summary trials” to what are truly “courts martial”.

More minor offences proceed by way of summary trial; an overwhelming majority (over 90%) of charges are disposed of in this way.

Summary trial in the military context, however, is significantly different from the criminal context. The trial is not presided over by a judge, but rather by the accused’s higher-ranking officer (think of a business manager) or the unit’s commanding officer (think of a CEO).

The only legal training these officers are likely

to have received is from the office of the Judge Advocate General (the military’s in-house counsel). The accused does not have a right to legal counsel at a summary trial.

Right to legal counsel becomes available for the more severe offences that are sent to courts martial, which is a formal military court. This court is presided over by a military judge and may also include a panel of senior military officers. Even at this stage, however, safeguards available to the accused are lacking. Those charged can elect to hire a private lawyer, or obtain free representation from the military’s Defence Counsel Services (DCS). DCS, however, is made up of four full-time military defence lawyers working out of Gatineau, and four part-time military lawyers spread across the country. The prosecution service is twice as large.

Also alarming is that while the accused are entitled to be notified and connected to DCS representation when (or soon after) they are charged, there is a delay in their superior officers informing DCS of the accused’s requests for representation. In a shocking 65% of cases over the last reporting year, accused personnel’s requests for representation were not relayed to DCS until 1 to 3 months later. In 9%

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OPINIONS

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To My Brothers and Sisters in the 1L Exam Writing Business TYLER HENDERSON (3L) Most of all I remember the wind. Always midnight air sinking and spreading over Yonge Street, a blustery tunnel of concrete and luminescence. I didn’t care if it messed up my hair. I was too tired for that. Tired from both the simple lack of sleep and that slower burning sort of fatigue that comes from wading through legal molasses for hours. I still consider it a good night if I can understand a third of what my eyes drag over and convince myself the remainder doesn’t matter. This is the calculus of unpreparedness and last minute studying. You’re probably familiar.

Every night for the last few weeks of the semester I left campus and went down the same windy corridor with a gym bag that was fraying from the weight of half-read textbooks. I remember, over that twenty minute walk, replying, finally, to a flurry of e-mails and text messages from people who cared about me. I remember feeling alone.

I usually got in around 1 AM, shrugging my bag onto the floor and throwing my jacket across the living room. If it landed on the couch, great. A frequent and favourite thought of mine, as I looked back at the person brushing his teeth in the mirror, was something Or-

well said: after a certain age, we all get the face we deserve. Well, I reasoned, if I don’t shave I deserve a bad beard. If I don’t sleep much, I deserve the look of a worn-in baseball glove. Then I’d pass the leaning tower of dirty dishes in my kitchen, ignore the slow grown algae congealing on the sides of my fish tank and huddle into an unmade bed. I fell asleep eventually, but always under the vague spectre of needing to do well, because one must do well, and the promised connection this would have for future-me in a new suit convincing future-employers I’ve always wanted to be a lawyer. Smiling. Nodding. I’m not sure when the self-convincing happened. But you know what they say about necessity and invention. *** At some point exams stop being those faroff things we’ll figure out later and begin feeling like an ever-present force pressing down on the sternum. They tend to isolate as well.

While we learn things in the same room, and maybe even discuss them with each other at times, the real legwork, the intellectual essence of the whole thing, happens on our own.

It takes up so much time and mental effort that

other considerations start falling out of view.

Hobbies get replaced by studying. Then everything else does. Tributaries of old thoughts and expectations dam up so that life begins flowing in a single, pragmatic and financiallypressurized direction: write good exams, get a job. An HH could be the catapult taking one from minimum wage the year before into a 40th floor interview room, adorned with floor to ceiling windows and very important, significant artwork. And with it, the prospect of earning, as a corporate law summer student, the same as the median Canadian family over the equivalent time period. Sounds good in principle. Or bad, until it doesn’t.

Tired, you’re going to stare at the dark stucco of your bedroom ceiling, trying to reel off legal tests, postulate fact patterns and panic over memory gaps instead of counting sheep.

Maybe even while sharing a pillow. You’ll make maps that are Frankensteinian patchworks, alive as combinations of class notes, treatises and summaries given to you by upper years who pare their fingernails indifferently.

You’ll run on mostly coffee: premium and unleaded. You’ll see the best minds of your generation wearing sweatpants, in study groups

disagreeing over cricket balls and old oats with unassured tones and second-hand information. You’ll think about the ready-sinceSeptember people, who, faces afire with matter-of-factness, have two things that seem both rare and strange: understanding the law and actually enjoying it. Those people will be fine because of course they will. And you’ll be fine because you’ve been told so by administrators and professors. Certainly appreciated, that, but your academic concerns will loom too immediate on the horizon to be put off completely. Theirs will seem too far in their rear-view mirror to be comparable, as heat shimmers on the set-and-sealed asphalt of a realized career.

Following the final study group and the nth + 1 revision of your maps, you’ll get as much sleep as you can the night before. Then you’ll get the damn thing over with. A friend might confide in you later how they vomited on themselves while showering that morning out of sheer force of nerves. *** Everything might go according to plan. You

continued on p. 7

The Problems With OLSAS DANIEL CARENS-NEDELSKY (3L) Admission to law school is critical to ensure access to justice. If underrepresented groups cannot get into law school, they cannot become lawyers or judges. Ontario Law School Application Service (OLSAS)—the application portal for all Ontario law schools—has several elements that needlessly complicate the admissions process. My three biggest concerns with OLSAS are its lack of a fee waiver for low-income students, the autobiographical “sketch” requirement, and its grade conversation formula.

Fee waiver In order to apply to an Ontario law school, OLSAS charges a $200 fee that cannot be waived under any circumstances. In addition to this fee, there is $90 charge for each school applied to, which schools can waive at their discretion. U of T Law has commendably opted to do so for anyone who has been granted the Canada Grant for Persons from a Low Income Family in the past five years—a grant students are automatically considered for in all OSAP applications. However, the mandatory $200 fee is still a lot of money, and it will deter some low-income applicants.

This is frustrating because fee waivers are the type of administrative task which OLSAS should excel at. Rather than forcing low-income students to navigate as many as seven different sets of criteria for obtaining a fee waiver, OLSAS should create a uniform standard that is acceptable to all schools. (I would strongly encourage them to adopt the kind of automatic waiver that U of T Law has implemented.)

Each school could retain a residual ability to review fee waivers for students who don’t meet the OLSAS threshold, but the overall amount of work required by the schools would

vastly diminish. The American Law School Admission Council (LSAC)—which centralizes applications to over 200 US law schools— has been granting this sort of fee waiver since 1968, and both Harvard and Yale Law School use an automatic waiver system as described.

The autobiographical sketch Another barrier to applying to law school in Ontario is the autobiographical sketch. According to the OLSAS guidebook, the sketch is “a list of employment, extracurricular activities, awards, non academic achievements, community involvement and professional associations.”

Applicants are to use their “discretion in deciding which details to report,” and OLSAS notes that they “cannot advise you on the content of your sketch.” Immediately following this statement, OLSAS “recommends” that students: 1. Consider and record (separate from the application) all activities since high school, and then 2. Complete the application by arranging these activities into the categories listed above.

That certainly seems like OLSAS is advising applicants to provide a list of every activity since high school. As if this weren’t already a daunting task, OLSAS requires applicants to provide the name, address, and telephone number of someone who can verify involvement in each activity listed on the sketch.

This presumes that applicants graduated from high school no more than four to five years ago. Otherwise, the idea of providing a complete list of activities with verifiers is manifestly absurd. Additionally, it adds a significant amount of unnecessary stress to the ap-

plication process. I know many of my friends applying to law school worried about the sketch as much as, or more than, their personal statements.

Professors Weinrib and Alarie stated that they found the sketch helpful in gaining a fuller picture of applicants, and that applicant sketches are read alongside their personal statements—incidentally, the law school should state this in its admission information.

Given this, my recommendation would be to change the sketch requirement, instead requiring that applicants provide their resumes.

Most applicants will already have resumes, and they serve the same purpose as the sketch.

Perhaps not surprisingly, McGill University uses resumes as an application requirement.

The grading scale The grading scale is the least pressing of my concerns, but the scale which OLSAS uses has some problems. It causes entirely unnecessary distortions of averages as result of operating on a 4.0 rather than a 4.3 scale.

Grade

OLSAS conversion LSAC conversion

A+

4.0

4.33

A

3.9

4.00

A-

3.7

3.67

B+

3.3

3.33

B

3.0

3.00

B-

2.7

2.67

C+

2.3

2.33

On the LSAC scale, each drop in a letter grade results in either a GPA drop of 0.33 or 0.34. This means that someone an even split of

A+ and B+ grades will have an average of 3.83, very close to someone with an even split of A and A- grades (average of 3.835). In contrast, the OLSAS grading scale varies significantly in the A-range, meaning that students with an even mix of A+ and B+ grades will have an average of 3.65 and students with an even mix of A and A- grades results will have an average of 3.8, a difference that is 30 times larger than that resulting from the LSAC conversion. No justification is presented by OLSAS for this discrepancy, and I can’t believe that one exists.

Going forward To clarify, I am in no way advocating that U of T Law withdraw from OLSAS at this point.

I think there are great advantages to be gained both by applicants and law schools by having a centralized admission process. However, I do think it is important that U of T Law advocates on behalf of its applicants and students.

I have been told that U of T Law is eager to hear student concerns and will advocate on our behalf if we express our frustrations to Jerome Poon-Ting, the Senior Recruitment, Admissions and Diversity Outreach Officer.

While I strongly encourage all students to express their concerns to Jerome, I also think that U of T Law has an independent obligation to consider how its relationship with OLSAS may be disadvantaging low-income applicants.

At a minimum, I believe the law school should make implementing an OLSAS fee waiver a pre-requisite for any long term continuing use of OLSAS. Although I appreciate that there are larger governance issues involved in a potential withdrawal from OLSAS, I think that anything less than this position is morally unjustifiable.

OPINIONS

ultravires.ca

NOVEMBER 26, 2015 | 7

The Law Society of Upper Canada: A Love Letter DANNY URQUHART (CLASS OF 2015) Law students have three major points of contact with the Law Society of Upper Canada (LSUC): hiring regulations, the bar exam, and the articling requirement. LSUC fails law students at each of these points of contact. It fails to represent them. It fails to protect them.

It fails to understand them.

Summer Hiring The problems start with “call day” for infirm interview offers. Employers can only extend in-firm interview offers after 8:00am on a Friday morning. Offers are made and accepted sequentially, so employers contact students as soon as possible to minimize rejections.

For students who received multiple interview offers, their decision to accept is distorted by the arbitrary factor that one firm calls at 8:00 and another at 8:01. While employers cannot rescind interview offers, saying you need to think about it, or can only reserve a later interview time, is an implicit rejection and often fatal to your hiring prospects.

When it comes to job offers, employers are prohibited from extending offers until after 5:00pm on the Wednesday of in-firm interview week. LSUC conveniently prohibits firms from committing to students until it is too late for the students to alter the outcome. (Although, this rule is regularly flouted, at least in spirit, and all but impossible to enforce.)

Typically, a firm will not extend a job offer unless it knows the student will accept. Most offers are made and accepted or rejected in the first few minutes after 5:00pm. This creates an incentive for students to communicate in advance that they will accept an offer.

There are at least two consequences to LSUC’s offer windows. First, students face heightened risk for pursuing firms they like the most. Second, there is an increase in bad hiring outcomes because risk-averse students accept offers they are less interested in.

The American system is better for students.

There is no limit to the number of interviews students can schedule. Firms can make interview and job offers at any point. Once an offer is extended, it cannot be rescinded for 28 days.

Students collect rolling offers over a few months. Students cannot hold more than five offers open at any point, but students turn down previous offers as they collect offers they prefer.

Highly indebted, unknowledgeable, and stressed law students are the vulnerable party

continued from p. 6 1L EXAM WRITING might get the grades and, maybe, the job you immediately or gradually realized you wanted.

Or the results could fall lower than hoped, with the initial, idealized path slipping out of view.

But here’s the silver lining.

You’re at this place because you’re smart and you’re driven. You might downplay this statement out of modesty or consider how weakly you carry such qualities compared to, say, the gold medallist. But they’re precisely what will ensure your success. You’ll add to them, too. You’re currently in a blast furnace of intellectual and professional improvement.

Most of these developments will happen without you even noticing. You’ll write better prose, sharpened by prolonged exposure to good writers and being with articulate people

in hiring. Why do LSUC regulations make things worse for them?

Maybe LSUC is bad at designing rules.

Maybe it wishes to limit the resources firms commit to attracting candidates. Maybe the rules are a misguided attempt to encourage law students to be extremely straightforward (though without recognizing that that firms are not comparably encouraged to be straightforward).

Smaller firms especially benefit from offer windows. A law student is usually wise to keep their future employment options as expansive as possible—it’s a lot harder to move up the prestige/salary ladder than down it. Small firms benefit when law students are effectively restricted from courting more than one or two firms in the late stages of the interview period.

So law students, you are a sacrificial pawn to poor regulations which do little but equalize the hiring prospects of different tiers of law firms and save the firms a little bit of uncertainty.

Be mad.

The Bar Exam The bar exam is an anachronism. Prior to the 1950s, people in Ontario became lawyers by self-studying or taking classes administered by the Law Society. The Law Society wisely required prospective lawyers to pass an exam to prove they had adequately self-studied. The trouble is we still have a bar exam on top of three years of law school exams.

For six weeks, law school graduates read a 2,000 page summary of Ontario law. They prepare a massive table of contents so they can rapidly locate the minutiae of income tax calculations and civil procedure within these pages. They answer sixteen hours of multiple choice questions on that minutiae. Why? Ontario law students have all successfully completed six to infinity years of post-secondary education, including three years of intensive legal education. We have strong assurances that law graduates are smart, responsible, and knowledgeable about Ontar-

all day. You’ll speak better too, finding yourself reflexively landing on the right words more often than usual for the same reasons.

Seeing others work so hard will motivate you to similar levels. These indelible marks won’t leave you after December.

Maybe you can’t distill your intelligence and drive as efficiently as your peers into a three-hour-ExamSoft-horserace format.

There’s more, however, than the interior of an exam room and you’re more than your transcript. Outside you’ll write and speak and pound the pavement and network and apply and interview and impress people. Really impress people. Impress them like I’ve been impressed by three different 1L cohorts now. So much so, in fact, that many of your resumes and stories make my admission here seem like a clerical error.

And when you get that job you want later on,

io’s legal system. It seems like almost everyone ultimately passes the bar exam (you are allowed three attempts), though LSUC does not publish bar failure rates.

And what if Ontario law students fail the bar all the time? Then we should be concerned about the arbitrariness of the test. A 2,000 page, 16-hour word search is not relevant to lawyerdom and does not ensure legal competency. The bar exam did not move anyone from the category of “totally unfit to practice real estate law” to the category of “fit enough to practice real estate law.”

Some people learn a few things while reading the bar materials. We would all learn something by retaking torts after graduation. Let’s say I’m responsible for teaching you to build walls, and I instruct you to spend six weeks throwing feces at a wall.

Even if you stare so long at a wall that you learn a little about walls, it doesn’t justify the fact that you spent six weeks throwing shit at a wall.

What are the costs of the bar exam? First, it is expensive to administer. We all pay hundreds for it. Second, it eats six weeks of our lives. That needs justification. This is time away from family, travel, leisure, and work.

When law students are notoriously indebted, highly stressed, and overworked, these considerations are not trivial. Most of the bar materials aren’t even relevant to our careers. There aren’t many M&A lawyers with a significant youth sentencing practice out there.

Life is the most valuable thing you’ve got.

You wasted six weeks of it preparing for an expensive, ineffective, and arbitrary examination in the honeymoon following three years of concentrated legal education. That life is gone. It’s never coming back.

Be mad as hell.

Articling Like the bar exam, articling is an anachronism dating to before law schools were around.

Almost everyone agrees there are problems with articling. The biggest problem is that it exists.

in a field you’re perhaps wholly unaware of, at a place that, perhaps, you don’t know exists right now, you’ll gain perspective. You’ll step outside the echo chamber walls to, perhaps, find that your former worries and how you phrased them were overly severe. More broadly, you might even see exams as luxurious problems in comparison to the problems you could have had, and that others have right now.

Perhaps, however, this whole article crosses you, reader of varying mileage, as nothing more than privileged moaning. That’s a fair take. My dad never went to university. Real tough dude, though. Grit his way through two divorces while working long hours and raising two kids nearly by himself. Never complained.

Circumstance and necessity forged him into a stoic. He’d probably call the whole exam experience, work-wise, stress-wise and sleep-wise,

Much has been written in recent years about LSUC’s Law Practice Program (LPP) experiment. I won’t repeat these discussions, other than to say the program is expensive, likely won’t increase skills or employability of participants, and is funded by the one interest group with the least capacity to pay for it: law students. Do you see a theme?

I don’t know if articling was ever this romantic thing where skilled lawyers selflessly instructed students on how to transition between law school and the profession. Maybe it was. Regardless, if we hold articling up as this idyllic parental apprenticeship, we won’t be able to see it for what it is.

Articling is ten months of indentured servitude. No matter how bad the experience is, students will stick it out because completing those ten months is necessary to be called to the bar. Firms get a commitment-free mechanism to extract work from young lawyers, then cull those who didn’t throw as many punches in the desperate fight for hire-back.

Removing articling wouldn’t cause underlying economic pressures to disappear. Young lawyers will always face considerable pressure to outcompete their peers. But articling intensifies these processes because it allows firms to treat articling students as temporary workers rather than employees.

If the goal of articling is to perform a gatekeeping function, then why does no-one “fail” at articling? I am aware of many people who failed to obtain articles, but not of people who failed to complete them. One might argue that the real gatekeeping function of the articling period is to prevent those who could not find a position from hanging a shingle and exposing the public to bad work. If that is the concern, then why don’t we tailor the protection to the hazard by placing the equivalent of an articling requirement (i.e. proof of work experience) on those who want to open an independent practice?

Instead, law students have to fight tooth and nail to land a temporary contractual position.

And then fight to emerge on the happy side of hire-back in working conditions that are excluded from the protections of the Employment Standards Act. And no one can give you a compelling reason why.

You’re not going to take this anymore.

a three week vacation.

So, as you prepare for your exams and, eventually, martial your transcript and arrange CV items row on row as phalanxes against the threat of unemployment, remember what qualities got you here. Take heart in where they will lead you. Grades can certainly make things easier. Bad ones aren’t necessarily a deathblow. Many follow the same recruitment path, but there’s no one path to follow. Well-travelled or not, you’ll find the one that makes all the difference. From the vantage point of 3L, the very large majority of my classmates, including those who did not do well on 1L exams, seem happy where they’re going after graduation. That’ll be your class in two years.

The truth is that mountains don’t move, kid.

But neither do summits.

8 | NOVEMBER 26, 2015

SPECIAL FEATURE

ultravires.ca

TORONTO RECRUITMENT 2015 Every year, at the conclusion of the LSUC lic high schools. Not all of this data made it complete the survey. A comparison of the EmNovember Toronto recruitment process, Ultra into this issue, though we may look for ways to ployer Survey with the Recruitment Survey Vires conducts two surveys: one of U of T stu- share more of it online. also indicates that students who had not redents who were eligible to participate in OCIs Because not all eligible students opt to com- ceived an offer were less likely to respond to and the other of participating employers. plete the recruitment survey, the data con- the recruitment survey.

These surveys provide Ultra Vires with valu- tained in this section should be interpreted In previous years, Ultra Vires has conductable insights into both hiring and the makeup with caution. Response rates are high—170 ed a statistical analysis of the Recruitment of the Faculty of Law student body.

Survey to identify factors most Factors Negatively All the information contained in closely correlated with hiring.

Factors Correlated With Hiring Correlated With Hiring this section is the result of one or This year, Ultra Vires has opted both of these surveys. not to publish the factors signifi- High 1L Grade - A high LSAT score We made a few changes this year. cantly correlated with hiring. Due - Being a JD/MB For one, we have included more emto a bug in the Recruitment Survey, - Self-Reporting as an Extrover - Supporting the Conservative party ployers in the hiring list, including insufficient grading data was colmore small firms and more governlected for Ultra Vires to be confiResults of the 2014 Recruitment Survey. ment offices (though unfortunately dent that any one variable is indewe did not receive hiring numbers from Legal out of a class of approximately 200. However, pendently significant. There is, however, no Aid Ontario before publication). We also add- there is reason to suspect that response rates reason, to doubt that the factors identified in ed some new questions to the student survey, are not uniform. In particular, the statistics previous years are no longer significant. including questions on mental health and indicate that students who had received a job whether respondents attended private or pub- during the 1L recruitment were less likely to

50%

63%

67%

of students who cried during the process received an offer

of students who participated in the recruitment process received an offer

of students were satisfied by the outcome of the process

RELIEVED I really appreciated how supportive all the students are of each other during this process.

I feel tired. But happy. Happy-tired.

So excited! It was hard to turn down my second choice firm but I am happy where I ended up!

Good--but I suspect this is highly tied to actually getting an offer.

I am relieved that it is over, but frankly, I miss it. The hype and energy was invigorating. I cannot wait to begin to work on Bay Street…

Happy. And a little drunk.

DISAPPOINTED I feel like I failed myself and my family because of the outcome of this process. My self-esteem and confidence have taken a serious beating.

This process has made me feel pretty awful about myself, and less kind to a lot of my fellow students. I don't need to hear about how stressed you are about having 15 OCIs! We should institute a blanket ban on talking about recruitment at school.

It was an incredibly demoralizing process – But I'm determined to succeed, so I'll find a job and rebound from this.

I feel very misled by one particular Bay Street firm.

More certain of where my interests truly lie. I thought going into law school I wouldn't want to work on Bay Street, and now I know for sure that I do not. It was useful for showing me what truly interests me in law, and focusing on my passions.

In one sense I feel awful because I'm unemployed. On the other hand, I hated every minute of this week and many of the people I met were arrogant, rude, and disrespectful…I've also realized that I probably would have been miserable at any of the firms I interviewed with.

ultravires.ca

SPECIAL FEATURE

NOVEMBER 26, 2015 | 9

Job Distribution by Firm and School Firm Aird & Berlis LLP

Total Students

U of T

Osgoode

7

2

2

Baker & McKenzie LLP

5

Bennett Jones LLP

16

Bereskin & Parr LLP

Western

Queens

Ottawa

McGill

2

2

1

1

1

1

2

2

1

1

1

1

1

1

3

1

Blake, Cassels & Graydon LLP

36

15

8

4

3

Borden Ladner Gervais LLP

21

6

2

5

2

Brauti Thorning Zibarras LLP

2

Cassels Brock & Blackwell LLP

12

3

Dale & Lessmann LLP

2

1

Davies Ward Phillips & Vineberg LLP

16

4

7

1

1

Dentons

12

2

2

1

2

Dickinson Wright LLP

2

Dimock Stratton LLP

2

DOJ Ontario Region & Public Prosecution

9

3

1 3

Other

1

5

2

Windsor

4 2

1

1 2

2

1

1

1 1

1 1

1

1 3 1

1 2

1

2

1 2

1

1

1

1

1

2

1

Service of Canada DLA Piper

4

Edward H Royle & Associates

2

2

Epstein Cole LLP

2

1

Fasken Martineau DuMoulin LLP

13

1

4

Filion Wakely Thorup Angeletti LLP

5

1

2

Fogler, Rubinoff LLP

6

Gardiner Roberts LLP

3

Gilbert's LLP

2

2

1

2 1 1

1

1

2

1

1

1

1

2

1

1

1

Goodmans LLP

13

3

2

1

4

1

Gowlings

14

3

4

3

1

2

Hicks Adams LLP

4

1

1

Hicks Morley

5

2

Koskie Minsky LLP

4

1

Legal Aid Ontario

19

1

2

Lenczner Slaght Royce Smith Griffin LLP

5

2

2

MAG - Constitutional Law Branch

4

1

MAG - Crown Law Office - Civil

8

1

MAG - Crown Law Office - Criminal

8

4

MAG - Office of the Public Guardian and Trustee

3

1

2

Mathews, Dinsdale & Clark LLP

3

1

2

McCarthy Tétrault LLP

22

4

2

4

McMillan LLP

11

3

1

3

1

2

6

Osler, Hoskin & Harcourt LLP

21

4

3

Paliare Roland Rosenberg Rothstein LLP

3

1

2

Paul, Weiss, Rifkind, Wharton & Garrison

3

3

Reisler Franklin LLP

3

Shearman & Sterling LLP

1

Skadden, Arps, Slate, Meagher & Flom LLP

1

4

4

3

3

2

3

1

1

1

1

3

2

2

1

1

2

2

2

1

2 2

2

2

1

4

1

3

2

1

1

2

3

1

1 1

2

1

Stikeman Elliott LLP

20

7

Thorsteinssons LLP

0

Torkin Manes LLP

2

1 3

2

3

1

2

23

8

6

6

3

1

106

84

3 420

5

1

2

5

Firm

2 3

2

9

Wildeboer Dellelce LLP

1

3

19

WeirFoulds LLP

1

1

1

Norton Rose Fulbright Canada LLP

Torys LLP

2 1

1 1

Miller Thomson LLP

Smart & Biggar

1

2

2

200

290

% with Toronto Jobs

53%

29%

2014 Total

97

83

2013 Total

94

75

2012 Total

89

89

2011 Total

96

83

3

1

49

48

32

25

40

176 28%

200

304 11%

186

24%

13%

248 16%

1

Approx Class Size

2

1

48 44 43 53

1

46 43 43 47

35 30 39 36

1

27 13 18 27

26 23 28 27

36

21 16 16 16

SPECIAL FEATURE

10 | NOVEMBER 26, 2015

CLASS PROFILE

Introverts Receive Fewer Offers MATT HOWE (3L) Introverted students were measurably less successful during the recent 2L recruit when compared to the general student body, according to UV survey data. Whereas 61% of the entire 2L cohort received a job offer from interview week, offers were extended to just 52% of students who self-described as being introverted. 63% of extroverted students received an offer.

Perhaps not surprising given their reduced success in a week filled with high-stakes social interactions, only 50% of introverted students also reported feeling satisfied with the process as a whole, compared to 72% of extroverted students.

One introverted 2L who preferred to remain anonymous found that he was signifi-

cantly more exhausted by the process than his extroverted friends were. “I found myself leaving early because meeting so many people was getting overwhelming. I think this was held against me.�

The differences between introverts and extroverts did not manifest themselves earlier in the job recruit. Both groups of students scheduled comparable numbers of OCIs and infirm interviews leading up to November 2.

While UV does not have enough data to reliably test this, one might assume that differences between these groups would be less pronounced when looking specifically at government branches, where the interviews are more substantive, or even smaller firms who do not host receptions or dinners.

ultravires.ca

SPECIAL FEATURE

ultravires.ca

NOVEMBER 26, 2015 | 11

WHAT YOU TOLD US ...ABOUT THE CDO “The CDO was incredible. I hope our outrageously expensive tuition goes largely to them.”

“They genuinely cared about each student succeeding.”

“Emily and Jordana were wonderful: they were supportive, available, and had great suggestions. Emily's advice helped me land my summer job. Our CDO is the best!”

“Lots of knowledge about bay St employers. Would have been great to see a bit more knowledge about boutiques and government employers."

“I found upper year students who had previously participated in the recruitment process to be a much stronger resource than the CDO." "The CDO does not do nearly enough to inform first-year students of the Toronto recruitment process...I had no idea how disproportionately important first-year grades were, what the different firms were, what the firms were looking for...there absolutely should be more of an effort made to give students the information they need earlier."

“I think the CDO can do a better job at exploring and informing students about alternatives to this process early on… [this] may have added unnecessary stress and pressure for many students.”

82%

58%

of Students Found the CDO Knowledgeable About The Employers They Were Interested In

of Students Turned to the CDO for emotional support

…ABOUT HOW YOU’D CHANGE THE PROCESS “Everything.”

“For the firms to be able to express their interest more clearly and more firmly.”

“The process is imperfect and gruelling, but I'm not sure what alternative would be better.“ “I wish someone had talked to us about how to be supportive and sensitive to each other during the process... They prepared us to behave politely in front of an interviewer, but not around each other.”

“ITCs and PFOs add unnecessary stress to the process … I don’t need to know a month in advance that I won’t be getting an OCI from Davies” “I wish the words "first choice" were not so crucial.“ “Fuck thank you e-mails. So awkward to write, and I can't imagine lawyers like them clogging up their inbox.”

“Basically I would make it much more like New York's.”

Words Used by Students Who Did Not Receive An Offer To Report Their Experience

12 | NOVEMBER 26, 2015

SPECIAL FEATURE

ultravires.ca

ADVICE FOR THE 1LS

WHAT’S SOMETHING YOU DIDN’T WANT

“Know your story - your personal narrative. From growing up to law school to your future - think about that story and how a job with this firm would fit into that narrative. Also just try to be as relaxed and personable as possible. And if you are really interested in a firm, make sure the firm knows it! Don't be too coy.”

EMPLOYERS TO KNOW ABOUT YOU?

“I should not be approached for advice. I’m still 99% sure that I got my job through luck.”

“My anxiety issues.”

“I played down my social justice/activist background.”

“That I probably want to be an academic.”

“That I only had one in-firm”

“Signal your interest and be very explicit about it.”

“That my redemption tale was a fable.”

“If they want you, you'll know. Do not feel pressured to number one anyone until they've told you that they want you.”

“I don't know what securities are.”

“PLEASE ask as many upper years as you can as early as possible in 1L for a detailed breakdown of their experiences, and for a proper explanation of how the process works. I barely had any idea what OCIs were/how important 1L was etc until I was in the middle of it, really. And tons of people were in a similar boat."

“Don't tie your self-esteem up to the outcome of the process.

It is so arbitrary. Good people will come out of it without a job; it's not the end of the world. UofT makes it seem like if you don't get a job through the process, your will never be successful or have a job, etc.This is far from the truth."

“It’s important to stay in Toronto over the 1L summer. Attending firm events is important, and that’s only possible if you’re in town.”

“That I'm introverted and hate going to receptions” "My grades. So much for that…"

"Don't really want to be a lawyer.: "That I thought their small-talk skills were sub-par."

"I didn't want employers to know that I got my previous job in law through my parents' network...and every employer asked about it!"

"I...will likely be looking to start a family within the next three to four years."

"That I wasn't "enjoying" the process."

“Stikeman Elliott is spelled with two t's."

“Try not to get caught up in talking about the process with other students."

AWKWARD/INAPPROPRIATE QUESTIONS + LSUC VIOLATIONS “How old are you?”

“Where else are you interviewing?”

“What is the craziest thing you did in undergrad?”

“Are you married?”

“I was asked by two different lawyers if I was American or Canadian.”

“A firm told me that they would be making an offer at a lunch on Tuesday. On Wednesday at 4pm they called me and asked me to commit to accepting the offer. When I said that I was very interested but would still like the hour to reflect on it, they said they would no longer be offering me the job. They did not call at 5pm."

“I received calls before 8 am on call day and before 5 pm on offer day."

"So you must have been happy about the election results. Actually, nevermind. I'm definitely not a Liberal, so I don't want to hear about that."

"At a dinner, a lawyer began the set-up to a joke about sexual assault, but stopped himself from ultimately delivering the punchline. I assume he didn't complete the joke because he realized it was inappropriate, but it was heavily implied what the rest of the joke would have been."

"Trying to pressure me into telling them the other firms I was considering and where they stood on my ranking.

Asking questions that aren't supposed to be asked (e.g. Are you married? Where else are you still interviewing? How are you feeling about those places?)."

SPECIAL FEATURE

ultravires.ca

NOVEMBER 26, 2015 | 13

TRENDS IN HIRING The Increasing Importance of the 1L Recruit SIMON CAMERON (2L) Note: Ultra Vires has made a few assumptions in reaching the following conclusions: Firstly, it is assumed that all students who were hired in 1L accepted an offer to return for their 2L summer. Secondly, this data does not capture offers that were extended but not accepted by 2L students. This data should not be interpreted as implying that it is impossible to find 2L jobs at firms that hired substantial numbers of 1L students, but only that it is less likely.

Students wishing to work at Aird & Berlis, Bennett Jones, Cassels Brock, or Davies would do well to find their positions during the 1L recruit. Each of these firms hired University of Toronto 1Ls, but did not add to their number during the second year recruitment.

There are many potential reasons why firms that have taken substantial numbers of University of Toronto 1Ls might hesitate to make offers to their classmates nine months later.

Because returning students serve as ambassadors for their firms, the firms may prioritize expanding the diversity of their student base.

Alternatively, the firms may believe that they

have already had the ‘pick of the crop’ or that the students most enthusiastic about the firm have already applied.

These firms may just be particularly pronounced examples of the gradual shift towards the 1L hiring process. While general hiring numbers have remained flat, the number of 1Ls hired has increased. This shift may be being driven by the growing number of students enrolled in four year split programs.

Regardless of the reasons driving the shift, students with their hearts set on a particular firm should be aware that waiting for OCIs may not be an option. They run the risk that their chosen firm will have satisfied its U of T quota and that they will be out of luck regardless of how impressive their lion-sighting story is.

Of course, this shift may also pose challenges for those students who enter 1L with less impressive undergraduate grades and work experience. With fewer objective criteria for firms to draw on in the 1L recruit, firms may also resort to subjective criteria in a way that has negative implications for diversity.

Most U Of T Students Hired

BLAKES

TORYS

15

8

STIKEMANS

BLG

7

6

Words Used by Students Who Received Offers To Report Their Experience

OPINIONS

14 | NOVEMBER 26, 2015

ultravires.ca

Keep Calm and Keep Hustling Why not landing a 2L summer job isn’t that big a deal.

BERND BUSCHKE (3L) So you didn’t land one of the coveted Bay Street positions in this year’s 2L recruit. That sucks. Get mad, it’s okay. It can be incredibly disappointing, and the only real solace is that it wasn’t anything you did. You’re talented, personable, and likeable, but it didn’t work out. Life isn’t fair. That said, it’s far from over.

Turn those emotions into action and put yourself in the best place to find another job this summer and for articling.

You’re still the same person as before OCIs. There is no black mark on you, much as you might feel like there is. You didn’t get to U of T by being a dunce, and less clever people than you got jobs. You didn’t get here by being an unrepentant weirdo either—unless you did, in which case welcome to Tax Law!—and less charismatic people got jobs too. The upside is that, with many of your talented classmates out of the running, you have a smaller pool in which your best attributes can show through even more. And there are many, many jobs left to come.

Still want to work full service? There are always several mid-size full service firms which open their recruitment after OCIs. Bigtime finance? Last year, in-house legal positions opened up at some of the biggest investment firms in the world. And there are the Ontario Securities Commission positions— competitive, but very flashy on the resume.

Public interest? Many government offices and

legal clinics hire outside the November recruit. You can also get grants through the school to work at public interest employers.

None of the above? Work as a research assistant for a professor in a fulfilling, low stress atmosphere, and drink daily!

What if you don’t end up finding a job for this summer? The articling recruit is LOADED with incredible opportunities in all of the above and more. Work on your resume and interview skills all summer and crush your articling interviews.

If you’re like me, and get absolutely snakebitten in the process, and nothing seems to work out, keep the faith.

I was in with the CDO weekly to hone my resume, prepare for interviews and work on job search strategies. Cold calling blows, but it works. I landed an unpaid—I know, ugh—position with a sole practitioner who rents an office and is quite successful working on his own.

Later, I landed a summer student position at a big corporate governance firm editing a textbook. Being in those sorts of positions lets you learn about the law, and how to act around clients, but also teaches you how the actual business of law works. It can be fun, and the options are only limited to what you can hustle up. This brings me to my dos and don’ts of being jobless after OCIs.

DO Talk to anyone you know at the firms you were close to landing a job at. It hurts, but it’s the best way to figure out how to improve your interviews going forwards. That also goes with any places you don’t get in the rest of your search. Befriend the people in HR—they’re normally sweethearts. I had an interview go squirrelly in Ottawa, and by contacting the HR rep for the firm I was able to get an hour long breakdown of exactly what I would have had to do to get the job.

DON’T Panic. That said, you’re going to. Try to limit it and push your emotions down with pub night and intramural sports violence. Or yoga. I don’t know. Do you.

DO Hustle. Seriously, the best thing you can do is keep looking at UTLawcareers, Kijiiji, and any other “law+student” alerts you can set up on major job sites. I got numerous interviews this way, and you can too. Ask people you know if they have any leads. Sometimes it goes somewhere and sometimes you make friends.

That’s networking, and it’s important.

DO Be happy for your friends. Don’t be salty, they’re still great people.

DON’T Get jealous. Your friends on Bay Street will make more money—though for some, it just comes out of financial aid anyway—and they may have an articling job lined up. But their summers will mostly be full of miserable toil for the largest and most oppressive of the major firms. Winning kind of stinks in law school.

DO Expand your horizons. “Yes, I’ve always been interested in the cosmetics and toiletries industry” was a thing I actually said at one point, and that’s hilarious. Keep yourself open to options, and after a while you’ll actually start to believe your own preposterous untruths.

If you follow these steps you too may soon leave the frenzied panic of joblessness behind, and enter the sweet, sweet world of existential dread that is the awful prospect of working in law for the next five years. May the odds be ever in your favour!

DON’T Accept an offer to represent someone you found on Kijiji. Turns out that’s super illegal, and the Law Society doesn’t look fondly on it.

If you’ve got potential.

Some people have long known what they want out of a career. They look beyond their present and focus on their future: a future with international scope, global clients and limitless possibilities.

If you are that person, you’ve just found where your future lies.

Law around the world nortonrosefulbright.com

OPINIONS

ultravires.ca

NOVEMBER 26, 2015 | 15

Point|Counterpoint To #3LOL or Not to #3LOL Point – It’s All Downhill From Here

Counterpoint – Don’t Waste Your Money

ALEX CARMONA (3L)

LISANA NITHIANANTHAN (3L)

Law students are good at many things.

Reading, arguing, eating free pizza. Probably some other stuff. But what we’re best at, as a group, is being stressed the fuck out. You, dear 3L reader, know this better than most.

You’ve already spent two whole years at our wonderful school and have gone through the veritable gauntlet of stressful hurdles that make up the lower Ls. You’ve been cold-called during a class you forgot to read for. You’ve muddled your way through your first set of 100% finals. You’ve been a part of the ripe pit of despair that is the Reading Room in December and April—four times. You’ve sweat your way through OCIs, Call Day, In-Firms, Offer Day. Maybe you had to do it all over again during the Articling Recruit.

But now, finally, thankfully, you know where you’ll be headed after graduation. You’ve got the job, signed the papers and made a little “First day of articling!” note in iCal. So, bearing all of that in mind, I’m here to say: Relax.

You’ve earned it.

The 3L year is, in my opinion, a precious gift that shouldn’t be squandered in the Reading Room. It’s one of those rare school years where, in the vast majority of cases, our grades don’t matter. Now, that’s not to say my #3LOL philosophy advocates for phoning it in entirely—if you’re at U of T Law, it probably means you’re both mentally and physically incapable of truly not giving a shit about your grades. And, somewhat importantly, we’re paying over thirty grand to be here, so it would be monumentally wasteful to just check out altogether.

So here’s my pitch: ease up on the gas a little.

Spend some more time doing what you love (and if that includes sitting in Birge reading hundreds of pages of case law, uh, you do you). Corny as it may sound (and is), spend your 3L year focusing on things that actually do make you laugh out loud. If that costs you a couple of Ps, so be it. After all, come arti-

cling, performance evaluations will start to dominate our lives—why not take advantage of this magical year where all we’re really expected to do is “not screw up too badly?”

That’s to say nothing of the fact that half of our year are off having wild European, Asian and South American adventures (at least, according to Facebook and Snapchat) while the less globetrotting half of us grimly watch Toronto not so slowly get greyer, windier, and oh so much colder. They’re off playing with elephants in some magical world where every class is pass/fail—I personally think that earns those of us who stayed some license to sleep in, skip some class or see how many consecutive Call to the Bar pub nights one can hit in a row (my current streak as of writing this article: far too many).

I don’t think its hyperbole to say that for most of us, life wont’ be this relaxed for a long, long time. Sure, crushing it this year might appeal mightily to the grade-hungry monster lurking deep in the soul of pretty much every U of T law student but there will be plenty of time to get back to basing our self-worth on opaque, capricious and sometimes utterly arbitrary performance distinctions. Except when that time comes, those distinctions will come with fun new additions like “long-term career consequences” and “real-world consequences.” I don’t know about the rest of you, but that’s enough to make me cherish the last bit of safety-net left before we enter the real world—and enough to get me to make some damn use of it.

Dear Class of 2016, Alex is right. Law students are great at many things. Reading, writing...lawyering. We’re great at finding events where there’s free food.

We excel at impassioned outcries. Whether it is protesting the lack of tablespace for exams or demonstrating our dissatisfaction with SLS initiatives.

Now, there was a time, long ago, the Years of Law School Past, where we weren’t so great at things. Gasp. I know it’s hard to remember, but if you dig deep, deep, into your mind, you’ll recall the repressed memories of your time in that depraved land. You’ll remember wondering if the Reading Room’s fluorescent lighting was a good substitute for the sun.

You’ll remember having wise Upper Years tell you that academic success isn’t the most important thing, and you telling yourself the very same, as a mantra, all the while having a breakdown. You’ll remember the panic you felt while attending CDO info sessions about OCIs. Speaking of, remember OCIs? Call Day? You’ve done it. You’ve overcome all these “little” trials and tribulations, and the accompanying stress and mental torment to finally get to this divine place.

Welcome to 3L, I think you’ll enjoy your time here.

3L is a precious gift that shouldn’t be squandered. It’s the last time we’ll be among so many great minds, so many inspiring souls, and such diverse perspectives. So why waste it? Go to class. Do your readings. Participate.

Engage with the content. Voice your disagreement. Turn the lecture into a debate. Broaden your mind.

At this point in your legal education, you’re likely taking courses that interest you, so why not milk the it for what it’s worth? Your grades likely don’t matter anymore. You’re finally at a place in your life where you can learn for learning’s sake. You have an articling job

continued from p. 2

continued from p. 5

TRUTH AND RECONCILIATION

BETTER KNOW A COURT

ways of including Aboriginal law as part of their courses. Those professors who feel more comfortable in this area could share ideas and materials with the others who are more hesitant.

Another major topic of discussion was the selection of upper year courses... Out of the discussion came six Aboriginal Law Workshops, three of which have already taken place. Various practitioners and academics come in to do a presentation on a topic in Aboriginal law which is followed by discussion.

The workshops are open to everyone, and Autumn says they have had “an excellent turnout.” ALSA also suggested to Professor Katherine Hensel that the course on Aboriginal People in the Criminal Justice System be reworked slightly to meet the requirements for a perspectives course, so more students might

take advantage of it.

ALSA’s efforts before and after the release of the summary are impressive, and the Faculty’s first steps are promising. For this process to flourish, however, it requires the engagement of the whole law school. As members of the legal community, this issue deserves our attention. Professor Roach said the Calls to Action “provide the Faculty with an opportunity to do serious soul searching and curriculum reform. The responsibility for the hard work that needs to be done should not be put only on a few faculty or a few students who are concerned and active on these issues: we all need to work on understanding what has gone terribly wrong in the past and make steps to improve things in the future.”

of cases, it took over 6 months after the charge to relay this information to DCS. Severe Punishment The severity of the lack of procedural safeguards, especially at the summary trial level, is worsened considering the types of punishment available to commanding officers. The most severe of these is “detention” for up to a month. Courts martial can issue longer periods of detention, dismissals from the military, and up to life-long prison sentences. The severity of military punishment, however, is perhaps best illustrated by describing “detention”.

Detention involves being sent to Canada’s military prison in Edmonton, where inmates undergo, by regulation, a “routine and training [that] require[s] the maximum effort and

lined up. You’ve made connections. You’re set for life after law school. And even if that isn’t the case, you go to U of T Law, that’ll open doors for you (or so I’m consistently told... but even if that isn’t the case, you go to U of T Law, you’ll figure it out, you’ll be fine!).

3Ls, you’re paying $33,054.86 for tuition, and because money is always an indicator of value, that’s an extremely worthwhile education. So why not educate yourself while you still can! You don’t have to stress about it. It’s all essentially second nature to you, so it’s not like you’re doing any more additional work.

It’s the same amount of work you’ve been doing, maybe even less, JUST MINUS THE STRESS. Yeah, okay, fine, Alex is right, our jet-setting classmates are having a good time. I’ll concede that point. But that’s not to say you can’t either. There’s a reason you didn’t go on exchange. And it wasn’t to sleep in or skip class.

So, wake up, go to class, but then you have all this 3L time to do all these cool things that Toronto has to offer. No I was not paid by the City of Toronto for this. Yes, I would graciously accept payment for this. Do something that you can look back on in a few years, and say, yeah I did that in 3L. Go join a club.

There’s plenty of them out there. Sign up for commitments. Volunteer your time. Invest yourself in things that you didn’t have the chance to do in the prior Ls. You finally have the time, opportunity, and frame of mind to go HAM. Don’t ease up on yourself. Live 3L to your fullest potential. I know that 3LOL is supposed to mean no responsibilities and no readings. But try to resist the very tempting lure of the #3LOL life. You can do it. I believe in you.

the strictest discipline”. Every aspect of the 15-hour days is scheduled, with an emphasis on military drill and scrubbing rooms and equipment, while in uniform. For the first two weeks, inmates are not allowed to smoke or speak without permission. After this first stage, they are allowed to speak to others for a maximum of 30 minutes per day, use the library, and have visitors. Inmates are penalized for such misbehaviours as idleness, inattention, attempting to communicate, swearing, singing, and whistling. The most severe punishment available is days in solitary confinement in a barren cell, unable to lie down, in socks and underwear, fed only bread and water. Consider yourselves warned, I guess.

OPINIONS

16 | NOVEMBER 26, 2015

ultravires.ca

On Diversity: The “My Neighbour is African” Edition NABILA PIRANI (3L) I have spent the past few weeks talking to several “diverse” people at U of T Law who went through the LSUC November recruitment process for Toronto. I didn’t speak to them all, and I have no idea whether the people I spoke to constitute a statistically representative group—because, you know, no one really knows what our school’s diversity statistics actually represent. Possible methodological matters aside, my conversations illuminated a series of issues.

These include things we already know. Bay Street’s diversity numbers are nowhere close to those of our general population, but things are changing. Many firms now have “Diversity Coordinators” mandated to address this representativeness problem.

There are things we know, but don’t talk about. That a number of lawyers can be really offensive—and/or just plain ignorant—towards diverse peoples, for example.

Then there are the things we won’t talk about. That, for diverse peoples, talking about diversity with firms during recruitment is just as dangerous as asking the “work-life balance” question, or demonstrating more than a passing interest in social justice.

That danger doesn’t stop with the end of recruitment.

In my conversations, I heard stories that

gave me hope, but I also heard horror stories that had me cringing and cursing in disgust.

Most importantly, I heard stories of individuals wanting to engage firms on their diversity policies because, for some, these matter just as much (if not more) than the multi-billion dollar deal the firm just participated in.

For example, what are firms’ policies on religious accommodation requests? Do lawyers at law firms undergo training to help them become more conscious of diversity-related matters? What sort of diversity-related outreach do these firms engage in? Is diversity even an issue?

But here’s the thing.

You won’t hear any of these individuals’ stories. That would mean, at the very least, making their lives with their respective employers difficult and awkward. At most, this would mean potentially putting someone’s job at risk, mine included. And I can’t do that.

And so, I won’t tell you which firms tried to engage with students about diversity, but ended up making it seem like a liability. I also won’t tell you which firm tried to pigeonhole a diverse student into a form of law tangentially related to that person’s specific diversity. And I certainly won’t tell you which Senior Partner answered the “What are your firm’s diversity policies?” question with the equivalent of

“My neighbour is African.”

Speaking up and writing about such experiences is one thing, actually dealing with the problem is another. It’s great that firms have started looking at diversity, thinking about diversity, trying to engage potential recruits on diversity. But so long as the power imbalance between law firms and potential recruits continues—and we know it’s not going anywhere—diverse peoples will not and cannot engage with firms on issues of diversity with the freedom that the conversation requires.

The question arises—what do we do? In all honesty, I don’t know yet. At the very least, law firms could start by instituting diversity training for lawyers participating in the November recruit. Diversity and student hiring coordinators could brainstorm the various types of diversity they might come across during recruitment, and determine what steps they could take to accommodate them. Our Career Development Office could be more forthright about the sorts of issues diverse peoples might face through the recruitment process, and connect interested 2Ls with diverse upper year students who have already gone through it. The Law Society could take active steps to collect information (anonymously, of course) on the sorts of experiences diverse students have during the process, and

to address its findings with firms.

Ultimately, it’s about moving the conversation forward. It won’t happen overnight. It probably won’t happen for many years. For the remainder of this year, however, this column will try to do whatever it can to bring attention to issues of diversity at the law school and beyond.

The Pursuit of Happiness Why the Law School Needs an Innocence Project SOLANGE DAVIS-RAMLOCHAN (2L) On July 6th, 2002, 51-year-old Colin Moore and his brother Roger were hosting one of their charity events at an Etobicoke nightclub.

When club regular, Gary Eunick and two others were asked to pay the $10 cover, they got into a heated argument with the Moore’s. Eunich and another man, who witnesses identified as having “two inch pinky dreads”, fatally shot Colin 8 times, while Roger suffered a flesh wound to the head.

Police quickly traced the getaway vehicle to 19-year-old Leighton Hay’s family residence, where Eunich lived. Eunich was arrested for first-degree murder. Hay, who happened to be home when the police arrived, was also arrested, although at the time his short hair looked nothing like the dreads the witness described. The Crown, relying primarily on a discarded newspaper containing Hay’s hair clippings and an electric razor, argued that he had returned home from the shooting and shaved his head in order to conceal his identity from the police. Hay was convicted of first-degree murder and attempted murder and, also a diagnosed schizophrenic, spent the past 12.5 years of his life heavily medicated in the psychiatric unit of two penitentiaries. On November 28th, 2014 he was released after forensic testing confirmed his innocence.

Now, an eyewitness identified Hay with 80% certainty in a photo line-up, noting he looked more like the shooter than the other 11 photos she was shown. Three weeks later, she was

shown another photo line-up and bypassed Hay’s photo altogether. This alone should have been enough to undermine the Crown’s evidentiary burden of beyond a reasonable doubt, but it wasn’t, and Hay’s factual innocence was stifled by the Crown’s misguided theory and some discarded hair clippings.

Not only did it take 12.5 years before Hay was declared innocent, the Crown was attuned to Hay’s factual innocence 4 years before he was released on their discretion. In November, 2010 the Supreme Court made an order for the release of the hair samples, after the Crown opposed. An independent scientist, monitored by both a Crown expert and a defence expert, determined “to a reasonable degree of scientific certainty” that the hairs were not from a haircut, obliterating the Crown’s theory. Still, in November, 2013, a retrial was ordered. Tick tock, all the while Hay rotted away in prison.

Wrongful convictions cast serious doubt on the legitimacy of our criminal justice system.

They highlight the procedural and technical flaws in our prosecution system and its failure

to protect the most disadvantaged individuals in our society. And putting innocent people in jail for real crimes allows those who are truly guilty to remain at large. Anthony Hanemaayer was 19 years old when he was arrested for a crime Paul Bernardo committed. Although he maintained his innocence, the “strength” of the eyewitnesses testimony lead Hanemaayer to accept a plea deal, landing him a sentence of 2 years less a day in prison rather than the likely 6-10 years he would have received if convicted at trial. Bernardo went on to rape and kill at least three more women after Hanemaayer was imprisoned, and when he later provided undisclosed details definitively exonerating Hanemaayer, neither the police nor the Crown attempted to inform him or rectify the grave error. It was not until this finding was brought to the attention of the Association in Defence of the Wrongly Convicted (AIDWYC) that Hanemaayer was acquitted.

So, there’s clearly some sort of disconnect between our criminal adversarial system in theory and they way it runs in practice. While

Crown prosecutors are not supposed to pursue convictions relentlessly, as a summer student in the criminal division at Downtown Legal Services (DLS), I’ve definitely encountered my share of Crown’s who seem concerned with more than the pursuit of a truthful inquiry. Of course, professional misconduct on the part of police and Crown prosecutors is just one factor that leads to wrongful convictions. The Innocence Project states that eyewitnesses contribute to 75% of convictions that are overturned through DNA testing. Both Hay and Hanemaayer offer evidence of the dire consequences of eyewitness error. Hay’s witness only confirmed his identity with 80% certainty, only to fail to point him out when prompted a second time.

Not a single other person in the venue on the night of the shooting could point to Hay as the second shooter. What we were left with was a shaky eyewitness, and a Crown theory that for some reason was easier to accept than the truth.

Hay maintained that he was at home sleeping while the shooting occurred, but because of his prior criminal record for weapons possession, the police believed they had reasonable grounds for an arrest. Tunnel vision prevented the prosecution from accepting his truth. Why flush the dreads but discard the bloody vest and ammunition in the laundry hamper? If he was so afraid of detection, why

continued on p. 18

NOVEMBER 26, 2015 | 17

ultravires.ca

Move from the classroom to the courtroom.

If you’ve set your sights on a career in litigation, you want to apply all that you’ve learned so far where it really counts – in court. At Lenczner Slaght, you’ll spend more time preparing and presenting cases, guided by highly respected lawyers who can help you develop and polish your advocacy skills. As Canada’s leading litigation practice, we don’t just offer you more firsthand courtroom experience – we insist on it.

OPINIONS/DIVERSIONS

18 | NOVEMBER 26, 2015

ultravires.ca

First-Years Have Got This NICK PAPAGEORGE (1L) We all know that U of T Law is a brick to the face. Or at least it used to be, back in September. Now, with exams just a couple weeks away, it’s fair to say that us 1Ls have ground that brick into a fine powder—and promptly snorted it at pub night.

We’ve got this. We’re way on top of it. More so than you can even imagine. Seriously.

For instance, I write all my notes by hand, and spent several hours poring over them during reading week. After the first couple days, I had typed up thousands of words, annotated nearly a hundred pages, and applied the content to dozens of practice exams. My only complaint was that I wish knew what my next assignment looked like so I could get a head start.

I certainly wasn’t alone. As I caught up with fellow 1Ls after reading week, they all shared the same experience. By the end, most found

themselves with so little to do that they yearned to return to the classroom. “I think a reading weekend would’ve sufficed,” reported one student.

The ease with which everyone is grasping the material is palpable in every class. During a recent Constitutional Law lecture, one classmate commented to me about how smooth the Aboriginal law section had been.

“I just find it so straightforward,” remarked the student, who asked not to be named because she was not authorized to act so smugly.

“I kept finding myself thinking that these cases were almost too easy to follow. I found Tsilhqot’in to be the very picture of concision and clarity!”

The same is true in Criminal Law. When our professor announced that the exam would feature a quote identification section, nobody thought this an unnecessary curveball. Quite

the contrary. “That’s like an early Christmas gift!” beamed one student. “I’ve been spending a lot of time recently just sitting alone in my room reciting cases to myself verbatim, so he’s practically giving me free marks.”

Sure, succeeding in the academic program may have been surprisingly effortless, but what about all those extracurriculars?

“The legal clinic work is probably more carefree than the classwork,” one friend told me the other day. “I just spent the last four years debating abstract political theory with other private school graduates from the GTA, so the transition to helping immigrant families with real-world legal issues was nearly seamless.”

And the fabled summer job stress? Nowhere to be seen—those upper years were wrong again. In my investigations for this article, I discussed this very topic with someone in my

small group. Somewhat exasperated, she told me, “I just have so much experience in the legal field. Whittling down my resume has probably been the toughest thing I’ve had to do all year.” When I asked her how many applications she had already sent out, she seemed a bit taken aback. “Oh, I only sent out two or three before I received an offer. I just don’t know if it’s quite what I’m looking for.”

The only sentiment more prevalent than the simplicity of our experience so far is the one articulated to me by another colleague at the most recent pub night: “It’s all just such a breeze, it’s almost a perpetual vacation. I really can’t believe they aren’t charging us more for the privilege!”

stay in class 3 minutes beyond the end time promised by my e.Legal schedule. TORT or NO TORT?

been eating during these sessions includes: ham sandwiches, muffins, Snapple, pizza, pad thai, falafel/shawarma and berry pie. TORT or NO TORT?

Tort or No Tort?

MAUD ROZEE (1L) AND CLARA ROZEE (3L) There are three “Mondays” between October 19 and 26, or approximately one Monday every 2.666666 days. This ratio of Mondays is unacceptable and rises to the level of a harm to me and my family. TORT or NO TORT?

forced to play a game of human Frogger. This puts our lives at risk and impinges on our life, liberty and security of the person. TORT or NO TORT or CHARTER VIOLATION?

A piece of the ceiling caved in during Vincent Chiao’s Criminal Law class on September 29. There were no physical injuries but we were all a little unsettled. TORT or NO TORT? Today in class I put up my hand and the teacher pointed to someone behind me, but I started talking. My teacher’s hand gesture was vague and unfocussed, totally inappropriate for the classroom situation. TORT or NO TORT? There is no crosswalk between the island at the top of Queen’s Park and the other side of the road. Every day hundreds of students are

continued from p. 16 INNOCENCE PROJECT had reasonable grounds for an arrest. Tunnel vision prevented the prosecution from accepting his truth. Why flush the dreads but discard the bloody vest and ammunition in the laundry hamper? If he was so afraid of detection, why not just flush the hairs too? Why didn’t the police believe his family when they tried to tell them he never had dreads to begin with? Limitations in forensic science play a significant role in wrongful convictions, and can contribute to investigatory tunnel vision.

While scientific evidence is highly controlling for an accused’s trial outcome, the reliability of forensic techniques, such as bite mark comparisons, shoe comparisons, and firearm tool mark analyses, has come under increased scrutiny in recent years.

False confessions and jailhouse informant testimonies also lead to wrongful convictions, as does systemic discrimination. In 2013, Aboriginals made up 4.3% of the national population, but contributed to 23.2% of the federal prison population. Donald Marshall is a sad reminder of the systemic racism embedded in our criminal justice system. It begins with discretionary police powers and carries on into the sentencing regime. Moreover, conditions in pre-trial custody and favorable plea

The ceilings in Old Vic are unreasonably high, causing there to be too many stairs between each floor. As a result, walking to class causes physical discomfort and mental fatigue. Sometimes, instead of climbing the stairs, I just don’t go to class. TORT or NO TORT?

The barista at Caffiends had trouble boiling water in an electric kettle. I was unable to sleep for days, tortured by fears for his survival. TORT or NO TORT? With one minute of class time remaining, some kid in my Contracts section asked a long and involved question about estoppel. The professor answered it. As a result, I had to

deals can force the innocent man or woman to choose the lesser of the two evils. The sad truth is, the wrongful conviction cases that are publicized likely only scratch the surface of the number of men and women in this country that are convicted of crimes they never committed.

To date, AIDWYC has exonerated 20 wrongly convicted persons in Canada. But AIDWYC only accepts the most serious cases, and while there is a heightened importance in exonerating an innocent person whose been wrongfully convicted and made to serve a lengthy prison sentence, a permanent criminal record will have a lasting negative impact on anyone’s life, irrelevant of the seriousness of the offence.

An employer is presented with two candidates, both 22 and male, with similar work and education experience. The only differentiating factor is that one candidate was previously convicted of drug possession, and the other’s criminal record is clean. This employer will almost always hire the latter. But let’s unpack this hypo a little bit. Candidate number 1, we’ll call him X, was 19 when he borrowed his friend’s car. X is black, and on his way to a party he grabs his boys C and D, not knowing that D has a gun. They notice a police car trailing them – surprise surprise –

I have spent at least six (6) hours at Westlaw information sessions this semester. These sessions are during the lunch hour, but food is rarely provided. A list of foods I could have

and the officer eventually signals for to X pull over. D takes off running. He get’s away. But now the officers have reasonable and probable grounds to arrest C and X. They search the car and find a couple ounces of marijuana in the trunk, charging C and X with possession for the purpose of trafficking. The charges against C are dropped, as he was not the driver or owner of the car, but the Crown refuses to do the same for X. Instead, he’s offered a significantly reduced sentence if he pleas to simple possession. X now has to make a decision. He can take his chances at trial, but he knows the evidence against him is pretty strong, and he has no intention implicating the owner of the car. Or he can accept the plea deal. The reality is that in a lot of these situations X has no intention on snitching because being labeled as such in the community will have social repercussions that fair worse than a criminal record. Moreover, sometimes the defence “it’s not mine it’s his” just doesn’t work, even if it is true.

That was just a small depiction of some of the pressures that an innocent person might have to deal with while navigating the criminal justice system. Now imagine if you’re an unrepresented accused person trying to assert your innocence with a laymen’s understanding of the trial process. Moreover, some

Our mandatory 1L seminar on point first writing lasted for 2 hours, and the point was first. As a result, the last hour and forty-five minutes could probably have been inferred.

TORT or NO TORT? My pseudonym, which I cannot print here in the interests of a) decency and b) anonymity, is demeaning to me. It impedes my writing process and certainly biases the grading practices of my professors. No reasonable professor would give a “HH” to a paper written by “Skunk Cabbage.” Shoot, I said I wasn’t going to print it. TORT or NO TORT?

wrongfully convicted people might never have access to fresh evidence once a finding of guilt has been made.

So what can we, as law students in the pursuit of a just legal system do to help the wrongfully convicted overcome the procedural hurdles of the exoneration process? The Allard School of Law at UBC and Osgoode Hall Law each have their own Innocent Project’s, and McGill Law school has a unique Quebeccentered operation that hears applications by inmates convicted of indictable offences who have exhausted all avenues of appeal and have fresh exculpatory evidence.

Here at the law school, while there’s definitely interest in an Innocence Project, we have yet to initiate one. The criminal division at DLS receives more volunteer applicants than it can accommodate every year. Our recently established criminal appellate externship has a limited intake of 4 students each year. Why not expand the clinical education opportunities available to student interested in criminal law, helping those wrongfully imprisoned regain their human dignity? With the new law school finally beginning to show some progress, the time is ripe to establish our own version of an Innocence Project.

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DIVERSIONS

NOVEMBER 26, 2015 | 19

Blast From the Past: Pro-torture Edition NICK PAPAGEORGE (1L) February 10, 2004 – “Let’s not be naïve: the case for torture warrants”

by Keir Wilmut This bold law student took to the Opinion pages to argue that we should rethink absolute prohibitions on torture. For example, the UN Convention Against Torture states: “no exceptional circumstances, whether a state of war or a threat of war, internal political stability or any other public emergency, may be invoked as a justification for torture.”

The argument was that torture may be justified in situations of imminent threat. For example, trying to extract the location of a ticking time bomb in a major city. The writer’s stance was that, while torture may not necessarily produce results, “[t]he temporary pain of would-be murderers should not be elevated over even the possibility of saving innocent lives.” Judicial oversight would be an “accountable and transparent” way to assuage all fears about the abuse of such an extraordinary power.

January 20, 2004 – “Fifteen years later and still ‘blue-balled’: Disaffected await consummation of Canadian Alliance and Tory Union with bated breath” by Steve Penner A Progressive Conservative supporter, and former summer student staffer, laments the

amount of time it took right-wing Canada to end its infighting, and vows to “take a pass” on the newly-formed Conservative party.

But first, some insider advice: “you go to PC conventions to get drunk, Liberal conventions to get laid, and New Democratic Party conventions to lick envelopes.” And then, some prescience: “the PCs had traditionally been a party for radicals of the right […] That all changed with the advance of the Reformers […] Will this new party cede enough power to the old PC to allow them to keep the wingnuts in line? I doubt it.”

ceive) a ‘stalker guide.’ Use it constructively.

Look up people you’ve talked with or like the look of, and send a group email asking if they’re interested in some activity […]” Little did the author know, such a stalker guide would be available to everyone, everywhere, all of the time just a couple short years from then.

November 18, 2003 – “Social habits at the law school mirror chimp behaviour” by Health Enables Legal Minds at the University of Toronto (HELMUT)

In remarks delivered to students in front of Flavelle House peacefully rallying against rising tuition fees, Professor Janisch offered the following in support of their cause: “I [believe] that a university should serve the best interests of the entire, community, not an already fortunate few […] Law schools should reflect and enhance the values of the society they serve. The most disturbing feature of the incremental privatization of legal education is that its proponents seek to judge success, not according to distinctly Canadian communitarian ideals, but by the bitter individualism and devil-take-the-hindmost competitive values which prevail in the American private educational sector. Supporters of higher tuition and privatization are determined that we should play according to someone else’s definition of excellence […] Excel-

In a bygone advice column from a bygone university group, HELMUT responds to the anonymous concerns of the student populace.

The first response addresses the concerns of one budding misanthrope about dislike for other law students, and their ostensible reciprocation. The response: “Law school is a bit like an advanced experiment in social Darwinism […] It’s rather like chimpanzee social arrangements. Members often attach themselves to groups for strength and security.”

The solution for those on the outside of those chimp groups looking in will seem somewhat familiar: “You have (or will eventually re-

October 21, 2003 – “In praise of public legal education” from remarks by Professor Hudson Janisch on 17 September 2003

lence is not to be found in flashy and extravagant peripherals and high faculty salaries, but in the quality and commitment of students and the dedication of the faculty to their education.”

September 10, 2002 – “Students challenge online Headnotes: Move to electronic version raises concerns over lack of consultation, accessibility” by Graham Mayeda While the rollout of the first ever online version of Headnotes brought several advantages, e.g. paper saved, students raised some concerns. The move was made by the Faculty of Law administration without consulting student groups. Some students believed the move was premature as many lacked computers, and the computers in the library were borderline useless.

Then came the more quotidian concerns. One student said: “I’m already cross-eyed from staring at my computer screen all day. I’m not going to spend further time clicking and surfing through endless layers of passwords and screens and titles every week to find something that may be of interest to me when I don’t even know what I’m looking for.”

20 | NOVEMBER 26, 2015

DIVERSIONS

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“How’s law school going?” Feeble Legal Fables TAJJA ISEN (1L)

You’ve leveled up. No more getting grilled on the uselessness of your undergrad degree.

Now comes a question that seems much more benign: “How’s law school going?” But don’t be fooled by its simplicity or seduced by its accomplices, the Avuncular Tone and the Encouraging Smile. The question is a guise for various, often nefarious motives. It lurks in the wings of any social situation, with a far more sophisticated wardrobe than mere sheep’s clothing. The following guide, though not exhaustive, will help you spot and neutralize some of its common incarnations.

The First-year Text: “How’s law school going?”

Subtext: “Have you started your maps yet?

How much time did you spend on the memo?

What did you say for reasonable reliance?”

Watch for: Vocal tremors; Red Bull; endearing attempts to be casual.

Don’t: Overshare. Not because they might steal your HH, but because it might push a little too hard on the exposed nerve.

The Upper-year (Part 1) Text: “How’s law school going?”

Subtext: “I know the struggle is real right now. Are you good?”

Watch for: Tilted head; direct eye contact; strong hug-me vibes.

Do: Tell the truth—they’ve been there. Ask before hugging.

The Upper-year (Part 2) Text: “How’s law school going?”

Subtext: “Following the principle of stare decisis, your law school experience will be as awful as mine.”

Watch for: Turned-down mouth; syrupy sympathy; a singsong tone to the question.

Do: Practice for the profession by massaging the facts.

Don’t: Call them out. You’ll need their summaries in a couple weeks.

The Grad Student in Another Discipline Text: “How’s law school going?”

Subtext: “You look exhausted, but at least you’ll be rich.”

Watch for: A researcher’s curiosity tempered by fear; the sense of approaching, with hand outstretched, a dangerous creature behind bars.

Don’t: Dangle your job prospects.

The Recent Alum Text: “Kid, I wouldn’t trade places with you for an SCC clerkship.”

Subtext: …

Watch for: Strong flavours of pity, with notes of envy on the nose.

Do: Add them on LinkedIn. The Five-Year Call Text: “How’s law school going?”

Subtext: “Everything turns out all right in the end.”

Watch for: Work-life (im)balance.

Do: Lurk them on LinkedIn, wondering if you networked hard enough to be memorable.

Your Mom Text: “How’s law school going?”

Subtext: “Why haven’t you called me?”

Watch for: Openings to heavily imply your desire for a frozen lasagna.

Don’t: Cry.

The Holiday Relative Text: “How’s law school going? Are you going to be one of those nice lawyers? It must be a ton of pressure. How are you even standing here right now?”

Subtext: “Are you regretting it yet?”

Watch for: The nearest supply of alcohol, the door, or both.

Don’t: Shoot back with “I don’t know, did people ask if you were going to be one of those nice dentists?” Actually, scratch that.

Do it, but I abdicate any responsibility for the consequences.

Not Covered The Friend with a 9-to-5, The Non-Law SO, The Prof, The Pizza Guy. The Bottom Line Remember how lucky you are to be here.

The work it took to pull off proves the rightness of your arrival, but feel no need to say so out loud. Your journey is your own and you don’t need to justify it to anyone. Except during OCIs.

PROFESSOR SIMON STERN An Antiquated Doctrine was slowly and determinedly creeping into desuetude. Just as it was entering the home stretch, and preparing to park itself in that comfortable location, a Sage Law Professor arrested its progress and, holding it up to the light, gleefully announced that it was consistent with, and indeed integrally related to, numerous essential principles that run through the law.

The doctrine, startled to learn of its many relations, asked if any of them were enjoying the health and vigour whose lack it had so long regretted.

The professor was taken aback in turn by the grossly irrelevant and fundamentally incoherent nature of the question. He recoiled for a moment, but then recognized an opportunity to give a lecture on the sempiternity of the basic tenets of the common law, as well as their friends and relations.

However, the doctrine, taking advantage of the professor’s temporary hesitation, had already hied itself away to form an alliance with a Highly Counterintuitive Theory.