Ultra Vires Vol 18 Issue 1: 2016 September

SEPTEMBER 28, 2016 | ULTRAVIRES.CA

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

Jackman Law Building: Moving On Up SHARI NATHAN (2L)

JACKMAN LAW BUILDING

Finally, the doors have opened at the Jackman Law Building. You’ve had classes in new lecture halls, visited the newly unified Student Services Hub, and probably picked your favourite sponsorship. Stikeman Elliott LLP Locker Room, I’m looking at you.

While there are a number of valid criticisms of the new space, the building does boast a lot of great features.

The J wing of Jackman was all part of the new build, while the Pavilion merely underwent renovation, as is observable by the appearance of J classrooms in comparison to P classrooms. J wing classrooms all feature entry at the front of the room rather than the back, so students with disabilities can sit at the front. These classrooms are also equipped with height-changeable desks in the front row to accomindmodate wheelchairs and other mobility aids.

Furthermore, the AV systems in these rooms have a feature in place for hearing-impaired students, although its use is contingent on professors using the mics located at the podiums.

The new building also features twelve single-stall washrooms which are gender-neutral and wheelchair-accessible. While none of these washrooms are in the basement, which contains the majority of classrooms in the new building, they can be found in the library, moot court area, and faculty wings.

Most of these washrooms meet the Accessibility for Ontarians with Disabilities Act (AODA) standards.

The washroom located in the moot court area abides by the higher Facilities Accessibility Design Standards (FADS). FADS includes guidelines for the inclusion of an adult-sized change table, a larger space, and more room around toilets to accommodate a lift, if needed.

The Aboriginal Law Students’ Association Office, in P327A, has been retrofitted with adequate ventilation systems so that it may be used as a smudging room, which is a unique feature on the wider University of Toronto campus. Access can be requested from the Co-Presidents of the Aboriginal Law Students’ Association.

In addition, the building features a multi-faith room in the basement of Flavelle, which the faculty intends to furnish for use for silent meditation or prayer. This room is also located next to a shower room for those students who require it for ablution.

Although currently unlocked, it is likely that it will later be limited to students who request access for religious reasons.

There are at least two faculty showers in the new building, on the third and fourth floors in the faculty office hallways. You may not have stumbled across them because they are both labelled as bathrooms, and the third floor shower has an “Out of Order” sign on the door, despite working fine.

The aesthetics of the building have been a point of concern for students. Several students remarked that while the building is beautiful, it could use some colour or artwork on the walls to make it feel more welcoming. This issue is already in the process of being resolved; walkthroughs of the building to select and determine locations for pieces have already taken place. Indeed, some works have already been installed on the third floor and in the library.

There are also a number of features that, according to Assistant Dean Alexis Archbold, should be completed by the end of October and that will hopefully quell some of the current student concerns. Be-

"CHAMPION FUNDRAISER" BY SHARI NATHAN (2L)

tween thirty and forty bike racks are to be added outside the north-facing wall of the Bora Laskin Law Library. The lift currently under construction to connect the basement of the Jackman building to the basement of Flavelle should also be completed.

The currently amusing, but increasingly infuriating, empty space labelled “Goodmans Café” should be a completed café by the end of October.

the maps of the new building, is completely inaccessible. I do not mean that it has three stairs in front of it; I mean that there is no way to get out onto it. According to Alexis Archbold, its purpose is to regulate the temperature of the building and irrigate the landscaping below. These are great, environmentallyfriendly pursuits, but the lack of access is somewhat disappointing.

Despite all of these great elements, there are several things that might give students pause. High up on that list, if not the entire content of it, is the clear lack of priority given to student life and space in the building students have waited for since 2013.

Furthermore, there are several pending repairs that require attention. There is a large pane of broken glass above the doorway of the Cassels, Brock & Blackwell LLP Lobby, an exposed outlet in the first floor women’s washroom, and many broken or missing tactile indicators at the top of several different flights of stairs.

The two conceivably “social” spaces for students— the kitchen and lounge—are both located in the old side of the building and have serious deficiencies.

The student kitchen is small and inaccessible, and sits immediately below the student lounge in the Rowell Room. This lounge is a beautiful space, but it is also incredibly open due to the sheer volume of windows and perpetually open sets of double doors.

This makes the room temperature very difficult to control—it is often noticeably colder than the Norton Rose Fulbright Canada LLP Lobby and the rest of the building, and we’re only in September. In addition, this lack of privacy may not be suitable for the type of socializing that promotes honest student engagement. The risk of faculty, admin, and visiting lawyers, judges, and professionals walking by and overhearing your impassioned debate about which professor reminds you most of Lord Voldemort is all too real.

The green space, which is helpfully indicated on

Physical issues aside, the atmosphere of the new building is markedly different than it was before the law school had a unified space. In the words of Chantal Ma (2L), “We were a bit scattered last year. It’s amazing having everyone under one roof! I run into people I know so much more often!” The social benefits of having one building are clear given the amount of time that many students are now spending at the Faculty.

As with any new build, there are a certain number of flaws are to be expected during our transition into the new building. One hopes that as the space is lived in, components are finished, and repairs are completed, most of these issues will be dealt with.

If you have questions, comments, or input on the new building, email SLS at jackmanlawbuilding@ gmail.com, or let the Faculty know by tweeting with the hashtag #JLB.

ALSO IN THIS ISSUE SEXISM AND THE CJC

JUSTICE EPSTEIN INTERVIEW

TORT OR NO TORT

PAGE 7

PAGE 6

PAGE 18

NEWS

2 | SEPTEMBER 28, 2016

ultravires.ca

Welcome from the Ultra Vires Editors-in-Chief!

NICK PAPAGEORGE (2L) AND MAUD ROZEE (2L) To the upper years, welcome back! To the 1Ls, welcome to law school! And to everyone, welcome to our new building!

We trust that by now you’ve had a chance to catch your breath after what has surely been a frantic f irst month. Whether you’ve been busy deciding between which clubs to join, or locked in the game-theory mentality of adding and dropping courses, we hope you now have the opportunity to get settled.

We’ve already started noticing the difference the new building makes. Although we do miss Birge Carnegie a little, it’s nice to have classes and conversations in our very own space. Shari Nathan (2L)’s cover story is a detailed dive into the building’s highlights and issues. Don’t forget that you can send any suggestions you have for the new building to the

SLS via their email address: jackmanlawbuilding@gmail.com.

Here at Ultra Vires, we’ve been diligently preparing for this year’s f irst issue. Our team will be working just as hard throughout the rest of the year to bring you all of the most relevant, entertaining, and hilarious news at the law school, and to foster spirited discussions in our community.

NEWS

ultravires.ca

SEPTEMBER 28, 2016 | 3

Student Kitchens: What’s Cooking in the Depths of Flavelle?

SHARI NATHAN (2L)

We’ll be making every effort to continue UV’s great work on issues like tuition, f inancial aid, diversity, and mental health at the law school. We also hope some of you will help us out by pitching an article idea or sharing your unique perspectives in an opinion piece!

Always feel free to contribute your ideas, writings, and photography at any time throughout the year—just send us an email at editor@ultravires.ca, or come chat with us!

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.

Editor-in-chief News Editor Features Editors Opinion Editors Diversions Editor Copy Editor Foreign Correspondent Layout Editor Web Editor Business Manager

Nick Papageorge & Maud Rozee Shari Nathan & Amani Rauff Aidan Campbell & Melissa Smith Cory Bettel & Scott Dallen Rabiya Mansoor & Kevin Schoenfeldt Kassandra Shortt Rona Ghanbari Alexandra Fox Andrew Ngo Cory Bettel

ERRORS If you find any errors in Ultra Vires, please email editor@ultravires.ca.

ADVERTISING Advertising inquiries should be sent to editor@ultravires.ca.

SUBMISSIONS If you have an article submission or a tip for us, please contact us at editor@ultravires.ca.

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STUDENT KITCHEN

litter, or that certain je ne sais quoi?

In the past week, it’s possible that you skipped a breakfast. Maybe you couldn’t f ind an event to sneak into at lunchtime to steal a slice of pizza. You might’ve been cramming readings for an early morning class the next day, and not wanted to leave the building for dinner. Or maybe you just took a glance at your Scotiabank line of credit and realised you can’t go out to eat every day.

The new building has eight kitchens. One is under construction, one is permanently locked, and one is for students. The remaining f ive are for faculty and staff. The features of the kitchens that are currently open are shown below (blank spaces indicate unknown): Notably, at least two of the kitchens have toasters which, according to an email sent out to the students earlier this month, is not allowed “due to f ire regulations.” In addi-

Would it have helped you if you had a student kitchen in the new building that was accessible and didn’t smell like asbestos, cat J317

J417

P320

Flavelle, 4th floor

Library

F113

Intended Users

faculty

faculty

staff

staff & faculty

staff

students

Hours

unposted

unposted

unposted

unposted

Weekdays 7:30am 9:30pm

Approx Dimensions

3x4 m

3x4 m

3x11 m

N/A

4x4 m

Dishwasher

Yes

Yes

Yes

No

Yes

No

Fridge

Yes

Yes

Yes

Yes

Yes

Yes

Freezer

Yes

Yes

Yes

Yes

Yes

Yes

Toaster

Yes

No

Yes

No

No

Coffee Maker

Yes

Yes

Yes

Yes

No

Kettle

Yes

Yes

Yes

Yes

No

Coffee/Tea Supplies

Yes

Yes

Yes

Yes

No

Microwave

Yes

Yes

Yes

Yes

Yes

Yes

Sink

Yes

Yes

Yes

Yes

Yes

Yes

Counter Space

Yes

Yes

Yes

Yes

Yes

Yes

Tables

1

1

3

None

None

Chairs

2

2

6

None

None

STAFF KITCHEN P320 LOCATED IN THE STUDENT COMMONS

tion, faculty and staff have access to free coffee and tea supplies, while the students are still without an on-site café at which they could buy coffee.

Beyond the clear def iciencies of the student kitchen in comparison to its faculty and staff counterparts, the student kitchen is the only one which is inaccessible. The Flavelle fourth f loor kitchen’s fridge and freezer are up a small set of steps, but all of the other elements are accessible. The other three kitchens are all accessible.

There are currently 33 faculty off ices on the third f loor, and 31 on the fourth f loor.

However, faculty members’ physical presence in their off ices is widely variable. In addition, the Dean’s suite and Faculty Secretary Off ice have a few staff each who may be using the faculty kitchens on the fourth and third f loors, respectively. There are less than a hundred staff listed in the Faculty of Law’s staff directory, many of whom do not have off ices in the building. With a generous estimate of about 150 staff and faculty in the building on any given day, that’s a kitchen to staff and faculty ratio of 1:30.

I estimate that there are about 600 students, based on the fact that we have about 200 students per year for three years. Let’s say there are 500 students, to compensate for those on exchange, deferral, joint programs, etc. That still gives us a 1:500 ratio for our kitchen, over f ifteen times that of the faculty and staff kitchens.

The larger problem that this absurd ratio and inaccessibility illustrates is a general lack of care for students. Sequestering all of the students to one room in the basement of the old building, while giving faculty and staff sole access to four newer kitchens, demonstrates the amount of concern that the administration had for student life and space

while they were divvying up the building.

One proposed explanation from Assistant Dean Alexis Archbold is that the student kitchen should be close to the student lounge, and located in a student space. This is odd considering that P320 is in an area specif ically designated Student Commons by a large sign on the wall and on all of the building maps.

When asked why students couldn’t be given access to P320, she responded that a shared student and staff kitchen has been tried in the past and put a strain on staffstudent relations. The obvious follow up question: Why not just make P320 a student kitchen and allow the staff to use J317, which is about thirty steps away? Evidently, the faculty kitchens are “small” and only built for occupancy of the faculty whose off ices are in the faculty off ice hallways, and not for the additional staff on the third f loor. That claim is tough to make when hundreds of students are meant to be using one kitchen.

When this disparity was pointed out to Alexis Archbold, her response was that faculty and staff work full-time in the building.

The implication that students are not here full-time because we only have certain numbers of class hours is tenuous, especially considering the fact that the Faculty strongly discourages students from studying parttime. Many of us are here just as long as faculty and staff, if not longer. Who among us has stayed at the Faculty until 7 pm? 11 pm? 3 am?

Something has gone awry in the allocation of student spaces in the new building, and nowhere is it more obvious and disdainful than in the allocation of kitchen space.

Hungry? We’d better go out.

NEWS

4 | SEPTEMBER 28, 2016

ultravires.ca

Resiliency and Constructive Change: A Conversation with Yukimi Henry AMANI RAUFF (2L) AND MAUD ROZEE (2L) Resiliency is a complex concept. One part of it, U of T Law’s Manager, Academic/Personal and Wellness Coordinator Yukimi Henry explains, is the idea that students should foster a mindset which recognizes and focuses on the control they have over their wellbeing. For instance, students should realize that although they may not be able to make immediate changes to law school policies, they are able to more immediately change the way they experience those policies.

Take the Health and Wellness Advisory Committee which Ms. Henry co-chairs. It’s an opportunity for students to exercise their agency and try to make change. Ms. Henry hopes that students on the Health and Wellness Advisory Committee will guide her agenda, and take ownership of initiatives like a peer mental health support program, or improving the law school’s competitive atmosphere. “The students have a heck of alot of ownership there; this is a community.” Ms. Henry said, “If you want to make it look different, you have the power to do that.”

Ms. Henry is also looking forward to awareness-raising, stigma-reduction initiatives like screenings of mental health-related movies, a mini mental health in the law conference, or a speaker series. “Just having those conversations is incredibly powerful in creating stigma reduction and promoting help-seeking behaviour,” she said.

In terms of the degree to which the Health

and Wellness Advisory Committee can inf luence policy changes made through other committees, however, Ms. Henry is pragmatic. “I’m not saying don’t bring a more critical viewpoint, I’m down with that, let’s do that, but let’s do that in a way that’s actually going to generate change.” Ms. Henry said. “Criticism without constructivity doesn’t get anything… That’s true from a clinical perspective and it’s true from a broader policy perspective.”

When asked what would happen if the committee wanted to focus on making changes to policies like the grading system, Ms. Henry asked Ultra Vires, “Can I - can students make the professors change the grading system? Is that what you’re asking me?” Ultra Vires conf irmed the question.

Ms. Henry asked, “Is that really what you’re asking me? Do you not know the answer to that yourself ?” She then explained that, “of course you can make recommendations…

There’s a set process for how these changes happen… If the committee decided they wanted to make that recommendation, there’s a forum within the existing process.”

Ms. Henry later elaborated in a lengthy email to Ultra Vires that the existing forum is the Standing Curriculum Committee, which is chaired by Professor Kerry Rittich and includes three SLS members, as well as the Dean’s Advisory Committee on Student Mental Health (DACSMH), which is chaired by Assistant Dean Alexis Archbold and also includes three SLS members. Ms.

Henry wrote that the DACSMH has consulted with and will continue to consult with the Health and Wellness Advisory Committee.

In reference to the curriculum change process, Ms. Henry suggests that “fostering a mindset whereby student well-being is entirely subject to forces outside of their control [is] not a productive use of student resources nor conducive to wellbeing.” In our interview, she gave an example: “No matter what kinds of policy recommendations you engage in, the evaluation methods in your Trusts class are the evaluations you’re going to be stuck with [for your Trusts exam]. We can devote a lot of resources to the fact that this generates negative results for us, but those resources aren’t actually going to generate any positive change for you [by the time of your Trusts exam].” Ms. Henry pointed out in her later email that there are “factors and changes very much within your control that can impact the way in which you and others experience these circumstances [like evaluation methods].”

Ms. Henry wants to focus more on giving students the priorities, values, and skills that they need to balance the demands of their work and personal lives. “In the legal profession, there’s this idea that it’s all about product,” Ms. Henry said. ”What I’d like to see fostered in the next legal generation is a sense that ‘how I feel actually matters. How my colleagues, and loved ones, and families feel actually matters.’”

She also hopes that mental health initiatives could eventually reduce the demand for clinical support services. Recently, students have expressed concerns that current demand for these clinical support services may overwhelm Ms. Henry’s capacity. A student who requested an appointment on September 19th was disappointed to f ind out that Ms. Henry was booking for the f irst week of October—a wait of between f ifteen and nineteen days.

Ms. Henry said she was “disheartened” by comments about her wait times that she believes to be inaccurate. Ms. Henry explained that she is always careful to leave time in her schedule to help students dealing with immediate crises. Although she recognizes it was not the intention of commenters to discourage vulnerable students with immediate problems from seeking help by “promoting that kind of misinformation” about her wait time, she says “this really runs contrary to the efforts I’d like to see the law school engage in around promoting help-seeking behaviours.”

Overall, Ms. Henry wanted students to know that she wants to hear from them. “I want us to have conversations. I want students to be engaged in these issues. I don’t have a specif ic agenda for what this role looks like or what student wellness is supposed to look like,” she said. “I just think we have to take responsibility for our feelings and behaviours and how they engage and interact with one another.”

NEWS

ultravires.ca

SEPTEMBER 28, 2016 | 5

Faculty Council: What’s Happened, and What’s Happening AMANI RAUFF (2L) Faculty Council puts on the best-catered meetings at the law school. They’re also, almost as importantly, the law school’s governing body.

The Council is chaired by the Dean and attended by a mix of faculty, SLS representatives, students, assistant deans, associate deans, assistant deans of associate deans, associate assistant deans, and deans of the associate dean’s off ice. It is where the sausage (read: law school policy) is made.

Generally, the way this works is that the Dean strikes special and standing committees composed of faculty members and (sometimes) students. These committees then look into issues and make specif ic recommendations, which are eventually voted on by the Council.

Here’s a quick recap of some of what the Council did last year, and what it will likely address this year: Truth & Reconciliation Committee The Truth & Reconciliation Committee was struck last year in response to the Truth and Reconciliation Commission of Canada report released last summer. A notable part of that report was Call to Action #28, which calls upon law schools in Canada to “require all law students to take a course in Aboriginal people and the law.”

The Committee had not produced a f inal report by the date of the f inal Faculty Council of last semester, but was consulting with various involved groups and exploring possibilities. It recommended, for now, that the school try to include more material relating

to Aboriginal peoples in the f irst-year Legal Methods Intensive and ethics curriculum.

This Committee will likely come out with a report or further recommendations sometime this semester.

Report of the Financial Aid Committee Last year, the Financial Aid Off ice developed an online f inancial aid calculator. Relatedly, the Financial Aid Off ice will no longer be providing provisional f inancial aid assessments as of this year, but will be providing students with their f inancial aid assessments earlier than before.

Also this year, the f inancial aid system will be changed to require new applicants to provide the previous three years of their parents’ tax information (previously, students submitted their parents’ tax information in upper years). This is meant to better ref lect the use of parental income “as a proxy for general socioeconomic background” rather than as a representation of the actual amounts of f inancial assistance that law students receive from their parents.

The Committee agreed that the school should provide annual statistics on the PostGraduation Debt Relief Program in the Financial Aid Booklet, the Post-Graduation Debt Relief Policy Booklet, and on the Faculty website.

Issues that the Committee decided that they will return to this school year include:

• Whether

the f inancial aid policy should be revised to include pre-law debts as part

of the f inancial aid calculation; the f inancial aid policy should be revised to include parental assets in the f inancial aid calculation; and • Whether it is feasible for the law school to act as a guarantor for students who are otherwise ineligible for credit.

• Whether

Deemed Days The deemed days or ‘religious holidays’ policy, which is unique to the Faculty of Law, is set to come up for discussion on the Faculty Council Agenda sometime this year.

This is the policy that moves some Monday and Wednesdays classes to Fridays, for Thanksgiving, Rosh Hashanah, and Yom Kippur. Last year, some students pointed out that this seems unfair to those from any religious background other than the Christian and Jewish faiths.

For the deemed days policy to be changed for the 2017-18 school year, Faculty Council will have to address it before the sessional dates for next year are f inalized in February of 2017.

Report of the Mental Health & Wellness Committee The Mental Health & Wellness Committee f inished its inaugural school year in March 2015 with a report that mainly provided the results of a “listening posture.” The Committee, in its report, states that it reviewed relevant reports and documents, spoke with experts, and solicited views from students through meetings with a Student Advisory Committee and by hosting a town hall.

icy in the circumstances of a medical emergency; a lack of clarity regarding grading in 1L small groups; the perceived isolation of graduate students from the rest of the student body; and a lack of faculty awareness of student mental health issues at the school.

The Report states that the Committee “did not have the time or resources, or the mandate, to inquire into the student concerns outlined,” but that the Committee views these concerns as meriting full consideration by the Dean and relevant Faculty Council committees.

Finally, the Committee recommended that Yukimi Henry, the Faculty’s new Manager of Personal/Academic Counselling and Wellness, develop a “comprehensive mental health and wellness strategy and communications plan.” This plan has now been developed and will be considered by the Committee this semester.

Faculty Council meetings are held in the Solarium on Wednesdays from 12:30 to 2:00, and all students may attend. The next one is scheduled for October 5. Meeting minutes and documents are uploaded to E.Legal.

For those who cannot attend, UV will continue to brave the tables of smoked salmon sandwiches and delicious pita with hummus in order to keep our readers in the know.

Select concerns raised by students include: a lack of clarity surrounding evaluation pol-

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For information contact:

Sally Woods Director, Professional Development 416 868 3468 sallywoods@fasken.com

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Open Invitation Issued for Admissions Guide Models

MAUD ROZEE (2L) Invitations to last year’s JD Admissions Guide photoshoot went out only to a select few, but this year the whole school was invited to model. Those who responded were thanked by Senior Recruitment, Admissions and Diversity Outreach Off icer Jerome Poon-Ting for participating in the “historic photoshoot.” Models reported it was “overall kind of a random experience.”

Despite the open invitations, the participants’ images were still heavily managed.

The attendees were given a long list of wardrobe restrictions, including nothing white, grey, black, brightly coloured, or loudly patterned. Participants were also cautioned to not wear anything too short, sleeveless, low cut, or too tight. “It didn’t leave much left to choose from,” commented Faye Williams (2L). Mr. Poon-Ting also sent participants suggestions for footwear: “Clean footwear is a

must (not new but slightly worn). No heels but small ankle boots would be a great option.”

The photoshoot had a makeup artist and hair stylist on set, as well as a photographer and art director to arrange the perfect shot.

Participants were also given on-site wardrobe tips. An anonymous participant overheard an organizer tell a female participant wearing a polo shirt to “do up the top button.”

Participants were dressed for fall despite the photoshoot taking place on a hot August day. Mr. Poon-Ting encouraged the participants to wear layers, as they “look better on camera.” “I was sweltering in jeans and a long-sleeve walking up and down the stairs as they took like a million shots,” Faye told Ultra Vires. “I will never look at an admissions book the same way again.”

6 | SEPTEMBER 28, 2016

FEATURES

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Introducing Justice Epstein, U of T Law’s New Justice-In-Residence

SHARI NATHAN (2L) AND MAUD ROZEE (2L)

still happening? She called me in and said “What’s your advice?” I said “Beat them.” She did.

UV: Do you think there are any more institutional changes that you’d like to see?

Probably. It’s been so long since I’ve been inside a firm. I think they’re really trying hard. A lot of firms are offering part-time work, flexible hours, being more generous in terms of maternity and paternity leave. That’s what they’re doing on the surface.

JUSTICE GLORIA EPSTEINE

UV: Can you tell us a little about the Justice in Residence Program and how you got involved in it?

About year and a half ago I went supernumerary, which means I sit half as many weeks as a full time judge. Some people, like Justice Sharpe, who’s going to be doing this as well, he’s supernumerary, and he writes books in the time he’s not engaged in hearing cases and writing them. Nobody would want to read a book I would write, trust me. But I like to connect with people.

Quite frankly I can’t remember - I think it was the Dean’s idea - because you’ve got this beautiful new building, you’ve got empty offices, and the Dean is friends with both Justice Sharpe and me. And I think he got the idea that, we’ve got these empty offices, you guys are supernumerary, you’ve got a connection with the law school, so how about figuring out a way for members of the court to occupy this office to the extent possible and connect with the students and the faculty?

So if I’m working on a particular topic or interested in a particular topic I can sit in on a class, or I can help guide the discussion, or I can help present.

I’ve already had some great discussions with members of the faculty about certain topics and interests I’ve been working on. But as far as the students are concerned, I’m hoping to find ways to make myself more accessible. There’s all kinds of insight and experience I have that I’m happy to share.

UV: What advice do you have for students who want to become judges?

Live your life. Make it big. I think, the broader your life experiences, the better a judge you will be.

I’ve got some colleagues who are really smart.

They’re great judges, who have spent most of their lives reading. I’m not being critical of them because they bring a lot to the court. I bring something different to the court. I bring an understanding of people that I think is really important. So you can go one way or another - or you can do a mixture of both. Probably I should’ve read a bit more.

The other thing is, by leading a big life and being

out there, you meet people. And I think it’s very difficult to be fortunate enough to be appointed a judge if you don’t know anybody. Because there will be nobody speaking for you. Let’s be real - at least when I was appointed 25 years ago, there’s certain things they look at in terms of your abilities, but it sure helps if somebody’s speaking for you. But who knows, maybe they’ll draw names out of a hat by the time you guys want to be judges. Things do change.

UV: You obviously have a lot of insight into being a woman in the legal field.

What changes have you noticed?

The atmosphere, the politics, the environment are probably a lot easier than they were. If I started to tell you some of the things that were said and done to me - well you just wouldn’t believe it. In those days we just toughed it out. We didn’t do anything, we just walked away. We went back to work.

There was a general attitude that if you started to fight back you wouldn’t be given the opportunities that were just then being created. So you didn’t want to lose that chance to get in and prove that you could do it like the guys could do it. And then we started to get the respect and credibility that went with our being able to do good work, and then we were in a better position to start to challenge the way we were treated. So that’s been the evolution. And we’re not all the way there yet.

I still feel it. Can you believe that? I’m 65 years old, I’ve been a judge 25 years, I’ve been in the law 40 years. And I still am treated in a way by people that’s not expressly dismissive but subliminally dismissive. And it makes me crazy. But this is by guys who are 75 years old, and they’re not going to change. I’m not going to change. And they don’t even know it. They don’t get it. And they never will.

What bothers me though is I talk to some of the young women who are just going out, and they contact me, my law clerks afterwards, and they say “I was just with junior lawyers, five years out, and here I am one year out, U of T grad and former Court of Appeal law clerk, good job, smart - these guys talked around me.” How is it possible that’s

I think - I don’t just think, I know - that a lot of the big-name serious litigators, most of whom are men, still look at women in the law firm differently.

You’ve got to understand, part of it is reality. They know that a lot of women are going to have children, and they’re going to be gone for a while, and then come back, and for the last bit of time when you’re winding down and going on maternity leave you’re not as productive and then you’re a year away and when you come back you’re not as productive when you’re getting back to speed and then you’re gone again. And it puts more pressure on the guys who are there. And so I think the real issue from a practical perspective is how do you deal with that part of it? I understand why women want to take the time to go on maternity leave. I understand the impact that has on a firm. It’s a lot more pressure on the guys who are staying there. It’s a medical issue, it’s biological.

So will there ever be total equality? I don’t know.

That one issue will always be an issue. But will attitudes develop and people respect the contribution that women make in that sense more than they are now? I hope so. But on a practical level they are doing things in terms of flexible hours and parttime and kinds of assignments and partnership opportunities and maternity leave and so forth. Progress has been made in those areas.

UV: Do you have a proudest moment from your career?

My proudest moment, this should come as no surprise, was M v H. When I was appointed, I volunteered to go into family law for the first three months of my judicial assignment. I thought it would be an easy first step into being a judge, because it kind of scared me a bit. So six days I’d been a judge, and these two women lawyers, Mary Eberts and Martha McCarthy, come in and they’re making arrangements for a motion to be argued. They said, “We’re making this motion for support.” I said, “I bet you I can do that.’ They said, “That’s fine, but there’s a bit of a wrinkle.” I said, “What’s that?” How hard can interim support be, right?” They said, “Well, both of them are women.” So, a major constitutional issue had landed in my lap six days into my judicial career. Perfect.

I released the decision in February of 1996 and got on the plane to go to New Brunswick to visit my son who was in university. And the next day: the Globe and Mail, front page, like “Lunatic Judge” - didn’t quite say that, but it was close. And I was getting threats. People were upset. And I was getting law professors - one from Western, wrote this big op-ed about how he would fail his first-year law student if he or she ever wrote anything like... It was just awful, it was quite vicious. I had protection. It was just ridiculous, right?

I started to get extra anxious because it was a risky decision not only to say it was unconstitutional but then to rewrite the legislation. Activist judg-

es, you know what we’re like. So I waited for the Court of Appeal, and, 2-1, they upheld me. Justice Finlayson wrote a scathing dissent, scathing. And it went to Ottawa, and it was unanimous that they upheld me. And really it’s not about me - obviously I took personal pride in doing what I did but I think other judges would have done the same thing.

But to be so fortunate to be at that place at that time and to have a chance to play that kind of role in such an important first step in the development of Canada as an open society that embraces equality at all levels was a gift. Really a gift.

But I’ll give you one more case that’s one of my favourites. And I could sit here until next Friday with my stories - that’s one of the great things about being a judge, you’ve just got endless stories.

Mr. Iqbal was from Pakistan - Muslim. But the deal was he had to own a business and employ at least two Canadians within twenty-four months to stay in Canada. He bought a coffee shop and gas bar in a strip mall in Scarborough. But he didn’t know it was an area plagued by Tamil gangs. So he had no business. And he was now up against the wall, and he was going to get sent back to Pakistan.

So he got very depressed, and, two o’clock in the morning, when no one was there, he took gas from his gas bar went into the coffee shop, poured it all around, in order to set fire to it and get insurance money. The place blew up, the entire strip mall was destroyed. He was very badly injured. He was in a medically induced coma for months.

Mr. Iqbal had been very badly burned and he was very disabled. But he and his wife and three kids were there every day. But he had to sit right up beside the witness who was testifying, because he couldn’t hear, because his ears had been burned off in the explosion.

The main Crown witness was the owner of the strip mall who had lost everything; he was underinsured. His name was Mr. Schwartz. Mr. Iqbal was a very religious Muslim. Mr. Schwartz was a very religious Jew and wore all of the traditional very religious Jewish attire. And so when Mr. Schwartz came up to testify I had these two men within two feet of me. And Mr. Schwartz was not cooperating with the Crown, so the Crown was getting frustrated, and finally he said “Mr. Schwartz, why are you not answering my questions?” Mr. Schwartz looked over at Mr. Iqbal, and he takes this gnarly old finger, and he says “this man” - and he looks at the Crown, he looks up at me - and he says, “this man has suffered enough.”

And I thought how do I thank this man for the opportunity to experience that moment of compassion? How could I possibly do that? I carry it around with me every single day.

I’ve got lots of stories; I’ve got others that are close.

So, yes, M v H had significant jurisprudential impact on the country. But that one… Is as big a case to me as M v H was for different reasons. Twentyfive years as a judge, I’ve been so fortunate to meet so many incredible people. And some of them have been prostitutes and some of them have been drug addicts, and some of them have been business people, and some of them have been homeless. People I wouldn’t normally meet in the life I lead. I’ve been so enriched by them.

UV: Wow. JE: Pretty cool, eh?

This interview has been edited and condensed. Look for a full version on ultravires.ca.

ultravires.ca

FEATURES

SEPTEMBER 28, 2016 | 7

Sexism and the Canadian Judicial Council: Robin Camp and Lori Douglas MELISSA SMITH (2L) In his nineteenth-century novel, Tess of the d’Urbervilles, Thomas Hardy scandalized British aristocrats by suggesting that a woman who has sex before marriage might not be an amoral abomination. More specif ically, he describes Tess, a teenage girl who is raped by her cousin, as a victim of her circumstances rather than as depravity incarnate. Nevertheless, society rejects Tess and her true love leaves her in disgust.

“But,” Tess pleads, “suppose your sin was not of your own seeking?” To which Victorian England replies: “We don’t care.”

Today, the law seeks to vindicate victims of sexual assault and refrain from gendered reasoning rooted in the logic of the Victorian era. Accordingly, the Canadian Judicial Council (CJC) launched an inquiry into the conduct of Federal Court Justice Robin Camp for comments he made during R v Wagar, a 2014 sexual assault trial. It is alleged that he demonstrated antipathy towards the “rape shield” law (s. 276 of the Criminal Code), belittled women, trivialized the crime of sexual assault, and relied on rape myths and stereotypes in his reasoning. The inquiry committee concluded its hearings earlier this month and will make a recommendation as to whether public conf idence in Camp is suff iciently undermined to render him incapable of continuing in judicial off ice.

While there is a surplus of offensive quotes in the trial transcript, some particular gems include Camp asking the complainant, “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” and “Why couldn’t you just keep your knees together?” After all, once a woman learns that she can avoid penetration by simply “skew[ing] her pelvis slightly,” she is fully equipped to foil her sexual assailant.

Prior to the inquiry, Camp posted a formal apolog y on the Federal Court’s website, received training on trauma and the law of sexual assault, and underwent psychotherapy in order to interrogate his beliefs and root out unconscious biases. Brenda Cossman (a University of Toronto law professor and Director of the Bonham Centre for Sexual Diversity Studies) spent f ive private sessions educating Camp and described him as “open,” “sincere,” and “remorseful.” At his hearing, Camp ref lected: “At some level that I wasn’t aware of, I was subject to prejudice… the prejudice that all women behave the same way and they should resist.”

Condemnation of Camp’s comments by the media and the CJC is heartening. While

Camp claims his education on the law of sexual assault has realigned his perspective with Canadian values, intervenors suggest that he has irreparably damaged the reputation of the justice system, and should be removed from the bench regardless. Though the Committee has yet to release its conclusion, the inquiry process has fostered conf idence in our justice system by forcing Camp to publicly account for his sexism.

Unfortunately, no such conf idence was fostered by the 2011 public inquiry into Associate Chief Justice Lori Douglas of the Court of Queen’s Bench of Manitoba. It began after Jack King—her now-deceased husband, who had been a lawyer himself— released nude photos of her to his client— Alex Chapman—and the Internet. Originally, the inquiry committee was to investigate Chapman’s sexual harassment claim against Douglas, her failure to disclose the photos in her application for judicial appointment, and her potential incapacity to continue in judicial off ice as a result of their public availability. The committee eventually dismissed Chapman’s complaint, f inding that it lacked any “evidentiary foundation.”

Despite that f inding, Douglas faced a new set of allegations in 2014. This time, the inquiry committee would focus on the nature of the photos and the consequences of their public release. The CJC believed the photos could potentially undermine the public’s conf idence in the justice system.

To investigate, the Committee decided they needed to view the photos directly rather than rely on detailed descriptions of their content. In a remarkable feat of legal doublespeak, the Committee specif ied that their decision was not about policing permissible forms of sexual expression, but rather was about, “whether once disclosed publicly, such expression may or may not have an impact on the disclosure obligations of a candidate for judicial appointment or on a judge’s ability to sit as a judge.” Of course, this amounts to the exact same thing. The Committee was either going to look at the photos and gasp in horror or else f lashback to their drunken college days.

Following a f ive-year review process and the Committee’s decision to admit the photos, Douglas agreed to retire in 2015 with a diminished pension in lieu of further humiliation. With a staggering disregard for irony, the CJC shamed Douglas for posing in consensual, private photos, in

part because “some of [them] could be seen as demeaning to women.”

Unlike the Camp inquiry, the Douglas inquiry shatters conf idence in the justice system by demonstrating that the professional success of a woman in law might depend on the whims of a vengeful ex-partner. Whether or not the inquiry would have resulted in Douglas’s removal from the bench, the process was so oppressive that she resigned anyways. Keep in mind: Camp actually exhibited a lack of judgment, while Douglas never erred in her judicial duties.

The CJC should be lauded for its efforts to condemn judicial sexism. However, it still has a ways to go. Perhaps its next step

should be confronting its own perspectives and prejudices, ones which led it to condemn a woman for her sexuality.

“But,” Douglas pleaded in her original response to the allegations, “right thinking people do not conclude that a woman who has been victimized by her husband is to blame for her husband’s conduct.” To which the CJC replied: “We don’t care.”

R v Wagar was overturned on appeal, and will be retried in November.

In addition to the other allegations, Lori Douglas was accused of modifying a personal diary entry that was relevant to the Chapman investigation.

INTERESTING CASES, FRIENDLY FACES.

© 2016 Cassels Brock & Blackwell LLP. All rights reserved.

FEATURES

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Yaiguaje v Chevron: The Hummingbird and the Forest Fire GRAHAM HENRY* (3L) A group of Ecuadorians from a remote part of the Amazonian rainforest hold a $9.5 billion judgment from the highest court of their country against one of the largest companies on earth—but this company will not pay.

Last fall, the Supreme Court of Canada ruled on a preliminary motion conf irming that Ontario court had jurisdiction to adjudicate enforcement of the Ecuadorian judgement in Canada. Earlier this month, the plaintiffs returned to Canadian courts in an attempt to have this judgement enforced in yet another chapter of what has been called the biggest case in the world.

As a result of over thirty years of oil exploration and extraction by Texaco (now owned

by Chevron), an area of 1500 square kilometers was disastrously polluted to such a degree that the health, livelihoods, and futures of the people in these communities were, and continue to be, threatened. Beginning in 1993, a group of forty-seven impacted indigenous people began a legal battle to hold Chevron accountable for this damage. In 2011, after more than f ifteen years of litigation and hearings spanning the Americas, the highest court in Ecuador issued a $9.5 billion dollar judgement for the plaintiffs.

However, Chevron had by then sold all their remaining assets in Ecuador and refused to honour the judgement, alleging fraud and unfairness. Due of this development, the

plaintiffs have had to turn to foreign jurisdictions to enforce this ruling.

hell freezes over . . . and then we’ll f ight it out on the ice.”

In May 2012, the plaintiffs commenced an enforcement action against Chevron in the Ontario court system. This quickly climbed the judicial ladder on the preliminary question of jurisdiction and by late 2014 was before the Supreme Court of Canada. Gascon J, writing for the majority, rejected the jurisdictional tests proposed by Chevron and found that Canadian courts did have jurisdiction over this matter.

With the case now deep in the morass of our legal system, it is important to remember the people affected by this environmental disaster. This group of activists who would not let their environment, communities, or bodies be polluted with impunity. An event held on September 15th at OISE brought these stories to the forefront in a panel discussion on the case. Organized in part by the International Human Rights Program of the University of Toronto, this panel consisted of Humberto Piaguaje, the executive coordinator of the Union of People Affected by the Oil Operations of Texaco; Pablo Fajardo, main lawyer of the Union; and Cory Wanless, lawyer at Klippensteins Barristers and Solicitors in Toronto.

The case is now before Justice Hainey of the Ontario Superior Court, where oral arguments on a number of pre-trial motions were heard between September 12th and 15th in Toronto. The Plaintiffs sought to have the statement of defence struck because the defences presented have already been fully litigated in Ecuador. On the other side, the Defendants argued the claim should be dismissed because Chevron Canada is a distinct legal entity from Chevron Corporation and they allege that the decision in Ecuador was the result of bribery and corruption.

Justice Hainey will deliver his ruling on these motions in the coming weeks but, no matter the outcome, this case is anything but over. In a 2015 press release (since removed from their website) Chevron has said of the judgement that they will “f ight until

They shared stories of the impact this pollution has had on their lives, and of the struggles f ighting a party as determined and deep-pocketed as Chevron. They shared their hope for a world where corporations will be held accountable for their wrongs no matter where they are committed. While this story is certainly about damage to the Ecuadorian rainforest and the people living there, all the panel members described it as something more. They described this case as a landmark opportunity to redef ine the

norms of how we do business, and to set a powerful precedent: You cannot pollute a foreign part of the planet, walk away, and hide behind deep pockets, legal f ictions, and an army of lawyers.

Pablo Fajardo f inished the evening with a story of the hummingbird: When a massive forest fire swept through the jungle, all the animals fled. All except for the tiny hummingbird. As the other animals looked on in despair, the hummingbird started flying frantically to the pond, sucking up some water, flying back, and spitting it on the fire. Back and forth, back and forth he went. The Lion stopped as he passed and said, “Hummingbird, what are you doing!? You can’t possibly put out that fire with those little droplets of water!” The Hummingbird ignored him and kept flying back and forth, focused on his goal. “Hummingbird,” the Lion roared, “what are you doing!?”

The Hummingbird responded, without missing a beat, “I am doing what I can.”

How are we, in Canada, going to do what we can to help that Hummingbird? *Editor’s note: the author of this piece will be articling at Lenczner Slaght Royce Smith Griffin LLP next fall, which is one of the firms representing the plaintiffs in this case.

OPINIONS

It’s All Upper Year Moot from Here KEVIN SCHOENFELDT (2L) Every once in a while, law school reminds you that you are essentially a complete, onehundred percent, total failure. Just a useless pile of junk. You f ind yourself thinking, “This isn’t so bad. I didn’t fail out of 1L and I speak in class sometimes, so I must be alright.” You’re not. You’re terrible. Law school always f inds a way to remind you of that fact. But whenever you f ind yourself

feeling this way—whenever you think you’re the biggest waste of space here— remind yourself that you’re wrong. You’re not even close to the biggest waste of space.

I am.

Let me explain.

Have you ever heard the sound of a small

child crying so much that when they try to explain what’s wrong, nobody can understand what they’re saying? Have you ever heard the sound of someone throwing up and then you feel like you’re going to throw up, too? Have you ever heard the sound of the air slowly coming out of a balloon, like a weird, high-pitched fart? If you’ve heard any of those sounds in the law building recently, don’t worry, that was just me doing my moot tryout.

Here’s what I remember: The unrelenting stares from my panel. The certainty that my lungs no longer existed. A question about s.

7—something along the lines of, “Is there a s. 7?” and me not knowing the answer.

Darkness slowly enveloping me. Another question, maybe: “Can you name a Supreme Court justice?” and me contending that there is no Supreme Court. The sound of my voice betraying me. The one-minute warning f lashing when all I had said was good afternoon and my name. It was morning. I

think I got my name right. The strong urge to apologize personally to each panel member. Blackness. Coming to in Queen’s Park somewhere.

Maybe you tried out, too. Maybe you don’t think it went very well. Rest assured, you surely did better than me. If your panel didn’t throw out your ranking sheet immediately after your tryout, you surely did better than me. If you said one coherent sentence, you surely did better than me. If your panel didn’t make plans to invite you to Law Ball, elect you Law Ball King, and pour pig’s blood on your head in front of everyone while a video of your tryout plays behind you and the entire school laughs and laughs and laughs, well, then you surely did better than me.

Let me apologize now. From the bottom of my heart, dearest moot panel, I’m sorry. If I could take it back, I would. Thanks for the reminder, law school. See you at next year’s tryouts.

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ultravires.ca

Rights Review THE IHRP RELEASES - NO LIFE FOR A CHILD: A ROADMAP TO END IMMIGRATION DETENTION OF CHILDREN AND FAMILY SEPARATION Rona Ghanbari, 3L

“If we fail in our duty of care to the smallest and most vulnerable among us, then we fail the most basic test of justice and compassion.”

– Minister of Public Safety and Emergency Preparedness, Ralph Goodale1 these children are Canadian citizens who have no option but to either live with their parents in de facto detention, or to be taken to child protective services 9. Some children were even born into detention.

The Canadian human rights brand – are we living up to our reputation?

Living in Canada, many of us enjoy fundamental human rights that are rigorously protected by the law. In watching the news or discussing egregious breaches of basic human rights elsewhere in the world, many Canadians feel fortunate, or perhaps even morally superior to those in other nations.

Unfortunately, Canada’s reputation as a defender of human rights has been blemished egregiously on several fronts, among which is its immigration detention regime. In recent years, Canada has held hundreds of children in immigration detention, and they have suffered immensely, unseen and unnoticed by the Canadian public. Some of these children are from Syria or other war-torn regions, and others are Canadian citizens who are not formally detained but live in detention centers to accompany their detained parents. In detention, these children are denied proper education, the opportunity to socialize with other children their own age and make friends, and sometimes they are even placed in solitary confinement. This is no way for a nation that is a world-renowned leader in human rights to treat such a vulnerable group.

On September 22nd 2016, the University of Toronto’s International Human Rights Program (IHRP) released a 70-page landmark report titled “ ‘No Life for a Child’: A Roadmap to End Immigration Detention of Children and Family Separation.” The report uncovers the state of child detention in Canada by providing statistics, featuring interviews with those who have been detained, explaining the severe and lasting mental health consequences of child detention and family separation, and providing recommendations for communitybased alternatives to detention and family separation. No Life for a Child continues the IHRP’s advocacy focus on immigration detention, which began with the 2015 report, “ ‘We Have No Rights’: Arbitrary Imprisonment and Cruel Treatment of Migrants with Mental Health Issues in Canada.” No Life for a Child was researched and written by IHRP Senior Fellow Hanna Gros and IHRP fellow Yolanda Song, and edited by IHRP Director Samer Muscati, among others 2. The report contains much more detail and information on the issue than could be highlighted in this article, and is a compelling and shocking account of

Detainees are held in Immigration Holding Centers (IHCs). These are medium-security facilities where children and their families have restricted mobility, are subject to constant surveillance, and are searched frequently. Children do not have access to adequate education. One detainee reported that an IHC teacher would come three times a week to teach children between the ages of four to nineteen10. This is unacceptable given the vast diversity in needs among children of different ages. Some of these children spend months in detention, making the lack of access to adequate education even more consequential. Furthermore, children rarely get the opportunity to socialize with other children their own age and develop friendships, and they are only allowed to go outside for short periods of time.

Canadian immigration detention practices.

The United Nations Committee on the Rights of the Child (CRC) has criticized Canada on numerous occasions – most recently in 2012 – because of its child detention practices 3. Specifically the CRC condemned the scale of child detention in Canada, and the inadequate consideration for the best interests of children4. The United Nations Human Rights Committee, refugee rights groups, and child rights advocates have also criticized Canada with respect to its child immigration detention practices. In response to criticism of detention practices in Canada, Canada’s Minister of Public Safety and Emergency Preparedness, Ralph Goodale, has stated that Canada will commit to “avoid housing children in detention facilities, as much as humanly possible.”5 No Life for a Child calls for action that goes further than that, stating: “It is crucial…that family separation is not instituted as an alternative to detention. The practice of detaining parents without their children is not an acceptable alternative to housing children in detention facilities be-

cause family separation also inflicts serious psychological harms on children.”6 Canadian Child Detention – Simply Put Figures obtained by the IHRP through access to information requests revealed that an average of 242 children were detained yearly between 2010 and 20147. This figure is an underestimate because it does not account for all the children who are living with their parents in detention as “guests” who are not themselves formally detained 8.

Some of

Although some children are in detention as an alternative to family separation, the latter is not entirely mitigated in detention. Family rooms in the IHCs are restricted to mothers and children11, which means that children are separated from their fathers, and may only visit them for short periods each day12.

Research demonstrates that living in detention causes serious psychological harm to children. Constraining a child’s liberty and privacy for extended periods of time while also providing them with extremely limited contact with other children or with educational or recreational activities has severe mental health consequences. Children who have

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Rights Review 2010-2011 2011-2012

Where children are not accompanied by their parents or guardians, they may be placed in solitary confinement. Solitary confinement means physical and social isolation for at least 22 hours per day14. Solitary confinement is extremely detrimental to an adult’s mental health, and even more detrimental for the health of a child, as confinement can have a profound impact on a child’s brain development15. To a child, a few days in solitary confinement may feel like several weeks16. Solitary confinement of children is strictly prohibited by international law. The United Nations Special Rapporteur on Torture has stated that placing a child in solitary confinement for any length of time violates the International Covenant on Civil and Political Rights, and well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment17. The CRC has stated that under the Convention on the Rights of the Child solitary confinement should be “strictly forbidden” for children18.

Canada has been failing to meet its international human rights obligations.

IHRP Director Samer Muscati remarked that, “[t]he immigration detention of children does nothing to increase public safety, but has an immensely detrimental and lasting impact on an already vulnerable population.”

This powerful statement highlights the arbitrariness of the practice, and the urgent need for its cessation.

“The creator of this sand tray was an 8 -year-old Canadian- born girl who was detained at an IHC for 48 hours with her parents and two siblings after her parents’ refugee claim was refused. While in detention, her father was held in a separate men’s section in the facility. After the family was released from detention, the child developed selective mutism, an anxiety disorder, which persisted for several months.” © Rachel Kronick

Another example is the devastating account of a 16-year-old Syrian boy, who arrived in Canada unaccompanied by his parents, with hopes of seeking asylum, only to be taken to a detention centre and placed in solitary confinement for three weeks. During his time in detention he was not allowed to contact his family and was only allowed outside for 30 minutes a day. “Canada government brings many people from Syria, Jordan and Lebanon, Turkey, but I am coming here, and they don’t accept me,” he said. “Three weeks in detention, I’m feeling sad, and I cry all the time. The room, the iron on the windows, I’m afraid.” 20

So, what are the solutions?

The report also highlights mental health research examining the effects of detention on children using interviews or activity-based data collection. One research method was sandplay, where children were given various figures and a mini sandbox within which they were asked to build a world. The lives the children created in their sandboxes exhibited the trauma they carried with them during and after their detention.

What is the legal basis for detention/ family separation?

A person may be placed in immigration detention if a Canada Border Services Agency (CBSA) officer has reasonable grounds to believe that they constitute a flight risk or a danger to the public, or if their identity is not established. Immigration detention in Canada is implemented under the authority of the Immigration and Refugee Protection Act (IRPA)21

and its Regulations 22. CBSA initiates the decision to detain someone, and the Immigration Division of the Immigration and Refugee Board adjudicates detention review proceedings with CBSA’s participation 23. Both bodies rely not only on the legislation but also on policy guidelines to interpret provisions and make decisions with regard to immigration detention24. Unfortunately, the legislation and policy guidelines do not prohibit the detention of children or provide a limit on the length of time individuals can be detained.

Instead, IRPA requires that decision-makers consider the best interests of the child as one of several factors in detention-related decisions. The Convention on the Rights of the Child requires that authorities take into account the best interests of the child as a primary consideration in all state actions concerning children, and Canada’s treatment of children in the context of immigration detention is clearly falling short of this standard.

“This sand tray, dominated by symbols of violence, security and barricades, was created by a 12-year-old boy while he was detained with his mother and older sister. The family’s asylum claim was refused and, at the time of the interview in 2011, they had been detained at the IHC for seven months. The boy appeared to have developed multiple psychiatric symptoms during detention.” © Rachel Kronick

CBSA officer and Immigration Division adjudicators are given broad discretion to impose whatever conditions they feel are necessary or unnecessary with respect to detention, and they are required by law to consider all reasonable alternatives to detention before making a detention-related decision25. IHRP director Samer Muscati commented, “[i]nstead of locking children up or separating them from their detained parents, these children need meaningful protection in community-based alternatives to detention.”

Community-based alternatives to detention ensure that fundamental rights are better protected as individuals are treated with dignity and respect, and family separation (which has extreme negative mental health effects) can be eliminated altogether. Communitybased alternatives are also significantly more cost-effective than detention. CBSA spent an average of nearly $21.5 million each year between 2010 and 2014 on IHCs 26. By contrast, the cost of a community-based alternative, such as the Toronto Bail Program (which su-

$344.98

$8.50 $0

In conducting research for No Life for a Child, the IHRP interviewed and profiled mothers and their children in detention. Many of the parents provided heartbreaking stories of the trauma their children endured during and after detention. One mother, who had been detained for 6 months at the time of the interview, explained that that her son had become “angry about everything”; he said that he was “locked in these walls,” and cried during the night19.

$315.71

$8.12

2013-2014

Voices from the inside

$332.31

$9.77

2012-2013

lived in detention demonstrate increased symptoms of depression, anxiety, post-traumatic stress, and suicidal ideation. Many of these children also develop behavioural issues and become more angry or irate. Separating children from their parents – whether by detaining only their parents, or detaining them in a separate wing within the detention facility – is profoundly harmful for a child’s mental health as well. The stressful conditions under which they live, along with the pervasive under-stimulation and boredom, “create a sense of deprivation and powerlessness among children”, which often results in mental health issues which persist after release from detention13.

$372.44

$9.99

$100

$200

$300

$400

pervises individuals while they reside in the community), costs approximately $1.1 million a year 27.

1.

Minister of Public Safety and Emergency Preparedness, Press Conference at Laval Immigration Holding

2.

Rachel Kronick of McGill University also contributed significantly to the research and writing of this report, along with many others. The full list of acknowledgements is available in the full report.

No Life for a Child reviews and details several alternatives to detention programs, such as reporting obligations, financial deposits and guarantees, third-party risk management programs, open accommodation programs, and electronic monitoring. The report also outlines and analyses best practices used in other countries. The most important aspect of these programs, however, is keeping families together outside of detention centers.

3.

United Nations Committee on the Rights of the Child, Concluding observations on the combined third and fourth periodic report of Canada, 61st Sess, UN Doc CRC/C/CAN/CO/3-4 (5 October 2012) at para 73.

4.

Ibid at paras 34, 73–74.

5.

Public Safety Canada, News Release, “Statement by the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, on Immigration Detention” (19 July 2016), online: <http://news.gc.ca/web/ article-en.do?nid=1101379> .

6.

No Life for a Child, at p 9 <http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/ReportNoLifeForAChild.pdf >

7.

Ibid at p8.

8.

Ibid.

9.

Canada Border Services Agency, Information for people detained under the Immigration and Refugee Protection Act (2015) at 1, online: <http://www.cbsa-asfc.gc.ca/publications/pub/bsf5012-eng.pdf>

No Life for a Child provides 11 recommendations that complement and build upon the recommendations made in the 2015 report, We Have No Rights. Because discretionary powers exist under the IRPA, authorities are able to implement the goals of these recommendations immediately, before passing legislation. Among other things, the recommendations involve revising legislation, regulations, and practices to reflect international standards with respect to the best interest of the child.

The Canadian federal government and CBSA have engaged with the IHRP and have indicated a strong willingness to reform the immigration detention regime, with particular emphasis on protecting children. The report’s co-author, Hanna Gros, stated: “After years of silence and inaction, the Canadian government and CBSA are taking serious steps that will hopefully bring us closer to ending child detention and family separation, but Ottawa needs to move quickly and deliberately to end the needless suffering of children and their parents.”

If the Canada wants to be a leader in human rights on a global scale, we cannot turn a blind eye to the mistreatment of an extremely vulnerable group within our own borders.

Access the full version of No Life for a Child here: <http://ihrp.law.utoronto.ca/utfl_ file/count/PUBLICATIONS/Report-NoLifeForAChild.pdf >

10. No Life for a Child, at p 10 <http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/ReportNoLifeForAChild.pdf > 11. No Life for a Child, at p 9 <http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/ReportNoLifeForAChild.pdf > 12. Ibid at p8.

13. Ibid.

14. Canada Border Services Agency, Information for people detained under the Immigration and Refugee Protection Act (2015) at 1, online: <http://www.cbsa-asfc.gc.ca/publications/pub/bsf5012-eng.pdf> 15. No Life for a Child, at p 10 <http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/ReportNoLifeForAChild.pdf > 16. United Nations Committee on the Rights of the Child, General Comment No. 10: Children’s rights in juvenile justice, 44th Sess, UN Doc CRC/C/GC/10 (25 April 2007) at para 89.

17. No Life for a Child, at p 9 <http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/ReportNoLifeForAChild.pdf > 18. Maureen Brosnahan, “Syrian boy seeking refugee status ordered deported to United States,” (16 February 2016) CBC News, online: <http://www.cbc.ca/news/canada/toronto/syrian-teen-detained-toronto-1.3449595> [Brosnahan, “Syrian boy ordered deported”]; IHRP interview with Andrew Brouwer, Senior Counsel – Refugee Law, Legal Aid Ontario (5 August 2016) 19. Immigration and Refugee Protection Act, SC 2001, c 27, ss 54–61.

20. Immigration and Refugee Protection Regulations, SOR/2002‐227, ss 244–251.

21. Canada Border Services Agency, “Acts, regulations and other regulatory information: Delegation of Authority and Designations of Officers by the Minister of Public Safety and Emergency Preparedness under the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations” (26 July 2016), online: http://www.cbsa-asfc.gc.ca/agency-agence/actreg-loireg/delegation/irpa-lipr-2016-07-eng.html; Citizenship and Immigration Canada, “ENF 3 Admissibility, Hearings and Detention Review Proceedings” (29 April 2015) at s 7, online: <http://www.cic.gc.ca/english/resources/manuals/enf/enf03-eng.pdf> .

22. Canada Border Services Agency, “Operational bulletins and manuals” (27 June 2016), online: <http://www.cic. gc.ca/English/resources/manuals/index.asp>; Immigration and Refugee Board of Canada, “Policy on the use of Chairperson’s Guidelines” (27 October 2003), online: <http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/ pol/Pages/PolGuideDir.aspx>.

23. Immigration and Refugee Protection Regulations, SOR/2002‐227, s 248(e).

24. No Life for a Child, at p 40 <http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/ReportNoLifeForAChild.pdf > 25. Ibid.

26. No Life for a Child, at p 40 <http://ihrp.law.utoronto.ca/utfl_file/count/PUBLICATIONS/ReportNoLifeForAChild.pdf > 27. Ibid.

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SEPTEMBER 28, 2016 | 13

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Rights Review Rights Review SPOTLIGHT: HANNA GROS, CO-AUTHOR OF “NO LIFE FOR A CHILD,” IHRP SENIOR FELLOW, AND GRADUATE OF U OF T LAW Rona Ghanbari (3L)

PROFILE Full name: Hanna Gros Age: 27 Undergraduate degree: Psychology BA, McGill University Year of Graduation from U of T Law: 2016 Aspirations for the future: I would like to practice refugee law for a at least a few years, but I really enjoy the dynamic nature of research at the grassroots level and building an evidentiary foundation to guide progressive policy.

Hanna, you’ve been so active with the IHRP during your time at U of T Llaw, can you describe your involvement?

The IHRP was the reason I decided to come to U of T Llaw, so I got involved with the program as soon as I could. After participating in a refugee law working group during 1L, I did my first IHRP summer internship at the

Population Council in Ethiopia. It was a truly eye-opening experience, not only because it challenged my notions of how ‘universal’ human rights should be implemented, but also because I had to reconsider the role of the law in the sphere of human rights advocacy. I came to law school with the hope of acquiring a powerful tool for human rights advocacy, but I realized that, in some contexts, the law is simply too blunt a tool to address the intricacies of systemic injustice. The law, no matter how powerful, is no substitute for education and social engagement at the grassroots level, which can often affect attitudes and social norms far more directly.

During my second year at U of T, I got involved with the IHRP as a clinic student and had the opportunity to work with Renu Madhane and Paloma van Groll, which was nothing short of inspiring. I learned a great deal about what it means to be truly dedicated to a project and to a cause through this experience. I was very excited to get started on the

project, but I could not have anticipated that it would become a turning point in my career.

Our research focused on immigration detention, and through the project, I co-authored a report entitled, “We Have No Rights.” Researching and writing this report made me realize that this tool of advocacy can be extremely effective in guiding and influencing policy and creating public awareness. I think one of the reasons that the report was so impactful was because we were able to bring together perspectives of people who experienced and interacted with the immigration detention regime from different angles. We interviewed lawyers, social workers, mental health experts, as well as current and former detainees. We painted a comprehensive picture of this convoluted system and revealed what we came to call “legal black holes.” But perhaps more importantly, the other aspect of the report that was particularly powerful was the profiled detainees and former detainees that revealed their lived experiences, and provided readers with an opportunity to empathize with them.

Following my second year at U of T, I did an internship at the UN High Commissioner for Refugees in South Africa. I worked with incredibly dedicated people who truly took on their professional duties as a personal mission. The UNHCR is a unique branch of the UN because, in addition to working with partner NGOs and government agencies, UNHCR personnel also have direct contact with refugees and asylum seekers on whose behalf they advocate. This allows the UNHCR to influence policy in an informed and powerful way, but collaborating with governments on such a large scale also slows down the process. There is a heightened awareness of the political implications of the UN’s criticism that often dilutes advocacy messaging. This was especially critical in South Africa, where the recent history of apartheid has created a culture intensely aware of human rights that fuels fierce and persistent activism.

Through the IHRP, I had the privilege of engaging in human rights advocacy from various angles: internationally and domestically, with non-governmental and inter-governmental organizations, and at the grassroots and policy levels. My experiences solidified my commitment to human rights work.

What would you say was one of the biggest learning or eye opening experiences you’ve had through the IHRP and throughout your travels?

The most powerful experiences I had through the IHRP were interviewing individuals who've had their human rights violated: activists and lawyers in Ethiopia, refugees and asylum seekers in South Africa, and migrants in jails across Ontario. There were

these moments that were just heartbreaking, and I would walk away from those conversations emotionally exhausted but also filled with an immense sense of purpose.

During my internship at the UNHCR in South Africa, I interviewed a refugee who was one of the most resilient people I've ever met. After describing his story to me at length, he asked me, "Wwhat's going to happen to my family?" I opened my mouth, hoping that maybe some words would fall out in some sensical order. I started saying that I could only offer him the options that the UNHCR has set out, but he seemed to pick up on my struggle. “I’m not asking you as a UN officer;, I’m asking you as a human,” he said.

I was at a complete loss for words.

I thought about that moment many times since, and I wondered what I could have possibly said in response. But I think my silence was the most honest acknowledgement of our powerlessness in the face of the inadequate and slow-moving international human rights mechanisms that have been set out by world leaders in far away and disconnected lands. And I think an honest acknowledgement is far more powerful than eloquently scripted, cold answers.

There are certainly moments of helplessness, when all the thousands of pages you read and study, all your professional achievements, and all the intellectual excellence you pick up along the way, feel entirely futile. And all you could rely on is simply being a human, capable of connecting with another human, capable of feeling empathy. Because empathy is at the heart of human rights advocacy.

I have yet to find someone who put it better than Dr. Payem Akhavan: "The struggle for human rights cannot be reduced to sanctimonious platitudes and superficial sentimentality. What moves us to serve humanity, to achieve meaningful change, is genuine empathy.

The capacity to feel the pain of others, to experience an intimate shared humanity, to accept discomfort and sacrifice in the path of a greater cause. In entering an authentic communion with others, we also discover a profound expression of our own dignity."

I've been asked several times why I've chosen to work with people who've undergone such tragedies and suffering, on the assumption that such trauma is somehow contagious. I think that it's important to distinguish between sympathy and empathy.

The former is far more painful than the latter because sympathy is an emotion that leaves you powerless; it does not involve any true responsibility beyond feeling pity;, it does

not demand any impactful response. When we are courageous enough to feel empathy, to truly listen, to take on and internalize another person's struggle as part of our own, we are driven to do something about it. And at least in my opinion, that is the most fulfilling and empowering way to leave a mark on this world. It's the most meaningful way to live.

How did you make the transition from student to employee of the IHRP program?

The transition was very smooth, maybe too smooth. Sometimes I forget that I’m not a student anymore, I just get to work exclusively on my favourite part of law school. And working with Samer Muscati has been just incredible.

He has been a wonderful mentor to me. In addition to having a great collaborative working relationship, he has also inspired me to consider doing more front line field research. He has really emphasized the importance of acknowledging our subjectivity as human rights advocates, and instead embrace our responsibility to be balanced, fair, and accurate in our research and reporting.

What was the biggest challenge in researching and writing No Life for a Child?

The biggest challenge was definitely figuring out the recommendations of the report.

With this report, we tried to make specific recommendations for legislative and regulatory changes, and integrate input from various experts in the field.

Migration law is a complicated area of the law because its very foundation is discriminatory in the sense that migrants are treated differently than citizens. While the state has a basic right to treat migrants differently than citizens, if it’s not monitored closely, it can provide an opening for xenophobic biases to find expression in the law. I’ve encountered stories that I could only describe as Kafkaesque. For example, where an asylum seeker in Canada is asked whether she is afraid of returning to her country of origin, when she naturally replies “yes” – because she is seeking asylum, after all – she is detained as a flight risk who is unlikely to show up for removal proceedings. If she answers “no,” she undermines her status as an asylum seeker; if she answers “yes,” she is deprived of her liberty.

What advice do you have for students who are interested in getting involved with international human rights work/who wish to get involved with the IHRP? DO IT. It’s incredibly meaningful work, and you seldom get the opportunity so early in your career to affect others’ lives in such a profound and positive way.

OPINIONS

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The Truth, As Far As I Know It

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OPINIONS

SEPTEMBER 28, 2016 | 15

therefore cannot be effectively passed on to students in an urban classroom.

Beyond the clear advantages to learning, the uniqueness of the instructional format had an emotional impact on the students.

We lived and learned together in a manner which created connections beyond those which develop in a typical classroom setting. It was a period of self-ref lection and personal growth, which left us refreshed and hopeful for the year ahead. For those of us struggling to f it in at an institution that prioritizes corporate law, this intensive made us feel that we had found a community of like-minded students to which we could belong.

BETHANIE PASCUTTO (2L) WITH CONTRIBUTIONS FROM ELIZABETH WHITE (2L), EVA JADINE LANNON (3L), MISHA BOUTILIER (2L), GABRIELLE THOMPSON (2L), AND CATHERINE FAN (2L)

We are in a privileged position as law students: we are the future of the legal profession in Canada. As such, we must do more to understand and engage with Indigenous issues. But we cannot do so without even a basic understanding of Indigenous law and its role in various cultures. Taking the f irst steps to learn the other legal traditions of our country will enable us to better represent Indigenous clients and add integrity and diversity to our profession.

The Anishinaabe language does not have a word for “truth,” but instead relies on the notion that everyone has their own truth, which is based on their experiences and knowledge. In a dark cave, one can only see as far as one’s light shines, and no more. It is time for the legal profession to widen its horizons and expand its notion of truth.

Why Do We Have to Compete for Everything Here?

ERINN WATTIE (2L) There are two themes that seem to characterize a lot of my experience at U of T Law: scarcity and comparison.

CAPE CROKER

If you were to ask U of T law students about the difference between Aboriginal law and Indigenous law, it is unlikely that many of us could answer the question. In law school, we learn about how the former provides certain rights to land and traditional practices, but are largely unaware of the latter. This is problematic because it reinforces the historical misconception that Indigenous peoples had no law. In reality, Indigenous law consists of sophisticated legal traditions that address many of the same issues that the common law does. Earlier this month, myself and nineteen other students from the law school had the opportunity to learn about this often-neglected area of the law through the ‘Indigenous Law in Context’ intensive

course.

The intensive is a contextual and immersive approach to studying Indigenous law that was offered by the law school for the f irst time. It was taught by Professor John Borrows, with the assistance of Lindsay Borrows and Hannah Askew, at Cape Croker Park (Neyaashiinigmiing), on the land of Anishinaabe people. The intensive provided students with an opportunity to study on the land from which Anishinaabe law developed, learn from community elders who guide their own lives according to Anishinaabe principles, and experience the importance of ceremony to the Anishinaabe legal tradition f irst-hand.

Anishinaabe law is not the kind of paternalistic and overarching framework that we understand our common law system to be.

Instead it is interwoven into their understanding of community, family, and the person. Anishinaabe people internalize their legal practices such that they understand every action to be an expression of their autonomy within their legal framework. From their point of view, the common law legal tradition with written laws and judges on high represents a degrading of their legal tradition. For them, “law is for the lawless.”

Professor Borrows imparted his knowledge of Anishinaabe case law through a series of

stories that touched on the sources of law, including water, rocks, plants, animals, and dreams. An important element of the Anishinaabe tradition is their belief that humans exist in a reciprocal relationship with the land, and that the land itself has agency.

For example, in making decisions with respect to land use, the Anishinaabe account for the needs of the rocks and water in a way that Canadian environmental law does not.

Indigenous legal principles cannot be separated from the lessons offered by the land and the people who have been taught the stories upon which Indigenous law is based.

Theirs is an oral tradition that draws legal principles from Anishinaabe peoples’ relationship to the natural environment, and

It is puzzling that scarcity pervades so much of what we do, given the Faculty’s f inancial resources. Think about f irst year.

There is Downtown Legal Services, Pro Bono Students Canada, the International Human Rights Program—all programs that admit students by lottery, all within the f irst few weeks of school, and all of which are extremely important experiences that can end up shaping a lot of your time at law school.

Later in f irst year comes the First Year Trial Advocacy Program, which, if you’re a member of the Class of 2018, requires that you register within the f irst forty-f ive seconds of the online sign-up—which of course took place during class time. You hope for the best, and prepare to make-do if you aren’t lucky enough to get what you want.

And now we’ve got the upper-year experience of competitive mooting. The goal here is to compete against your peers for a place in the program—the program where they teach you how to moot—when you’ve never learned to moot before. I thought that the competitive mooting program meant that you get to compete in mooting competitions, but

it’s actually a two-tiered competition. First, you compete against your friends. Your friends are a mix of those who are as bewildered as you are by calling people “ justices” and saying that you “submit” things as well as the amazing people who have been debating and mooting and practicing since they were twelve years old. Only then, if you make it, do you learn how to moot and compete in real competitions.

The mooting program is student-run, and that’s really amazing. Compared to other law faculties where mooting programs involve paid administrators, remunerated Faculty members, and more resources for coaching and travelling, the Moot Court Committee (MCC) at U of T Law does what they can with limited resources. Before the try-outs last week, the MCC hosted a practice day where its supportive members gave some words of advice. Mooting hopefuls also got between f ive and f ifteen minutes of feedback from generous alumni judges. The practice sessions were great, but they were no substitute for more robust learning and preparation, and they certainly weren’t suff icient for beginners to actually catch up to those who have mooted and debated before.

Given this reality, one wonders why there isn’t a ‘Mooting for All’ program run by the

Faculty that precedes the competitive mooting process. Why not teach all f irst-year students to moot, as part of the curriculum, instead of only those who qualify for the super-competitive Baby Gale? (Apparently, f irst-years at Osgoode have the opportunity to moot multiple times. Just saying.) Then, when it comes time to compete to join the upper-year competitive moot teams, the 2L/3L pool would be less stressed and anxious during the initial competitive stage, and it won’t be as much of a do-or-die situation. In short, everyone will be better prepared overall.

ing but didn’t make the team.

I understand that we want to win at the national competitions, but why does there have to be a weeding out process that takes place so early on? Do we not have enough resources so that everyone can learn how to moot, and then have a process of deciding who can best represent the school at an external competition? And besides, oral advocacy is a valuable skillset for any lawyer.

The Faculty should not have set it up such that so many people get left out of the experience. The ‘upper year moot’ is not an adequate alternative. Students learn little from this program as it is currently set up, and it would be really unfortunate for that to be the only option open to someone who wants the experience of competitive moot-

After a recent event, I got to talking with Cory Wanless, an extremely impressive alum who went straight from school to a career as a litigator. He said he didn’t try out for mooting because he was exhausted from being constantly compared to his peers.

This rings true for me, and I think it might for many others as well. This isn’t about the student-run mooting committee not doing a good job—they are doing a great job—but, rather, why U of T is acting like a school with limited resources. Really, clearly, it isn’t. #JLB

Having a real mooting experience in f irstyear would be amazing: it would teach students to get on their feet, prepare oral arguments, and be comfortable with spontaneity.

When I got behind a podium on Saturday, I had forgotten that the Section 7 test has two parts (sorry Professor Schneiderman), and considered ‘not crying’ a sign of great achievement. But, now I do know that Section 7 has two parts, and I feel like I learned a lot from the adrenaline and challenge of trying out.

The learning curve of mooting is really steep, and I don’t see a reason why we shouldn’t all climb it together.

OPINIONS

16 | SEPTEMBER 28, 2016

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Unsolicited, Unqualified, and Unwarranted Advice to the 1L Class SCOTT DALLEN (2L) Okay, so you made it into U of T Law. Now that you have had a few weeks to settle into the pace of things, allow me to answer the questions none of you asked with some advice that none of you want: Go to Your Classes Going to class is like taking vitamins: you don’t need to do it, and sometimes it can feel like a waste of your time. But when taken in conjunction with exercise and a balanced diet, it can help reduce your risk of a heart attack later on.

It’s true that many things can be learned by skipping class and reading (or, rather, googling) the cases. However, sometimes professors do impart important and invaluable information that you can’t get from the readings. For example, when Professor Chiao referred to the “good old days” when you could buy cocaine in Trinity-Bellwoods Park; or when Chiao referred to the Criminal Code as “a luxurious jungle”; or when Chiao told students to stymie the pursuit of justice as much as possible—okay, maybe just go to Chiao’s classes, whether you’re in them or not.

You Are Not Special Sorry, was this supposed to be motivational? You are here because you performed well on a standardized test, and because you were willing to torment your overachieving brain until it could intuitively discern which of seven neurotic dinner guests were allowed to sit next to one another at a party. It’s time we all realized the truth: we are all glorified wedding planners.

All of Your Professors Hated Being Lawyers True fact. No matter how many times your professors tell you that the law is a noble profession, remember that they all went into academia specifi-

cally because they did not want to practice the law.

Don’t Be Boring A huge part of law school is helping teach students to think, speak, and write like lawyers. The advantage is that you learn the idiosyncrasies of legal writing—an incredibly valuable skill. The problem is that, however useful, it is a ridiculous way to write.

Forcing you to forsake clarity and style in favour of pedantry and jargon is such a cruel disfiguration of the English language, and would make George Orwell weep hot tears of mourning. Do not mistake legal writing for a normal form of human communication—it’s not. Your friends will stop talking to you.

Even in the relative safety of communication with other law-folk, I beg of you: resist the urge to write in the same convoluted, arcane way that judges do.

There is a vicious cycle in which law students constantly read dry judicial decisions for years, adopt the antiquated verbiage of the courts, then go on to become judges later in life—and the self-perpetuating cycle of unreadability continues.

Appreciate the New Building I get it. It’s true, the unadorned white walls and unfinished concrete floors have the institutional charm of a psychiatric facility for aging brutalist architects. Sure, the light fixtures in the reading room resemble IKEA-brand naval mines, which would surely detonate if the temperature ever rose above absolute zero. And yes, the lack of adequate student space is concerning, particularly considering the Dean’s portrayal of Chateau Jackman as a place of “academic and social exchange.” But, trust me, it could be a lot worse.

Never will you have to experience the terror of crossing six lanes of angry Queen’s Park traffic ten times a day. Never will you face the harsh, unforgiving glares of Victoria College students as you try to

find a table at Ned’s Café. Never will you be subject to the blinding fluorescent light of the Birge-Carnegie reading room, or have the misfortune of opening the student lounge refrigerator because no one warned you of its horrors.

So learn to deal with unventilated bathroom swamps, the ongoing library construction, the holes in the ceiling, and the very avant garde (read: nonexistent) ‘Goodmans LLP Café’, and realize that $35,000 a year just doesn’t go as far as it used to.

Law School Jokes are not Funny (Follies Excepted) They’re just not. If you can make it through a single Call to the Bar pre-drink without anyone mentioning the social host duty of care, you’ve won law school. Please pick up your diploma tomorrow.

Escape the Echo Chamber It’s important! Don’t participate in everything that that one overbearing upper-year tells you to do (I recognize the irony here), or do what looks best in 11.5 point Helvetica font on your reduced-margins, two-page CV. There’s enough needless stress in law school without dragging yourself through four journals, three clinics, a moot, a TedTalk, and a peer reviewed dissertation.

Toronto can be a fun place. Go pool hopping at Christie Pits, play hide-and-seek in the ROM until they kick you out, watch a Leafs game without wondering whether that goalie-fight meets the assault principle laid out in Leclerc, or rearrange the letters on the firm plaques in the Jackman building into silly anagrams (stay tuned).

If all else fails and you need an outlet for your growing nihilism as you stare into the abyss, I encourage you to write a verbose, sardonic, and likely career-limiting piece for Ultra Vires. You (definitely,

maybe) won’t regret it!

Embrace the Confusion Scenario: Catherine Valcke spends an hour carefully describing how the common law developed the concept of nominal consideration in contracts. As class nears the final two minutes—with every student marveling at the clarity of the law—she screams “PSYCHE,” tells you that Santa Claus, Bill Murray, and the law of consideration don’t exist, mounts her broomstick, and exits stage-left laughing maniacally.

Naturally, you have some questions: What does that even mean? What do I do with these three pages of now-meaningless notes? If Valcke is here, who is terrorizing Dorothy and the Tin-Man? Here is the point: Do not mistake that confusion for misunderstanding. Despite all appearances, your professors are not intentionally misleading you.

They are trying to help you recognize the dualism, nuance, and artifice in the law. The law is a mess; the opportunity is in exploiting its ambiguity. If you’re not in a constant state of confusion, you haven’t understood the material.

On my f irst day of law school I constantly reminded myself of this mantra, focused on obtaining some magical permutation of

SEPTEMBER 28, 2016 | 17

Orientation, Legal Methods & the Time In Between

HHs and extra-curriculars that would make me objectively win 1L. I know I’m not the only one guilty of this: of being not only rationally self-interested but irrationally competitive at the outset of law school.

But this story has a happy ending. Even by the end of my f irst few weeks, I had realized that law school is a weird pressure cooker of high highs and low lows. It is really hard to know what it’s like to be in law school unless you’re actually in law school.

And it is basically impossible to go through such an isolating, unique experience and not bond with the other people going through the same motions you are. So my main honest advice, and I promise I’m not bullshitting you, is very simple: Make some friends.

Talk to them, learn about them. Ask how many siblings they have or which Kardashian sister they like the most (my answers: two and, obviously, Khloe). But seriously, taking a study break to sort my classmates into Harry Potter houses and joining a law school

trivia team were certainly more memorable for me than learning about negligence or the parol evidence rule.

My other honest piece of advice, beyond friendship, is to learn to actually trust the people around you. I know, you think everyone is a shark that smells blood in the water.

But they totally aren’t: they’re human, too.

They have the same fears that you do—of disappointment, of rejection, of failure. So share your maps and the Dropbox of notes you got from that nice upper year. Have study sessions where you answer each other’s questions and bounce ideas off of each other for your LRW papers. Go to the library and sigh at each other because rereading your notes for the millionth time is boring AF. Law school may not be a team sport but, if you treat it like one, you’ll feel way less intimidated and alone.

Look, I’ll level with you: there’s pragmatism in law school friendships, too. Nobody has ever won Survivor without making an alliance or two along the way. If you all

Leading up to orientation, I was repeatedly warned about the gusto of our law students. Everyone who comes to the Faculty of Law, I was told, earned their spot here by being lifelong go-getters. Yet at every turn, organizers seemed genuinely stunned at the level of enthusiasm coming from our 1L class.

outside the building attempting to register, I sensed a problem. What should have been the most basic act of signing in, then taking a name card and a glorified loot bag, turned into a disordered mess that left people on their feet for over an hour. For students who struggle with standing for long periods of time, that must have been a torturous morning.

Our orientation website went live weeks before the f irst day with a general schedule and promises to provide details soon. Those details came, at best, several hours before a given event started. In the case of our last event on Centre Island, we were informed that morning that we would meet to catch a ferry to the island at 1 pm rather that the scheduled 10 am on the website. If people had other commitments—work, for instance, or childcare needs that required planning around—they were out of luck.

Nearly every social event was similarly stalled by the sheer quantity of attendees.

The Amazing Race staggered people’s exits in such a way that it took the entire time planned for the event just to split people up into groups. The boat cruise was so packed that the top of the boat was completely inaccessible for the bulk of the time. The coffee house was so full that many people simply left. It’s a damn shame, too, because the performances were absolutely top shelf, even considering the fact that the class was only given a couple days’ notice that they would be asked to perform.

From the moment I arrived at 8:05 am on the f irst day and joined the swelling line up

In the end, this time is precious. These are the moments you will cherish as you sit in your hospital room at the bottom of the transplant list, after complete liver failure from years of stress-induced alcoholism. Sure, your spouse may have left you for someone who can still process emotion, and your children won’t visit you out of resentment for all those years of missed ball games and absentee parenting. But you’ll always have those sweet, sweet memories of Jackman Hall.

compile your notes and trade exam strategies, it only increases your likelihood of success. You may think that giving anyone else even the slightest bit of help is going to condemn you to a transcript full of Ps. But your grades aren’t quite so binary. And there’s a huge chance of oversight if you try to do it all by yourself. Having a couple of ride-or-die friends to watch my back not only gave me a fuller understanding in each of my courses, but also calmed my anxiety that I was totally missing something.

Sure, you can continue to villainize the competition, to pretend that everyone around you is an emotionless automaton. But don’t. Seriously, just don’t. Because the truth is, I may not be here to make friends… but I’m really glad I did.

PS: For your reference, there’s a great supercut on YouTube of contestants from just about every reality show incessantly uttering the phrase “I’m not here to make friends.”

It’s wonderful and hilarious and a little bit tragic. You’re welcome in advance.

W hat might have been most disappointing on the social end was that because these events were so huge, it was ver y diff icult to get to know any of my fellow 1Ls in a meaning ful way. Sure, I recognize a large segment of them in the halls, but in most instances I remember their name and maybe whether they have a tattoo or like hockey.

But orientation isn’t about f inding someone to make a building-wide blanket fort with, Tali! Many of the 1Ls were looking to have a risk-free preview of life as a student.

Yet, by the f irst day of 1L, we still didn’t know how to f ind our classes, nor what Blackboard was, never mind how to access it; even those willing to miss the coffee house to spend two hours standing in line at the bookstore didn’t get all of their books.

After all is said and done, these are easily solvable issues. The registration on the f irst day can be staggered in waves by last name,

or even just eased with a second registration table. The details for events that have already been planned can come as it becomes available rather than when organizers feel it may be relevant. The small groups that have been used in past O-Weeks could be reintroduced to help new students have a more intimate experience, at least part of the time. Issues like f inding class locations and enrolling in Blackboard could be resolved with a single email, which was eventually sent.

No doubt, many issues will be addressed before the class of 2020 f irst walks into the echo-giving halls of the Jackman Law Building. In some ways, I’m actually f lattered. Really, if I have any hope for the remainder of my time at the Faculty of Law, it is this: that our year, and every other year, never stops surprising us with how intelligent, clever, kind, enthusiastic, and excited to be here they are.

DIVERSIONS

Remember the Good Times (?)

CORY BETTEL (2L)

Admitting that I’m a gigantic Survivor nerd has always been something of an embarrassment, but it has legitimately shaped my approach to life and to law school. My natural inclination when I started at U of T was to compete and strategize and even manipulate my way into achieving good marks. Somewhere along the way, I adopted a philosophy that is standard for the prototypical reality-show contestant: I’m not here to make friends.

OPINIONS

TALI CHERNIN (1L)

I’m Not Here to Make Friends Maybe it’s whimsical and obscure and makes me a little weird… but I’ve spent my entire life obsessed with reality television.

Survivor in particular. My fandom is so obsessive that I can tell you, for example, that Brice Johnson was the third person voted out of the 28th season or that a tribe was once named Mogo Mogo. You’re probably laughing at me right now. Go ahead: get it out of your system. I’ll wait.

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In Landmark Decision, Judge Rules that ExBoyfriend is No-Good Human Garbage KEVIN SCHOENFELDT (2L) In what legal experts are calling an unprecedented decision, Justice Julianna Bishop released a verdict today convicting her now exboyfriend, Mitch Fitchland, of multiple offences. In the decision released as Bishop v That Asshole Mitch, Justice Bishop found Fitchland guilty of both man-splaining and manspreading, having bad taste in TV, looking every woman he has ever met in his entire life up and down, not listening, and having a stupid name. “There can be no further appeals,” Justice Bishop wrote. “There has been no error in law. Make no mistake, Mitch, you are truly a piece of shit.”

The judge took particular issue with Fitchland’s need to constantly explain everything to her. “I knew, I knew, when you began to explain mens rea to me last weekend that yours was a hopeless case. Did you forget what I do for a living, Mitch? Do you think I have a closet full of robes because I just really love GODDAMN ROBES?” she fulminated in her reasons.

Fitchland attempted to use precedent in his favour, citing another ex, Courtney C. “Courtney C. never cared about, like, any of this dumb stuff, and she wanted to marry me, so what’s your problem, babe?” he que-

Introduction to the Jackman Law Building, Brought to You by B+H Architects in concert with the Rich Alumni of U of T Law

ried in his submissions. Justice Bishop did not believe she was bound by this precedent: “Ah, naïve little Courtney C. What was she, like eighteen? She was very sweet, Mitch, but her standards were just soooo low. Believe me, that is unquestionably the decision of a lower Court.”

little face. Why couldn’t you just listen to us, Julianna?” In a strange dissent, Justice Constance Picolito wrote, “I feel compelled to dissent from my learned brother and sister.

Mitch is worse than garbage. He is, simply put, non-human sludge and therefore had no standing to go to trial in the f irst place.”

Two other justices wrote decisions, one concurring and one dissenting. Justice David Davidson wrote, “I agree with the decision in outcome, but feel it necessary to add that we all knew immediately that Mitch was trash. The second he walked in the door you could see the garbage grin on his garbage

Legal commentators are left wondering what this will mean for the law in Canada.

Meanwhile, piece-of-shit boyfriends throughout the country are now seeking counsel, gravely concerned about the precedent this decision sets.

KEVIN SCHOENFELDT (2L) AND NICK PAPAGEORGE (2L) At the end of the Sullivan & Cromwell LLP Summer Break we sat down with the Diamond & Diamond Dean, who was generous enough to speak to us about sponsorships. We discussed some of the new sponsorship opportunities the faculty has taken advantage of as well as where the law school plans to go from here.

“We’re very excited to begin partnering with sponsors from outside the legal community,” the Dean told us. Indeed, 1Ls may already have noticed their professors taking short commercial breaks between cases.

“Nothing too intrusive, of course. It could be something like, ‘Now that we’ve covered Mustapha, let me tell you about Culligan Water: Fly-Free Since 2003!” When asked whether this was a conf lict of interest in a

university setting, his response was, “I just thought, they do it in podcasts, why not in the classroom?”

Other sponsored classes include ULINE Latex Glove’s Criminal Law, Environmental Law brought to you by Imperial Oil, and Scotiabank Presents Biz Org: Turning Your Crippling Debt into Our Staggering Wealth.

When asked about the possibility of anything being named for people on the basis of their notable achievements rather than donations, the Dean seemed f lummoxed. “I’m not sure what you mean. If they had achieved something, by def inition they would have made plenty of money. Why wouldn’t they have have donated some of that extra money?”

DIVERSIONS

18 | SEPTEMBER 28, 2016

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Tort or No Tort: 2L Edition

Ode to Birge

GABE THOMPSON (2L)AND DANIEL HERSHKOP (2L)

RABIYA MANSOOR (2L)

The coffee from Goodmans LLP Café burnt my tongue. TORT or NO TORT?

Oh, Birge Carnegie! How I miss your dank volumes,

I’m coming into my school-year habit of eating canned goods. Yesterday, I learned that consuming more than two cans of tuna a week is toxic. TORT or NO TORT?

Hidden behind the cramped collegial communes, There was no class warfare in your dim basement,

Parkour enthusiasts outside Jackman look like they’re having fun. TORT or NO TORT?

A safe space that could have no true replacement.

Parkour as a concept. TORT or NO TORT?

Oh, Birge Carnegie! Your graceful allowance of snacks,

The huge crack in the Jackman window is prompting serious self-ref lection. Am *I* shattered? Am I the window, and is Jackman Hall the crack? Am I the crack? TORT or NO TORT?

Spoke to every student: “I have always got your back,” The six tables for six hundred students were enough, Since Billy could find Sally and whisper: “Hey, hot stuff.”

“Business casual” continues to elude me.

TORT or NO TORT?

Oh, Birge Carnegie! Your faded red lockers will be missed, One last time I stood at 067 and mumbled: “Class dismissed,” The hallowed hall’s lights might have been immutably subdued, But in our bosom, for you, we will carry eternal gratitude.

The library is frigid and those cute blanket/ shawl hybrids don’t make me look effortlessly chic. TORT or NO TORT?

The “Goodmans LLP Café” art piece is an obvious highlight of Jackman Hall, prominently located in our gorgeous atrium.

However, we installed it in direct sunlight, which will soon fade the pristine wall from an eggshell to an off-white! TORT or NO TORT? Your new Tort or no Tort writers are both 2Ls with no idea what’s going on in other Ls. And neither of us remember Torts. TORT or NO TORT? Valcke. Does her radiant beauty give her an excuse to wind students down endless ladders of doomed logic? We say, yes. NO TORT. This edition of Tort or no Tort is sponsored by [redacted] LLP TORT or NO TORT? #TonT..............Tort or no Tort?

Please join us on @tortornotort for the launch of our lifestyle brand.

An Oral History of the IRAC War Part One: A Brief Introduction KEVIN SCHOENFELDT (2L) You may not know this, but many years ago, Legal Methods was taught not in three sections as it is today, but as one united and harmonious class. These were times of plenty, when lunch was always free and was only sometimes pizza, and when it was pizza, it was gourmet pizza and you could choose your own toppings. Even if you chose pineapple, nobody would care, because everyone got their own. This idyllic class was taught by three devoted professors who loved each other very much and happily shared teaching duties with one another: the eminent Dean McCourt, the charming Hugh England, and the incredible, beloved, Queen Gloria. [Note: All names have been changed to protect those who are still teaching and/or dean-ing at U of T.] But soon, dark clouds began forming over the once sunny paradise that was Legal Methods.

WHEN IT’S DAY ONE OF YOUR LEGAL CAREER, YOU WANT A LAW FIRM THAT’S AS EXCITED FOR NEW OPPORTUNITIES AS YOU ARE. TM

Dean McCourt: I can tell you whose fault that was. That know-it-all Hugh.

Queen Gloria: I don’t like to criticize my colleagues, but Hugh certainly became… difficult.

Dean McCourt: Difficult, definitely. Dumb?

For sure. Dickish? Big time. This list is illustrative, not exhaustive.

Hugh England: Every time he talks, can my response be that gif of a monkey peeing into its own mouth? No? You can’t do that? Oh, it’s a newspaper. Well, just picture it.

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Each professor went on like this for quite some time. Finally, I was able to direct them back on topic and they shed some light on how the conflict began.

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MIDDLE EAST

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ASIA

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Queen Gloria: It all started when, basically out of nowhere, Hugh said we should change how we taught the class to write case briefs.

Hugh England: At the time, that dweeb Dean

had everyone making the most detailed briefs you can imagine. Facts, procedural history, issue, holding, ratio, dissent, obiter, conclusion. I mean, you can’t make an acronym out of that! Just try pronouncing FPIHRDOC. Dean McCourt: He was obsessed with being able to pronounce it. If you can’t make a cool PowerPoint slide what’s the point, right?

Hugh England: So I politely suggested we use IRAC instead.

Dean McCourt: He acted like he invented IRAC. Please, people were using IRAC while he was still a kid staring at himself in the mirror perfecting his accent.

Hugh England: I know I didn’t invent IRAC. Look, here’s a picture of me beside the IRAC monument in Boston, birthplace of IRAC. Queen Gloria: They both just cared about it so much. Hugh asked me to form an alliance and kick Dean out. I said it wasn’t fair to ask me to choose sides and all he would say was “What do you mean unfair? What do you mean unfair? What do you mean unfair?”

Hugh England: What does she mean unfair?

Queen Gloria: And so, I’m not proud of this, but I sided with Dean. I thought that would put an end to it. But then one day a third of the class was missing and so was Hugh. He left us a note that said, “Found a coalition of the willing. Going to teach IRAC.” Dean McCourt: I was so mad I think I blacked out. That little weasel stole my class.

Queen Gloria: It could have ended there, but Dean couldn’t let it go. He had to retaliate. And that’s when things got really bad.

End of Part One

DIVERSIONS

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SEPTEMBER 28, 2016 | 19

Meet Your Fellow 1Ls KEVIN SCHOENFELDT (2L)

After being in law school for over a month now, you’ve probably met many of your fellow 1Ls. You might even be feeling overwhelmed by the sheer number of people you’ve met. Even so, here are three of your colleagues you should be sure to get to know better.

TANNER WHITEMAN

JANINE SSSTHSSS

When Tanner first learned to walk, he knew he was going places. Then he learned to talk, a skill that would stay with him his entire life.

“I’ve used my word speaking ability to overcome so much adversity. When I needed a car, I asked my parents again and again until I got one. I learned that as long as I stuck with it, worked hard, and kept asking, I could get anything I wanted.” Yet Tanner’s world was rocked when he first went to university.

“It was extremely difficult, but I googled and googled and finally was able to cook Kraft Dinner in the microwave.” Tanner believes it’s these past struggles that will help him succeed at U of T Law. He has even made an impression on the Dean: “Yes, I believe he is enrolled here,” Dean Iacobucci said when asked for comment. High praise, indeed.

Janine was raised by actual Komodo dragons on the island of Rinca in Indonesia. “Don’t get me wrong,” Janine said, “Mom and Dad are great and everything, but there are definite challenges to being raised by the giant lizards who ate your birth parents.” Janine described to us some of the difficulties she faced being different from her peers: “The worst part was that everyone made fun of me for not having venomous saliva, but I tried not to let it get to me. I mean, they’re right, I don’t have any venom! Also, I didn’t know the Internet existed until recently.” Despite these hardships, Janine found time to start a volunteer organization that teaches newborn dragons to climb trees to avoid being eaten by older lizards. “I only avoided getting eaten because everyone was sort of full after eating my parents and they let me stick around. It’s important to pay your good fortune forward.” The true embodiment of U of T Law.

BLUE J LEGAL At only two years old, Blue J is by far the youngest student in U of T Law’s history, but you’d never know it from talking to Blue J who, like many great students, is more interested in asking questions than selfpromotion. “Which of the following best describes the taxpayer?” Blue J replied, when asked why Blue J chose law school. Blue J was eager to hear about our public interest opportunities: “Please describe the expenditure in greater detail.” Blue J seems unfazed by the idea of being so young: “At the time of contracting, how did the parties intend to characterize the relationship?” Clearly Blue J has a very keen mind, unsurprising considering a group of U of T students and professors tutored Blue J all summer. Blue J also continues to work simultaneously—in an unpaid capacity—in the tax departments of a number of law firms. Asked for any final words of wisdom, Blue J replied, “Capital expenditure. Confidence: 95%.”

So wise for someone so young.

20 | SEPTEMBER 28, 2016

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“Sponsored” Crossword ACROSS 3. Stand up for help / “America’s Canadian law firm” 8. Entry room / GM class action 10. Connector of two points above air / from Calgary 11. A chamber for scrutiny / midsized 12. More chambers for studies / big international business 14. Yet another room for teaching / relocating soon 15. Store your possessions / “top business law firm” 17. SLS headquarters / persuasive lit boutique

DOWN

1. Another room for teaching / famously rhyming last name 2. Wing for the service of learners / the oldest Sister 3. Many rooms, bird part / SCC let them merge 4. Also an entry room / “the first international Canadian legal practice” 5. Chambers for study / two bros from London ON 6. Room for teaching / biggest in the world 7. Vendors of written text / McCarthy Tétrault breakaway 9. Nutrition (someday?) / big transactional law 13. Large room / mayoral connections 16. Large open air / started 5 years pre-Confederation