Ultra Vires Vol 18 Issue 2: 2016 October

OCTOBER 26, 2016 | ULTRAVIRES.CA

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

COVER IMAGE BY DAVINA SHIVRATAN (1L) WITH PHOTOGRAPHY BY HOLLY SHERLOCK (3L)

Open or Shut?: A Case for a Better Mooting Program GRAEME ODDY (3L) In March 2015, the Moot Court Committee (MCC) published a thoughtful article, “Advocacy for U of T’s Moot Program,” which highlighted issues with the current mooting program. The MCC’s three primary concerns were that: (1) too many students entered the moot selection process with no experience or concept of what was expected; (2) the Upper Year Moot was inadequate and unvalued; and (3) mooting experiences were offered to too few students. The article made a number of suggestions intended to remedy these issues.

In March 2016, the then MCC published a followup article which lacked the honesty and introspection of the original. The article began by focusing on the whopping thirty-three awards and victories that U of T Law had racked up, and concluded that such accolades indicated the mooting program’s success. The MCC wrote that “after allowing these victories to sink in,” they turned their minds to the question of how to make the competitive mooting program accessible to as many students as possible.

Yet they did not mention any changes they had made themselves, nor did they address any of the previous MCC’s suggestions for improving accessibility. Their own recommendations for the future were mostly left to the Faculty to take care of.

A perspective which focuses first on the awards our mooting program earns, and treats the question of accessibility as secondary, will never result in a better and more accessible mooting program. The goal of winning as many awards as possible makes moot-

ing less accessible.

for 1Ls.”

The major barrier created by the goal of winning awards is that the system is designed to advantage those with prior mooting experience. This problem is exacerbated by failing to limit the number of times that students are allowed to moot.

The MCC has demonstrated that it is working to increase accessibility and participation; its focus is not on merely winning moots.

Goals of the MCC The MCC states that their goals are to give students a valuable learning opportunity and to organize the logistics of tryouts and coaching. In their words, “the MCC also seeks to provide the best possible mooting experience for the greatest number of students.”

This year’s MCC has taken steps to achieve this goal. They distributed an information package before tryouts which laid out the expectations and process. They also distributed a score sheet template so students would know how they would be graded. For the first time, they held a practice tryout and provided feedback, enabling hopefuls to get hands-on experience with the process.

The MCC continues to facilitate the 1L Trial Advocacy program and is also working to create new mooting opportunities. Additionally, they suggested a program that would allow 1Ls to conduct research and get exposure to the upper-year competitive mooting process, though this was ultimately rejected by the Faculty. In light of that, the MCC is now looking into “more substantive mooting opportunities

Diffuse the Opportunities Despite these initiatives, the practice of giving multiple mooting opportunities to the same individuals still stands as a barrier to providing the competitive mooting experience to the greatest number of students. The MCC does not take previous participation in competitive mooting into account when making their selections. As long as there are more people trying out than open spots, ,selecting someone who has already participated in a competitive moot takes away an opportunity for a student without prior experience.

Research into past competitive moot participants reveals that at least forty-eight students competed in two or more moots since 2013. At least thirteen students competed in three or more (notably, all four members of this year’s Grand Moot are in this category). During his time at U of T, Samuel Greene was selected four times—competing in the Baby Gale, the Grand Moot, the Gale, and the Arnup.

His story is even more extraordinary because his victories in the Gale and the Arnup earned him the chance to compete again in the Commonwealth and the Sopinka. In total, Samuel Greene had the opportunity to moot in six distinct competitions.

Zachary Al-Khatib will also have competed in at

least four moots by next March—the Baby Gale, the Callaghan, the Grand Moot, and the Gale. If he wins in the Gale, he will go on to compete a fifth time in the Commonwealth Cup. That’s at least eighty opportunities that have been filled by previous mooters, according to data gathered. If the MCC had limited mooters to a single moot for the four-year period I looked at, an average of twenty additional spots per year would have been open to students. This policy would have increased total participation by around 30%.

That said, I am not suggesting that the MCC limit people to a single moot. A more reasonable suggestion is to limit students to two competitive moots as long as there are others without prior experience vying for the same positions. This wouldn’t prevent involvement in any moot, and students do not need an upper-year moot to qualify for the Grand Moot.

This guideline would increase participation numbers by an average of 12% — at least seven students per year.

There are many arguments against such a guideline: it creates more work for the MCC, requires the consideration of personal information (like mooting history), and limits our most talented individuals.

And it might even mean we win fewer awards. It’s no easy choice. As one student said to me, we want people to participate, but we also want to send our most passionate and skilled mooters to represent the school. Mooters who have already honed their craft

Continued on Page 4

ALSO IN THIS ISSUE JUSTICE BROWN INTERVIEW

TRC COMMITTEE UPDATE

"MAGIC HOUSE"

PAGE 5

PAGE 4

PAGE 15

NEWS

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NEWS

OCTOBER 26, 2016 | 3

2016 Grand Moot a Resounding Success NICK PAPAGEORGE (2L) The Grand Moot, as ever, lived up to its name. This year’s event was especially monumental, for it inaugurated the Rosalie Silberman Abella Moot Court in front of everyone’s favourite judge herself.

Students began to line up over an hour before the event; by the time the doors opened, the throng extended into the atrium. The lucky ones took their seats amongst the notable alumni and other dignitaries in attendance to witness the spectacle.

This year’s mooters were Victoria Hale and Zachary Al-Khatib for the Appellant, and Giorgio Traini and Sarah Bittman for the Respondent. (Somebody must have neglected to mention this breakdown to the Dean before he gave his opening remarks.) The distinguished panel was comprised of Supreme Court Justices Rosalie Abella, Michael Moldaver, and Russell Brown. The all-SCC panel was a f irst in Grand Moot history.

The problem centred on access to justice and prosecutorial impropriety; the fact pattern featured starring roles by Off icer Chiao of the Falconer PD and an appellant so sympathetic that he almost seemed f ictional. The four mooters presented their respective cases

perspicuously—much to the delight of the justices, who peppered the four with questions throughout. It was an all-round tour de force alloyed with just the right amount of levity and laughter.

The panel was effusive in its subsequent praise. Justice Brown found this moot was “among the very best” of the dozens he had judged, and with “a level of clarity we don’t always see in Ottawa.” Justice Moldaver concurred with Justice Brown—something that, by Moldaver’s own admission, doesn’t happen very often—and congratulated the participants on a “wonderful job.”

A glowing Justice Abella, all the more exultant because we were in her courtroom, proclaimed to the mooters: “You blew me away!” She continued that, “We see the future and we feel really good about the future,” and concluded that the courtroom had been consecrated with a spirit that made her very proud to have her name attached to it.

Higher praise could not have been bestowed. Congratulations to the mooters, the Moot Court Committee, and all those involved on their magnif icent work!

PHOTOS BY HOLLY SHERLOCK (3L)

NEWS

4 | OCTOBER 26, 2016

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Faculty Council: Priorities, Admissions, the TRC, and the Student Experience AMANI RAUFF (2L) AND SHARI NATHAN (2L) The first Faculty Council meeting of the semester took place on October 5.

Priorities for the Year Dean Iacobucci opened the meeting by discussing the Faculty’s priorities for the coming year.

The first was “enhancing student experience,” illustrations of which included Yukimi Henry’s hiring as Manager of Academic/Personal Counselling and Wellness, and the initiation of the Leadership Skills Program.

Second was continuing to prioritize the pursuit of partnerships and collaborations of various kinds, such as better collaboration between full-time and adjunct professors within the classroom, and the new office at the Faculty of Law designated for a Justice from the Ontario Court of Appeal.

The final priority was “improving our financial position.” According to the Dean, while fundraising efforts for student financial aid continue, they are in a “quiet phase where we are contacting and soliciting support… We think we’re making some signifi-

cant progress but it’s still at the quiet stage at this point.” On the other side of the coin, the Faculty is looking at its spending—for instance, sharing the costs of the new library more equitably across campus.

SLS Priorities SLS President Sarah Bittman (3L) mentioned issues that the SLS hopes to explore with the Faculty this year, including the limited spots available in competitive moots as well as the allocation of study spaces and kitchens in the new law building. Bittman also flagged mental health and wellness issues, and specifically students’ eagerness to have their voices heard and to contribute to Faculty accommodations policies. Finally, she inquired into the status of the deemed days policy. The Dean responded that a committee will be struck this fall to look into the issue.

Admissions Update Professor Alarie presented the report of the Admissions Committee. According to Professor Alarie, “We remain a very diverse group.”

TRC Implementation Committee Update: No Mandatory Course, For Now AMANI RAUFF (2L) The TRC Implementation Committee presented its final report at the most recent Faculty Council meeting.

The Committee, struck in response to the tabling of the fi nal report of the Truth and Reconciliation Commission in 2015, has been deliberating on the best method of implementing Call to Action #28:

of education” for the law school. The scope of this task will lessen over time, says the report, as provincial education systems and undergraduate institutions implement the calls to action targeted toward them. As this happens, and students increasingly come to law school with the necessary background in Canadian history, a mandatory course will become more appropriate.

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

The Committee further pointed out that the purpose of Call to Action #28 is not to ensure that all students can recite the legal tests for Aboriginal title or the principles for treaty interpretation. Its purpose, said Professor Sanderson, is to “create an environment where Indigenous legal claims are received with a sense of empathy . . . and it’s hard to have empathy if we don’t understand the history and culture of Indigenous peoples.”

One option on the table was to institute a mandatory Aboriginal Law course in 1L. The Committee has decided against it for the time being, in favour of an approach that will integrate Aboriginal Law content into existing 1L and Legal Methods course curricula.

The Faculty has taken up a number of initiatives in the months since the Committee’s report was initially submitted to Faculty Council in April. These include: creating a permanent seat at Faculty Council for the Aboriginal Law Students Association; surveying law faculty to get an idea of what was already being taught in terms of Aboriginal law; hiring a research assistant to help faculty who are interested in teaching more Aboriginal law content; purchasing four additional hand drums; and creating two morning sessions on Indigenous legal tradition, taught by Professor Sanderson, in the 1L Legal Methods Course. Finally, Professor Sanderson requested that the TRC Implementation Committee become a standing committee of Faculty Council in order to keep the project going, in his words, “Forever—or until colonialism ends.”

Professor Sanderson, in discussing the report, emphasized that the process of educating students on Indigenous peoples’ culture, history, and legal traditions is a continuum: it begins in elementary school and carries on throughout middle school, high school, undergraduate and professional schooling, and into professional development training. Given the poor state of Canadian education about Indigenous peoples, history, and culture at the other levels of schooling, Call to Action #28 creates “in some respects . . . a massive and essentially remedial task

SLS Vice-President Katie Longo pointed out that, although applicants were 56% female and 44% male for the past two entering classes, offers of admission were sent out to 46% females and 54% males in 2015-2016, and 48% females and 52% males in 2016-2017. Asked to comment on possible reasons for this, the Admissions Committee only responded that more women than men tend to pursue undergraduate studies.

TRC Implementation Committee Update Professor Sanderson gave an update on the deliberations of the Truth and Reconciliation Commission Implementation Committee, which has come to the conclusion that a mandatory Aboriginal Law course is not appropriate for the time being, but that Aboriginal Law material should be incorporated into existing curricula. For more detail, see “TRC Implementation Committee Update: No Mandatory Course, For Now.” Student Experience Survey Update Assistant Dean Archbold presented results from the Law Student Experience Survey,

Continued from Cover are well-deserving of opportunities for glory.

That’s true. But the less-experienced individuals deserve something as well. Right now, we’re leaving too many people behind.

Accessibility and inclusion are important.

Are students really going to be so upset if they can compete only twice? Does getting to compete only twice feel worse than not getting to compete at all?

The Faculty versus the MCC The Faculty does not provide us with very many chances to develop our advocacy skills. Less than one in six upper year students gets a chance at competitive advocacy.

Let’s take a look at some of the other law schools in Ontario. The Western law program offers a total of twenty-two competitions. Queen’s has twenty. Windsor offers eighteen. The Osgoode Law mooting program, conceivably U of T’s greatest rival, offers a total of twenty-f ive mooting and skills competitions. An impressive four of these are available to 1L students, and eleven of these are full upper-year moots (for example, the Gale and the Jessup).

U of T offers only eighteen competitions total, with just one for 1Ls. Thank goodness we win moots for the Faculty, because I’m not sure how else they’re selling our advocacy program. The total number of competitive mooting opportunities is not reflective of the law school’s prestigious reputation and is incongruous with our tuition. The Faculty is letting us down as far as the raw number of mooting opportunities goes and they shut down the MCC’s most recent initiative to create more.

The answer isn’t the upper-year moot, at least in its current configuration. Plenty has already been said about the failures of the upper-year moot. Put concisely, this program is typically either a consolation for those who didn’t get a competitive moot, or a perfunctory exercise completed with minimal effort by those who don’t care about oral advocacy. It is not valued by the Faculty and it does not provide much in the way of student development.

which was administered by the Faculty of Law. Although students may already respond to the standardized Law School Survey of Student Engagement, which is administered at law schools across North America, the U of T Faculty of Law wanted to develop its own survey of student experience in order to tailor the questions more effectively to its student body.

The selected results presented focused on the extent to which the Faculty of Law was successful on a number of measures, including supporting students’ academic and employment success, creating an inclusive learning environment, and connecting students to the alumni network. Student responses were generally positive, with 50% or more respondents feeling that the school was successful or very successful in those respects. Notably, when asked about the extent to which the Faculty of Law succeeds in supporting students’ overall well-being, only 34% of respondents felt that it was successful or very successful.

For the full report of any of the committees or for the Student Experience Survey Presentation, log in to to E.Legal and click on the ‘Faculty Council’ tab.

It would be ideal for us to introduce five extra competitions, a revamped upper-year moot, and another first-year mooting experience. But this will not happen overnight. In the meantime, the MCC has to do its best to improve accessibility; they can’t wait for the Faculty to deliver.

The only evidence we have of Faculty attention is when they announce our victories over other law schools. Since repeat mooting is linked with success, a policy that limits the number of moots each student can participate in might compromise the number of awards in which the Faculty can vicariously take pride.

Some have suggested that since the Faculty hasn’t implemented any policy regarding the number of moots in which a given individual can participate, it has implicitly signalled that students should be permitted to moot multiple times. It was further suggested that, as a student group, it would be inappropriate for the MCC to craft a policy that ran contrary to the Faculty’s wishes.

But students—ones who don’t get any opportunities to compete—do have an interest in such a policy or guideline. Even if the Faculty has signalled their wishes for students to moot multiple times, the MCC has stated that they are there for the benefit of the student experience. They don’t exist to please the school. The MCC, like any other student group, is entitled to advocate for the student body and challenge the Faculty when needed.

A Time for Change Previous Ultra Vires articles have acknowledged that the tryouts made many of us feel worthless.

They’ve also noted that we have to compete for everything in law school, and that we’re too often reminded that we aren’t good enough.

It’s impossible as things stand now to give everyone a competitive moot, but the MCC has an opportunity to stand out from the paradigm of law school if they’re willing to seize it. Select some people who aren’t already the best. Show that you believe that three extra students getting the opportunity to moot at least once is more valuable than a single person having that opportunity four times. Do what you reasonably can to make fewer people feel like failures. The student body will greatly appreciate these efforts.

If the MCC’s genuine goal is to provide a mooting experience to the greatest number of students, then something needs to change.

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Blog Posts, Academia, and the Dissenting Opinion: An Interview with Supreme Court Justice Russell Brown AIDAN CAMPBELL (2L) AND NICK PAPAGEORGE (2L)

NP: The discovery of your blog posts caused quite a stir. Would you like to see more legal academics and practitioners expressing opinions on law and politics in that manner? Do you think there’s a benefit to the layperson?

RB: I think there is and I think that’s happening.

Our role as academics is to bring our learning and our scholarship to bear in a number of ways. I was working in a university where its first president stated the mandate of the university was to uplift the whole people. So, yeah, I think any kind of engagement with the public is a worthwhile enterprise for academics.

NP: You think just for academics, or should practicing lawyers also voice their opinions?

RB: Sure, I mean, within the bounds of professionalism, absolutely. And it’s really sort of exponentiated in the last five or six years. A lot of practicing lawyers have individual blogs or subject-matter blogs. I think it enriches a discourse about legal issues.

JUSTICE RUSSELL BROWN, VIA SCC-CSC.CA

Nick Papageorge: Let’s get right to the hard hitting stuff. Who is your best friend on the bench?

RB: Rosie Abella. She and I see eye to eye on very little, but she’s been a good friend. I’ve had a lot of good friends on the court, but she’s probably just a nudge above the rest of them.

Aidan Campbell: In some sense, every Supreme Court judge has the same role. But each brings his or her own experiences and background to the bench. Is there anything that you’ve found particularly useful?

RB: Anything in my background? Well, certainly not tort law. We don’t get much tort law. But my experience as an academic has been helpful in the sense of taking seriously what the other side says, which is really, as David Diesenhouse once told me, the essence of the academic enterprise: taking seriously what the other side says and accounting for it.

And so I’ve tried very hard to do that.

I think also part of my academic background that I bring is a willingness to question my own preconceptions about an issue but, at the same time, where I’ve formed a considered opinion, to advance criticisms of other people’s point of view. So, the academic marketplace and war of ideas has informed my work on the court.

And my time as a practicing lawyer also looms fairly large because it seems that a lot of what I’m doing entails tempering the search for principle, which is probably a legacy of my academic inclinations, with an injection of pragmatism. And that’s hard to do. But I’m finding both aspects of my background are helpful that way.

NP: On that topic of competing viewpoints: you’ve written about the value of the dissenting opinion and the role that can play in creating a dialogue between judges. Would you

like to see more dialogue of that form in Canadian courts?

RB: One thing I wouldn’t want to see is a return to the competing Master’s dissertations that characterized some appellate judgments in the 1980s. But I do think dissenting judgments are important for several reasons.

First, if the judge simply, in good conscience, cannot subscribe to everything contained in the majority opinion then that judge not just can dissent—the judge must dissent. And so it serves a function in allowing the judge to adjudicate according to his or her conscience as to what the law requires.

A second function of dissents is to put out an alternative view. I think there is a tendency in our national culture to accept, not just to accept, but to regard the pronouncements of the Supreme Court not just as statements of the law but as indisputable statements of the law—and often that’s just not so. Our judgments are the product of judgment calls, and we should make those explicit. When we do that we’ll find, I think, that they aren’t as indisputable as people might have taken them to be. So dissents are useful for the reason that they give voice to that disputed view of the law.

And the third reason dissents are useful, and this is the reason one typically sees, is they might be plucked decades later as a new statement of the law.

Chief Justice Laskin’s dissents are notorious for this.

An obvious example is his dissent in Rivtow Marine finding new life in Winnipeg Condominium and Bird Construction. So that’s another reason.

And the fourth reason I think dissents are important is that they add clarity to what the law is by expressing a view which does not reflect the law. In other words, you clarify the law by stating what the law is not. And that’s useful, too. I think in some ways majority judgements where there might be some ambiguity are clarified with the help of a dissent expressing a contrary view.

NP: On the topic of your blog posts: I think that a lot of people, especially those not in the legal profession, have trouble imagining judges can simply set their personal views aside when it comes to deciding cases. Is that separation something that comes second nature to judges? Or is it something you’re consciously working at and consciously aware of?

RB: Chief Justice McLachlin has spoken about what she calls ‘conscientious objectivity,’ which she describes as trying very hard to put yourself into the shoes of the other person—not just giving it lip service, she says, but really, really thinking about it.

And I think that presupposes that it’s an ethical imperative for all judges to consciously try to do that, because we all bring the biases that are the product of our upbringing, of our experience, and are reflected in our considered opinions.

But, the point is that I think you want to make an effort every time to try and see the dispute from the standpoint of every party before you. I think the premise of conscious objectivity is that it’s something judges always have to work at.

AC: On the topic of administrative law, do you think coming from the west changes how you think about the role of the federal government or administrative law generally?

RB: Well, a lot of these administrative tribunals are provincial delegates. And a lot of them are arbitrators under provincial statutes. So it’s not really a ‘west versus the federal government’ thing. It really, I think, probably implicates one’s understanding about the relationship between legislative supremacy and the rule of law in the context of a growing administrative state. And people can have a variety of opinions on that throughout the regions of the country.

AC: Judicial activism is a term that gets thrown around a lot, and it seems the term has come to mean: “Whatever a judge does that I don’t agree with, that’s judicial activism.” Do you have a working definition of judicial activism that you think is useful?

RB: I don’t think it’s a useful term. I pointed out recently in a talk that whether Donoghue and Stevenson is, as some people say, an instance of judicial activism really depends on one’s view of what it did.

One might say that it was an instance of judges invoking their policy preference to undo fifty years of law. I might have seen it as an instance of judges restoring centuries of law that had been overridden in the mid-nineteenth century by the policy preferences of judges who were concerned about saddling England’s burgeoning industrial sector with what they thought was undue liability. So I don’t think, because it’s such a subjective term, that it’s a useful term.

I do think that one can have a debate about the role of courts vis-a-vis legislators; one can have a debate, as we often do, about the degree of deference that legislative policy preferences are owed in the face of a constitutional supremacy clause, which obviously engages the courts. In the context of administrative law, as I say, one can have a debate about the role of the administrative state in the context of the dual imperatives of legislative supremacy and the rule of law. It’s probably more useful to, rather than use an overarching term like judicial activism, have more focused debates which are entirely legitimate to have.

NP: What do you personally conceive of as the role of the Supreme Court and the appellate courts in our legal and political order?

RB: Well, the role of the Supreme Court is to—the same as any other court, in one sense—adjudicate disputes and to settle the law. And it does so in cases of national importance, or in cases where parties have a statutory right to bring that question to the Supreme Court. It differs in that respect from provincial courts of appeal, which have important legal development roles as well, but are also courts of error correction. We’re not a court of error correction.

One of the interesting questions that I think we need to consider in the next decade is: What is the role of provincial appellate courts? We’ve restricted their scope for correction in a number of respects through the standard of review and through particular instances of the standard of review, such as the interpretation of a contract.

I think they have an important role in legal development, but I think we need to flesh out that role more clearly, and we might need to be more mindful of it as we continue to develop the law on standards of appellate review.

NP: Your rise to the Court has been described as “meteoric.” After a decade in academia you were appointed to the trial level, then to the appellate level a year later, and then to the Supreme Court a year after that.

Did you have any inclination at that first appointment that this was in the cards?

RB: I thought it might be something I’d want to do.

And it was. The Supreme Court appointment came as a surprise, and the proof of that is just a few weeks before I’d launched a big landscaping project in my front yard, which delayed the sale of our house by some time in Alberta. I was very happy with my life in Alberta. It felt like home in a way that even my original province of British Columbia never felt. So I had no ambitions to leave it, and I still miss it.

But, no, the Supreme Court never occurred to me.

The other two levels of courts sounded like things I wanted to do. I’m happy to be at the Supreme Court and, at the risk of sounding sort of maudlin, I’m honoured to be among my colleagues deciding the issues that are put in front of us. But it was never something I aspired to.

6 | OCTOBER 26, 2016

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Tuition and Debt at the Law School

Part One: The Broken Promises of “The Price of Excellence” AIDAN CAMPBELL (2L) Finally, imagine a school in which no student who can gain admission on the merits will be excluded on the basis of financial need and where students can make career choices not burdened by student debt servicing costs.

load creates no disincentive to follow such a path would not pass muster in an undergraduate paper, let alone be honestly believed by a faculty full of specialists in law and economics.

This was the linchpin of former Dean Ron Daniels’s defence of our law school’s plans to rapidly increase tuition in a National Post editorial back in 2001. Yes, the school will be more expensive to attend for some but, through a robust f inancial aid program, accessibility will not be af fected.

Many within the faculty did not believe this at the time, most notably Professors Philips and Reaume, who wrote a joint response piece in the National Post.

Things are even getting harder for students who make the economically rational decision to ply their craft on Bay Street to pay down their debt. Salaries for f irst year associates at Toronto’s biggest f irms have not signif icantly changed since the recession. Shedding tears for twenty-somethings making twice the nation’s median household income is not something we make a habit of, but tuition deregulation took place immediately following the 90’s boom in lawyer salaries. It is obvious that the economic calculus that enabled endless tuition to increases has fundamentally changed.

Fifteen years later it’s worth revisiting this promise. To that end, Ultra Vires has compiled f inancial aid reports released by the faculty from the 2003-04 year through to 2015-16. The results put lie to the idea that f inancial accessibility has not been a casualty of excellence.

First, the promise that 30% of all new tuition increases be set aside for f inancial aid has long been abandoned. The average bursary provided to students who qualify for f inancial aid has remained f lat for years, hovering between $9,000 and $10,000 since 2007-08. This means that, despite a provincial cap on tuition increases of 5% since 2013-2014, tuition has effectively increased by 9% annually for f irst years who applied for f inancial aid in the years since 2013-2014. Debt has f illed the gap, with average interest-free loans growing from $5,087 in 2007-08 to $16,098 in 2015-16 (15% annually).

In his editorial, Daniels bragged that thirty-f ive students were attending the faculty tuition-free in the 2001- 02 school year. Free tuition is a thing of the past: the last time the faculty had students on full bursary was 2009-10, when the faculty made a policy choice to distribute aid more broadly and less progressively.

The back-end debt relief fund, meant to be the f inal bulwark against debt inf luencing career choice, has been similarly stagnant, frozen at $285,000 (distributed among all alum still accessing the program) since 2012. Over the same period, the average eligible debt load of participants in the back-end debt relief program has risen from $31,756 to $41,599, with the average participant’s salary staying relatively constant. So yes, obviously some students are still deciding to take lower paying public interest work; but in making that choice they are deciding to be more indebted, for a longer period, than those who came before them. To argue this debt

Finally, something that may not be immediately apparent in the f inancial aid statistics is how an increased reliance on private credit openly excludes anyone with a troubled credit history. These students are forced to avail themselves of the ad-hoc and nontransparent emergency loan system that the faculty oversees.

None of these observations are particularly new, and members of the administration are used to batting away questions of accessibility by citing increased applications and higher rates of accepted admissions of fers. Neither of these addresses the question of who isn’t applying, nor the socio-economic breakdown of those who are.

In response to Daniel’s editorial, Professors Reaume and Phillips wrote that: We may also become less vigilant guardians of the shape of the legal profession and of accessible legal education. Linking faculty salaries and tuition fee increases means we contribute to the problem of distorting students’ career choices —they simply have to take the jobs that enable them to pay off their increasingly large debts.

FROM THEORETICAL TO PRACTICAL.

The faculty’s own f inancial aid statistics shows that this has indeed come to pass.

It is time that we recognize this and start seriously considering a new model.

Next month: Where did all the money go?

A deep dive into the sunshine list.

And stay tuned for Part Three as we take a look at the pros and cons of various alternative funding models.

See the UV website for links to the articles discussed and other back-ground reading on the history of tuition debates at the law school.

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

OCTOBER 26, 2016 | 7

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Rights Review BYSTANDERS TO EVIL: TOWARD A PRINCIPLED APPROACH TO OMISSION LIABILITY UNDER THE DOCTRINE OF JOINT CRIMINAL ENTERPRISE

By Kerry Sun (2L), Karlson Leung (2L)

Point, counterpoint.

KARLSON AND KERRY AT THE PEACE PALACE IN THE HAGUE.

The International Criminal Tribunal for the former Yugoslavia (ICT Y ) was established by the UN Security Council following the outbreak of conflicts in the territory of the former Yugoslavia during the early 1990s. This was the most tumultuous and violent period in Europe since the Second World War and saw the birth of several new states, namely Serbia, Croatia, Bosnia and Herzegovina, Montenegro, Macedonia, Slovenia, and Kosovo. The Tribunal sought to bring to justice those most responsible for serious international crimes perpetrated in the region, and was the first international tribunal established since the Nuremberg Trials. The ICT Y is situated in The Hague and is anticipated to close after completing all remaining court proceed-

ings by November 2017.

Joint criminal enterprise (JCE) is a key legal doctrine that has developed through the jurisprudence of the ICT Y. JCE, first set out in the 1999 Tadić Appeal Judgement, is both a form of “commission” of a crime under Article 7(1) of the ICT Y Statute and a mode of liability for crimes committed by a group of persons. Under the doctrine of JCE, an accused may be held criminally responsible for the crimes committed by other JCE members, where there is a plurality of persons; a common criminal purpose carried out jointly or by some members of this plurality of persons; and the participation of the accused in the common criminal purpose through a “sig-

IN FRONT OF THE STARI MOST (OLD BRIDGE) IN MOSTAR, BOSNIA AND HERZEGOVINA.

nificant contribution”. Three categories of JCE exist, with differing actus reus and mens rea elements.

In the context of the Tribunal, this doctrine allowed for the prosecution of individuals who may not have physically participated in the crimes, but were nonetheless part of a group that was responsible for crimes against humanity, war crimes, or genocide in the territory of the former Yugoslavia.

This past summer, Kerry Sun and Karlson Leung interned at the ICT Y, with the support of the International Human Rights Fellowship Program. Kerry Sun was a Le-

gal Intern with the Office of the Prosecutor ( Trial Division) at the ICT Y. He assisted the Prosecution trial team in the Mladić case.

Karlson Leung was a Legal Intern working for Judge Carmel Agius in the President’s Office, Chambers. He assisted with two appeals, Stanišić & Župljanin and Prlić et al..

The views expressed do not reflect the views of the Office of the Prosecutor, the President’s Office and the Chambers, or other organs of the International Criminal Tribunal for the former Yugoslavia, or the United Nations.

Errors and omissions are solely the fault of the respective author.

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Rights Review

KERRY SUN (2L) FORMER LEGAL INTERN, OFFICE OF THE PROSECUTOR (TRIAL DIVISION) In the recent case of Prosecutor v Stanišić & Župljanin, the ICTY Appeals Chamber considered the nature of omissions that give rise to criminal responsibility under the doctrine of joint criminal enterprise (JCE). The accused, Mićo Stanišić and Stojan Župljanin, were high-ranking officials within organs of the Republika Srpska in 1992 during the Bosnian War. In 2013, the Trial Chamber found them liable for crimes against humanity and war crimes as part of a JCE to permanently remove non-Serbs from the territory of a planned Serb state. Each accused was found to have participated in this JCE, partly on the basis that he had failed to take steps to prevent certain crimes against the non-Serb population.

To be found liable under the JCE doctrine, the accused must have “significantly contributed” to the JCE by performing an act or omission that was directed to the furtherance of the common criminal purpose of the JCE. However, prior to Stanišić & Župljanin, it was unclear whether “significant contribution” by omission required the accused to have violated a pre-existing legal duty, and if so, what the requisite nature of the legal duty was.

Liability for omissions is well-established under the ICTY Statute. Article 7(1) of the Statute imposes criminal responsibility on a person “who planned, instigated, ordered, committed or otherwise aided and abetted” a crime. Although it does not explicitly refer to omissions, the Tribunal has held that Article 7(1) encompasses liability for “commission by omission” as well as “aiding and abetting by omission”.

Additionally, command responsibility under Article 7(3) incorporates a requirement of failing to act. According to ICTY jurisprudence, “commission by omission” liability requires that the accused violate a legal duty to act mandated by a rule of criminal law, while possessing the capacity to act. Likewise, “aiding and abetting by omission” requires the combination of a legal duty under international humanitarian law and the accused’s capacity to act.

In Stanišić & Župljanin, the accused argued that similar requirements applied to “significant contribution” by omission to a JCE. Since the doctrine of JCE is considered a form of “commission” under Article 7(1) of the Statute, it was submitted that the relevant legal standard for “commission by omission” should apply to “significant contribution” by omission—that is, that the accused must have violated a legal duty mandated by a rule of criminal law while having the capacity to act.

On June 30, 2016, the Appeals Chamber released its judgment. Rejecting the accused’s submissions, the Chamber decided that “significant contribution” did not require the violation of any legal duty, whether criminal or non-criminal. It held that a legal duty and the accused’s capacity to act are not necessary to, nor determinative of, JCE liability.

Instead, any act or omission can constitute a “significant contribution” to a JCE, which is “a question of fact to be determined on a case-by-case basis.” The Appeals Chamber thus affirmed the Trial Chamber’s finding that the accused significantly contributed to the alleged JCE, and upheld the convictions.

Although the Appeals Chamber directly resolved the issue, its treatment of omission liability under JCE was unsatisfactory for several reasons. Significantly, the Judgement did not specify the threshold at which an omission would constitute a “significant” contribution. Since value judgments are inherent in the criminalization of omissions, it is imperative that omission liability is carefully defined so as to preserve legal certainty and predictability. The Appeals Chamber provided little guidance on the meaning of “significant contribution,” creating uncertainty about when inaction would become criminal. Nor is guidance available from elsewhere in the jurisprudence.

The meaning of “contribution” thresholds in the ICTY and ICTR case law remains an open question;

for example, under aiding and abetting liability, the element of “substantial contribution” has generally been defined negatively or merely described as requiring “a fact-based inquiry.”

Furthermore, the approach to JCE omissions in Stanišić & Župljanin was inconsistent with the Tribunal’s jurisprudence. Despite the fact that the ICTY conceptualizes JCE as a form of “commission” under Article 7(1), the Appeals Chamber departed from the requirements for “commission by omission” of a legal duty and capacity to act. The Chamber held that under Article 7(1), commission by omission and JCE are distinct modes of liability, with different legal elements. Yet this is an unconvincing justification for dispensing with the requirement of a legal duty under JCE. Rather, the relevant parallel is that under both commission by omission and JCE liability, acts and omissions are treated as normatively equivalent: the accused is punished for the ultimate crimes to which he contributed, whether by act or omission, and not for having made the contribution itself. By suggesting that any failure to act can constitute participation in a JCE, even without a duty to act, the Appeals Chamber arguably overextended criminal liability for omissions.

Related to the equivalence of acts and omissions are the difficulties associated with evaluating the legal and moral significance of inaction. As commentators have observed, inaction differs from action in two important ways. Generally, the impact of inactions is not as apparent as those of actions. In addition, a person’s state of mind is not as readily inferred from inactions, compared to actions; a person may fail to act for a multiplicity of reasons. Such considerations, and concerns about interference with individual autonomy, favour a more restricted approach to omission liability.

It might be objected that a capacious view of significant contribution, an actus reus element of JCE

liability, is justified by the mens rea requirement that an individual must possess an underlying intent to pursue a common criminal purpose with other JCE members. However, this approach is unsound in the context of omissions. Consider the mens rea of aiding and abetting by omission, which requires knowledge that the accused’s conduct assists in the commission of a crime. In contrast, under JCE liability, an accused does not need to perform an act or omission with the knowledge that his conduct constitutes a contribution to the JCE. In theory, this seems to suggest that an individual could be found to have “significantly contributed” to a JCE, and potentially liable for all the crimes of JCE members, by doing nothing and without knowing that his inaction amounted to a contribution. While highly unlikely to occur in practice, this nevertheless sits uncomfortably with the principle that all JCE participants are held equally culpable.

What could the Appeals Chamber have done instead? A principled approach would have at least explicitly recognized an accused’s “capacity to act” as a necessary element of a “significant contribution” by omission to a JCE. The Chamber could have adopted the requirement of a pre-existing legal duty, even while accepting that such a duty could arise from a non-criminal or domestic law. Because of the Trial Chamber’s undisturbed findings that both Stanišić and Župljanin were in fact under domestic legal duties to protect the non-Serb population, the outcome of the appeal would likely not have changed. Indeed, requiring the violation of a legal duty could usefully reflect the requisite threshold for “significant” contribution, thus enhancing legal certainty. Alternatively, it could have decided that where omissions are concerned, a significant contribution to a JCE requires the accused’s knowledge that his omission constitutes such a contribution. The adoption of such changes would place an undertheorized area of the ICTY’s jurisprudence on a more principled basis.

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KARLSON LEUNG (2L) FORMER LEGAL INTERN, CHAMBERS (PRESIDENT’S OFFICE) When an individual refuses to offer lifesaving assistance to his or her detainees or stands by silently while his or her soldiers commit serious war crimes – when any intervention would have prevented the atrocity – one cannot help but ask if such conduct should be treated as equivalent to actively contributing to the deaths of the victims. In other words, can conduct that is essentially passive amount to the same heinousness as an active act or decision? Amongst the ICTY’s achievements, one of the main legal precedents was the clarification of the notion of “superior responsibility,” and the idea that military commanders must prevent and punish serious crimes for which subordinates are responsible. Over the span of the last two decades, the Tribunal has expanded the jurisprudence in international criminal law and on the issue of omission liability more broadly.

Omission liability In the recent rendering of the appeal judgement for the case of Stanišić & Župljanin, the Appeals Chamber clarified the legal standard on omission liability as it relates to what constitutes a significant contribution to the Joint Criminal Enterprise. The JCE doctrine was developed by the ICT Y in its early cases and refers to the common criminal purpose behind the perpetration of serious crimes and persecution on the basis of the victims’ group identity.

A salient question is whether it is morally justified to punish an inaction to the same degree as an action. As international criminal law scholar Michael Duttwiler explains, “a crime of omission, in a sense, criminalizes the neglect of a positive duty to act,” and can be defined in two forms.

The first is one where there is an inherent duty built in and failure to act is criminalized, while the second is defined as a normatively equivalent action and punishable due to the moral blameworthiness of failing to prevent the reprehensible results. The second form of omission looks at commission through omission, which is grounded on a legal duty to prevent harm from occurring, and not just upon moral expectations. ICT Y jurisprudence is ripe with examples where omissions have led to convictions: in Mucić the Tribunal dealt with the failure to provide detainees with adequate amenities in prison, in Blaškić the use of human shields was considered an omission in that the perpetrators failed to move the civilians away from the targets, and in Krnojelac the authorities’ failure to address deteriorating prison conditions amounted to inhuman and cruel treatment. By criminalizing failures to act, international criminal law has made important steps towards ending impunity for commanders who have shirked responsibility for those acting under their de facto supervision.

Stanišić & Župljanin The issue of omission liability came to the forefront of Mićo Stanišić and Stojan Župljanin’s appeal, a case involving two officials and the events that occurred in Bosnia and Herzegovina following the creation of the Republika Srpska during the Yugoslav conflicts. Stanišić was the Minister of the Interior, and Župljanin was the Chief of the Regional Security Service Centre of Banja Luka and a member of the Crisis Staff of the Autonomous Region of Krajina.

Župljanin’s ground of appeal alleged that omission liability was over-criminalized because it relied on domestic criminal duties. However, the Appeals Chamber dismissed the appeal, and reasoned that a duty to act that meets the legal conditions for commission by omission is not required when dealing with participation in the JCE. This line of reasoning may have been advanced to address a concern raised by some academics, namely that reliance on domestic criminal law would defeat the very purpose of international criminal liability, given that national legislatures would determine liability. Some academics of international law, such as Lars Berster of the University of Cologne, have proposed that a principle of control – which is already reflected in forms captured by ICT Y case law (see, for example, Brđanin, Čelebići, and Limaj et al.) – should be used as the basis for deriving duties to act from international criminal law.

In response to concerns that the “significant contribution” threshold is unclear and the issue raised by my colleague about what exact threshold is required for the actus reus of JCE liability, a contextual case-by-case approach is appropriate.

Contributions need not even be criminal in and of themselves, so long as the accused performs acts, or fails to perform acts, in the furtherance of the JCE. This approach allows for a greater range of acts to be caught in the net of liability, given that acts of persecution can take many forms and a variety of people – from bureaucrats and administrators to military personnel – are responsible in such an enterprise.

My colleague also raised allegations of inconsistency with requirements for commission by omission and aiding and abetting by omission: namely that the law demands more from the aider and abettor (as an accessory to the crime) than a principal to JCE (which only requires a “significant contribution”). However, these concerns are overblown. Aiding and abetting by omission requires four threshold conditions, as set out in Ntagerura et al., relating to knowledge of the crime and capacity to act. However, the stringent mens rea for participating in the JCE requires a “sharing of intent” to participate in the crime, and conviction requires that both the actus reus and mens rea requirements are satisfied. In the Appeal Judgement, the Appeals Chamber was correct in employing a “lower threshold” for the actus reus component of JCE liability, given that a case-by-case examination of the acts that lead to furtherance of the JCE allows for a more nuanced take of each individual’s level of responsibility.

Despite some ambiguities and potential areas for future development, international criminal law has made significant strides since the Second World War on omission liability, which is a major constituent part of cases involving serious international crimes. Over the years, the ICT Y has sent a clear signal that when those that have power over perpetrators could have intervened to stop or prevent abuses but chose not to do so, they open themselves to criminal liability and the call for them to face justice for their actions – or nonaction.

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Rights Review U OF T LAW MEETS WORLD: REFLECTIONS ON IHRP-FACILITATED FELLOWSHIPS Every year, the International Human Rights Program supports 15 to 20 students to pursue summer volunteer roles with international human rights organizations. Here is what several of last summer’s fellows had to say about their experiences.

Ashley Boggild (2L) Equality Effect Meru, Kenya at Ripples International (Equality Effect’s partner organization)

Dancing at a Court Users Committee Open Day where Ashley shared information with her coworkers about Ripples International and the Equality Effect’s “160 Girls” Project, which aims to protect all girls in Kenya against sexual abuse.

What were some highlights and power ful experiences of your fellowship?

The most powerful aspect of my fellowship was getting to work directly with the children whose cases I was monitoring, many of whom were living in Ripples International’s rescue shelter. The law student I was working with from McGill University and I would spend time with these girls over the weekend, simply playing games and doing crafts.

On our last weekend in Meru we were able to arrange to take the girls to a swimming pool and for a number of them it was the first time they had ever gone swimming.

Their positivity and resilience amidst the immense challenges they were facing will always resonate most with me from this experience.

What were some of your first impressions of the countr y/city where you completed your fellowship? How/ Did these impressions change over time?

I loved that no matter where you went in Meru you could easily make new friends who would offer to help you with directions or whatever else you needed, spend whole afternoons with you, and sometimes invite you to their homes. The communal spirit and abundance of generosity in Kenya is definitely one of the things I enjoy most about the country.

I also became familiar with a different side of the country by regularly visiting courthouses and police stations. As a result, my impression of the country became more complex as I became increasingly aware of the religious and cultural tensions, forms of abuse, and gender expectations in Kenya. But overall, my impression of Kenya is still an overwhelmingly positive one.

Tamara Jewett (3L) Helen Suzman Foundation (HSF) Johannesburg, South Africa

Bethanie Pascutto (2L) AIDS-Free World, Code Blue Campaign Toronto, Canada

What were some highlights and power ful experiences of your fellowship?

The most memorable experience of my fellowship was spending four days in the Mapela community in rural Limpopo province attending client meetings and conducting interviews. I had spent several weeks reading about the community and about problems with internal governance disputes and precarious land rights in negotiations about land use between communities and mining companies. Not only did I get to see the impact of the mines in the area first hand, I saw a very different side of South Africa than if I had stayed only in the city. Mapela is what is known as a “traditional community” still governed by customary law.

The South African Constitution preserves customary law alongside the common law for some communities.

What were some highlights and powerful experiences of your fellowship?

Reading first-hand accounts from victims of sexual exploitation and abuse at the hands of UN peacekeepers was difficult but accentuated the importance of the research project, and the Code Blue campaign in general. I was also exposed to the UN's daily press briefings which demonstrated how the organization communicates with the press in a strategic manner, often avoiding answering questions with any substance.

Share any thing interesting about your experience (best meal, favourite memor y, etc.)

One of my favourite memories was being served coffee and peanut butter and honey sandwiches by a client while conducting an interview at his home in the Mapela community in rural Limpopo province (which unfortunately is now only meters away from the tailing dump of a large, open-pit platinum mine). Peanut butter and honey sandwiches were a staple school lunch in my childhood, and it felt both strange and wonderful to find something so familiar in such a different context half way across the world.

What advice do you have for students hoping to be an IHRP fellow next year?

As much as it sounds like a cliché, my main piece of advice for students hoping to be an IHRP fellow next year is to keep and open mind and to say yes to opportunities. I got to visit communities in Limpopo province and witness the mineral/land rights and customary governance issues that I was researching for HSF because I followed up on contact that I made mountain biking then was willing to spend a long weekend working and traveling. Similarly, I always made sure that I was available when HSF needed representatives at various community or interest group meetings related to their SABC litigation. Going to those meetings gave me a better understanding of how HSF’s litigation fit into the bigger picture of complaints and action against the SABC. Also be sure to start preparing well ahead of time. Finding a partner organization, figuring out funding, and, eventually, sorting out logistics if the fellowship requires travel takes time and determination.

Tamara with interns from Richard Spoor Inc. (a non-profit, public interest firm) interviewing members of the community at Mothlothlo, near Mokopane, Limpopo.

Near the end of my fellowship I had the opportunity to present the findings of the research to Stephen Lewis, Paula Donovan and other members of the staff at AIDS-Free World. For many Canadians, including me, Stephen Lewis is a hometown hero with an impressive vocabulary and a legacy of fighting for those affected by HIV/AIDS. It was surreal to have him ask me questions directly and listen patiently to my answers.

What advice do you have for students hoping to be an IHRP fellow next year?

Get started early! Take a look at the organizations that you are interested in working for and send out your emails of interest as soon as you can. Most NGOs are understaffed and overworked so it may take them a while to get back to you and you don't want your tardiness to be the reason you miss out on a great opportunity.

Dora Chan (3L) Human Rights Watch Toronto, Canada My primary project this summer was assisting HRW in its investigations into abusive policing and failures in protection in Saskatchewan, within the larger context of missing and murdered Indigenous women and girls as a national crisis. I think the biggest highlight for me has been knowing that I'm contributing to bringing change to an issue that has up until fairly recently been largely ignored. Especially as we move into the National Inquiry, I'm humbled by the fact that my work could be making a difference, however small. I'm also fortunate enough to be able to continue this project with the IHRP Clinic, and look forward to seeing it through to completion

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Kerry Sun (2L) International Criminal Tribunal for the former Yugoslavia (ICTY), Office of the Prosecutor (Trial Division) The Hague, Netherlands

Mannu Chowdhury (3L) International Center for Transitional Justice (ICTJ) New York, United States

Alexis Vaughan (2L) Caribbean Public Health Agency (CARPHA) Port of Spain, Trinidad

What were some highlights and power ful experiences of your fellowship?

Two key highlights of my fellowship were: 1. During my time at the ICTJ, a discussion was held about the impending Colombian referendum on the peace deal with the FARC. Individuals from the Colombian field office flew to New York and provided insights regarding the underlying impetus behind the peace process and its fragility.

2. In conducting my research, I was struck by how dated and underdeveloped the discourse continues to be concerning the nexus of institutional reforms and gender justice. Informal institutions that critically shape one's life are often disregarded and the international community's focus (and resources) are exclusively placed to reforming traditional institutions.

Kerr y at the mock trial at the ICT Y. Thanks to a Summer Fellowship from the IHRP, I had the opportunity to intern with the Office of the Prosecutor ( Trial Division) at the International Criminal Tribunal for the former Yugoslavia (ICT Y ) this summer.

As a legal intern with the Trial Division, I assisted the prosecution team on the ICT Y’s final trial, Prosecutor v Ratko Mladić. This work familiarized me with the factual record concerning the Bosnian War, as well as the jurisprudence of the Tribunal, which has played an integral role in ending impunity for war crimes and crimes against humanity. In addition, I was able to observe portions of the trial, including the conduct of examinations and cross-examinations of witnesses.

My time at the Tribunal afforded various opportunities to deepen my knowledge of international criminal law and international law generally, including educational seminars at the ICT Y and events held by academic institutes in The Hague. In June, I participated in a mock trial at the ICT Y with interns from the International Criminal Court and other international organizations in The Hague, a fantastic experience that allowed us to put what we learned into practice.

The highlight of my summer was travelling to the former Yugoslavia with Karlson “King” Leung (2L), where we visited Bosnia, Croatia, and Montenegro. Seeing the region in person was an important way for me to connect my work with the Prosecution, where I dealt extensively with the evidentiary record, to the actual events and their impact on the people who continue to reside there.

What advice do you have for students hoping to be an IHRP fellow next year?

Being a Summer Fellow offers rare opportunities to learn about the internal workings of a NGO and deepen one’s understanding of policy development. Without a doubt, it is an incredible experience!

The workshop participants at the Pan American Health Organization Caribbean headquarters in Bridgetown, Barbados.

One of the highlights of my fellowship was attending a workshop on Health Law: Implementing Fiscal and Regulatory Policies to Prevent Obesity in Children and Adolescents in English-Speaking Caribbean Countries hosted by the Pan American Health Organization at their Caribbean headquarters in Bridgetown, Barbados. Attendees at this meeting were representatives from government, civil society and academia. At this meeting, I was able to engage with policy experts and observe firsthand how research is turned into law.

Per Kraut (2L) United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) Bangkok, Thailand The experience of working for the UN and getting to understand how an intergovernmental organization functions was definitely a powerful experience. It was incredible to be able to surround myself every day with intelligent people from around the globe and to work in a multi-cultural setting with the common goal of creating a better world.

Alexis taking a break from health law and policy to go ziplining in Chaguaramas.

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Rights Review Rights Review Chelsey Legge (2L) The Canadian HIV/AIDS Network Toronto, Canada

Ramz Aziz (2L, JD/MBA) Centre for Equality Rights in Accommodation (CERA) Toronto, Canada What were some of the challenges that you faced, professionally and/or personally this summer?

One of the most daunting aspects of the role was the lack of information on international housing jurisprudence.

Early on, I had to become adept in finding obscure case law and adjudicative body positions on housing rights.

Even the database that contained the United Nations Human Rights Committee’s views was developed by a third party, and the search mechanisms were not as powerful as I had hoped them to be. Consequently, I read through hundreds of UN cases to find what we were looking for.

Fortunately, I have now developed a bloodhound level of legal research ability, and have become adept at preparing memos around both broad and specific legal issues.

Chelsey (left) with Rachel Kohut, the McGill intern, at the 2nd National Conference on Charting the Future of Drug Policy in Canada, hosted by the Network.

Attending the 2nd National Conference on Charting the Future of Drug Policy in Canada was definitely a highlight. Some of my favourite speakers included Health Minister Jane Philpott, Jordan Westfall (president of the Canadian Association of People who Use Drugs, a.k.a. CAPUD), and the representatives from Colorado and Portugal. Another great experience was attending the Toronto City Council meeting the day the council voted on supervised injection sites. I loved being able to watch policymaking in action.

The lawyers at the Network gave me a lot of freedom to work on projects at my own pace, so one challenge was setting deadlines and staying disciplined. I also adopted a 6 month-old puppy in the middle of my fellowship, so balancing a new personal responsibility with work was tricky, but ultimately rewarding. My coworkers were incredibly supportive and encouraging throughout.

The people you work with will make or break your experience.

Make a real effort to connect with potential supervisors and supervising organizations! It’s important to find a good fit.

What were some of your first impressions of the countr y/city where you completed your fellowship? How/ Did these impressions change over time?

Although it is located in Toronto, CERA’s office in the Centre for Social Innovation (CSI) near the heart of Chinatown was an area that I had been previously unfamiliar with. The sub-culture of the workplace, as well as the locality, was far different than I had anticipated. At CSI, I learned about other non-profits doing amazing work in Canada, and the opportunities available for law students in the non-profit sector.

What advice do you have for students hoping to be an IHRP fellow next year?

If you are even remotely curious or passionate about the world you live in, the IHRP fellowship is a great way to learn about how human beings treat one another and treat their environment. Some folks start with an organization and then come up with a project. Others identify an issue first, and then discover the key players in the area they are interested in. I opted for the latter approach, and stumbled upon CERA when researching organizations active in housing rights advocacy.

Regardless of your approach, the opportunity to gain legal experience and perform human rights work is a cherished one, especially when considering the relatively short nature of law school. The IHRP is a great way to get out of your comfort zone, and to commence the journey of discovering your niche. There are plenty of organizations out there that would value free help from a law student. Give a chance to some of the smaller, more obscure organizations – chances are, you will have greater responsibility, and the work will be even more rewarding!

Sarah Teich (2L) International Criminal Court (ICC), Office of the Prosecutor, Investigative Division The Hague, Netherlands My entire experience at the ICC was fantastic. I built a crimes database and drafted crime incident reports for the Prosecutor. I conducted telephone analyses to identify potential new leads in our investigation. I got involved in witness interview preparation and profiling. I had the privilege of experiencing all facets of Investigative prosecution work, and gained a sense of what it takes to actually build a case against international war criminals in the real world. I learned from the best and challenged myself, and then spent almost every weekend travelling Europe.

Basically, the perfect summer. ☺ Here are my top three adventures: (1) Not sleeping a wink in Lisbon; (2) Making new friends at Sziget—a seven-day music festival in Budapest; and (3) Wandering the streets of Molenbeek, Brussels (after I’d spent one year researching the place).

Sarah with Chief Prosecutor Fatou Bensouda.

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Karlson Leung (2L) International Criminal Tribunal for the former Yugoslavia (ICTY), President’s Office The Hague, Netherlands

Video feed snapshot of a status conference with the President, Judge Carmel Agius, as presiding judge.

After the completion of my first year of studies at the Faculty of Law, I spent my summer working as a Chambers intern in the President’s Office of the International Criminal Tribunal for the former Yugoslavia (ICTY), in The Hague, Netherlands from May to September 2016. The United Nations established the ad hoc court to prosecute the perpetrators of serious crimes committed during the wars in the former Yugoslavia.

Working as a legal intern in the President’s Office afforded me a glimpse into the inner mechanisms of the Tribunal and the appeals process at the highest level. I was tasked with providing legal support to Judge Carmel Agius of Malta at the appellate level, and at times to aid with other duties associated with the Office such as the drafting and editing of speeches, memos, and research articles for the Tribunal. In particular, I have been very fortunate with the timing of this internship given that the court will be closing as per the Completion Strategy by the end of 2017 after having fulfilled its UN Security Council mandate, and as such oversaw the rendering of one appeal judgement and the drafting of another.

There have been several highlights and memorable events during my time at the Tribunal. I had the opportunity to visit the UN Detention Unit with the other Chambers interns to attend a briefing and tour with the Commanding Officer. It was definitely a rare glimpse into the other organs of the judicial process and a chance to see how detainees are treated while awaiting trial or appeals. During my personal visit to the Balkans, I also had the opportunity to visit a ICTY field and information office and met with the investigative team in Sarajevo, in addition to travelling with the President and the team during their field mission. Travelling through the historic city in a motorcade and a security detail was definitely not something I expected!

Ashley Peoples (2L) PEN Canada Toronto, Canada

Yolanda Song (3L) International Human Rights Program (IHRP) Toronto, Ontario

What were some highlights and powerful experiences of your fellowship?

My largest project of the summer was finding a way to strengthen PEN Canada’s political relationships. During the Liberal government of the 1990s and early 2000s, PEN had open lines of communication and collaborative partners in Ottawa. With the new Liberal government in power, PEN is looking to rekindle these relationships.

Specifically, in the past two years, PEN has found itself working more frequently with writer refugees and refugee claimants. They have learned that effective advocacy on behalf of a writer at risk (and a writer’s family) seeking asylum requires a close and cooperative relationship with government.

As a summer fellow at the IHRP, I had the opportunity to experience advocacy in action. From researching, to writing, to developing recommendations, to meeting with government officials, to assisting with media outreach, I was involved in every aspect of the production of No Life for a Child, a recent report on the immigration detention of children and family separation in Canada. I loved having the chance to study one issue in such depth and to help develop recommendations for legislative and policy reform—although the work was challenging, it was also extremely stimulating and rewarding. Perhaps the greatest highlight of my summer was working with Hanna Gros (IHRP Senior Fellow and co-author of the report), Samer Muscati (IHRP Director), and our incredible advocacy partners, who not only taught me an enormous amount about being an effective advocate, but continue to inspire and mentor me as I navigate law school and life.

When I learned that the Canadian Standing Committee on Citizenship and Immigration was holding an impromptu summer session on how to improve immigration measures to deal with vulnerable populations in inaccessible regions, I presented the idea of submitting a brief to the Committee. Writers at risk are certainly a vulnerable population and are often in inaccessible regions. The PEN team agreed and helped me gather the research I needed. I scoured PEN’s archives and interviewed former PEN presidents and board members to draft the brief and prepare it for submission.

While in Ottawa to attend the Committee session, I coordinated an engagement with the Department of Human Rights in Ottawa (Global Affairs Canada). Working closely with the Chair of our Writers in Prison Committee, we met with over twenty GAC officials and argued for PEN’s renewed collaboration with the government.

If you’re interested in human rights advocacy, do not pass up the chance to work with the IHRP. Although staying in Toronto may not seem like the most glamorous option, my experience was immensely fulfilling, and really helped me develop my skills as a researcher, writer, and advocate. It was also amazing fun, and you will be working with some fantastic individuals. If you do get this opportunity, be sure to work hard and be engaged—you will not be disappointed by what you receive in return.

Share anything interesting about your experience.

I feel privileged to have spent the summer at a small office of brilliant people who worked collaboratively and inspired me to become a more informed and active human rights advocate.

What advice do you have for students hoping to be an IHRP fellow next year?

If there is an issue you are interested in investigating, do the leg work to set up the fellowship. Fellowships provide unique learning opportunities and are a great platform from which to start your second year at law school.

The No Life for a Child team at Parliament Hill for the press conference announcing the launch of the report.

Overall, I could not have asked for a better work environment with more highly supportive, friendly, and engaging staff and colleagues. I would highly recommend anyone interested in pursuing a career in international criminal law or in the field of international human rights to apply!

Students who are interested in an IHRP-facilitated fellowship can contact Rights Review (ihrprightsreview@gmail.com) to speak to a former IHRP fellow, or contact Hanna Gros, IHRP Senior Fellow (hanna.gros@mail.utoronto.ca). The 2017 Summer Fellowship Guide is available on the IHRP website at http://ihrp.law.utoronto. ca/2017-summer-fellowship-guide.

14 | OCTOBER 26, 2016

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Rights Review CANADA MUST LIVE UP TO ITS INTERNATIONAL OBLIGATIONS AND REPUTATION By the Ultra Vires Editorial Board in concert with the IHRP

Ultra Vires strongly endorses “No Life for a Child: A Roadmap to End Immigration Detention of Children and Family Separation.” This report was released by the University of Toronto’s International Human Rights Program (IHRP) on September 22 and addresses Canada’s immigration detention practices. These practices have led to the detention of hundreds of children over the last few years, and the separation of many families. We stand in solidarity with the IHRP as they call for Canada to live up to its international obligations, and that authorities take into account the best interests of the child as a primary consideration in all state actions concerning children.

Immigration Holding Centres resemble medium-security prisons, and children’s privacy and liberty are severely restricted.

They lack access to adequate education

and nutrition, and insufficient recreational opportunities engender social isolation.

Both detention and family separation have serious and lasting mental health consequences for children and their families.

This cannot be remedied simply by improving the conditions of detention, as these consequences are a by-product of the fact of detention and family separation itself. The best interest of the child should be given primary consideration in all governmental action involving children. In this respect, Canada is failing to meet its international legal obligations and the international community has repeatedly criticized Canada for its detention practices.

Viable alternatives to child detention and family separation exist. Communitybased, non-custodial alternatives are not

only significantly more humane but also significantly more cost effective than detention. No Life for a Child provides eleven recommendations, which complement and build upon the recommendations made in the 2015 report We Have No Rights. This most recent report states that children and families should be released from detention outright, or be given access to community-based alternatives to detention such as reporting obligations, financial deposits, or electronic monitoring if unconditional release is not possible. The Immigration and Refugee Protection Act grants authorities wide discretionary powers to implement the goals of these recommendations immediately, before passing the necessary legislation.

Forty-six of Canada’s leading medical,

legal and human rights organizations, including the IHRP, have signed on to a statement calling on the Canadian government to urgently stop its harmful practice of detaining children and separating families for immigration purposes.

The Canadian government is a leader not only for how human rights will be implemented in Canada but a leader in human rights all around the world.We call for the government to live up to Canada’s reputation, and take the steps necessary to provide meaningful protection for children.

For more detail, access the full version of No Life for a Child report on the IHRP’s website, or look for the IHRP’s article on ultravires.ca.

OPINIONS

ultravires.ca

OCTOBER 26, 2016 | 15

Life Outside of a “Magic House” AMANDA KOVATS (3L) The guest speaker said he grew up in a “magic house.” The type of household where there is always food in the fridge and gas in the car. He then paused, looked brief ly over the class and said, “I suspect that’s the type of household you all grew up in.”

No one blinked. The class kept going.

Everyone seemed to accept this categorization of themselves—and why wouldn’t they? The average combined parental income at U of T Law is a staggering $200,000.

Except that isn’t my reality, my history.

I grew up in the kind of household where my mother cried when the dog ate my

lunch because she couldn’t af ford to buy me a new one. The kind of household where I would pretend to be sick for school f ield trips because I couldn’t af ford the bus fare.

At U of T Law, that history is erased. A ll of my friends have lawyers, professors, and senior managers for parents. I sit silently as they talk about their middle-class upbringings and I try to reconcile that reality with my own.

I didn’t learn communication skills in a public speaking class or some kind of leadership camp; I learned them when my mother was evicted for the third time and I had to convince multiple dif ferent friends to let me stay with them without ever tell-

ing them what was happening in my life.

I often hear the term “poor” being thrown around at our law school. Students joke about being poor while living in a beautiful downtown apartment and travelling whenever they have the chance.

Phrases like, “I can’t possibly work for the government or for a non-prof it organization because I would be so poor,” are commonplace—despite the fact that the income at a job like that is higher than the average Canadian makes.

This is not to say that students here do not have staggering debt. They do. A lot of it. But debt is dif ferent than systemic poverty. While many students here have a high debt load, they also have a lucrative career

path to help them get out of it—and many, if not most, have parents that can help them if their situation ever becomes dire.

In fact, access to credit is one of the major dif ferentiators between the middle class and the working class. My mother has never owned a credit card because she wouldn’t be approved for one. Workingclass people live paycheque to paycheque, not $150k line of credit to Bay Street job.

We forget this at U of T Law. We live our lives like the world is a magic house, like resources will appear without us questioning where they came from. But the world isn’t a magic house, at least not for everyone, and something is surely lost when we live like it is.

Just Dig Up! TALI CHERNIN (1L) As a part of the professionalism training for 1Ls mandated by the Law Society, we had to answer some questions following our workshop. One question in particular requested this: “List some of the factors that contribute to the heightened levels of problems with substance abuse, depression, and anxiety among lawyers and law students.” But the real kicker was the follow-up: “What are practices you can develop now that might help you deal with these factors?”

ing that the Law Society would ask us more than what we’re personally doing to stay out of them. Do yoga to avoid falling into sinkholes. It’s the stop-hitting-yourself model of problem solving, and it sounds a lot like victim blaming.

That was unreal to me. If you had said that twenty percent of lawyers fell into sinkholes, I would feel comfortable in say-

The point is we need to talk about why we’re falling into sinkholes. We need to talk about where these sinkholes are com-

There are plenty of things we can do to avoid falling into sinkholes. We can work out and create wonderful, supportive networks. We can learn self-defence and walk in pairs. We can do everything right and, you know what, we can still fall into a sinkhole.

ing from. We are well past the belief that falling into sinkholes is a personal failing.

So instead of talking about what we’re doing wrong, let’s talk about the system in which we operate.

Let’s talk about the Law Society telling us that our responsibility is f irst to our client and only second to ourselves. Let’s talk about the increasing number of spaces in law schools despite the insuf f icient demand for lawyers, which forces students to work harder to compete for an ef fectively reduced number of positions. Let’s talk about a student workload that seems impossible to achieve, let alone reasonable.

Let’s talk about f irms that require their lawyers to bill two-thousand hours a year and somehow still have time for meditation and time to unwind.

To suggest that these pressures are our responsibility is to absolve a profession fraught with systemic problems that drive people to substance abuse, to depression, to anxiety, and inevitably out of the profession entirely.

If the administration and the Law Society do a single thing this year to combat mental illness, how about ending the victim blaming around mental illness and accept that these sinkholes aren’t going anywhere until we start f illing them?

In Defence of Defence Lawyers NORM YALLEN (1L) Criminal defence lawyers should be recognized for ensuring that people accused of crimes receive a fair trial. Criminal defence lawyers in the United States have recently received harsh criticism, which skews the legal system toward punishment instead of justice. The Canadian political and legal system better protects the integral contribution criminal defence lawyers can make to ensure justice.

In recent weeks the Republican Party has attacked both Hillary Clinton and Tim Kaine for their past careers as criminal defence lawyers. The Republican National Committee released an ad that highlighted violent criminals that had been defended by Tim Kaine and stated this work rendered him unf it for off ice. Donald Trump brought Kathy Shelton to the second presidential debate to target Hillary Clinton’s past as a lawyer. Shelton is a rape victim who blamed Clinton for defending the alleged rapist. The implication made by these incidents was that because Clinton and Kaine defended people accused of crimes, they also supported those crimes.

The Republican Party demonstrated a profound ignorance for how the justice system works in their attacks on Clinton and Kaine. The Sixth Amendment to the United States Constitution mandates that all defendants are entitled to a lawyer and a fair trial. Clinton was the judge-appointed lawyer for the accused rapist and she had to fulf ill her duty to make sure justice could be carried out. This attack on defence lawyers is an issue in the American legal and political system at large.

Elections are held both for the position of District Attorney and for judges in many states in America. Candidates often appeal to voters by demonstrating that they will of fer protection to society at large by punishing criminals. Serving as a prosecutor is a way to advance in both America’s legal and political systems. Emphasizing law and order while demonizing defence lawyers makes punishment of all suspected criminals seem like the ideal result. Criticizing the right to have legal representation has consequences. The consequence of emphasizing punishment is that the United

States has the most incarcerated people of any country on earth. No criminal defence lawyer has sat on the United States Supreme Court in twenty-f ive years and that threatens the integrity of the legal system.

In Canada, Crown Attorneys and judges are chosen by appointment, which helps remove or distance the judiciary from electoral politics. Insulating justices and lawyers from public pressure in this manner is important because the right to a fair and impartial trial is a foundational value in any fair legal system. When a defence lawyer defends someone accused of rape and murder, it does not mean they are defending those actions. What a criminal defence lawyer defends is the sacrosanct right of the accused to receive a fair trial.

In Canada, criminal defence lawyers are not demonized to the same degree as in America. In 2011, Conservative Prime Minister Stephen Harper appointed former defence lawyer Michael Moldaver to the Supreme Court of Canada. In contrast, the Republican Party believes defence law-

yers are unf it for public of f ice. In reality, it is more necessary than ever for defence lawyers to be involved in public of f ice to ensure the rights of citizens are protected.

Movements such as Black Lives Matter have raised awareness of how the state abuses the rights of citizens. It is important that ordinary citizens have a voice both in the judiciary and in government.

People need to be protected from abuses by the police and the state.

Hillary Clinton and Tim Kaine should be commended for their criminal defence work, not denigrated for it. They performed a thankless task that was unpopular but necessary: in any fair and wellfunctioning criminal justice system, everyone must be entitled to competent representation no matter what crimes they are accused of. For that to happen, lawyers and judges must be insulated from public pressure. Thankfully, the Canadian legal and political system seems to have an understanding of the necessity of criminal defence work that the American system sorely lacks.

OPINIONS

16 | OCTOBER 26, 2016

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Comparatively Not That Bad: Transfer Students on U of T Law Kalyna Baziuk-Swaga – University of New Brunswick It’s been an interesting couple of months, transferring from a small and tightly-knit law student community in Fredericton to the University of Toronto.

My tuition may have tripled but, other than that, I’m thrilled with my time at U of T so far. The administration and Careers Office were wonderful from the moment I appeared at their door with a tentative course timetable and a million questions.

My professors have been unfailingly engaged and passionate about the material. Toronto’s location and diverse legal community provide a range of extracurricular opportunities, from workshops to pro bono placements. The push to at least consider a career on Bay Street is present but not overwhelming, and I’m left with the impression that I’ll be supported by the faculty and my fellow students regardless of the area of law I choose to pursue. Finally, the rumours about U of T’s competitive atmosphere are greatly exaggerated. Every student I’ve spoken to has been friendly, even during the pressure-cooker of OCIs. The library is starting to feel a lot like home, and if that’s not a sign of a great transfer experience, I’m not sure what is.

Wes Dutcher-Walls – UC Berkeley Since the point when I submitted all the application documents, the experience of transferring to U of T has been basically painless. Everyone, including the administration, has been very welcoming and helpful. In some ways, it’s been difficult for me to reflect much more on how the transfer was. In part, this is because of the new building here at U of T: as transfer students, we’re arriving at a time of transi-

tion and change for the whole law school community. The building is something that’s new, different, and a bit confusing for everyone, so it’s been nice to be in the same boat as everyone else in that regard.

More importantly, it’s hard to think too much about being a transfer student because you can’t control for the variable of the huge difference between 1L and 2L. The former is truly a unique experience: a yearlong phase of life during which you’re operating with this received idea of how competitive you have to be and how hard it all is, and everyone spends the whole year calibrating how hard they have to work and how hard they have to appear to be working.

My bet is that my relief at getting to choose my courses, to be a bit less stingy with the time I spend on extracurriculars, and generally to simply feel more comfortable as a law student would make me a pretty happy camper even if I had transferred to a school that I liked less than I’m liking U of T. In short, I don’t really feel like a “Transfer Student,” so I guess that’s a success.

Meghan Zannese – University of Windsor U of T has always been a home away from home for me. Having completed my undergraduate and Master’s degrees here, it has been a place where I have grown and developed beyond my comfort zone, and the law school continues to be that place.

It is my understanding that U of T is infamous for its cutthroat and demanding academic environment, but my interactions with students have been nothing short of welcoming. While the financial costs of being a U of T law student are quite high in comparison to my former school, I believe that they are worth it. I particularly sought to transfer for the loca-

tion and large community, but also for the faculty’s vast course selection and practitioner-taught courses. I have also been given the opportunity to volunteer for Law Review and Downtown Legal Services, which enhance my involvement beyond the classroom. I have no negative comments on being a transfer student, and feel fortunate to be part of the U of T community again.

Cristian Combei – University of New Brunswick My overall transfer experience has definitely been positive. Occupying prime real estate, our law faculty is ideally placed in the heart of a striking, cosmopolitan city. All the students with whom I have spoken have been nothing but inviting and gregarious. Professors are intelligent and well-spoken, and the new law building gives much-appreciated breathing room. One obvious drawback is the U of T price tag. However, it is to be expected based on the benefits gained. Additionally, the commute is a daily obstacle course of walking, bussing, and driving. Still, I wouldn’t trade it for anything. U of T has been and is once more my alma mater, and Toronto my home.

Jessica Bishara – Queen’s University My transfer experience started in August, before I had even stepped foot inside the Jackman Law Building, when I met my awesome 2L mentor for coffee. The Career Development Office also reached out to me before school started, asking whether I wanted to participate in the upcoming recruit process and generously fielding my many ques-

tions. I was fortunate to be able to begin day one at the University of Toronto Faculty of Law already feeling welcomed. If I were to draw a comparison between U of T and my prior school, tuition would be the obvious difference that comes to mind. Another distinction is that, at my old school, everyone lived near campus and within close proximity to each other, so social events happened frequently and a tight-knit community feel was tangible. Here, commuting is more common and students seem more dispersed, but it is definitely worth it to be situated in the heart of downtown Toronto. I feel privileged and excited to be here, and could not have asked for a better transfer experience.

Maria-Christina Christodoulou – Queen’s University Despite really enjoying my time at my previous law school, coming back to the University of Toronto was important to me for many reasons. I was ecstatic when I got my acceptance phone call, but then it hit me: how on earth am I going to afford to pay almost three times the amount of tuition I am currently paying? On the surface, it seemed as though despite the fact that I was moving home and no longer paying for food, rent, utilities, or internet, tuition at the UofT Faculty of Law alone was going to be more money than tuition and all my living expenses at my previous school. Thankfully, this worry was short-lived. The financial aid from the Faculty was more than I expected, and with this aid, I am saving a significant amount of money being back home. So far, my experience as a transfer student has been nothing but positive. The people are welcoming, the building is beautiful, the faculty is excellent, and I am very happy to be here.

DIVERSIONS

Ask Ab Initio RABIYA MANSOOR (2L)

Dear AI, I have missed a week of school because I was sick. I am too scared to ask anyone for notes and I do not really have any friends that I could turn to in my time of need. What should I do?

Best, Nervous for Finals

Dear Nervous for Finals, It is understandable that you are worried about not having the notes and materials for a whole week’s worth of classes. I mean, can you imagine how much you missed? Each professor probably already talked about the exact question on the f inal exam. And now everyone knows but you. Just give up—seriously, there is no turning back from this disaster. Stop going to class, tell your parents you are too good for law school, and start binge watching Gilmore Girls. Onwards and upwards, my friend.

Dear AI, I’ve been having nightmares about not getting a job through OCIs. It is the same dream every time – I ace all of my interviews and then no one hires me.

If that happens, my life will be over! What do I do?

Sincerely, I Need a Job

Dear I Need a Job, It is important to remember that you got interviews through the OCI process. I am sure you will get some calls on the fateful day of October 28. Or…maybe you won’t. So what if you don’t?

You can kiss goodbye to making $80k+ right out of law school and paying back your overwhelming debt in a reasonable amount of time. All of your friends will disown you because they will have gotten cushy Bay Street jobs and they cannot be seen mingling with non-Bay Street trash. All of your professors will eventually find out your failings and you will be headed for LP land, which means you won’t even get to pass the bar exam.

Maybe you should drop out if no one calls you.

Or, on October 27, call every firm you interviewed at and beg them for an in-firm. Tell them that your life will be over if you do not hear from them the next day. You could even pre-empt your call with firm love letters every day until October 28. I am sure that will guarantee you a Bay Street job!

Dear AI, I just cannot give a shit anymore. I am in 3LOL and barely do anything in class. Am I screwing myself out of great learning opportunities?

Sincerely, Bob, 3L

Dear Bob, 3L, Congratulations! You have reached the pinnacle of law school. Learning is for the losers in 1L and 2L who actually have to worry about getting a job. You, on the other hand, do not need to engage anymore in the frivolous academic life. Besides, everyone knows the $33,000 you are paying this year is to get that sweet degree in your grubby little hands. Turn your brain off, close your eyes, and it will be June before you know it.

DIVERSIONS

ultravires.ca

OCTOBER 26, 2016 | 17

An Oral History of the IRAC War Part Two: Weapons of Brief Destruction KEVIN SCHOENFELDT (2L) When we last heard from our fractious Legal Methods professors, Hugh English had gone rogue, taking a third of the class with him.

Meanwhile, the always dignif ied Queen Gloria had reluctantly sided with Dean McCourt, but was beginning to have second thoughts when McCourt started to show signs of an unreasonable overreaction. T his is where we pick up the story: Queen Gloria: As I was saying, Dean just wouldn’t let it go. I tried and tried to reason with him, but he wouldn’t hear it.

Dean McCourt: Take my class away from me, will you? That weaselly little skunk-faced rat thinks he can take my class away from me? I apologize, it still upsets me all these years later.

Hugh English: He was only upset because I took all the cool students and left him with all the dwee… uh, that is... the students who were, shall I say, more of a kind with Dean.

Queen Gloria: Hugh will tell you he took the cool students. I will tell you he took the students who laughed at his jokes the most and recognized his Simpsons references. Is that the same as cool? You tell me.

Hugh English: Anything you hear from the other two is just the result of their twisted game of broken telephone. Purple monkey dishwasher, am I right?

Dean McCourt: So I did what I had to do. The day the case brief assignment was due, I broke into Hugh’s of f ice and stole all of his section’s papers and did the worst thing I could think of… gave them all LPs. What’s the big deal, those things are all basically unreadable anyway. I misspoke.

What I mean to say is, we’re very proud of our students.

Queen Gloria: When Dean f irst told me his plan I thought, “Sure, invade his off ice, get the briefs and reunite the class again, you know, establish peace.” But then he was going to LP them all? They’re not even supposed to be graded! It was too much. I went to my good friend and colleague Daniel Dern for advice.

Daniel Dern: When Queen Gloria told me what was going on, it reminded me a lot of the case Ronald v Donald. I don’t know if you picked up on this detail, but it was something the application judge’s clerk’s friend said to the defence counsel’s brother during a recess at the hearing. Did you

pick up what she was saying?

After staring at us for a few minutes in tense silence, he f illed us in.

Daniel Dern: Well, and I f ind this argument really interesting, she basically said, “Some people are just big-time goofs and you’ve got to get away from them.” And that was my advice to Queen Gloria.

In the meantime, Hugh English was trying to get his students’ papers back.

Hugh English: I swallowed my pride and I asked, begged even, for Dean to let me have the papers back. He said no, but that he would review the grades. Review the grades? What’s the standard of review going to be, Unreasonableness? Or Complete and Utter Clown-ness?

Dean McCourt: I don’t think Hugh English understands what standard of review means.

Daniel Dern: Frankly, neither of them understands the standard of review. I do, but that’s neither here nor there.

While Hugh English and Dean McCourt were squabbling over the case briefs, Queen Gloria took action of her own.

Queen Gloria: Those two wouldn’t shut up. They were f ighting in front of everyone. Hugh kept telling Dean to go cry to his daddy and Dean kept calling Hugh ‘pretty boy’ as if that would bother him.

So, I calmly gathered a third of the class and actually taught them something.

Dean McCourt: It took us two hours to notice, but Queen Gloria was gone. I couldn’t believe she betrayed me like that.

Hugh English: I was certain Queen Gloria would be back on my side after Dean’s antics, but she just left. I couldn’t believe she betrayed me like that.

Queen Gloria: Listen, the three of us had started Legal Methods together for the noble purpose of teaching students how to take notes. As far as I’m concerned, those two not only betrayed me, but the students, the school, and the entire f ield of law. My thought was I would do what I could with a group of students until those two dufus babies would agree to sit down with me and work this out. You know that saying, “Careful what you wish for”? Well, be careful what you wish for.

End of Part Two

UV Alternate Histories: Not Throwing Away Their Shot: Diverse Cast Shines in Iacobucci: A Canadian Musical KEVIN SCHOENFELDT (2L) How does a balding, short, son of the Supreme Court and a Lawyer, dropped in the middle of a thriving spot and Employer in the capital, by providence privileged and white collar Grow up to be a law dean and a scholar?

This is the question that opens the thrilling new show Iacobucci: A Canadian Musical, Lin-Manuel Miranda’s longawaited follow up to his Broadway debut In the Heights. Iacobucci combines hip hop, pop, and musical theatre to tell the story of Edward Iacobucci, following his meteoric rise from law student to dean of one of Canada’s best law schools. Iacobucci, the character raps in a standout number, is “ just like my country, polite, middle-aged, and wealthy” and he’s “not throwing away [his] shot.” Iacobucci is played by Miranda himself, who turns in an energetic and exhilarating performance that anchors the sprawling and talented cast.

The pre-opening hype surrounding the show centred around its colour-blind casting: Miranda as Iacobucci, Phillipa Soo as former dean Mayo Moran, and Leslie Odom, Jr. as Iacobucci’s nemesis, f ictional SLS President Lane Parker who seeks f irst to prevent Iacobucci from becoming dean and then seeks to bring him down.

Odom, Jr.’s star turn as Parker will receive much attention come awards season. Not only is he a breathtaking singer, but he raps with as much style and f low as Miranda himself in their duet “Faculty Council Battle No. 1” covering their famous f ight over tuition. The two trade insults as Parker accuses Iacobucci of recklessly raising tuition: “He raises tuition as he pleases while f inancial aid decreases and his bank account increases.” Ultimately, of course, Parker fails. “It’s coming to fruition, we’re raising your tuition,” Parker is told after Iacobucci emerges from a closed meeting, leading to another highlight of the show, “The Room Where it Happens.”

Yet another standout performance is Jonathan Groff as Frank Iacobucci. He enters the stage in full Supreme Court robes with great pomp and circumstance throughout the show to comment on plot developments. Not only are Justice Iacobucci’s numbers showstoppers, but as he sings devastating lines like “You won’t last/soon you’ll see/you will never be as good a dean as me,” he sheds psychological light on the younger Iacobucci’s need to prove himself to the point of overcompensation.

The dean of a law school might seem like an odd topic for the usually larger-than-life genre that is musical theatre, but Miranda f inds the drama in Iacobucci’s life. From scandals that may affect his future (“Never gonna be provost now”) to the climactic and humiliating Moot Court showdown between Iacobucci and Parker (“The Ten Moot Commandments”), Miranda combines his well-known aff inity for creative and complex rhyming with high-stakes drama.

Amidst all the spectacle, the show never loses sight of its eponymous character and who he is: My name is Edward Iacobucci And there’s a million things I want to be Wait and see Just wait and see Don’t wait. Go see it.

Iacobucci: A Canadian Musical Tuesday-Sunday at Richard Rodgers Theatre Tickets starting at $850.00

DIVERSIONS

18 | OCTOBER 26, 2016

ultravires.ca

Feed Me: The Caffeinated Edition RABIYA MANSOOR (2L)

B Espresso Bar

Caff iends

Goodmans LLP Café

Royal Conservatory of Music (Atrium); 8 am-8 pm M-F, 9 am-5 pm Sa, 11 am-5 pm Su

Victoria University, First Floor; 9 am-6 pm M-F

Jackman Law Building , Second Floor; Never Open

Upper-years can recount stories of ye olde dark ages— the pre-Jackman Law Building era—when we were forced to mingle with undergrads in Victoria University. The one shining light, however, was Caf f iends. Now, if the thought of running across six lanes of traf f ic after class does not deter you, you can look forward to some seriously cheap cof fee ($1!) or a reasonably priced tea latte ($3.50). You can pair your cof fee with some vegan cookies ($2 each) and savoury stuf fed focaccia ($2.50 each) to boot.

When I heard the Jackman Law Building opening was delayed, the one thing that kept me going was the thought of the Goodmans Café. I dreamt about it: the cof fee, the croissants, and the delightful atmosphere it would provide.

Little did I know my dream would be abandoned by the construction team. Don’t get me wrong, the feeling of drinking free cof fee from the Rowell Room on Monday mornings while leaning against the Great Wall of Goodmans is a treat unto itself. But it just isn’t as fulf illing as a Goodmans latte.

You are a posh law student. You need the latest and greatest in cof fee. You want people to ask you where you got that cof fee from. Enter B Espresso Bar. With its cool red cups and musical atmosphere, you feel amazing handing over $4.50 for a double latte. You do not even f linch because you are a baller.

With an entrance of f of Philosopher’s Walk, it’s no wonder this hip joint for caf feine is becoming popular amongst law students and SNA ILS. You can even get some grub to go with your caf feine: cookies ($2.25+), full salads ($9.60), breakfast sandwiches ($4.25+)… honestly, why do I even bother cooking?

Visitors be warned: you need to bring a travel mug if you plan on getting your cof fee to go since this café is big on being environmentally friendly. I mean, you could run back with a Caf f iend ceramic mug, but I would not recommend it.

I only hope I get to taste the food before the library mice migrate and overrun the place.

For my mouth:

For my mouth:

For my mouth:

For my wallet:

For my wallet:

For my wallet:

Failure to (External) Launch WES DUTCHER-WALLS (2L) The Faculty’s launch of the new Jackman Law Building for donors and the legal community on September 29 certainly created quite a lot of excitement (and speculation) around the law school. Between the security, the stage, the three-piece jazz trio, the f loral arrangements, and the eerie lack of all current students, it was quite the posh event. Curious as to who could have commanded such VIP treatment? Luckily, UV had contacts inside the event who reported to us—written on the back of a cocktail napkin—the people they spied at this lavish affair…

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ASIA

Gowling WLG (Canada) LLP is a member of Gowling WLG, an international law firm which consists of independent and autonomous entities providing services around the world. Our structure is explained in more detail at www.gowlingwlg.com/legal

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Iaccobucci, Ed

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Palsgraf, Helen (setting up pyrotechnics display)

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Your mom’s new boyfriend, Ricky

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Three of the Seven Sisters (Courtney, Becky, and Lauranne)

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Freeland, Chrystia

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Lemmens, Trudo

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Blue Man Group (bassist only)

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Muppets (assorted)

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Henein, Marie

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Glen Coco

Gertler, Meric Tory, John Tory, James Cory, J. Dory, Finding Wynne, Kathleen Stitt, Nancy (pacing empty space labelled “Goodmans LLP Café”)

Dallen, Scott Abella, Rosalie Silberman Dude who yelled “You Go Glen Coco!”

Stewart, Hamish (uncorroborated) Rae, Bob Bae, Pumpkin Patch with Moldaver, Michael Bombshell”

“The

Blue-Collar

Freeman, Morgan Friedland, Martin FREE PIZZA IN J140!

Jackman, Hal Jackman, Hugh Brown, Russell Three Stikes associates shotgunning Natty Ice in their eponymous locker room Trudeau, Justin Blue J Legal Blue Jays, Toronto Blue jay (Cyanocitta cristata), a common North American jay resident throughout most of the eastern and central United States Groban, Josh (may have just Trudeau, Justin singing karaoke)

been

Gosling, Ryan (may have just been ugly version of Dallen, Scott) Are you sure you saw Henein, Marie there?

DIVERSIONS

ultravires.ca

OCTOBER 26, 2016 | 19

Computer Habits of a Student Post-OCIs KEVIN SCHOENFELDT (2L) In the name of science, an anonymous student agreed to have a monitoring system installed on their personal computer to record their computer habits in the days and weeks following October’s OCI process. What follows are excerpts from the results.

Oct. 8 8:30 am: Student loads Gmail.com Oct. 8 8:31 am: Student refreshes page Oct. 8 8:32 am: Student loads lawstudents.ca/forums/topic/toronto-2017-2l-recruitment Oct. 8 8:33 am: Student refreshes page Oct. 8 1:02 pm: Student loads Gmail.com Oct. 8 1:03 pm: Student opens new email reply from [REDACTED] Oct. 8 1:05 pm: Student Googles, “What does ‘good luck with the process’ mean?”

Oct. 9 10:11 am: Student loads Gmail.com

IMAGE BY DAVINA SHIVRATAN (1L)

Oct. 9 10:12 am: Student Googles, “How to boil an egg?”

Oct. 9 10:14 am: Student Googles, “How to soft boil an egg?”

Oct. 9 10:15 am: Student Googles, “How to peel boiled egg?”

Oct. 9 10:16 am: Student Googles, “Are boiled eggs good for you?”

Oct. 9 10:17 am: Student Googles, “What to do if ate too many boiled eggs?”

Oct. 9 10:22 am: Student Googles, “How to know if you are stress eating?”

Oct. 9 8:32 pm: Student loads Gmail.com Oct. 9 8:33 pm: Student loads lawstudents.ca/forums/topic/toronto-2017-2l-recruitment/page-3

Oct. 11 11:44 am: Student Googles, “Boiled egg good hangover remedy?”

Oct. 13 3:29 pm: Student loads Gmail.com Oct. 13 3:29 pm: Student opens new email from [REDACTED].

Oct. 13 3:29 pm: Student Firm On wouldn’t you can

clicks reply. Student types, “Dear Most Boring Earth, Although it was terrible to meet you, I accept an interview even if you offered one so take your “difficult decision” and…”

Oct. 13 3:31 pm: Student deletes draft

Oct. 9 8:33 pm: Student loads Gmail.com Oct. 9 8:34 pm: Student loads lawstudents.ca/forums/topic/toronto-2017-2l-recruitment/page-3

Oct. 15 9:01 am: Student loads Gmail.com

Oct. 9 8:35 pm: Student copies text, “ITC from [REDACTED] U of T”

Oct. 15 9:04 am: Student refreshes page

Oct. 9 8:35 pm: Student opens Messages. Pastes copied text. Types: “I AM UNHIREABLE AND NOBODY LIKES ME AND ALSO I’M THE WORST.” Student clicks send

Oct. 15 9:03 am: Student refreshes page Oct. 15 9:07 am: Student refreshes page Oct. 15 9:11 am: Student refreshes page Oct. 15 9:17 am: Student refreshes page

Oct. 11 4:47 am: Student Googles, “What law firm best law firm?”

Oct. 15 9:23 am: Student refreshes page

Oct. 11 4:49 am: Student Googles, “What frim Tornto is good fun?”

Oct. 11 4:53 am: Student Googles, “How 2 b good at getting email from firm u like?”

Oct. 15 10:32 pm: Student refreshes page

Witchcraft, Séances, and a Spooked Government

POLIMENIS KOUNDOUROS (LLM)

IMAGE BY DAVINA SHIVRATAN (1L)

With Halloween upon us (and criminal law fi rmly in the mind of many a 1L), I bring you a fascinating legal story—and perhaps a cautionary tale—from the world of the supernatural.

Few will be familiar with s. 365 of the Criminal Code: Pretending to practise witchcraft. Drafted in language that seems most appropriate to inhabitants of 1690s Salem, s. 365 makes it a criminal offence to fraudulently: (a) “pretend” to use “any kind of witchcraft, sorcery, enchantment or conjuration;” (b) tell fortunes for consideration; or (c) “pretend” to use knowledge of the “occult” or a “crafty science” to locate lost or stolen objects.

One cannot help but be a tad surprised to find such archaic language in a modern-day statute.

The section’s progenitor was Great Britain’s Witchcraft Act of 1735, which had its most infamous moment some seven decades ago. In 1944, Portsmouth resident and self-proclaimed medium Helen Duncan was put on trial at the Old Bailey in London. The charge? Using or pretending to exercise “a kind of conjuration … that through the agency of the said Helen Duncan spirits of deceased persons should appear to be present in fact in such places as the said Helen Duncan then was in, and that the said spirits were communicating with living persons then and there present.”

It appears that Mrs Duncan had attended a séance in 1941. There, she purportedly summoned the spirit of a sailor who died that November, along with hundreds of others, when a German UBoat sank the HMS Barham. The problem? The British government, wanting to keep morale up at one of the most difficult periods of the war, did not make the sinking of the HMS Barham public until January 1942. Yet, at her séance in 1941, Mrs Duncan mentioned it by name.

How did Mrs Duncan get herself into a mess like this? And why was she ever put on trial in the middle of the Second World War? Perhaps those in the military or secret services figured she was a spy who had accessed highly confidential information. Or perhaps they feared what else she might conjure up or predict at a time when D-Day preparations were fi rmly afoot.

Whatever the reasons, Mrs Duncan was convicted and sentenced to nine months in prison. This caused outrage in many quarters—with 10 Downing Street being the most surprising. Following the trial, Winston Churchill reportedly sent this stern communique to the Home Secretary: Let me have a report on why the Witchcraft Act, 1735, was used in a modern Court of Justice. What was the cost of this trial to the State, observing that witnesses were brought from Portsmouth and maintained here in this crowded London, for a fortnight, and the Recorder kept busy with all this obsolete tomfoolery, to the detriment of necessary work in the Courts?

Whilst the Witchcraft Act of 1735—with its references to witchcraft, sorcery, conjuration, and enchantment—was repealed in 1951 and replaced by the more sedate Fraudulent Mediums Act 1951 (itself repealed in 2008), its language lives on in the statute books of Canada some three-hundred years later. Obsolete tomfoolery, indeed.

Happy Halloween. And be careful what you do with those Ouija boards.

20 | OCTOBER 26, 2016

DIVERSIONS

ultravires.ca

The Ten Best Beers for Law Students IAN SINKE (1L) We all know that many law students enjoy the occasional beverage. What is less well-known is that there are a number of craft beers especially appropriate for the legally-minded.

10 9 8 7 6

21st Amendment Pale Ale (21st Amendment Brewery) Because how many pale ales are named after an amendment to the U.S. Constitution?

Plead the 5th (Dark Horse Brewing Co.) If you are pharma-bro Martin Shkreli testifying before Congress, you are going to want to do what it says on this bottle of Imperial Stout.

Pliny the Elder (Russian River Brewing Co.) This one is for the history and philosophy enthusiasts. Wikipedia tells me that Pliny the Elder (A.D. 23-79) was a famous lawyer, author, and philosopher.

Pliny the Younger (Russian River Brewing Co.) Pliny the Elder had a son, the aptly-named Pliny the Younger. He was also a lawyer, but his greatest accomplishment seems to be having this beer named after him.

In Perpetuity (Tree House Brewing Co.) Legalese for “forever.” Also an American IPA.

5 4 3 2 1

1982 (Yakima Craft Brewing Co.) Constitutional scholars and fans of the Constitution Act can drink their favourite year in the form of an Amber Ale.

10 Bitter Years (Dark Horse Brewing Co.) If you are found guilty of arson or assault with a weapon, you could spend up to 10 Bitter Years in prison. Better yet, just enjoy a brew that was voted Canada’s Best Imperial IPA in 2009.

Guilty Men (Malivoire Wine Company) All right, I cheated a bit to make my list an even ten: this one is a wine, not a craft beer. Available in red and white varieties at the LCBO!

Angry Man (Murray’s Craft Brewing Co.) You’ve seen the classic 1957 f ilm. Now, buy a dozen of these beers and you will have the same thing: 12 Angry Men.

Saucy Intruder (Black Acre Brewing Co.) This bon mot was imparted by Judge Daniel Tompkins in Pierson v Post. Buy one of these for your Property professor and you will be their new favourite person.