Ultra Vires Vol 19 Issue 4 2018 Jan

FEBRUARY 1, 2018 | ULTRAVIRES.CA

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

Presented by It happens to all of us. You’re sitting in class, hand high up in the air, downright aching to ask the professor a hypothetical question. After all, your obscure hypotheticals are the toast of your fellow classmates. But then the professor finally calls on you and, uh oh, your mind goes blank. Well, fear not, future gold medallist, Keener Gadgets Co. has the answer for you. Or should we say, the questions? We present to you, Hypothetical Madlibs™, a fun and easy way to ask all the questions your brain desires. Your profs and classmates will definitely love you when you use Hypothetical Madlibs™.

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Tort Law Hypothetical Wait, but I’m confused, because today you said _____________________, but last verbatim notes from class week you said _____________________, verbatim notes from last week's class and so, just logically speaking, how can those two _______________-ian opposites French philosopher go together? Are we to believe that this is some sort of _______________ construct? famous athlete

For example, take a situation where a _______________ _______________s into a occupation verb _______________). Do we use the stantype of furniture dard from _______________) v Backstreet Boy _______________________ or do we use non-Justin-Timberlake N*Sync member the _______________ _______________ type of fruit genre of music standard laid out by Justice _______________’s inf luential dissent bad habit from the same case?

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To order your full set of Hypothetical Madlibs™ now, call: 1-800-KEE-NERS (1-800-533-6377).

ALSO IN THIS ISSUE CURVE MANAGEMENT

LAW GAMES ROUND-UP

THE LEGAL CHEF

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

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NEWS

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February 1, 2018 | 3

Intersession Draws Criticisms Despite Promise of “Intellectual Fireworks” at SLS Town Hall HONGHU WANG (1L)

A Letter from the Editors: Winter Term Reboot AIDAN CAMPBELL (3L) & AMANI RAUFF (3L) Welcome back!

As 3Ls, the end of our time at U of T law is fast approaching. Many of us just came back from exchange, after studying very hard for four months abroad, only to f ind we have only one semester left. Those that stayed behind seem to have spent the entire term partying and taking exciting weekend trips to the far-off lands of Barrie, Hamilton, and Owen Sound, if their Instagrams are to be believed.

Wow, nearly through. It’s exciting. It’s weird. If U of T Law is a brick to the face, getting ready to leave U of T Law is the moment immediately after a brick to the face: you’re dazed and disoriented and unsure what comes next. You’re almost missing the brick to the face, because at least it was a familiar brick to the face, a brick to the face that you had grown to know and (almost) love. The brick to the face gave you structure and meaning and distraction and now, well, it’s just going to be you—at least until articling hits you like a cinderblock to the face.

Congratulations to the 2Ls, who just made it through one of the toughest parts of this

program. Learning how to wear a suit and being told you don’t actually know how to write a cover letter after all and GODDAMMIT STOP DOING THAT WEIRD THING WITH YOUR HANDS WHEN YOU TALK. What we’re trying to say is well done, things only get better from here on out (especially after you realize half the advice you received this year really only ever applied to the very narrow career path of the advice-giver).

For those of you who opted out of the gauntlet of the recruit, we commend you for sticking to your principles. You’re now in the full-swing of upper-year bliss. Unless you’re one of those ambitious weirdos who wants to clerk, it’s not so much about grades anymore. Articling interviews tend to evaluate you more as a person than a transcript, looking to interest, experience, and demonstrated ability.

1Ls: you are inspirations to us all, with your boundless warmth and support for one another. Frankly, it’s weirding the rest of us out a little, but that’s because we are all miserable fucks. We genuinely hope you’ve had a good time settling in. The fact that you seem to care about each other and treat

each other well—don’t lose that. Don’t lose that sense of community as you move into upper years and branch off into your particular areas of interest.

Some fracturing, though, is inevitable: without small group members in every class and mandatory plenary ethics seminars to attend, and as joint-degree students disappear into the bowels of other faculties, the class may start to feel a little less cohesive.

The upside is that you’ll have an even greater chance of f inding your people. Be it in a seminar class, on Bay Street, or at a clinic, you will f ind like-minded folks and start to realize that you’re building real friendships that (thankfully) have only a tangential connection with law school.

As for UV, after some brouhaha at the end of last term (and what appears to be a minor mutiny in the Diversions section) we’ve decided to lean even heavier on the jokes and ease off the sanctimony for this issue. We hope the funny pages will warm your cold hearts in these chilly winter months.

Yours in writerly annoyance, and the f inally reunited, Aidan & Amani

Update, January 31: The proposed intersession vote was removed from the Faculty Council agenda. However, the Curriculum Committee promised to address the concerns raised. We expect the intersession to be proposed again in the new academic year.

On Tuesday, January 9, the Students’ Law Society held a town hall to solicit student feedback on the proposed intersession, which will be voted on at the next Faculty Council meeting on Wednesday, January 17. The proposed intersession, if approved, would be a mandatory requirement for upper-year students starting in the 2018 –19 academic year.

tersession were to be implemented for the 2018 –19 academic year.

While plans for the intersession have been under consideration for the past three years, there was never wide student consultation until now. SLS President Katie Longo expressed that the SLS had been working under the understanding that wide student feedback would be taken into account and integrated into any proposals for the intersession before the changes were put to the vote at Faculty Council. Clearly, this understanding was not mutual.

Mandatory vs Optional

Overall, students expressed frustration that they were “guinea pigs” for these curriculum changes, that there was insuff icient student consultation, and that still many questions were left unanswered. Assistant Dean Sara Faherty assured students that the details would be f igured out if the Winter Intersession were approved, and that the change was a positive one.

Many students questioned why the proposed intersession would be mandatory, as opposed to the current optional scheme of intensive courses the intersession would replace. Assistant Dean Faherty replied that the Curriculum Committee believed this would be in the best interests of the academic curriculum. When pressed, Assistant Dean Faherty would not comment further.

Assistant Dean Faherty alleged that a twoweek intensive intersession would provide students with a relaxed two weeks to take interesting new courses and to socialize with esteemed visiting scholars without missing other coursework, as in the current system. She also extolled the intersession because it would allow the Faculty to attract more visiting scholars. She stated that, for the proposed intersession next year, she has “secured the best intensive professors we have ever secured.”

Though not directly addressing this point, Professor Stacey remarked that the Faculty had been embarrassed in the past by intensive courses in which only one or two students were enrolled. When later questioned, Assistant Dean Faherty vehemently rejected embarrassment as a motive for imposing the mandatory requirement. She instead explained that having all students present for the intersession would make for a better learning experience. However, 1Ls would be exempt from the mandatory requirement, leaving lingering questions as to why upper years would benef it from mandatory attendance while f irst years would not.

Professor Richard Stacey, another member of the Curriculum Committee, added that the intersession would allow the Faculty to become a “global centre of international excellence,” setting off “intellectual f ireworks.”

Timing Assistant Dean Kerry Rittich tabled plans for the intersession in November, though the details were only later made available to students via email. Dean Iacobucci at the November Faculty Council meeting stated that a vote would need to be taken at the January Council meeting if the Winter In-

SLS Representative Brendan Cassidy, a student member on the Curriculum Committee, later conf irmed that some professors did appear genuinely excited by the academic prospects offered by the mandatory intersession.

Impact on Curriculum Students also raised concerns about the effects that the new mandatory requirement would have on combined ( joint-degree) programs and for-credit opportunities, such as

competitive mooting, clinics, and externships. It was not clear whether there would be a conf lict between the Rotman Winter Intersession and the Law Intersession and what effect this would have for JD/MBA students. Assistant Dean Faherty promised to look into the matter.

Specif ically, the Moot Court Committee raised concerns that an increased number of classes rescheduled to Fridays early on in the semester would hamper the competitive moot teams’ ability to practice together. Assistant Dean Faherty replied that the Curriculum Committee could look into the timing of deemed Fridays.

Students were similarly concerned that delaying clinics could limit the training and work done. Assistant Dean Faherty responded that there might be the opportunity for clinical intensives during the intersession.

Students also raised questions about exactly how intersession course enrolment would work. Assistant Dean Faherty replied that it would likely be a ranked system with a lottery.

Lastly, one student raised concerns that it would be against Faculty policy to change graduation requirements once students had already enrolled into the program. Assistant Dean Faherty rejected such a claim but promised to check. Ultra Vires has reached out to Assistant Dean Faherty for conf irmation. [Update, January 11, 2018: Ultra Vires has not been able to substantiate this student’s allegation. It appears the Faculty is within their power to change curriculum requirements.]

Impact on Student Life With respect to extracurricular opportunities at the law school, students expressed concern that Law Games would struggle to co-exist with an intensive intersession, given the number of school days that would be missed. Assistant Dean Faherty replied that students were already missing mandatory days anyways. When pressed, she further stated that the Curriculum Committee had considered Law Games, concluding that “Law Games will probably fall off the table… [it is a] cost that is worth the benef it.”

On Law Follies, a student stated that the show could not conceivably run with the proposed intersession, given the tight timing of December exams, Law Follies, Law Ball, and then April exams. Assistant Dean Faherty replied that Follies did not come up in the Committee’s consideration, but that after past changes to the curriculum, such as semesterization, the extra-curricular activities adapted to the new normal.

Commuter students expressed reservations about the increased number of Friday classes, complaining that it would be a more onerous burden given their long commutes.

More generally, students expressed concerns that compressing the second semester would simply impose more stress later on in the semester, which could have adverse effects on student mental health. Importantly, students were concerned that the intersession would disrupt the deferred exam writing period. To this point, Assistant Dean Faherty replied that her off ice would continue to work with students on a case-bycase basis, and reminded students that the deferred exam period was a relatively new phenomenon introduced in the past couple of years.

Impact on the Budget SLS President Longo questioned what the increased f inancial impact of a winter session would be on the Faculty budget. She raised the hypothetical that twelve visiting scholars, with stipends for travel, room, and board, might cost $10,000 each, or $120,000 in total. She suggested that the Faculty Council should take these costs into consideration, balancing them with, perhaps, contributions to student f inancial aid. Assistant Dean Faherty declined to comment.

The vote is scheduled for next Wednesday at the Faculty Council. It will be, if nothing else, interesting.

Correction, January 11: An earlier edition of this piece incorrectly spelled Assistant Dean Faherty’s name. It is Sara, not Sarah. We added two lines on the Rotman Winter Intersession, and an update on the Faculty’s power to change graduation requirements.

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Law Games Round-Up NORM YALLEN (2L) In early January, twenty-eight brave (or possibly foolish) U of T law students made the trek out to Winnipeg to participate in this year’s Law Games, which is, at least theoretically, a big sports competition between all the law schools. At this year’s Law Games, a sport or two may have been played and a beverage or several may have been consumed. Here is what happened that week, to the best of my recollection.

The days at Law Games are long. Sports start at eight in the morning, and social events go until two at night. I am proud to say that U of T did not default any games, which meant that enough people got out of bed to take a forty-minute bus ride in -25 degree weather after three hours of sleep.

As former Chief Justice Bora Laskin once said, “86 percent of success is about showing up.” That is about all the success that U of T had on the sports f ield. Rumour has it we won a couple hockey games, but I slept through that part.

Special shout out to Carly Hicks and Jacquelyn Smalley for literally breaking a Université de Montréal student’s ankles on the basketball court. It is safe to say that girl will not be getting in U of T’s way again anytime soon.

Special shout out to me, Liam Thompson, Mark Leonard, Sarah Teich, and Kyle Jackson for playing to stereotype and winning trivia. When the moderator read out the winning team, he prefaced the announcement with “It pains me to say this.” It was all thanks to Mark knowing every single Lady Gaga song, and Liam knowing everything else.

At the talent show, there were some very impressive acts that clearly took a lot of time and talent to prepare. Then there was the U of T act, which was written in around f ifteen minutes and was just a few snide jokes followed by us walking off the stage.

Which is basically my writing process with this and all UV articles.

Western dominated the sports during the week, and won some awards for that. It must have been nice for them to succeed at something. U de M won some award called the Dirty Cup, and there were rumours of unprintable things that they did over the course of the week.

Jenn Duff and Scott Dallen were recognized as team MVPs for their dedication to playing sports and all the other stuff too I’m sure. (Editors’ Note: Scott’s round-up of last year’s Law Games is a lot better than this one.) New Zealand exchange student Jack Elliott was the team’s best partier, and he can proudly say that the only time he stopped drinking at the hotel was for the bar crawl. He probably was the smartest of the entire team. Jeremie Lachance also deserves mention for making the team video, which was certainly complete.

Before this ends, I need to thank the team captains Jessy van Kooten, Jacquelyn Smalley, and Michelle Holmes. They did a great

job organizing this, and convincing twentyf ive people to go to Winnipeg in January shows that they have strong futures in the legal profession.

Law Games can thankfully go ahead next year with the cancellation of intersession. I hope U of T sends a team for many more years to come. It is a great opportunity to connect with students at other law schools, and to get to know other students at U of T. I honestly learned more at Law Games than in the average week of law school. I learned that hard work and dedication can get U of T all the way to a 28 -3 loss to UOttawa at basketball. I learned that only f ifteen people were allowed in the Delta hot tub, and somehow there were always f ifteen Western people already there. I learned that shotgunning a beer, “tarps off,” on the balcony is the best way to warm up on a January afternoon in Winnipeg. Finally, I learned that Winnipeg has casinos in bars, which is both great and horrible.

Faculty Council: Dean Pulls Intersession Vote, Cites Lack of Discussion on Details MAUD ROZEE (3L) & HONGHU WANG (1L)

Exercising his authority as Chair, Dean Iacobucci chose to remove the proposed Intersession vote from the agenda of the January 17 meeting of Faculty Council. The meeting began with a discussion of the Federation of Law Societies’ recent decision to remove the national requirement that made Business Organizations a mandatory class at U of T Law. The Dean and others discussed the possibility that an Indigenous Law class would become a mandatory requirement in the future. Faculty members and the Dean expressed concern over the “continuing intrusion by the law society into our curriculum.”

The Dean announced that international SJD tuition will be lowered to match domestic tuition, following a university-wide change to international graduate student tuition. SLS President Katie Longo expressed concern that costs for Law Ball are increasing year over year. GLSA President

Haim Abraham highlighted a donated espresso machine to their kitchen. The Faculty Council approved $314,120 CAD in endowment for f inancial aid.

Intersession Update Dean Iacobucci, in light of consultation results, has deferred vote as Chair of Faculty Council. Consequently, there will not be an intersession for the 2018 –19 academic year.

The Curriculum Committee will take this time to respond to student and faculty concerns. The proposal is still expected to be submitted later this spring.

Dean Iacobucci expressed disappointment at pulling the vote, but said that more time was needed to come up with answers for some of concerns raised in consultation. He said, “The details haven’t been out there for

discussion, I get that.” Although the Dean does not expect that all stakeholders will be satisf ied by the solutions offered, he is hopeful that the Intersession will be approved for the 2019–20 academic year.

SLS President Longo said that students are pleased that they have been heard. She stressed the importance of students having a say in what happens to their education and expressed gratitude that student concerns were met with a listening response.

Academic Plan Update Next, the Dean discussed the academic plan prepared by his off ice to outline the Faculty’s direction until 2022. The plan, which calls the Faculty a “Canadian and global jewel,” was prepared with feedback and consultation from the Associate Deans, faculty, staff, graduate and JD students, and alumni. It is mainly intended to be read

by stakeholders at the University of Toronto.

Presenting the plan, Dean Iacobucci highlighted student f inancial aid as a priority, and discussed his efforts to include statements combatting what he perceives as a push towards anti-intellectualism in legal education. Dean Iacobucci cited the new Ryerson law school’s focus on job skills as well as the emphasis by the government on schools that produce “ job-ready candidates” as evidence that legal education is moving away from academic to more practical perspectives. The Dean called this approach “misguided” and said the faculty share his view that U of T Law should teach “not just what the law is but how to f ind the law and how to think about the law.” While the Dean’s plan acknowledges the suite of co-curricular skills-based opportunities available, he emphasized that U of T Law is fundamentally dedicated to an academic, intellectual approach to legal education.

FEATURES

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February 1, 2018 | 5

A Guide to Call to the Bar Venues DARYNA KUTSYNA (1L) Thursday evening: there are two ways your night can go. Your friends are rallying for pub night and luring you in with promises of free drinks. But, the thought of the cold weather is making your bed look awfully cozy and your reading backlog has been keeping you up at night. If only there were some way you could know that you were going to have a great night at— what was that bar called again?

To help you make the tremendously difficult choice between the bar and the bed (though let’s be real, the bed is always the better choice from November to March), Ultra Vires has compiled a guide to regular Call to the Bar venues, complete with student recommendations.

How are Call To The Bar venues selected?

Jen Crawford, 2L Social Affairs Representative on the Students’ Law Society (SLS), explained that pub night venues are selected based on wheelchair accessibility criteria, including an accessible entrance and restroom. This ensures that past, present, and future students are accommodated and able to feel comfortable attending the event.

These requirements are sometimes relaxed, specifically when the SLS pairs up with other clubs or student bodies to host the pub nights.

The venues below are certainly not the only ones. Over the academic year, Call to the Bar can be hosted in more than ten venues. Jen also mentioned that the SLS is always open to recommendations if you do not see your favourite venue on this list.

The Firkin The Firkin has two immediate and obvious advantages: it is close enough to campus that you could feasibly stick around before going to the pub, and it’s close enough to the subway that you

could head home whenever pushing through the crowd to order a drink inflames your claustrophobia too much. There is a fairly large seating area at the back, but there is only one bar in a narrow enclave across from the stairway, so the space can (and will, closer to midnight) get quite crowded.

The drinks tend to be reasonably priced, but fans of draft beer may find themselves out of luck.

“When Coors Light is one of the two domestic beers on tap, you know you’re going for the bottles,” according to Harrison Perry (1L), a self-proclaimed beer enthusiast.

However, a big pro of the Firkin is that it is one of the only spots on the usual rotation where you could also grab a late dinner and sit down at a table. “Grab the hummus platter,” advises Harrison, “it serves three, but if you’re anything like me, tease your friends and eat it all yourself.”

Sneaky Dee’s If you’re the type of person who’s willing to put up with some oppressive bathroom graffiti and cheap beer-fueled undergrad debauchery, you may find Sneaky Dee’s oddly charming. There are two floors with wildly different vibes: a bar with reasonably priced drinks on the ground floor and a dance floor that often runs theme nights upstairs.

While Sneaky Dee’s is fairly far from campus, it has the advantage of being located in the middle of a (relatively) cheap entertainment strip. “It’s also close to other bars at Bathurst and College like No One Writes to the Colonel and Nirvana, which makes it a great final destination for Thursday night bar hoppers,” says Maddie Torrie (1L).

If you do decide to stick around, there’s a wide selection of greasy nacho trays and a better atmosphere for chatting on the ground floor, she says.

Of all the venues on the list, Sneaks, as students affectionately call it, is one of the least likely to break the bank.

The Pint A stone’s throw away from Union Station, the Pint may be a popular choice for commuting students looking to catch one of the late GO trains home after pub night. It is a more sit-down venue, so don’t expect to see anyone dancing, but a late pub fare dinner is certainly on the cards.

There are several drink specials on offer here, including $5 shots of liquor, pints of beer, cocktails, and glasses of wine—all guaranteed to make that deemed Friday extra dreary. For anyone looking to watch the game, the Pint has convenientlyplaced TVs to keep tabs on the score. Of all the bars on the list, this one has the most sporty vibe.

The Fox and the Fiddle [note: now closed] The Fox and Fiddle, or the Fox, as it is frequently referred to by students, is another spot with the obvious pro of being a short walk away from the school and close to St. George subway station. It is a popular choice for the monthly early Call to the Bar (usually 6-9pm), which means you could walk over right after finishing up your last class to start the weekend early.

The Fox is a quieter bar with lots of seating space, which can make for good conversation, but don’t expect dancing or too much rowdiness. There is a fairly extensive food menu, but the drinks are “expensive for what you get”, according to Aylin Manduric (1L). Aylin also warns to steer clear of the sangria, as it is allegedly watered down.

There is a karaoke machine and stage at the back of the bar, so if you stay long enough, you may be able to witness some off-the-cuff renditions of 90s favourites (or sing one yourself, depending on how the night goes).

Crews and Tangos A popular choice for joint socials with Out in Law, Crews and Tangos is a queer-friendly dance bar/club in the heart of the Church-Wellesley village, and it is a winner if you’re looking to dance the night away. Depending on whether there is an event that night and how late you show up, you may have to pay a small cover charge (usually $5).

“Having Call to the Bar held [at Crews and Tangos] is really fun because we have the opportunity to dance away after a week of long days of sitting in class,” says Mandavni Dhami (1L). There are several dance floors to choose from, though most will be quite crowded and hard to push through, and a stage that often features drag performers.

The loud music and thick crowd, however, may make it hard to actually engage with your fellow classmates. Mandavni mentioned, “it is more challenging to network/hang out with peers that you don’t normally interact with at the law school.”

This may be a detriment if pub night is your designated weekly social time, but if you are looking to just dance away law school stress, Crews and Tangos will be a great pick.

This list is by no means exhaustive, and every semester boasts several new venues in different parts of town which may appeal to you more.

What makes Call to the Bar truly great is the opportunity to hang out with fellow students outside the suffocating confines of Contracts class and Torys Hall, so make sure to seize it as often as you can!

New Year, New Law: Cases to Look Out for in 2018 CHLOE MAGEE (2L) The common law is often depicted as slow (read: averse) to change. This isn’t surprising given it was founded on the doctrine of stare decisis, which literally means to stand by decisions made in the past. While this criticism may have held water in pre-Charter Canada, when the more controversial decisions were typically reserved for the legislature, a glimpse into our current legal landscape yields a slightly different picture.

It’s not that the law is moving more quickly—in fact, our courts are notoriously plagued with excessive delays—but it is receptive to change. Many of our professors made names for themselves commenting on the issues brought about by the introduction of the Charter. To illustrate, under the Bill of Rights, only one federal statute was ever struck down by the Supreme Court of Canada

Photo by Chloe Magee (2L)

(SCC); in contrast, around thirty-one federal and twenty-seven provincial laws were struck down during the first sixteen years after the introduction of the Charter. Judges appear increasingly comfortable with the idea that their role involves a certain amount of weighing interests and listening carefully to affected groups. More parties are consequently viewing the courts as a viable route to resolution of their disputes. The result is that we are now facing an interesting slew of decisions that it will soon be our role as lawyers to make sense of.

In 2017, we watched as our top Court grappled with issues arising out of technological innovation, globalization, and growing public awareness around topics such as human rights, mental illness, and sexual assault. The SCC brought our common law fur-

ther into the twenty-first century by, for example, ruling that a text message conversation is capable of attracting a reasonable expectation of privacy under s. 8 (R. v. Marakah), and affirming that a tort claimant need not show a recognizable psychiatric illness as a precondition to recovery for mental injury (Saadati v.

Moorhead).

This year promises to be equally eventful, if not more so, with heightened public and media attention on cases such as Trinity Western University v. Law Society of Upper Canada.

While these cases grabbed headlines, I thought I’d share some other upcoming decisions and appeals that caught my attention.

(Continued on next page)

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Note: The average time lapse between the hearing of an appeal and release of judgment by the SCC in recent years has been around five months, but has been known to vary anywhere from four to eight months. This means that some of the decisions below will be released as early as February of this year.

Who?

When?

What?

Why Should We Care?

R. v. Suter

Heard on Oct. 11

Sentencing Suter, while driving and arguing with his spouse, inadvertently pressed hard on the gas pedal thinking it was the break. He drove his car onto a restaurant patio, killing a young child. Suter was pulled from his vehicle and beaten up by patrons. He was initially arrested for impaired driving causing bodily harm. By all accounts, he was sober at the time.

Since Suter pleaded guilty to the offence, the only issues concerned the sentence. The SCC rarely hears sentencing appeals, so this is an unusual occurrence.

At the police station, Suter spoke to a lawyer and was advised not to provide a breath sample. He followed the advice. As it turns out, refusing to provide a breath sample with the knowledge that your driving just caused death is a criminal offence under s. 255(3.2) of the Criminal Code.

At trial, Suter pleaded guilty to this offence and was given a relatively lenient sentence of four months in jail and a five-year driving prohibition.

The Crown appealed.

While on bail, Mr. Suter was kidnapped by vigilantes and had his thumb cut off.

The Court of Appeal reversed and imposed a harsher sentence of twentysix months’ imprisonment.

R. v.

Comeau

Heard on Nov. 6

Incivility Mr. Groia is an experienced securities litigation counsel. He defended the accused in the case R. v. Felderhold, a high-profile insider-training prosecution, and his client was acquitted.

Heard on Dec. 6–7

Mistake of law (mistakenly believing your actions to be lawful): The Court of Appeal rejected this as a mitigating factor in this case, asserting that a person must have an honest belief in the legality of the act. Suter’s defence argued that misunderstandings (i.e. something short of certainty) about legal advice have the potential to mitigate as long as the detainee subjectively believed in the legality of his or her action.

Future defence lawyers are going to want to pay special attention to this one.

After trial, LSUC initiated disciplinary proceedings against Mr. Groia alleging professional misconduct (despite the fact that neither the OSC nor the trial judge had complained to LSUC).

The Hearing Panel imposed a penalty of two months’ suspension. The decision was appealed three times, with limited success.

According to the Toronto Star, “Legal observers say it could be one of the most important Supreme Court rulings for defence lawyers in recent memory.”

Interprovincial trade

This case is poetically Canadian. What began as one man’s mission to buy cheaper booze has triggered a heated debate going to the heart of Canadian federalism. This debate culminated in a two-day hearing during which the SCC heard from two dozen interested parties.

The Court of Appeal denied leave to appeal.

Wardak v.

Froom

Judgment of the Ontario Superior Court of Justice released Feb. 17 (2017)

Saretzky trial

Convicted on June 28 (2017)

Wineries, breweries, and cannabis companies tend to support Comeau’s position, while farmers and governments tend to object.

R. v. Barton

Judgment of the Alberta Court of Appeal released June 30 (2017)

Duty to consult In 2012, legislative amendments were made by Parliament that had the potential to affect Mikisew Cree First Nation’s treaty rights. Mikisew sought judicial review, alleging that the federal government had a duty to consult Mikisew before enacting laws that could affect their treaty rights.

The Federal Court ruled that the Crown was indeed under a duty to consult Mikisew when the bills were introduced in Parliament.

The Federal Court of Appeal reversed, expressing concern that importing the the duty to consult into the legislative process offended the doctrine of the separation of powers and the principle of parliamentary privilege.

Mikisew appealed.

The Crown’s duty to consult with Indigenous groups, the subject of two important SCC decisions released in 2017, typically arises in the context of decisions made by regulatory bodies. This case seeks recognition that the duty to consult is present not only when laws are applied, but also when laws are being made.

In other words, this decision could mark an important step towards reconciliation at all levels of government.

Why Should We Care?

If you have taken first-year Tort Law, you are likely familiar with the case of Childs v. Desormeaux.

The Frooms relied on Childs to support the contention that social hosts are not liable for injuries suffered by guests after leaving their property. However, the SCC in Childs arguably left the door open to the possibility that a social host may owe a duty of care to a guest, but found no such duty on the facts of that case.

Wardak sued Mr. and Mrs. Froom, who responded with a motion to summarily dismiss the claim on the basis that there was no genuine issue for trial. The motion was denied, which means that the issue will go to trial.

This decision presents an opportunity for a court to explicitly recognize the category of social host liability.

Sentencing

Consecutive parole ineligibilities are relatively new to Canadian law. They were made possible by federal legislation enacted in 2011.

Saretzky will likely challenge his sentence on the grounds that the punishment is cruel and unusual contrary to s. 12 of the Charter.

Saretzky, twenty-four years old, was convicted by a jury for three counts of first-degree murder and for committing an indignity to a toddler’s body. The facts of the case were gruesome and disturbing, to say the least.

Jury charge in cases involving sexual assault Gladue was found dead in the bathtub of a hotel occupied by Barton. She died from blood loss resulting from a tear in her vaginal wall. Barton admitted to causing the death, but claimed that it was an accident occurring in the course of consensual sexual activity.

The Alberta Court of Appeal ordered a new first degree murder trial.

This matter has been opened at the SCC, which means that parties are waiting to hear whether leave to appeal will be granted.

This new sentencing option brings Canada’s sentencing regime closer in alignment with the U.S. regime. The judge sentencing Saretzky reportedly remarked that there is “next to no chance he will ever be free. This chapter is closed.” One can’t help but notice a similar sentiment present in the comment (“I’ve just signed your death warrant”) recently made by the U.S. judge sentencing Larry Nassar to up to 175 years in prison.

The Court of Appeal delivered a hard-hitting judgment criticizing the mishandling of sexual assault cases in our current legal system.

Its decision spotlights numerous systemic problems and merits a close read.

One of the most notable issues raised is its call for a national jury committee to reform outdated pattern jury instructions provided in cases involving sexual assault. The court points out that the instructions do not accurately convey the current legal definition of “consent” for the purposes of the mens rea for sexual assault. In particular, the jury in this case was not properly informed that consent to sexual activity does not extend to any form of sexual activity.

It is also of note that the Court of Appeal decision was co-authored

by Justice Martin, who is now on the SCC.

R. v. Jarvis

Judgment of the Ontario Court of Appeal released Oct. 12 (2017)

Voyeurism Jarvis, a high school teacher, surreptitiously recorded videos of his female students through the use of a camera pen. The videos, primarily taken while he was conversing with students, focused on their cleavage. His actions were discovered and reported by a colleague. He was charged with the offence of voyeurism under s. 162(1) of the Criminal Code.

The trial judge acquitted him of the voyeurism charge.

The Court of Appeal upheld the acquittal.

This matter has been opened at the SCC. Given that the Crown has an appeal as of right, it will almost certainly be heard.

Araya v.

Nevsun Resources Ltd.

Judgment of the British Columbia Court of Appeal released Nov. 21 (2017)

The provinces argued that the Constitution does not prohibit non-tariff barriers to interprovincial trade. This narrow reading is consistent with how s.

121 has been interpreted since 1921. It remains to be seen whether the SCC will overrule this long-standing precedent.

According to the CBC, this decision could “force lawmakers across the country to give First Nations a role in drafting legislation that affects treaty rights.”

Mr. and Mrs. Froom hosted a party for their son’s nineteenth birthday. Wardak, eighteen years old at the time, attended the party. The Frooms did not serve alcohol but knew that there would be drinking at the party. Mr. Froom noticed that Wardak appeared to be drunk and became concerned. Mr. Froom went upstairs for a brief time, during which Wardak left and walked home. Wardak then got into his car, drove over a fire hydrant, and hit a tree. As a result of the accident, Wardak became a quadriplegic.

A jury found Barton not guilty of either murder or manslaughter. The Crown appealed the acquittals.

International human rights law The plaintiffs in this case are refugees from Eritrea. They alleged that Nevsun, a publicly-held British Columbia corporation, engaged Eritrean state-run contractors and the Eritrean military to build a mine there. The plaintiffs say they were among those who were forced to work at the mine in inhuman conditions. The plaintiffs alleged that Nevsun was complicit in the use of forced labour, slavery, torture, inhuman or degrading treatment, and crimes against humanity.

The Supreme Court of British Columbia rejected Nevsun’s motion to dismiss the action.

The offence of voyeurism is relatively new and remains a bit of an enigma in Canadian criminal law. It was enacted in 2005 to address public concerns about the use of technology to spy on others for a sexual purpose. The provision has received limited judicial attention.

The outcome of this case will likely turn on whether the Court thinks the high school students had a “reasonable expectation of privacy” in the circumstances.

One hopes the SCC will provide some much-needed clarification in this area of criminal law and, in particular, provide a workable definition of “privacy” outside of the s. 8 context.

This dispute reflects the changing conception of international law from a system that regulates conduct between states, to a system that increasingly regulates conduct within states. The crux of Nevsun’s argument is that it is inappropriate for a Canadian court to adjudicate the legality of a foreign state’s conduct.

If the SCC allows the case to proceed, it would be one of the first cases in Canada which advances human rights claims based directly on violations on international law.

The British Columbia Court of Appeal rejected Nevsun’s appeal to dismiss the action, clearing the path for the case to proceed in Canadian courts. Nevsun appealed to the SCC.

The New Brunswick Government appealed to the SCC. Heard on Jan. 15

Social host liability

Saretzky is appealing both the conviction and sentence before the Alberta Court of Appeal, and commentators suspect this case will make its way to the SCC.

This decision could drastically alter Canada’s current commercial framework. Most provinces currently set limits on the amount of alcohol a person can bring back from another province for personal consumption.

If fully accepted by the SCC, the lower court’s ruling could lead to unrestricted interprovincial trade in all goods.

What?

He was sentenced to life in prison with no possibility of parole for seventy-five years (three consecutive twenty-five-year parole ineligibility periods), meaning that he will be nearing his one hundredth birthday before release is possible.

When does being a “zealous advocate” cross the line into professional misconduct? Various tests for answering this question were proposed by the parties and interveners.

LSUC argued for a test that would require allegations made by one lawyer against another to have a reasonable basis, otherwise they would constitute professional misconduct. McLachlin CJ raised concerns during the hearing that this would effectively ask LSUC to act as trial judge.

The Provincial Court of New Brunswick agreed with Mr. Comeau and declared the law unconstitutional.

When?

Vigilante justice: The Court of Appeal did not think this should be a mitigating factor. Suter’s defence argued that judges can consider collateral consequences in order to ensure that the sentence is proportionate. The Crown responded with a “floodgates” argument, raising concerns about the potential encouragement of vigilantism.

Defence counsel proposed the following test: If criminal defence counsel have an honestly held good faith belief in submissions made in court to a presiding judge— and if the judge receives these submissions without complaint and employs none of the many tools available to sanction counsel—a law society should defer to the judge’s conduct of that trial.

Mr. Comeau, a New Brunswick resident, was caught driving home from Quebec with fourteen cases of beer and three bottles of liquor. He bought the alcohol at a cheaper price than he would have paid at home. He was stopped and charged under the province’s Liquor Control Act for exceeding the limit on alcoholic beverages that could be brought into New Brunswick from another province. He was fined under $300 and decided to fight the ticket in court.

Who?

The two main issues revolve around when and how the following factors can be considered as mitigating factors in sentencing, and therefore militate in favour of a more lenient sentence:

During trial, Mr. Groia made unfounded allegations of prosecutorial misconduct by the Ontario Securities Commission (OSC) prosecutors. In response, the OSC applied for judicial review, claiming Mr. Groia had engaged in uncivil conduct in violation of the Law Society’s Rules of Professional Conduct, and that the trial judge, by failing to control this conduct, lost jurisdiction. This application was dismissed.

Mr. Comeau argued that the provincial law was unenforceable as it was inconsistent with s. 121 of the Constitution Act 1867, which states that all “Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall … be admitted free into each of the other Provinces.”

Mikisew Cree First Nation v.

Canada

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Lower Courts

Supreme Court of Canada

Groia v. Law Society of Upper Canada

FEATURES

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British Columbia Civil Liberties Association v. Canada (Attorney General)

Judgment of the Supreme Court of British Columbia released Jan. 17 (2018)

Solitary confinement The B.C. Civil Liberties Association and the John Howard Society of Canada brought a challenge against the federal government, arguing that the practice of “administrative segregation” (more commonly referred to as solitary confinement) is unconstitutional.

There was no individual plaintiff, but the groups were accorded public interest standing.

The Supreme Court of British Columbia released a lengthy decision in which it declared that the sections of the Corrections and Conditional Release Act that allow for indefinite solitary confinement are unconstitutional (with a twelve-month suspension of the declaration of invalidity).

The provisions were held to violate s. 7 of the Charter, as well as s. 15 to the extent that they discriminate against Indigenous and mentally ill inmates.

This decision follows an Ontario decision released in December (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen) which held that solitary confinement exceeding five days is unconstitutional. Together, these decisions represent a significant step towards improving conditions of confinement in Canada.

The B.C. decision contains a detailed and illuminating history on the use of solitary confinement in North American prisons.

Shortly after the ruling, Public Safety Minister Ralph Goodale released a statement indicating that the government is reviewing all recent court judgments, and emphasizing the government’s commitment to ensuring consistency with the Charter.

If you’re interested in staying up to date with the latest cases, the blog run by Supreme Advocacy LLP, found at supremeadvocacy.ca, is an excellent resource.

FEATURES

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Exclusive Interview: The Boy Who Never Checked His Grades ALISA MCMASTER (3L)

It is the third week in January and every time a new email comes in, you jump. Grade-release season. But imagine: the email from the Records Office slides into your inbox and you do… nothing.

Your shaking hands do not type your password into ACORN while you are holding your breath, praying that your failure to make an argument in the alternative for a constructive trust does not result in an F in Family Law. One day passes, then two, and then before you know it, you have just… never checked your grades. Unimaginable? Unfathomable? Impossible? No. I sat down with Chris B., a Toronto articling student who completed his LLB at McGill University.

Chris B. has never checked his law school grades or read his law school transcript.

Have you really never checked your law school grades?

Actually, it started in first semester of my fourth year of undergrad at McGill and I have never checked my law school grades. I am articling now and I will still never check.

Why? Did it start out as a conscious choice to stop checking?

It did not start out as a conscious choice. I had already been accepted to law school, I was travelling, and I thought I would just check one day.

That one day just never arrived. However, not checking my grades did become a conscious choice. Not checking my grades in law school had a more philosophical underpinning.

What was your philosophical reason for

not checking your grades?

McGill, in first year law, has assignments in each class. On the assignments, everyone pretty much got the same grades. You got a B and if they were running out of Bs, they gave you a B-. The grades imposed by the curve illustrated little differences, which brought out bad things in people. I had this realization that grades are zero sum and that those people who do better, do so at the expense of their friends. Everyone was coming from a place where they had done well, and now feeling average was hurtful to their egos, particularly because there was very little feedback from profs. I just decided to opt out of the system.

Is there one particular moment that made you happy you did not check your grades?

I threw a party after exams in 2L year. Everyone was getting drunk, having a good time, I went to go check on some friends on the roof, and when I came back inside, people were no longer partying.

The music was still going, but everyone was on their phone. I thought something seriously wrong had happened. But it was just that grades had been released at midnight. One minute people were having a good time and the next minute they were comparing their grades.

What about getting a job?

I did the 2L recruit process. I faced a choice when I was deciding where to apply. I could look at my grades for the purpose of applying to cut down on the number of places to apply to, because there are some firms that tend to take students with higher

grades. However, because I did not know my grades, I felt free to apply to whatever jobs I thought were interesting or where I would want to work, without telling myself that my grades would prevent me from getting the job. I had my dad download my transcript from Minerva [note: McGill’s version of ACORN] and upload it to ViLaw Portal so I would not have to see it.

How did the process work out for you?

I applied to the places I thought I would like to work. Got all OCIs, and then got all of the infirms and ended up getting a job. Because I did not know my grades, I did not feel pressure to maintain a certain standard that I had applied to firms with, so I was able to focus more on preparing for my interviews.

Did you talk with your friends and classmates about not checking your grades?

Yes. When I consciously decided not to check in law school, I wanted to see if anyone else would follow. Absolutely no one followed me. A lot of people wrote articles against McGill’s grading system in our version of Ultra Vires, but they were not living what they were speaking.

People still ask me how I did in classes and assignments. I also found it really weird to offer to check for me. I never understood why people feel stressed for me. They almost wanted to know for their own comfort—that they did better or worse than me. It is a perverse curiosity.

When you were leaving McGill and

graduating, did you ever consider checking?

No. At my going away party, when I was moving to Toronto for articling, I ordered a copy of my transcript, called everyone around, and ripped it open. Everyone thought I was going to check it. I then pulled out a BBQ lighter and I set the transcript on fire. Some people were booing and others were cheering, I then threw the transcript in an empty trashcan.

The burning of the transcript was not for me. It was to make a statement. We don’t need transcripts or grades to show our worth.

What advice do you have 1Ls after they have received their first set of law school grades?

I would tell them that if they can handle not knowing or if they envision themselves carving their own path with their legal education, they should try not checking their grades in law school, at least not immediately. If you are going to check, remember to keep it in perspective: 1. Don’t let it ruin your relationships with people around you; 2. Don’t let it ruin your career path—apply for the jobs you want; and 3. Use it as an interpretive learning tool at best. If you “messed up,” know that you can do better.

Grades are not determinative of your future success.

Editor’s note: this interview has been edited and condensed.

OPINIONS

Review: The Crucible at Hart House LILY CHAPNIK ROSENTHAL (1L) Puritan Massachusetts, 1692. A group of young, disenfranchised women. Accusations of witchcraft. On the surface, this scenario seems as though it could not be further from our reality today. But the artful Hart House production of Arthur Miller’s 1953 play The Crucible serves both as a potent reminder of the perils of mob mentality and as a call to action to stand up for truth in a world dominated by “fake news.”

All the characters in the play are based on real-life figures documented in records from the Salem Witch Trials. The play begins with a family in crisis: the local Reverend Parris is placed in an awkward situation after he finds his daughter, his niece, and several servant girls outdoors in the middle of the night, engaged in “Bloody Mary”esque teenage girl experimentation. This uneasiness quickly turns dangerous, however, when the girls decide to accuse others of witchcraft in an effort to protect themselves from the same accusation, which has been sweeping through nearby towns. The Photo by Scott Gorman at harthouse.ca/the-crucible/.

(Continued on next page)

OPINIONS

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Continued: Anti-McCarthyite Message of this Landmark American Theatre Piece Remains Impactful ringleader, Abigail Williams, sees an additional opportunity and seeks to label her neighbour Elizabeth Proctor, whose husband is her former lover, as a witch in order to take him for herself. However, this tactic backfires when John himself is accused of being a witch in an attempt to save his wife. After the girls steal Reverend Parris’s money and run away to England after the social tide seems to turn against them, it becomes obvious that the entire situation was a hoax. Yet the magistrate refuses to cancel the executions of the alleged witches in order to save face, and darkness wins the day.

high cost, but the girls’ actions have given them a voice through the centuries. The magistrate’s abhorrent decision to go ahead with the executions even in the face of the accused’s innocence was also driven by power—after all, to deny a public execution would be, according to him, to show weakness. The overarching question is, therefore: Is it better to do what is powerful or what is right?

What is so fascinating about the text of this play is that the plot is driven by power dynamics. The girls who make the accusations are powerless until they profess to have information that the public wants, and then, all of a sudden, they are indispensable. This is despite the fact that, as female teenagers in Puritan Massachusetts, they otherwise have very little social influence. Even the black Barbadian slave Tituba is given a voice when she speaks of witchcraft, and her identity, unlike so many other slaves, is known to us today because of her role in the trials. Surely it came at a

Miller was driven to write this play after being confronted with McCarthyism—neighbour turning against neighbour, friend against friend, in the name of eradicating Communism from “American” institutions. Fifty years later, the “danger” of communism seems far removed from us, yet the parallels between the play and the 1950s-era reality are striking. However, we now live in a world where identity politics reign supreme, and the label you are ascribed—left wing, right wing, feminist, Zionist, capitalist—can be permanent in the eyes of the public. Social group turns against so-

From a position of privilege, it seems as though the answer is simple. However, what would any of us have done if we had been at risk of going to the gallows ourselves based on a ludicrous charge?

cial group, and a person can be forever vilified for a thoughtless comment, a social media post, an identity marker.

Proctor (as masterly portrayed by Jon Berrie), the play settled into a fast-paced, engaging performance.

Is this just a latter-day McCarthyism in disguise? All I know is that the mass hysteria in the play felt oddly, and awfully, familiar.

Rubinstein declined to add Miller’s narration at the beginning of the play that explains some of the historical context and some of the real-life characters, which may have added to my confusion at the beginning as someone who had never read or seen the play before. He did, however, begin the production with an engaging rendition of the girls’ outdoor ritual—which sparked the plot—set to a soundtrack of prayers from various world religions in order to indicate the universal message of the production.

The production itself was deftly executed under the directorship of the young and energetic Michael Rubinstein. He seeked to create a “fairytale-like” experience, highlighting the parables within the story. Before I had read this in the program note, I had thought perhaps the stark sets, with their bare trees and fog machine, and the matching palate of outfits worn by the cast were somewhat tacky. However, seen through the lens of the director’s intentions, these choices made more sense.

The production improved throughout the twoand-a-half hours. The first fifteen minutes or so were somewhat chaotic, with the Parris household members, as well as various other characters, yelling over each other. This had the effect of a monotone, only louder. However, after these initial scenes, and especially with the entrance of John

All in all, the play was excellently acted, costumed, and directed. I can highly recommended it for an affordable—and thought-provoking— night out.

The Crucible will run until February 3 at Hart House Theatre.

Tickets: Students $15, or $12 every Wednesday evening / Adults $28 / Seniors $17.

New Term, New Me, New Stress: Trials and Tribulations of the 1L Experience ROBERT NANNI (1L) As us 1Ls welcome a fresh semester with open and loving arms, having just come off a two-week Netflix binge, we return to the familiar halls of the Jackman Law Building. Diving into two new substantive law courses, rekindling our passion for [insert small group course here], and learning about the wonders of civil procedure—we were certain this would be a blessed semester, right?

Wrong.

“bird course” of 1L. The readings aren’t mandatory, and the three graded assignments only inject pockets of stress throughout the term, rather than being a consistently taxing experience. Legal Process, on the other hand, is an entire set of readings on its own, culminating in a nearly 100% final exam. If you thought three reading-intense courses were tough to manage, second term comes in hot with a whole new set of less-than-riveting readings.

The courses!

Small Group

Credits

On ACORN, your small-group credits are shown to be worth three per term; however, it would be more accurate to allocate them as two and four credits. Second term tends to ramp up the value of small group assignments, adding weight to an already heavy semester. It’s like second-term small group is a great mix of LRW stress and substantive course stress—fun, right?

The University of Toronto Faculty of Law Academic Handbook, under “Credit Requirements,” states that JD students are to take a maximum of 16 credits each term, noting that “in extreme circumstances, with permission from the Assistant Dean, Office of the Associate Dean, students may take 17 credits in a term.” Well, 1L must be an extreme circumstance, because guess who has 17 credits this term? We do.

To be fair, we had 17 credits last term as well.

However, two of those were Legal Methods in its own intensive-style setting. That left us with about 15 manageable credits over the course of twelve weeks. In second term, with only one extra week, we have another two credits. This adds up to one hour and fifteen minutes of extra class each week (thanks to Legal Process being four credits instead of the two credits we hope we attained in LRW).

Sounds manageable, right? Then why does it not feel manageable?

LRW vs Legal Process When it comes down to it, LRW is viewed as the

But we have great faculty!

I spoke with Sara Faherty, Assistant Dean, Office of the Associate Dean, who has conceded that 1L is a very demanding experience, and indeed a huge adjustment. With that said, Faherty reminds us that we have fantastic faculty teaching first-year courses. These professors are highly attuned to our stress levels and are aware of the issues we face.

Ultimately, the Law Society requires certain courses, and a particular number of class hours in each one. There’s no denying it’s a heavy schedule, but Faherty emphasizes that faculty and administration are doing what they can to support us. Furthermore, the Faculty assumes that strong students—which, of course, we all are—will plan

accordingly for studying and assignment writing from the beginning of the term to preventatively reduce stress.

identifies issues with the input data. Finally, after everything is settled, administration can publish our marks.

The grades!

There are several factors that cannot be controlled, so administration chooses to not make a definitive commitment to a particular release date, in case one of the cogs in this complex machine failed at the last minute.

Hopefully having come down from the adrenaline of grades day, I’d like to bring it up again for us all to relive. At 2:53 p.m., while many of us were in class, we got the dreaded email informing us that Fall grades were available on ACORN. Screens dimmed to the lowest viewable brightness setting, phones darted under desks, and palpable panic ensued. But they’re just grades, right? Why are we so unnecessarily overwhelmed with the letter or two we get in a class? Well…

The future!

With the 1L recruit deadline a mere three days after grades release, tensions were high as students vied for a chance at the few coveted 1L firm jobs.

But did grades really need to come out when they did? Couldn’t the administration have waited if they truly cared?

Faherty explained that grades are released as soon as they’re available, which surprisingly does take six to eight weeks after an exam. Instructors have a deadline to mark exams and assignments (a deadline that they’re apparently good at meeting), after which the grades are amalgamated in big binders and reviewed by the standing committee to enforce the curve and identify anomalies. After that comes the back-and-forth between the committee and instructors to ask for clarification, which can be difficult when professors are travelling or doing research. Once the grades are uploaded to ACORN, there is an error report that

While it is possible to schedule grades release on ACORN for a later time or date, the impending due date of 1L recruit applications had Faherty feeling like it would be incorrect to cheat students of an extra few hours—or even a full day—to get their transcripts printed and decide if they want to apply. After all, we can choose to wait to check grades, although that might require rather Herculean discipline.

Ahh, 1L… Ultimately, 1L is a balancing act of the administration trying to meet certain requirements while also attempting to not unduly stress us out. With Fall grades in the past and second term well underway, we have to work together to move forward and manage these stressors as they arise. U of T Law has various mental health and wellness resources that you should check out if you’re feeling overwhelmed.

Take care, friends.* *If you require assistance with mental health and wellness, please reach out to Manager, Academic/ Personal Counselling & Wellness, Yukimi Henry ( yukimi.henry@utoronto.ca)

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RIGHTS REVIEW International Human Rights Program at the University of Toronto, Faculty of Law An independent student-led publication Co-Editors-in-Chief: Karlson Leung and Bethanie Pascutto Editors: Faye Williams and Sarah Firestone

LIVING IN LIMBO: NON-CITIZEN CHILDREN IN STATE CARE A 21ST CENTURY CHALLENGE

By Anne-Rachelle Boulanger (2L JD/MGA) and Tanzeel Hakak (3L) In 2000, a six-year-old boy named Abdoul Abdi arrived in Nova Scotia. He arrived with his sister and two aunts, as refugees, fleeing the war in Somalia. Approximately one year later, he was apprehended by children’s services and became a permanent ward of the state. Over the next decade, Abdoul lived through 31 placements while in state care, suffering abuse in the process. Although he was eligible to become a Canadian citizen, the state – his sole legal guardian – never applied for his citizenship on his behalf, and his aunt was blocked from doing so. Today, Abdoul faces deportation to Somalia due to his criminal record. For Abdoul, Canada has not been the safehaven it was meant to be. Instead, Canada has kept Abdoul in a state of perpetual vulnerability for 17 years.

Since September 2017, we have been working with Abdoul’s lawyer, Benjamin Perryman to prevent Abdoul’s deportation. As clinic students with the International Human Rights Program (IHRP), we have been drafting international law arguments for a communication to the United Nations Human Rights Committee (Committee), conducting advocacy to draw attention to the case, and providing support for Abdoul’s case. In an effort to understand what brought Abdoul to his current situation, we sifted through hundreds of pages of redacted government records which detail his interactions with social workers, healthcare practitioners, child protection services, and the criminal justice system.

In November, our work brought us to the Dorchester Penitentiary in New Brunswick, where we had the opportunity to meet Abdoul.

We did not meet a hardened criminal. Instead, we met a young man with commendable insight and hope. Abdoul was reserved, but visibly excited to have visitors. He spoke to us about the difficulties of his past and his experiences in state care, as well as his hopes and plans for the future. We left the prison struggling to reconcile the man we had just met, with Canada’s caricature of Abdoul as a dangerous and unreformable offender who must be deported.

Our work with Mr. Perryman on Abdoul’s case has starkly highlighted the interrelated flaws in the Canadian child protection and immigration systems, and the consequences for vulnerable non-citizen children. While Abdoul’s case is indeed dire, it is not unique. In fact, in 2010, IHRP clinic students worked on a case that bore much resemblance to Abdoul’s.

Much like Abdoul, Jama Warsame arrived in Canada as a young child, fleeing Somalia with his family. After living in Canada for over 20 years, he received a deportation order to Somalia due to his criminality. The Committee sided with Warsame, determining that his deportation to Somalia would be a violation of Canada’s human rights obligations under the International Covenant on Civil and Political Rights. The Committee recommended that Canada halt Warsame’s deportation. In 2012,

under the Conservative government led by Prime Minister Stephen Harper, Canada ignored the UN decision and deported Warsame.

Canada’s lack of regard for the decision of an authoritative human rights body is troubling. All the more troubling, however, is that Canada has allowed similar events to repeat themselves. Over the past five years, Canada has removed at least 549 people to countries for which it has a moratorium on deportations because of war, humanitarian crisis, or natural disaster. Abdoul is at risk of being next.

Despite hailing itself as a leader in human rights and refugee protection, Canada is failing its non-citizen children. As stated by UNICEF Canada, “… refugee children in Canada are among the most vulnerable members of our society. They require and are entitled to special consideration and protection measures.” Yet, there is no comprehensive legislation that affords refugee children “special consideration or protection measures.” As a result, non-citizen children, are kept in a state of vulnerability until they reach adulthood – not being afforded the legal rights granted to their fellow citizens even if they are eligible to become citizens. By the time they reach adulthood, they are at risk of deportation.

Every year thousands of refugee children arrive in Canada. According to the Canada Border Services Agency (CBSA), refugee claims for minors have been increasing in recent years.

From 2015 to 2016, the number of asylum seekers under the age of 17 jumped from 2,011 to 3,400. Whether they arrive with legal guardians or are unaccompanied, these children may ultimately find themselves in state care.

Even though international law requires additional protection for children in care, the boundaries of Canada’s basic minimum obligations to children in its care are yet to be determined. Securing citizenship and the right to have rights would seem to be part of that minimum core obligation, but our research suggests that there is a mixture of policy responses across Canada. What is clear is that, without citizenship, children in care are vulnerable to deportation when they reach adulthood, and that the experience of being a child in care exacerbates that vulnerability.

A recent study by the Provincial Advocate for Children & Youth found a link between involvement in foster care and low-academic achievement, unemployment, homelessness, and criminality. The outlook even more grim for children who are likely to have experienced trauma prior to arriving in Canada and are struggling to adapt to a new culture. This is especially troubling given that there is no unified policy to address the special needs of noncitizen children in care. While some provinces have made efforts to develop programs specific to the needs of non-citizen children in care, others have ignored this entirely. For instance, in response to the influx of Syrian refugees entering Canada, the Peel Children’s Aid

ABDOUL VISITED U OF T LAW WHERE HE WAS INTERVIEWED BY CBC’S ROSEMARY BARTON FOR THE NATIONAL AND DESCRIBED HIS TIME IN CARE AND HOPES FOR THE FUTURE.

THE IHRP TEAM MET ABDOUL AND HIS AUNT ASHA, AT U OF T LAW, TO CELEBRATE THE SMALL VICTORY OF HIS RELEASE FROM IMMIGRATION DETENTION. FROM LEFT TO RIGHT: HANNA GROS, AUDREY MACKLIN, TANZEEL HAKAK, BENJAMIN PERRYMAN, ABDOUL ABDI, ASHA ABDI, ANNE-RACHELLE BOULANGER, LAUREN PINDER PHOTO CREDIT: SAMER MUSCATI

Society has developed an internal specialized immigration team. Conversely, children’s services in Nova Scotia, which was involved in Abdoul’s case, appears to have no policy in place at all with respect to non-citizen children in care.

Abdoul’s case provides a glimpse into a system riddled with gaps. Since we last visited him in November, his case has garnered national attention but has also become more challenging. After he was released from prison on January 4, 2018, the CBSA immediately placed him in immigration detention. Fortunately, due to the persistent efforts of activist communities in Toronto, New Brunswick, and Nova Scotia, including community activists from BLM Toronto and BLM UofT, Abdoul was finally released on January 17, 2018. Additionally, Abdoul’s family, friends, and the broader community have engaged in advocacy efforts to demand that his

deportation be halted. Prime Minister Justin Trudeau addressed Abdoul’s case at several town hall meetings, stating that, although Canada’s foster system had failed Abdoul, our immigration system is "based on rules and principles but that it is also compassionate and reflects on individual cases."

We need to reflect on the inhumanity of deporting a young man due to the failures of a broken system charged with protecting children. Additionally, we need to reflect on how our immigration system is interacting with international human rights obligations. This system has contributed to violations of customary legal norms and international human rights law. We stand alongside Abdoul and the hundreds of others who have succumbed to this broken system when we say that we are disappointed and angry. It is high time for Canada to live up to basic principles of human rights.

CANADA BRINGS REFUGEES, ONTARIO LIMITS THEIR ABILITY TO WORK

By Enbal Singer (2L) and Caroline Stacey (2L)

In 2015, spurred by the ongoing atrocities in Syria, Canadians fundraised for and facilitated thousands of refugee sponsorship applications. In December of that year, the first plane of Syrian refugees landed in Canada. After enduring brutal conditions due to the ongoing civil war, they made their way to Ontario to begin a new life.

What they soon discovered was that they would face more hurdles—this time imposed by the Ontario government. For those Syrian newcomers potentially seeking work in the industries that rely on driving a truck or other vehicle, this hurdle would be particularly burdensome. Ontario continues to implement an outdated policy that hinders refugees' access to full driver's licenses, which has real consequences for the economy. Without a G licence, refugees are barred from participating in a segment of the job market—the Canadian trucking industry—that is desperate for new workers. The Ministry of Transportation of Ontario (MTO) prevents refugees from being able to rely on their foreign driving experience to fast-track their progress through the Ontario driving licence program, forcing them to sit idle unnecessarily.

The International Human Rights Program (IHRP) at the University of Toronto’s Faculty of Law has been working with one refugee from Syria who is hoping to bring about change.

In accordance with the Highway Traffic Act, the MTO allows applicants to credit previous driving experience to the graduated drivers licensing process and become exempt from the requisite wait times. However, the conditions antecedent to this exemption are such that refugees are uniquely barred from being able to meet them and therefore must remain within the G2 licence class for at least 12 months.

This exemption does not dispense with the requirement to undergo a driving test, but it removes the waiting period (designed to allow novice drivers to gain driving experience) for experienced drivers. All provinces, except for Ontario, allow an exemption to the wait times with a valid foreign licence. However, in order the benefit from the exemption, Ontario additionally requires written authentication on formal letterhead from the applicant’s home government, proving the equivalent driving experience. For Syrian refugees with no home embassy in Canada and without a government bureaucracy in Syria that they can access, procuring the necessary documentation is a near impossible task.

Ontario’s Lengthy Graduated Licensing Program In Ontario, new drivers are required to complete the graduated licensing program, which begins with a written exam to obtain a G1 licence. To obtain a G2 licence, a new driver must complete a year of supervised driving experience followed by a driving test. Another year of driving experience is required before being eligible for the full G license driving test. Ontario recognises that newcomers often have prior driving experience, which applicants can declare for credit toward the graduated program. Under the Highway Traffic Act, applicants can obtain up to 12 months of credit towards their driving experience by providing a selfdeclaration of their foreign driving experience. For credit of more than 12 months, and thereby an exemption to the graduated process, applicants are required to provide documentary evidence that they held a valid driver’s licence for at least 24 months in the past three years. All applicants must still pass a second driving exam to get a full G licence. This lengthy process imposes burdens on those who are progressing through the program. For example, drivers with a G2 licence are subjected to significantly higher insurance premiums and are unable to begin driver training for any other licence types such as the AZ licence necessary to drive a truck. While this lengthy licensing process makes sense for new drivers looking to learn to drive and gain experience, it imposes additional and unnecessary hardships onto experienced drivers who are denied the benefit of the exemption simply due to an arbitrary administrative requirement.

Refugees from War-Torn Countries Cannot Access the Exemption In Ontario, refugees are unfortunately excluded from accessing the full exemption due to the requirement of providing a letter from their home embassy—a nearly impossible feat for those from war-torn countries such as Syria. Due to the ongoing armed conflict in Syria, the country has no consulates or embassies in Canada. This means that Syrian refugees would have to compromise their safety simply to provide a document that restates the information already found on their driver’s licence. Additionally, the government offices that might provide such a document often no longer exist, because of war or internal conflict.

While most immigrants are able to fasttrack their licensing process, refugees who have finally managed to reach Canada and have survived civil strife, persecution, and brutal dictatorships, are confronted with an insurmountable administrative burden im-

posed by the Ontario government. In addition to the struggles of adapting to a new home, the people affected by this policy are faced with a year of limbo during which their job opportunities, and therefore financial stability, are significantly diminished.

Challenges to Ontario’s Discriminatory Driving Policies This injustice has led the IHRP to partner with Hassan Ahmad, a lawyer at Koskie Minsky, as well as lawyers from Borden Ladner Gervais to support Shyesh Al-Turki, a Syrian refugee and father of ten, to challenge the MTO's arbitrary and discriminatory policy. Shyesh is just one of many refugees affected by this arbitrary policy.

By challenging the MTO, he hopes to remove a barrier standing in the way of fellow and future refugees from war-torn countries. After escaping Aleppo and spending three years as a refugee in Jordan, Shyesh and his family made the journey to Canada.

Given his experience as a truck driver in Syria, Jordan, and Lebanon, Syesh was eager to begin a similar career in Canada.

Upon arriving, however, he discovered that it would be at least one year after having obtained his G2 license until he could take the test to obtain the full licence. He would need a G licence before he could begin the process to obtain a trucking licence, or even to work in entry-level driving jobs such as food delivery, or being an Uber driver.

The IHRP is challenging this discrimination on two fronts. First, an application on behalf of Shyesh was filed with the Human Rights Tribunal of Ontario, claiming that the MTO's policy of inhibiting Shyesh from benefiting from the Highway Traffic Act's exemption amounts to constructive discrimination. According to the Ontario Human Rights Commission, constructive discrimination occurs when “a rule or practice unintentionally singles out a group of people and results in unequal treatment.” Shyesh claims the MTO policy constructively discriminates against him by creating a precondition to benefiting from the exemption that cannot be met by refugees. Refugees cannot satisfy the policy's requirements due to their inability to obtain the requisite documentation required by the MTO, which is a consequence that lies beyond their control. In our view, the MTO ought to accept a valid driver's licence that demonstrates sufficient driving experience, similar to all other provinces. The policy's written authentication requirement is an unnecessary hurdle.

Second, the IHRP is also conducting a public advocacy campaign to appeal for this policy change. IHRP members are meeting with members of provincial parliament and policymakers to discuss important issues around driver licensing of refugees. They are also engaging with media outlets and on social media platforms under hashtags such as #GforRefugees and #TestLikeTheRest, encouraging public support and applying pressure on the policy makers.

We hope that one or both of these strategies will encourage a long-lasting policy change to provide everyone, regardless of country of origin, equal access to the MTO's exemption in obtaining a full driver's license.

Real World Impacts of the MTO Policy The policy creates not only a hardship on incoming refugees but it also obstructs the ability to address the critical demand for drivers in the trucking industry and other driving related jobs. Anyone who has driven along a 400-series highway would be familiar with the signs affixed to the backs of the long-haul trucks – “Drivers Wanted!”

- “Join our Team!” - “Drive with us!” The trucking industry has spoken out about creating easier access to jobs for experienced refugees and has developed training documents to facilitate the employment of refugees. Ontario is also experiencing a dramatic growth of jobs in the delivery industry with the rise of Uber, food delivery services, and shipping goods from online shopping.

Despite this demand, a disenfranchised group in need of employment is hindered from entering the field to meet the requisite supply. As a result, some refugees in Ontario who are accused of draining the welfare system actually have no choice but to seek government assistance. Ontario has an entire industry desperate for workers, and a group of experienced drivers, like Shyesh, eager to work. Unlike Ontario, other provinces do not require the burdensome written authentication requirement.

By allowing refugees who are unable to provide the requisite written authentication due to circumstances out of their control to still access the exemption, Ontario would be adhering to Canada’s commitment to successfully integrating refugees. Moreover, the trucking and delivery sectors would receive capable new candidates.

The Ontario government does not have to await the Tribunal’s decision. It can and should take a critical look at its current policy and remove the redundant written authentication requirement.

12 | February 1, 2018

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RIGHTS REVIEW

IHRP ALUMNI PROFILE: DIANE GOODMAN

By Brenda Chang (2L)

KEVIN SCHOENFELDT (3L)

Diane Goodman has been the Deputy Director of the Bureau for Europe of the United Nations High Commissioner for Refugees (UNHCR) since 2013. Ms. Goodman was previously Deputy Representative at UNHCR’s Headquarters in Nepal for four years.

She has also worked with UNHCR in Sudan (Assistant Representative), Geneva (Senior Training Officer with the Department of International Protection), Rwanda, Tanzania and Kenya (Protection Officer) and with the United Nations missions in Cambodia and Haiti.

Ms. Goodman has also held positions with civil society organizations and was Refugee Policy Director for Human Rights Watch, Liaison Officer for the Women's Refugee Commission and a research fellow at the Norwegian Institute of Human Rights and at the Institute of Women’s Rights at the Faculty of Law of the University of Oslo.

Last Thursday was crazy. I had class until six and then I was supposed to have a friend over for dinner. I had promised her I would make something super yummy after we had a conversation about how seldom we get to have nice, home-cooked meals anymore, now that we are winning the heck out of our lives and are soooo busy all the time. You know how hectic things can get.

But then I got home from class a little after six and I hadn’t had time to go grocery shopping all week—did I tell you how crazy my week was? I literally could not stop to breathe, there was so much to do. I need to sleep for a week to recover. I knew law school would be busy, but a person needs a break, you know?

What were your initial steps following graduation from the University of Toronto Faculty of Law and what drove you to work as an advocate for women, children and refugees?

After graduating from law school I began working in a large corporate law firm in Toronto. I soon realized that this was not for me, but had no idea what to do next. So I took a leave of absence from the firm, spent the summer learning to sail, winter backpacking and sailing in Asia and South America, and never looked back.

My incredible experiences during my travels opened up the world for me and a desire to work in the field of human rights, but I was unsure how to get there. So, after returning to Toronto, I went to see the then Dean of the Law School, Rob Pritchard, for advice. He encouraged me to take my LL.M at the Faculty of Law, which had just initiated a new international human rights programme the previous year.

As an LL.M student at the Faculty of Law, you were an IHRP fellow at the Norwegian Institute for Human Rights in Oslo, Norway. How would you describe that experience?

Working at the Norwegian Institute for Human Rights was a wonderful opportunity, as it enabled me to combine academic work on children’s rights with hands-on experience at the United Nations in Geneva. I assisted the Director of the Institute with his work as Chairman of the United Nations Working Group on Contemporary Forms of Slavery, which was looking at the issue of child exploitation and abuse. I also

DIANE GOODMAN, DEPUTY DIRECTOR OF UNHCR'S EUROPE BUREAU AND HEAD OF OPERATIONS FOR THE EUROPE REFUGEE AND MIGRANT CRISIS FROM 2015 -2016, MEETING WITH ASYLUM SEEKERS IN SERBIA IN JULY 2015

had the privilege to meet a number of leading human right scholars and activists in Oslo and Geneva.

How did your IHRP summer fellowship shape your academic and professional interests as well as the course of your career?

My internship happened at a very opportune time, as the United Nations Convention on the Rights of the Child was in the process of being adopted. I became a member of an NGO group which was participating in the drafting of the Convention, and this then led to a position as a research fellow at the Institute of Women’s Rights at the Law Faculty of the University of Oslo, where I carried out research and field work in Zimbabwe on children’s rights.

The work of the NGOs in Zimbabwe left an enormous impression on me, and I realized I would prefer field work rather than academia. However, at that time, most NGOs and UN agencies were not interested in hiring lawyers; they were looking for specialists in health, education, water and sanitation. UNHCR was the exception and I was sent to work as a protection officer in the refugee camps in North-East Kenya, where I lived in a small tent in the desert, battled scorpions and snakes, and was at risk of attack by outlaws while travelling to and from the camps!!

But the work with refugees made it all worthwhile!

You’ve worked extensively for the United Nations High Commissioner for Refugees both at its Headquarters in Geneva as well as in the field, in places such as Cambodia, Nepal, Sudan, Tanzania and Rwanda, during your

career. What do you find the most challenging and rewarding in your work?

The most rewarding is always working with refugees, and in particular refugee women. I have held many different positions with UNHCR, from a protection officer in the refugee camps in Ngara, Tanzania, which hosted thousands of refugees fleeing the genocide in Rwanda, to Deputy Representative in Nepal, where we resettled thousands of Bhutanese refugees from the camps to new homes in eight resettlement countries, including Canada. I know it sounds cliché, but it is always incredibly inspiring for me see the resilience and strength of refugees, after the unimaginable hardships they have suffered.

And to be able, in my work, to improve their situation, even in a small way, is very rewarding. I also feel privileged to have worked with many incredible colleagues and lived in fascinating places.

This type of career is not without its challenges.

The work can be risky and dangerous, there is great personal hardship, and it is difficult to combine with a family life. For example, the UNHCR has a rotation policy and staff are required to move every few years, often to places where you cannot bring your family. My family and I have been very fortunate in that we have always been able to stay together and live in some amazing places: Geneva, Khartoum and Kathmandu. But it has not always been easy and right now my husband -- who also works for the UN -- is in Haiti, our two children are at university in Canada, and I am in Geneva.

Could you tell us a bit about your work as Deputy Director of the Europe Bureau at the UNHCR? What are the biggest challenges that you’ve faced in that role?

These past few years have been extraordinary, as I assumed this position shortly before the refugee and migrant crisis in Europe began. At the onset of the emergency, when hundreds of thousands of refugees in search of safety began to arrive in Greece and move onwards, the European countries were completely unprepared.

The then High Commissioner and now Secretary General appointed me as Head of Operations to oversee UNHCR’s enormous emergency response in 2015 and 2016. This was a huge challenge as we did not have large scale operations in Europe, and working to protect people on the move, including thousands of unaccompanied children, was unprecedented. The ramifications of this emergency will continue to be felt in the years to come, as we see an increase in right-wing anti-immigration Governments in the European Union, a rise in violence against refugees and migrants and in xenophobia, and the enactment of more restrictive asylum laws.

On a more positive note, civil society has for the most part been very welcoming to refugees, and volunteers have played a critical role in supporting the refugees during the crisis.

Do you have any advice for students interested in following a similar path?

Oh it’s so difficult to give advice, and I began my career at a very different time. On the one hand, there are so many more opportunities now, but on the other hand it is a field where there is such great interest. But I guess I would say to students to follow their hearts and their instincts, speak and write to as many people as possible for ideas, guidance, advice and opportunities, be persistent, stay positive and confident, and remain open and flexible to the opportunities that arise, as you never know where they may lead!

In recognition of the IHRP’s 30th anniversary this year, Rights Review will be profiling notable alumni in each of its issues this year.

ihrprightsreview

February 1, 2018 | 13

The Legal Chef: Recipes for the Busy Law Student, Volume 43

International Human Rights Program at the University of Toronto, Faculty of Law An independent student-led publication

Ms. Goodman holds an undergraduate degree from the University of Western Ontario and Bachelor and Masters of Law degrees from the Faculty of Law of the University of Toronto, and has also worked as a lawyer in private practice.

DIVERSIONS

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

rightsreview

So anyway, there I was, searching through my cupboards, searching through my fridge, looking for anything I could make. I must have opened and shut the fridge thirty times, thinking that maybe something would magically appear. Even just a container of hummus would have been a start.

But there was nothing. Or that’s how it felt, anyway.

You know how sometimes you’ll be working on something, like maybe a paper, and it feels like you’re making no progress at all? You just can’t seem to get anything done and the deadline is getting closer and closer and closer and closer and— you get the idea. Like this one time, I was writing a paper for my first-year small group and I had no idea what I was trying to say and suddenly the paper was due the next morning. So there I was at two in the morning and suddenly it just came to me, ideas started flowing from my brain onto the page and next thing you know, I’ve got a completed paper that I was really proud of—and I don’t mind saying that I got a pretty good grade on.

I know, I know, grades aren’t that important, but they still feel good. It’s important to appreciate the positives in your life. I know I can struggle with that sometimes.

So that’s kind of what happened to me last Thursday night. My friend was due to arrive at seven, so there was no time for me to go out and buy something and I couldn’t order takeout because, after all, the whole point of this get together—aside from the healing joys of seeing a good friend, of course—was to have a home-cooked meal! And so, just for a second, I lay face down on the ground in defeat. And that’s when something clicked and I figured it all out.

The solution was so simple, but so effective.

Sometimes the best answers are staring you right in the face. Sometimes you need to take a step back and let things wash over you for a bit.

To paraphrase a sentiment I hold dear, you’ll find the perfect recipe in the end, and if you haven’t found the perfect recipe yet then it’s not the end.

Simple Breakfast for Dinner

There’s a real lesson here, I think. I was looking so hard for something good to make that I couldn’t see what was in front of me. I wanted so badly to be perfect that I almost ruined a night with a friend who means so much to me.

But the second I let go of that kind of thinking, the solution presented itself. Sometimes you just need to let life wash over you.

Directions

So I made this recipe for my friend and she absolutely loved it. She said it brought her right back to her childhood, when simple dishes were a true joy; a time when she wasn’t worried about the latest fusion this or that but just wanted good, wholesome food. I have to admit I loved it too. I’ve made it a few times for other friends in the last week, each time to nothing but rave reviews. So, from my table to yours, I hope you enjoy this recipe.

Ingredients

• 1

Box of breakfast cereal (I prefer Honey Nut Cheerios, but you can use any kind)

• 1 Litre of milk (almond, hemp, or soy milk can be used instead)

1. Pour desired amount of cereal into a single-serving bowl.

2. Pour

milk over cereal as desired. I find some people like a lot of milk, while some people like hardly any at all, so I like to put the milk on the table and let my guests pour it themselves. Not only does this allow people to have their desired amount of milk, it also adds a fun participatory element to dinner!

Estimated Preparation Time: 20 seconds Serves: 4–6 people If you’re looking for a side, see my recipes for Plain Toast or Bananas.

Ultra Vires Unapproved Vacation Destinations NORM YALLEN (2L)

After our ban on trips and vacations in the December issue, people have been left wondering if they will be able to leave Canada again. Here are some suggestions for safe non-problematic places to travel in your mind.

Hogwarts: A school that only allows in people with magical powers that were acquired at birth.

This muggle does not condone a trip to Hogwarts. In 2018, I should not even have to say that such a discriminatory institution has no place in our society. Also, isn’t it kind of weird that one of the houses there has the character trait that everyone in it is evil and even more into birthright wizardom and the school is just cool with it?

Narnia:

Westeros:

Pokemon world:

Wikipedia tells me this whole story was just an allegory for Jesus Christ. Seems a little too Judeo-Christian-centric for my liking. Would it have killed them to also include an allegory for Muhammed, or Buddha, or the creepy science fiction guy who founded Scientology? (I know it’s Phillip Seymour Hoffman but thought that joke was better that way.)

Lots of bad stuff here. I could list it all, but then people would be mad that I spoiled the show. But you know if you like gratuitous violence, fictional children being burned to death, and Jon Snow somehow surviving his own stupid decisions, then maybe this is the place for you. Also, a lot of discrimination and violence against women, so no good. Probably wouldn’t survive this trip anyway.

Pokemon are used exclusively to fight and when not fighting they are confined to a tiny Pokeball. Michael Vick went to prison for less.

That place where Avatar was:

Neverland:

Why were there no Lost Girls, only Lost I remember this being kind of racist, does Boys? Also, the stuff with the natives has not anyone even remember Avatar? aged well. Michael Jackson made this too weird and wrong.

Bikini Bottom: So SpongeBob is a sponge who works at The Krusty Krab where he makes Krabby Patties. The restaurant is run by Mr. Krab, who is, of course, a crab. So what are these Krabby Patties made of? Is Mr. Krabs killing his own species for the consumption of others?

Plus, when I went the meat seemed a little dry.

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14 | February 1, 2018

ultravires.ca

Intra Vires News for January HONGHU WANG (1L) Editor’s Note: Intra Vires, an old Ultra Vires feature with a Latin title that translates to “dumb self-mocking jokes,” now returns following a brief hiatus. Intra Vires is supported by way of Christie’s Auction House, thanks to the sale of an art piece that was, until recently, on display at a law school.

Beverley McLachlin Takes Up Residence at Trinity College, Starts Law School “If I were to open a law school in my basement,” an idea posited by Chief Justice Beverley McLachlin during oral submissions in T WU v. LSUC late last year, seems to have been taken seriously by Trinity College at the University of Toronto.

Chancellor William Graham, a former professor at the Faculty of Law, released a statement: We are very fortunate to have Chief Justice McLachlin take up residence here at Trinity College. We are happy to help her realize her dream of opening a law school in her—in our—basement. Of course, we will have to relocate the Episkopon…

Professor Mayo Moran, the former Dean of the Faculty of Law and the current Provost and Vice-Chancellor of Trinity College, further commented: For many years, we have been quietly trying to accredit our unoff icial “prelaw” program here at Trinity College.

Labelling the program “Munk One” was a step in the right direction. Now we f inally have a law school of our own at Trinity. Our undergraduate students already hail from elite institutions such as Branksome Hall and Upper Canada College—they will naturally be a f it at our new law school.

A current Trinity College student, who declined to be named, commented, “It’ll be nice to have more distinguished legal scholars and judges around the quad. I mean, we only have Professors Graham, Moran, and Waddams–certainly not names to drop on my Yale Law School application.” Professor Waddams is a Fellow at Trinity College.

Chief Justice McLachlin is expected to retire early from her posting as a Visitor at Massey College. Chief Justice Richard Wagner is expected to f ill her post. Intra Vires was unable to conf irm rumours that Justice Rosalie Abella also submitted an application for the position.

AMANI RAUFF (3L)

1. Go to Scotiabank and sweet-talk a teller into erasing your balance owing.

5. Start a GoFundMe page. Explain to your friends and family that it is their generosity that keeps U of T Law accessible. Remind them to continue to donate each year, 7% more each year, so that our professors won’t leave for the University of Chicago.

2. Provide legal services at exorbitant rates. (Oops, that wasn’t very original.)

6. The Post-Graduate Debt Relief Program. Sorry—bad joke.

3. Buy many floppy hats and wear a different one every day.

4. Withdraw the rest of your loan and spend it on a plane ticket to a faraway, warm island. Be

Surprising no one, this year’s [anti-gradtrip trip] will be at an all-inclusive [Cuban] resort. The annual spectacle of [two] law students, pale from a winter under florescent [sic] lights, sunning their exam-soft bodies on a tropical beach, a drink in one hand and a three-year-old bestseller we’d really been meaning to get to in the other, is a tradition that stretches back at least to the days when Lord Denning set his powdered wig aside to delight in some summertime beach volleyball [though cricket is more likely…].

sure to choose one that has no extradition treaties with Canada. Live out the rest of your life there. Don’t post any Instas.

Students Protest Cancellation of Intersession NORM YALLEN (2L)

This year, the [people who brought you #gradtripgate are] headed to [Cuba], a destination that should give us pause…

After the announcement that intersession was cancelled, a spontaneous group of students marched in protest in the alley behind the law school. The students were frustrated with an administration that they say has stifled their demands to learn about the law. Hubert Descartes (2L) said, “I was all prepared to finally learn about the law in a classroom, but I guess that cannot happen now. I am so tired of the administration only letting me pursue my hobbies and spend time with friends.”

[Human Rights Watch states: The Cuban government continues to repress dissent and deter public criticism. It now relies less on long-term prison sentences to punish its critics, but short-term arbitrary arrests of human rights defenders, independent journalists, and others have increased dramatically in recent years. Other repressive tactics employed by the government include public acts of shaming and the arbitrary termination of employment.]

Some students were distraught at their loss of access to professors at intersession. Marshall

This is not to suggest that the situation in [Cuba] is uniquely horrible… Every vacation destination is also a country with a particular history and social reality. No country exists without some great unresolved crime at its core. However, this campaign of [arbitrary arrests of human rights defenders, independent journalists, and others] is exactly the kind of creeping legalistic horror that we, as soon to be lawyers, have an ethical duty to guard against.

Plutocrat (1L) lamented the lost connections that could have arisen at intersession: “Intersession would have allowed me to have the opportunity to network with lawyers and professors. When else in law school or as a lawyer will I possibly have the opportunity to meet any lawyers?”

Professor Richard Stacey had said at the student townhall that the intersession would set off “intellectual fireworks” (Editor’s note: that actually did happen). Now students felt that the sparks in their brains had diminished. Colin

Marshmallow (3L) felt that the school ruined an opportunity to stimulate the minds of the students, saying, “When we learn things in two months, we all forget everything before the exam. Everyone knows the best way to learn about something is to go to class for only two weeks. Then write a paper about it like a month later.

The mood at the protest was not one of despair, but rather of optimism for the future. Future law student Lionel Insufferable was confident that by the time he was at the law school,

Curve Management Rachel Chan (2L) contributed research and writing to this piece.

When reached for comment, Alanis Morissette’s 1996 hit single “Ironic” was heard playing in background in the Ultra Vires office.

They provided this statement:

An article in the last edition about classing up exam writing misstated the final chapter of Ulysses by referring to Molly Bloom’s soliloquy rather than her eulogy. Thank you to the very smart people who wrote in to point out our philistinism.

Managing Your Debt: UV Edition As a 3L though, I can’t help but be suddenly and painfully aware of how much I owe. With this in mind, I went to the “Managing Your Debt” workshop on January 23. I was told to do things like “budget” and “open a TFSA” and “be responsible.” These are all great ideas, but I thought they were missing some pretty obvious options. Here are my tips:

Editor’s Note: We have decided to republish an earlier commentary by Aidan Campbell and Amani Rauff (with a few updates we have placed in square brackets).

Corrections

February 1, 2018 | 15

I love going to the most expensive law school in Canada. Every night I look at myself in the mirror and mouth the words “I go to U of T Law,” then go to sleep smiling. That rush alone is worth every penny.

Instigator Behind #gradtripgate Takes Trip to Cuba, Listens to Alanis Morissette’s 1996 Hit Single

The new law school has yet to be named.

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In other news •

Chief Returning Officer Aidan Campbell was also indicted in midterm SLS elections probe. Special Counsel Bobby Cruller suspects Osgoode meddling. CRO Campbell declined to comment on whether this had any relation to his upcoming trip to Cuba.

•

Separately, instigators behind #snailtripgate were reportedly relieved as #gradtripgate took over law school discussions by storm.

•

Law students shocked to learn including “U of T Faculty of Law” in online dating profiles yielded fewer matches than listing nothing at all.

the intersession would be in place, and he went even further than that: “I am pretty sure that by the time I am a 2L, we will have intersession. I am hoping they go even further, and eliminate winter vacation and no-class Fridays altogether.

I want to spend every possible moment learning about the law and making week-long connections with interchangeably prestigious professors.”

While these students were down, they know the fight is not over. The administration will undoubtedly be bringing back intersession, because, after all, how else can students possibly learn about the law?

NORM YALLEN (2L)

Now that grades have come out, it is time to plan for next semester. You can work hard, do your readings, take good notes, study very hard, and get good grades. That is the boring, mainstream approach. The more cutting-edge approach to law school grades that all the cool kids are doing is curve management. Why make yourself do better when you can make others do worse?

Let everyone know deemed days are cancelled: If nobody goes to a deemed day class on a Friday, did that class really happen? That is the premise I have been operating under.

Spread panic throughout the law school that ExamSoft has been crashing on all computers, and gently suggest that people handwrite. While they handwrite, you get that sweet sweet computer use—until your ExamSoft crashes.

Make the library very cold:

Start Facebook arguments in the Law groups days before exams:

Loudly proclaim that marks don’t matter:

Your classmates may think they are going to the library to study, but just wait until you start arguing over whether the chairs in the library should be banned. Keep the argument going until one side accuses the other of racism, and you can be sure that dozens of days will be occupied by the most important subject of all: f lame wars over the minutiae of law school.

Everyone, in all seriousness, marks are not that important. We all go to a great school and everyone will end up doing alright regardless of what their marks are. Besides, marks are always wildly arbitrary and no matter what your marks are, you are still special. You can stop reading now.

Sneak into the place where the library thermostat is.

Change it so that it is so cold, people can barely study. Upon further ref lection, it seems like someone may have already done this.

Give your peers some helpful fake quotes to write on exams: As former Chief Justice Bora Laskin once said, “Ass, gas, or grass, nobody rides for free.”

Spread paranoia about ExamSoft:

(If you are still reading this, then you are ready to manage that curve.)

DIVERSIONS

16 | February 1, 2018

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Intersession Courses We Missed Out On Current Issues in Canadian Constitutional Law: Marijuana Legalization in Context

Property is Theft (and Select Grievances Against the Church)

The 1Ls Must Be Stopped: An Open Letter to the 1Ls KEVIN SCHOENFELDT (3L)

I think I speak for all upper-years when I say—and I mean this in the most respectful way possible—that the 1Ls make me sick. But maybe you can’t see it. Maybe you need someone to put it in perspective for you. So, to prove my point, here are some extremely real, certainly not made up posts from the 1L Facebook page:

Battle of the Plains of Jackman: Valcke v. Katz

An opportunity to perform in-depth case studies of classic relationships from the rom-coms of the 90s and early 2000s.

Witness “intellectual f ireworks” from our own faculty f irecrackers as Professor Catherine Valcke, prominent civilian thinker on contract law, goes head to head with Professor Larissa Katz, an expert common law scholar with natural law ideas about property and the trust. See Valcke and Katz in the same room and settle once and for all whether they are actually different people or secretly a single natural law robot in different disguises!

Learning Objectives: Students will be expected to come to class ready to discuss:

Prerequisites: none (it’s all going to go over your head no matter what you’ve taken).

Critical Perspectives on Family Law

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Property disputes arising from What Happens in Vegas;

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Spousal immigration issues raised in The Proposal;

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Family-related employment law presented in Maid in Manhattan;

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The challenge to typical gender roles presented in Made of Honour; and

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Custody issues exemplif ied by The Switch.

questions

This course also includes an international component and may be used to satisfy students’ ICT requirements—as part of their f inal assignment, students are expected to analyze the impact of international law on the family law issues arising in The Christmas Prince.

There is a spectre haunting the Jackman Law Building [spoiler alert: it’s capitalism]. Learn all about it in a scintillating series of lectures on the virtues of socialism, led by U of T Law's very own Professor Jim Phillips. By the end of the course, students will be equipped to recognize that the state makes you free and there can never be enough government regulation.

Anti-requisites: f irst-year property law with Phillips.

February 1, 2018 | 17

You 1Ls are so nice. “How nice are we?” you yell back, cooperatively. You 1Ls are so nice that you bring extra pizza to lunch events to make sure that there’s enough to go around.

You 1Ls are so nice that when you go to a mandatory professionalism lecture you all actually pay attention, because it would be rude not to. You 1Ls are so nice that you’ll believe someone if they say, “This library table is reserved for 3Ls only.”

At January’s Faculty Council meeting, Dean Iacobucci announced that the proposed January Intersession would not be implemented in the 2018–19 year. Students were, for the most part, pleased with this development, but we cannot help but lament this loss given the *EXCLUSIVE LEAKED* LIST OF COURSES that would have been offered.

This special offering is joint-taught by Professors Roach and Green.

DIVERSIONS

Dear 1Ls,

MAUD ROZEE (3L) & STEPHANIE LEWIS (3L)

Two weeks of high-intensity, hands-on research into the often hazy world of marijuana decriminalization. Students will be exposed to the complex constitutional, political, economic, and sociological issues that marijuana decriminalization presents through a series of f ield trips to different dispensaries in the metro-Toronto area. The f inal exam will take place in the bushes of Trinity Bellwoods park.

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The Supremes In this course, students will brief SCC webcasts auto-tuned into Supremes songs. Singles include "Dissent is like an itching in my heart" co-sung by L'Heureux-Dube and Cote J J, "I'm gonna make you love reasonableness", a solo rendition by Abella J, and the bestselling hit "Stop! In The Name of Law" sung by the entire Court. Evaluation is by threehour closed-book karaoke session.

Experiential Learning: Criminal Procedure On the f irst day of class, Professor Chiao will throw a loaded gun on the table, call the police from a burner phone and then disappear permanently from the country! Students must successfully negotiate the process of defending themselves against the charges that will ensue. There’s no better way to learn than through the hands-on experience of being interrogated by the Toronto Police!

This class is graded pass/fail/life sentence in a high-security detention centre.

Like, I mean, come on—really, enough already, right? WHY DO YOU HAVE SO MUCH EXTRA FOOD? ARE YOU NOT HUNGRY? Do you really think that what the world needs is a bunch of people being nice and openly supporting each other? Isn’t the world enough of a nightmare as it is?

So all I ask is that every time you’re thinking about posting something really friendly on Facebook, and every time you’re about to make kombucha for the whole school, and every time you’re about to go way out of your way to help a classmate, just stop for a second and don’t do it. Think about yourself for once. Better yet, think about the upper-years. You’re making us look bad.

You wouldn’t want that on your conscience, would you?

With love, Kevin Schoenfeldt P.S. I just accidentally made sixty cookies—and I ate every last one of them. Deal with it.

DIVERSIONS

18 | February 1, 2018

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Stop Asking Questions, Part I: How a Group of Intellectually Engaged Students Started the Biggest Brawl in U of T Law History KEVIN SCHOENFELDT (3L) Franklin Crewson is folding his laundry. For Franklin, it’s a nice break from the readings he’s been doing earlier this morning. Yes, even on a Sunday, Franklin wakes up at seven and does homework. Doing laundry gives his brain a chance to wander after a few hours of complete focus, he tells me. Lately, though, that focus has been starting to falter.

DIVERSIONS

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Semi-Recurring Article by a Follies Writer: Mark Leonard’s Top Ten Places to Have Some “Alone Time” in the Law Building Grades got you down? Want to meet up with that special someone on Tinder but don’t want to have to give up your seat in Bora to a SNAIL? Is law school screwing you? Do you want it to? Well, Law Follies is here to give you our Top Ten list of places in the law school where you won’t be disturbed (unless you want to be—we don’t judge)!

10. Basement Bathroom of Bora Laskin

8. Murder Hallway in the Basement of Flavelle

Pros: Spacious, quiet, a full length mirror.

Danger is hot! So is this hallway.

Cons: Lock may not work (may not be a con).

No furniture for… uses.

9. Multi-Faith Prayer Room Use it for its intended purpose! Or be blasphemous. We’re not saying you should be blasphemous—we’re just saying you could.

Please be aware of the window on the door.

“Instantly, like seven hands shoot up,” Steingart says. “And already I’m looking at people next to me and we’re all like, ‘What, did we accidentally show up at the annual keener convention?’” Steingart says that these students then asked so-called “wanky” questions that the prof spent considerable time answering because, in Steingart’s words, “That man’s most-played track on Spotify is a recording of one of his own lectures.”

“That stupid moron knows exactly why we As Franklin is folding one of seemingly countless button-down shirts, he were angry. Worst among the offenders was Franklin Crewson, who Steingart notes a small tear. asked a total of eleven questions. The result of all those quesFriggin’ dink claims tions was that a class that was set to end an hour early grew increas“This is from Question Day,” he tells me. He pauses, staring thoughtfully at the shirt. “I honestly thought they were going to tear it right off wouldn’t shut ingly close to going late. And with each new question, the anger within the classroom grew. “At f irst it was kind of funny,” Crewson says, “but me,” he says. “I keep asking myself, ‘Why were they so angry? Why?’” up," then it just kept going. I don’t really know who started it, but suddenly It’s this question that is interfering with Franklin’s ability to concentrate. Franklin says that’s funny to him, in a dark sort of way, because it was asking questions that started the trouble in the f irst place. * * * * * “That stupid moron knows exactly why we were angry. Friggin’ dink wouldn’t shut up, that’s why. Him and all those other nerds.” This is Kermit Steingart, a third year at the law school who’s known to be a bit of a wildcard in the school community. It’s long been rumoured that, as a f irst year, he played a role in sowing chaos during what came to be known as the IRAC War, although he denies this outright when I ask him about it.

What is known for certain is that three weeks ago, Steingart was at the centre of the biggest brawl in U of T Law history, popularly referred to as “Question Day.” In the ensuing weeks, while rumours have f lown, very few students who were present that day have been willing to go on the record. It is widely believed that the administration is carrying out an investigation into the matter. This was cited by many students as an explanation for their reluctance to comment, fearing that any connection with the event could damage their potential future prospects. A source within the administration told us that “for a class with over sixty students in it, an awful lot of people claim to have missed class that day.”

Steingart, however, seems to have no such qualms talking about his version of what happened. “Look, let me put it this way. If a bunch of nerds are gonna interfere with the free time of their classmates, people are gonna be angry. That’s all there is to it.”

Steingart is clear about the basics of what happened, although the details become fuzzy when it comes to the extent of his involvement. According to Steingart, it was the f irst class

6. Closet on the Third Floor of Flavelle

Lauren Crosby - 2017 Associate - 2016/2017 Articling Student

“It was him. It was Kermit who put me in a headlock. That neanderthal’s a liar.” Franklin is visibly angry at what he sees as Steingart’s completely mangled version of what happened, although he admits that the basics of Steingart’s story are correct. Franklin says he had no clue that other students were getting angry at the students who were asking questions. “We were just interested in the subject is all.”

TO R K I N M A N E S L L P www.torkinmanes.com/students

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1. The Library Stacks Let’s not kid ourselves—you’re the only person who will be going down… there.

In Embarrassing Mistake, Prime Minister Trudeau Names Dead Composer Chief Justice of the Supreme Court of Canada

Okay, see you later. Have a nice day!

HEALTH LAW

For “private” office hours.

“It’s a national embarrassment is what it is,” said National Post columnist Geraldine Flamingo. So, is anyone still reading this? Like, I just thought it was funny that the new Chief Justice has the same name as a dead composer, but that’s kind of all the material I have for this article. What’s up with you? How are things?

“This interview is over,” he says. Then he tells me to leave immediately.

End of Part One

2. J300-306

In December, Richard Wagner, German composer of such classic operas as Tristan und Isolde and Götterdämmerung, and also known for his anti-Semitism and the fact that he died in 1883, was named Chief Justice of the Supreme Court of Canada by Prime Minister Justin Trudeau. Well done, Trudeau. Real smart move. What’s next? Amelia Earhart as Minister of Transportation?

“Great job, Franklin, our plan worked perfectly. I just got out of a meeting with the investigative committee and I’m positive they bought our story hook, line, and sinker. Let’s give it a few more days and then start enacting phase two.”

I interrupt Franklin and show it to him. His face darkens.

Just because it never came doesn’t mean you can’t!

KEVIN SCHOENFELDT (3L)

Partner Intensive Program Mentoring Program Hands-on Experience Supportive Work Environment

As Franklin begins to grow emotional talking about the persecution he’s received for being an engaged student, I receive a text message from a blocked number. The message contains a screenshot of an email that appears to be from Professor Feversham to Franklin with the subject line “It Worked” followed by the body of the email saying:

3. Student Lounge Space

Rumour has it that there is a poster of Cristiano Ronaldo in there. Find out for yourself if the rumours are true-mours.

“The lawyers I have worked with are truly interested in providing me with meaningful learning opportunities and fostering my development as a lawyer.”

* * * * *

We’re not going to make the obvious joke because she was an amazing person and you should look her up. That being said, there is a very sturdy table in there.

The perfect place to help you fulfill your Fifty Grades of H fantasy.

Find Your Talent

everyone was yelling at Franklin and his pals to just shut up already.

And that’s when the f ights broke out. People pushing and shoving, throwing punches. And then someone, I couldn’t really tell who, puts Franklin in a headlock.

It was crazy, man.”

5. Betty Ho Classroom

7. Any Faculty Kitchen 4. Any Room in Stick it to the administration by sticking it in Falconer someone else.

of the semester. The professor, Benjamin Feversham, gave a short lecture, but was prepared to let the class go an hour early. First, though, he asked whether anyone had any questions or comments.

I’m visiting Franklin at his rented apartment, about a f ive-minute walk from the U of T campus where Franklin is in his second year of law school.

His apartment has the transitional look of many professional students’ apartments, not as grungy as an undergrad’s, but without the f inished decor of someone who has the resources to make an apartment their own.

February 1, 2018 | 19

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