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The Moot Times The University of Calgary Law Student Newspaper | January 2017 Edition

DEAR CALGARY LAW: A LETTER FROM A FORMER STUDENT Anonymous Alumni

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ear Calgary Law, I have a few regrets from my time in law school. For one, I wish that I had been on time for that tax exam in third year. And yes, it would have been terrific if I hadn’t bombed that civil procedure exam in 2L. But here is what I regret most of all - not giving my full effort in the classes I took. In a strange turn of events I left law school and soon after found myself on the other end of the lectern, with a classroom full of faces staring back at me. If you knew what kind of student I was, you would understand the true irony of this reversal. Every class I taught was a lesson in hypocrisy. Whenever a student came in late and I gave them the gears, I could feel a former classmate’s eyes rolling. Every time a student slyly tried to slip away at break, I could can feel my buddies nudging me. But sitting where I am sitting now, I finally understand what I took for granted, and it burns me up. I guess this is part cautionary tale, part apology letter. I’m sorry to the professors whose lectures I Tetris’ed my way through. I now know

that my rapid eye movements were obviously not the actions of a student deeply studying their notes during class. I’m sorry to those boring professors who only became that way because students like me missed the fact that a professor who puts in effort is infinitely more valuable than one who doesn’t. There are those of you who already treat class like the true privilege that it is, and you should have stopped reading paragraphs ago. This letter is for present versions of past me: stop pretending class is an inconvenience on

your way to greater things. No, not just because you can learn more - you wouldn’t be surprised how little that “Oil and Gas Contracts” class still doesn’t apply to my life in criminal law. You should stop because it’s just a shitty way to be. It’s stressful being a student, I know. I was there not so long ago. But believe me, you and your professor are in this together. When you have a disinterested class, your professor is staring at that clock just as much as you are. It’s you who has the option to make those three hours fly

by. Participate. I promise you that you won’t seem any less cool. Ask questions. I assure you that there’s a seemingly confident student wanting to know the same answer as well. Give a shit. YouTube will be there after class, but you will miss your time in law school that you didn’t give it your all. If nothing else, put away your phones. We know that you aren’t studying your pants and we quietly hate you for it. Sincerely, Former Student

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Moot Times The law student newspaper at the University of Calgary. Gettin’ legal since 2008.

2016, YOU SUCKED SLIGHTLY LESS Last year wasn’t the greatest, but it had its bright spots as well

Senior Managing Editor Janna Crown Copy Editor Amy Matychuk Layout Editor Curtis Wolff Treasurer Tim Horon Secretary Megan Visentin Contributors Hayley Rushford Lyndon Radchenka Tamara Adderley Anonymous Alumni Contact Email jannacrown@gmail. com with news submissions, story ideas. Disclaimer The opinions and articles expressed within are not those of the University of Calgary, Faculty of Law. The Moot Times is an independent publication, run by students for students. Don’t even think about suing us. We will hire, like, the best lawyer. Contributor of the Month Anonymous alumni for teaching us valuable life lessons that I guess we needed last week.

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Lyndon Radchenka 1L

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s we all already know, 2016 is going to go down as being notably unpleasant, from world events to celebrity deaths (Carrie Fisher died at the time of writing this, so 2016 has a few days to squeeze some more in). That being said, aside here are 10 of my favourite things that happened during the calendar year of 2016, in no particular order: In the year 2016 approximately 390 000 new babies were born. We were gifted with the films: Deadpool, Zootopia, Captain America: Civil War, The Revenant, and Finding Dory. The world tiger count rose for the time in a century.

There are now roughly 700 more tigers on the planet than there were in 2010 (don’t ask me how the math works out). So did panda numbers. And manatee numbers. The Rio Olympics happened, where Canada won 4 gold, 3 silver, and 15 bronze medals. Shout out to Penny Oleksiak (who broke the country’s Olympic record for most medals (4) won by a single Canadian athlete in any Summer Olympic Games, as well as becoming the youngest ever Canadian gold medalist) and Andre De Grasse (legendary bromance with Usain Bolt) The Cubs finally won a World Series, breaking a 108year drought. Bill Murray cried, and many elderly people, who had been waiting since birth to experience a Cubs win, passed away quietly, having experienced the momentous moment.

India planted 49.3 million trees in one day, breaking a world record previously held by Pakistan Due to the funding provided by the ALS Ice Bucket Challenge (remember that?), a new gene linked to ALS was discovered, furthering the research towards effective treatment. Pokemon Go was fun for six weeks. The hole in the ozone layer is actually repairing itself, after the banning of CFC chemicals in 1987. And last... Leo finally won an Oscar. So yes, while 2016 is going to be remembered as being particularly unpleasant, there are always going to be great things happening. And look on the bright side: you also somehow managed to survive either: your first semester of law school, or a full calendar year of law school.

UCalgary Law Headlines Library “pajama day” sets dangerous precedent SLS executives looking forward to drama-free 2017 Corpse of deceased student Steven Armstrong still working on Jessup 2L excused from each day of block week after all 15 grandparents die What constitutional remedy are you? Take this quiz! Faculty offers new Theory of Cultural Competency course in 2017 ELS boosts economy by throwing party at greasiest bar in town Exchange applicant fascinated by exotic and nuanced culture of Australia In honour of “block week” we review the best defensive plays by Noah Burshstein After 2 weeks of being idle, student decides the overwhelming stress of law school more enjoyable than being alone with thoughts We asked 1Ls; what’s the hardest test you ever wrote involving the rule against perpetuities? Student overheard asking Royce if ”hangover” is a known cause of death at 8:30am during block week


PRIVATE PROSECUTIONS: COULD YOU BE USING THEM IN YOUR SOCIAL JUSTICE AND OTHER LEGAL INITIATIVES?

Tamara Adderley 1L

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he domain of criminal prosecutions is most often thought of as being solely in the hands of the state – in Canada, the Crown prosecutor. Not many people, even those in the legal profession, know about private prosecutions – that is, prosecutions started by and carried out by the private citizen. The jurisdiction for private prosecutions comes in the form of s. 504 of the Criminal Code, a codification of the common-law principle inherited from England. While not written or talked about very often, the role of private prosecutions can be a powerful tool in the lawyer’s arsenal when dealing

with issues where the state is either reluctant, unwilling, or unable to proceed with a prosecution. This can occur in a number of areas where, for example, the Crown is over-worked or because of social or other reasons, the Crown and/or police are unwilling to lay charges. For individuals and groups in situations where a law has been broken, a private prosecution may be the only mechanism within which to seek justice. The utility of private prosecutions can be seen in the example of Toronto Pig Save, an activist group seeking to improve welfare for pigs. They regularly protest at a prominent intersection at which trucks transporting pigs to the slaughterhouse must stop. Activists routine-

ly videotape the conditions of the pigs in the trucks and try to give water to the pigs they describe as dehydrated. Earlier in 2016, one activist, Anita Krajnc, was charged with mischief when she gave water to pigs in one of the trucks. For this group, obtaining better conditions for pigs is a primary goal. Rather than being the subject of criminal charges, they could be leading them. For example, s. 446 (1) of the Criminal Code states “[e]very one commits an offence who (a) by wilful neglect causes damage or injury to animals or birds while they are being driven or conveyed”. It is unlikely that the police and/or prosecutor would lay charges against the drivers of these trucks. This is an area where the group could take

on this role. They are already at the scene and gathering evidence through their surveillance – if there is truly neglect or damage being caused to these animals, then this group should be empowered to lay charges appropriately. The use of private prosecutions can be extended to virtually any area covered by the Criminal Code or other pieces of federal legislation (unless otherwise specified in the legislation itself). Despite its potential, private prosecutions should not be considered a cure-all remedy for any particular issue. There are reasons why they are not used or discussed often – there are some significant drawbacks which need to be considered. Continued on next page

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Private Prosecutions, continued from page 3 Perhaps most significant is the ability of the Crown (acting on behalf of the Attorney General) to do one of four things: they can stay your action, dismiss your action, take over carriage of your action, or they can take no position. It is very rare for the Crown to take no position in a private prosecution and, when they do take a position, they are not required to provide reasons for their decision nor are their decisions judicially reviewable (unless it can be shown that the Crown has acted dishonestly or in bad faith). This is in addition to the hurdles of a required higher evidentiary burden (beyond a reasonable doubt in contrast to a balance of probabilities); obtaining ev-

idence without state-backed assistance; possible liability for malicious prosecution; and strict limitation periods. The foregoing considerations, while significant, should not dissuade a group or individual from considering the use of private prosecutions. In this regard, the environmental movement of the 1990s is instructive. Between 1993 and 2004, only 21 private charges were laid under the major federal and provincial legislation and, of those 21 charges, only three resulted in a conviction; however, even in instances where a conviction was not obtained, the use of private prosecutions assisted the movement in meeting several goals, for example,

increasing public awareness and government priorities. For instance, J.S. Mallet, in his instructive guide, “Enforcing Environmental Law: A Guide to Private Prosecution” (2004) notes “[a] variety of federal, provincial and territorial laws now provide for citizen-initiated enforcement actions ranging from the right to trigger an official investigation and public report to the right to apply for an injunction to force compliance with environmental laws” (p, iii). A result analogous to this would likely be most welcome for any group or individual seeking justice or change in the legal arena. The ability to bring private prosecutions has survived in

the Criminal Code, arguably meaning that it is recognized by Parliament as an important ability to preserve. The limitations are discouraging; however, they are not insurmountable and they arguably exist to ensure there is not a floodgate of frivolous litigation. What the foregoing illustrates is that the use of private prosecutions should be considered and utilized as part of an overall strategy in a group or individual’s attempt to address an issue. There is great potential in this area to innovate and develop this mechanism further, limited only by the imagination and initiative of the group or individual seeking to further their cause in the legal arena.

Choosing the right path doesn’t have to be hard. We’ll put you on the path to an exciting career. Fasken Martineau is a leading international business law and litigation firm with over 700 lawyers across Canada as well as in the United Kingdom and South Africa. Fasken Martineau is proud to have the following University of Calgary students as part of our team: 2016 – 2017 Articling Student: Stefan Mirkovic 2017 – 2018 Articling Student: Kyle Cadieux

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A NEW YEAR, A NEW LEGAL LANDSCAPE The entertainment industry might provide a new practice area for Calgary lawyers. Hayley Rushford 2L

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t’s fair to say that Calgary’s economic downturn has impacted the legal community. With so much focus on the current oil and gas climate, an exciting new development in Calgary’s market has been overlooked. What you might ask am I speaking of? An evolving entertainment industry right in this wonderful city of ours. This new year may bring with it a whole new legal practice area in the next decade or so. Southern Alberta has been home to many productions over the years for its beautiful scenery and rustic Western charm. A special shout-out goes to The Revenant, which was filmed outside of Calgary and earned Leo his one and only Academy Award. The point being, filming in Southern Alberta is nothing new. What is new is the Calgary Film Centre that has just been built in SE Calgary. The film studio features three sound stages, enough to support one medium to large budget production. While this is not meant to rival production facilities out of California, it will support the economy in several important ways. Film crews will now have a home base to shoot on location, which did not exist before. Crews would fly in,

shoot on location for only the necessary scenes, and return to Cali or wherever else to shoot in the studios. Now, Calgary could be the centre for an entire shoot. This likely means more jobs for Canadians looking to work in the film business, more revenue generated by crews staying for a longer time in the province, and bonus, likely more work for lawyers in town as opposed to somewhere in Hollywood. In addition, the low Canadian dollar is actually an incentive for crews to come shoot here, so the timing couldn’t be more perfect for the launch of this new facility. In the next five to ten years, Calgary could be on the map in a big way for movie producers everywhere, particularly out of the States. The new film centre is also an important step in the direction of diversifying the city’s economy and developing the ev-

er-growing arts community here. The legal community can come along for the ride and open its doors to an entertainment law practice that would have been very limited in the city before. But this new avenue into the entertainment industry is not the only one that could create a new niche for Calgary-based entertainment lawyers. The National Music Centre will be moving into the brand new Studio Bell, which opened this past summer. Amongst many other features, the building will house several performance spaces, three state-of-the-art recording studios, and an artist in residence program. Not only will Studio Bell be an epicenter for Calgary’s music community, it will also breathe new life into a currently small music business in Calgary. With so much local talent yearning to make it big, the opportunity to create some global

success acts from the West and gain more Canadian artists international recognition is opened by this facility. With any growing industry, lawyers are often at the core of its development in some way. As with the Calgary Film Studio, Studio Bell will create opportunities for legal professionals to work in the entertainment field, either through talent representation, contract work, copyright infringements…the list goes on. Where those interested in entertainment law would likely look to Vancouver or Toronto, if not just taking off to work in the US, there may be a very viable market in Calgary in the next little while. The two new arts facilities could bring a new age of practicing law in Calgary and a unique opportunity to be part of something from its infancy.


KREMERATA BALTICA COMES TO CPO Janna Crown 3L Who? The CPO is presenting Kremerata Baltica on its 20th anniversary tour (note that this means that the CPO isn’t actually performing in this concert). What? Kremerata Baltica was formed by violinist Gidon Kremer 20 years ago. It’s a chamber orchestra which means it’s a mini-orchestra that can conveniently fit in your living room, or also on concert stages around the world. The ensemble was formed to showcase the talent of the musicians of the Baltic region, and has been quite successful. They’re super good. Where? Jack Singer Concert Hall, conveniently located

close to the C-Train When? Thursday, Feb 9 at 8 pm Why should I go? Kremerata Baltica is DOPE. These guys are edgy and great, and have worked with the best of the best in the classical music industry – from Martha Argerich to Evgeny Kissin (and other people that aren’t pianists). They’re known for performing and recording risqué classical music, so this won’t be your traditional Mozart-Beethoven concert. Expect something a little more adventurous and fun. How do I get tickets? Online, or at 403.571.0849. The CPO has offered us a 25% discount with the promo code KREMER. Feel free to pass the code on to friends/family.

LAW STUDENT OF THE MONTH: IAIN

Iain received an A+ on his ethics factum assignment for citing a key discussion of confidentiality contained in the 1978 Manitoba Legislative Assembly Debates and Proceedings. He also finished his seminal essay entitled: “Laskin’s Constitutional Theory of Dependencies and Special Sovereignties in Northern Australia as discussed in 1978 Manitoba Hansard”. Congrats Iain!

CALGARY PHILHARMONIC ORCHESTRA

Calgary Phil Presents:

KREMERATA BALTICA: NEW SEASONS THURSDAY, 9 FEBRUARY 2017 8PM // Jack Singer Concert Hall

Violin superstar Gidon Kremer redefines “leading edge” with the Kremerata Baltica, Eastern Europe’s most active and pioneering chamber orchestra in their Calgary debut.

SPECIAL OFFER SAVE 25%

USe CODE “KREMER” online at Calgaryphil.com or call our box office.

GIDON KREMER, violin *Please Note: The Calgary Philharmonic Orchestra does not perform in this concert.

CALGARYPHIL.COM | 403.571.0849

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Attention Lovers!!!

“Hi! My name’s Mihai! As you can see from this collection of photos, I’m pretty popular with the ladies. Well guess what, it’s time to SPREAD THE WEALTH BABY! Haha! Next month for Valentine’s Day, I’m doing a relationship advice column EXCLUSIVE to the Moot Times! All you need to do is submit your questions, “Dear Abby” style, to cbwolff@ ucalgary.ca and I will answer them! Feel free to use your name or submit them anonymously, I will answer them no matter what! With an upward inflection in my writing voice as well! Peace out!”

Do you have a law school CRUSH?

The Moot Times is printing anonymous confessions of love for our Valentine’s Day issue! 8

Send them to jannacrown@gmail.com


Moot Times: January 2017