McGill Pre-Law Review 2016

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The Pre-Law Review

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Editors’ Note As a millennial who is about to complete an undergraduate degree, the world often appears as a daunting, steep mountain, with success hidden somewhere in the clouds. A lot is unknown, but one thing is clear: we, as a generation, are confronted with great opportunity – an opportunity to make a difference. The seemingly endless reading, the rigorous writing, and the constant bombardment of information of these years will not go to waste. Whether it is law school or something else in your near future, the education you are provided with at this moment is some of the best you will ever have in your life. I am proud to say that this Journal speaks volumes to that effect.

policy suggestions.

The near-expert team of contributing writers and editors who worked alongside myself to make this Journal a huge success deserve great credit. I am proud to say that we have created a publication that accurately reflects our ability for exiting our undergraduate degrees gracefully, with an outstanding potential for manufacturing ripples of change in our respective industries.

Thank you to everyone who helped put these pages together. Many thanks to John Terry of Torys LLP, for an inspiring foreword about pursuing a career in law, and to Professor Sébastien Jodoin, for sharing the importance of human rights in the battle for a clean earth. Congratulations to the editorial team and the contributing writers for a successful end to a yearlong bout of hard work. Thank you to Ananjay Rajpal for gloriously managing all of the graphic design involved. And finally, thank you to the McGill Pre-Law Students’ Society Executive team, for making sure all the resources we needed were at our disposal.

With contributing writers from all areas of study, this collection of academic articles illuminates the potential we have for changing the future. We are taught in great detail the history of the world, and all of the reasons life is the way it is today. With a contemporary influence in these discussions, each submission eloquently bridges the gap between the history and theory the authors have been studying, and the changes that must be made moving forward to resolve the issues. Gun control, refugee status and human trafficking are all global issues that demand global attention. Times are changing faster than they ever have before, and the structure of the Canadian justice system should reflect such evolutions.

The articles pertaining to public opinion and the judiciary, decision-making procedures and Bill C-10 reflect the need for flexibility in the Canadian common law system. This publication is at once a call to arms and a brief collection of

I hope that any and all students, from aspiring lawyers to aspiring engineers, can find something in this Journal to be an inspiring and valuable resource for their future, Sincerely,

Meghan Collie Editor-in-Chief

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The Pre-Law Review

Editorial Team

Editor-in-chief: Meghan Collie Kiana Shahbazi Jayne Cooke Madeleine Kausel Jillian Tomimoto Cosmo McQueen Basia Sowinski Christiana Patrinos Thomas Spiegler Nicole Beausoleil Juanita Valencia Jacky Lee Alexandre Duong Maddy Sequeira Kira Smith Veronique Cohen Josh Blatt Anneliese Kluender Graphic Design & Layout Jay Rajpal Cover Photography Meghan Collie A Special Thanks To John Terry Professor SĂŠbastien Jodoin MPLSS Executive Board 4

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The Pre-Law Review does not endorse or recommend any particular views, opinions or declarations in the texts to follow. We simply provide information and a resource for aspiring individuals interested in the field of law.

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The Pre-Law Review

Table Of Contents 1.

A Few Words From John Terry

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2. The Ghost of Perry Mason Daniel W. Galef

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3. The Complexity of Human Rights in a Changing Climate Professor SĂŠbastien Jodoin, Jayne Cooke, Maddy Sequeira

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Articles 1.

Human Trafficking: Root Causes, Globalization, and a Multidisciplinary Approach Alexandra Sakellariou

2. Gun Violence in American Schools

Meghan Collie

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3.

Non-Refoulement: History and Modern Challenges May White-Vilmouth

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4.

Colonial Terror and Indigenous Tobacco: A Critical Analysis of Bill C-10 Sarah Pringle

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5.

Judicial Decision Making Clarisse Olhaberriet ArtorĂŠ

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6.

Public Opinion: Reinforcing The Judicial System Kate (So Eun) No

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Law Schools 1.

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McGill University Faculty of Law Osgoode Hall Law School University of Toronto Faculty of Law Queens University Law School University of Ottawa Law School

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Final Words 1.

McGill Pre-Law Students’ Society Executive Team, 2015-16

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McGill Undergraduate Moot Court Team, 2015-16

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3.

A Few Words From Our Co-Presidents

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Brett Edward Hartley, Richad Hirani

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The Pre-Law Review

A Few Words From John Terry John teaches International Commercial and Investor-State Arbitration and Public International Law at the University of Toronto Faculty of Law as an Adjunct Professor, and teaches advocacy with the Foundation for International Arbitration advocacy in Geneva. He has also taught public law in the Bar Admission Course and participates as a judge and faculty member for trial advocacy courses and various competitive moots, including the Niagara International Moot and Vis Moot in Vienna. Before joining Torys, John worked as a constitutional lawyer with the Ontario government and senior policy adviser with the Ontario Cabinet Office, coordinating the government’s Aboriginal Peoples’ agenda. John also spent two years teaching international trade law, international commercial arbitration and international human rights law at Otago University in New Zealand.

John is a member of the International Chamber of Commerce (ICC) arbitration roster for Canada.

John is the co-author of three books: Creditors’ Remedies in Ontario, Interlocutory Proceedings: Strategy and Practice, and The Emotional Consequences of Personal Injury: A Handbook for Psychiatrists and Lawyers. He has also written numerous other articles and delivered speeches, primarily on international law and constitutional issues.

John served as a clerk to Mr. Justice Cory of the Supreme Court of Canada, and to the judges of the Ontario Court of Appeal.

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Congratulations to the editors of the McGill University Pre-Law Review on producing another fine issue. One of the Review’s significant and unique strengths is that it reaches out beyond the narrow legal audience of most legal journals to a broader inter-disciplinary community. As such, it plays a crucial role in ensuring that not only lawyers, but those in the broader McGill community and abroad, understand and appreciate the significance of the rule of law.

The rule of law – the principle that all people and institutions are subject to and accountable to law that is fairly applied

and enforced – is a norm we take for granted in Canada. We seldom pause to realize how fundamental it is, and how its principles – the rights and freedoms enshrined in our Constitution, as well as commercial rules like the sanctity of contracts – underpin so much of the conduct of our daily lives.

My personal perspective on the importance of the rule of law stems from many years fighting legal battles not only in Canada but in many other countries around the world where the rule of law exists at most on paper, and is often cast aside in resolving legal disputes that

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2016 involve the interests of the powerful.

I have witnessed this in international human rights cases against foreign states (I was counsel to Canadian journalist Zahra Kazemi’s son in pursuing futile efforts to find justice in Iran). I have experienced it equally in commercial disputes, where a client’s property (like a gold mine) has been expropriated without compensation. And I see it daily when our clients engage in commercial transactions in many states, and not surprisingly insist upon international arbitration rather than trusting local courts to resolve disputes.

One of the most telling signs of a weak rule of law state is when one walks into a foreign court room and immediately sees an underpaid judge in a nondescript office dispensing justice while on his cell phone -- a stark contrast to countries in which a courtroom is a place of respect and perhaps even awe.

All of us who have an interest in the legal field have an opportunity to preserve the rule of law where it exists, and help to create or enhance it where it does not.

Violations in Canada of Charter rights, especially those of the most vulnerable or friendless (like those accused of serious crimes), must not be tolerated. And we must use whatever influence we have, through international organizations, NGOS, business groups or legal actions to help to promote the rule of law in countries in which it is lacking.

We are blessed in Canada with having inherited the rich heritage of two of the great legal systems of the world -- common and civil law. This makes us uniquely qualified -- and I would say obligated -- to reach out to both the common law and civilian world to promote and safeguard the rule of law.

Think globally, and act globally too!

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The Pre-Law Review

The Ghost of Perry Mason

Daniel W. Galef

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What television thinks a lawyer is is somewhat absurd.

Quick to raise objections in a courtroom all oyez-ish and m’lud-y.

A rhetoric not cunning, per se, just loud enough to be heard, And study.

The reality: The list is broad, but hardly long.

A sharp mind for practical philosophy, A sense of right and wrong, A perseverant bloody-mindedness that knows no end, The skill and doggedness to cut through arguments that rhetoric makes muddy, To be everyone’s enemy, and anyone’s friend, And study.

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The Complexity of Human Rights in a Changing Climate Sébastien Jodoin is an Assistant Professor in the Faculty of Law of McGill University. He is also a Faculty Associate of the Governance, Environment & Markets Initiative at Yale University. His research seeks to understand law and public policy in the context of the manifold forces associated with globalization, processes of social change, new and evolving forms of public and private governance, and the pursuit of sustainability at various levels.

Sébastien holds a Ph.D. in environmental studies from Yale University, an M.Phil. in international relations from the University of Cambridge, an LL.M. in international law from the London School of Economics, and B.C.L. and LL.B. from McGill University. Sébastien recently served as the president of Génération d’idées, a think tank focused on the interests and participation of Quebeckers aged 20 to 35. Prior to his appointment at McGill University, he worked for the Centre for International Sustainable Development Law, the Canadian Centre for International Justice, Amnesty International Canada, and the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia.

Sébastien has received numerous awards and honours, including the 2012 Public Scholar Award from the Yale Graduate School of Arts & Sciences, a Doctoral Scholarship from the Pierre Elliott Trudeau Foundation, a Doctoral Fellowship from the Social Sciences and Humanities and Research Council of Canada, and a Public Interest Law Articling Fellowship from the Law Foundation of Ontario. Sébastien currently serves as the Principal Investigator for a SSHRC Insight Development Grant on the role of human rights in transnational climate change law and advocacy.

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Issues surrounding human rights, climate change, law, and advocacy are becoming a growing global concern, particularly as globalization further extends its reach. Unfortunately, these issues are commonly ignored as politicians and world leaders place a stronger emphasis on more tangible goals.

Annually, the McGill Pre-Law Review meets with a legal professional in order to discuss critical and current issues in the field of law. In order to gain a further understanding into the legal realm of human rights and climate change that is often overlooked, we met with Professor Sébastien Jodoin to discuss his research outlined in his Economic, Social & Cultural Rights and Climate Change Legal Reference Guide.

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The Pre-Law Review Jayne: Thank you so much for speaking with us. We wanted to focus on your work in human rights, climate change, law, and advocacy. In particular, we are interested in your Legal Reference Guide that surrounds the human rights aspect of climate change.

Maddy: To begin, you mention in your guide that a number of American states have been instrumental in bringing attention to the human rights aspect of climate change. Based on your research, where does Canada stand on an international scale in this regard?

government’s embrace of this new agenda of reconciliation, nation-to-nation, I imagine that they will be supportive of those issues. It’ll be interesting.

Maddy: It’s often been argued that the United Nation’s climate talks have traditionally been slow in recognizing the connection between climate change and human rights. Why do you think this disconnect has existed for so long?

“There are some problems with establishing duties to act, establishing a constant relationship between the production of emissions that cause climate change and then their impacts on communities.”

Prof. Jodoin: Well, things are a bit in flux with the new government. During the Harper era, there was no interest in recognizing the human rights aspects of climate change. In fact, there was resistance. So I think Canada has traditionally been concerned about the possibility that they could be held responsible for violating human rights as a result of climate change. Specifically, the concern surrounds the potential of being held liable by countries suffering from those impacts.

Jayne: And with the Trudeau government now, do you see anything changing, in particular?

Prof. Jodoin: I haven’t yet seen anything change on this particular issue, but negotiations are happening right now.

In general, the government is taking positions that are consistent with the human rights approach: wanting to limit emissions, wanting to act on climate change. One of the issues that came up was a recognition of the rights of indigenous peoples within the context of climate change. During the Harper era, Canada was against that. Now, with the

Prof. Jodoin: First of all, it’s important to recognize that human rights, as they exist, are not perfectly designed to address a complex problem like climate change. There are some problems with establishing duties to act, establishing a constant relationship between the production of emissions that cause climate change and then their impacts on communities. I’ll give you an example: we know that tropical storms are increasing in intensity because of climate change. But, you might still have had a tropical storm take place in the absence of

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2016 climate change. So how do you establish the level of responsibility that greenhouse gases have for the increased intensity of the tropical storm? This is a complex question. An alternative approach to consider is to think about human rights as a shared responsibility, from North to South, and so the issue of liability doesn’t matter. We are supposed to be supporting the realization of rights of developing countries, and that’s the case whether or not we’ve caused, or let cause, through our action, or inaction, tropical storms that are more intense. Apart from anything specific about human rights, the UN has been slow to deal with climate change.

Yes, they’ve been slow to deal with the human rights aspect of it, but they’ve also been slow to deal with it at all.

Jayne: There has been an issue of poorer countries demanding financing to cope with climate change. Considering wealthier nations have been responsible for a large portion of the negative climate impacts that these countries face, do you think that wealthier nations should be responsible for providing funding for these developing countries?

“Those who will be most affected by climate change are communities that are already marginalized, those that are already poor.”

Prof. Jodoin: Absolutely. There’s one major problem that we’ve solved, and that’s the ozone layer. A big part of that

solution was that we had money going from North to South to help developing countries shift to renewable alternatives.

This is what we call the principle of differentiated responsibilities: countries have a common responsibility to act on climate change, but there’s different burdens that are imposed on countries based on their resources and what they’ve contributed to the problem.

Maddy: In terms of opting for appropriate adaptation policies, in your guide you mention that inappropriate planning can lead to extremely adverse effects concerning food, water, and shelter. Could you further explain how appropriate planning can avoid these adverse effects?

Prof. Jodoin: Those who will be most affected by climate change are communities that are already marginalized, those that are already poor. These governments already find it challenging to ensure that their citizens have access to the basic minimal levels of food, water, and shelter. Now, these governments must put in place policies that will enable these communities to gain resilience to a changing climate. You can imagine that very poorly designed policies can have outcomes that would lead communities that are already marginalized to be further marginalized because of climate change and its impacts.

Jayne: What links you see between climate change and human displacement?

Prof. Jodoin: Well, there are consequences of climate change effects. Whether it’s flooding in low-lying areas, disappearing ice in the North, changes in what food can be grown, changes in the weather… in all sorts of ways, climate change can disrupt the ways in which communities

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The Pre-Law Review around the world exist. These impacts can destroy their shelters and their ability to lead their lives, and so they may be displaced by climate change.

Maddy: Bringing the conversation back to Canada, in your opinion, what is the likelihood of a successful transition to a low-carbon economy? Do you think it’s a possibility, and would Canada face any nation-specific challenges in this transition?

“We need to help every region in the country, in different ways, transition to a low-carbon economy.”

Prof. Jodoin: I think the main challenge is Alberta and Saskatchewan, to be honest. Their economies are heavily dependent on resources that are carbon-intensive. Newfoundland also, with

it’s off-shore oil-drilling. That’s a big challenge: the regional differences. In Quebec and Ontario, and I think also in BC, transitioning to a low-carbon economy is not necessarily such a distinct challenge. There is a challenge – but it’s mostly going to happen in the manufacturing sector. Nationally, Canadian citizens will have to change how they live their lives and Canadian cities will have to change how they are organized. So I think that will be a big challenge. How do you deal with the regional differences and the importance of energy? I think within the country we’re going to have to come up with another mechanism to transfer resources. We need to help every region in the country, in different ways, transition to a low-carbon economy. Now, do I think this is likely? I certainly think the conditions right now are aligned to make it possible. With the Liberal government federally and the NDP government in Alberta, I don’t think the conditions have ever been better to make this transition.

Jayne: Thank you so much for your time, Professor. We really appreciate this conversation that you’ve had with us today.

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Human Trafficking:

Root Causes, Globalization, and a Multidisciplinary Approach Alexandra Sakellariou

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Source: Huffingtonpost.ca

The Pre-Law Review Human trafficking is one of the most profitable and illicit industries that continues to grow each year. Despite empirical evidence, the international community has yet to take steps to effectively end human trafficking. By illuminating the root causes behind human trafficking, which act to expand and sustain this heinous industry, it will be argued that human trafficking has exploded due to globalization and is especially active in developing countries, due to poor social, political, and economic factors. The need to adopt a multidisciplinary approach when addressing human trafficking is due to the complexities enabling this industry. A strategy will be suggested, which incorporates measures and effective legislation to end and prevent future trafficking, protect and assist victims, and promote effective international cooperation. If the international community is able to implement and uphold such a strategy, it will be able to effectively address and eliminate the human trafficking industry.

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Human trafficking is widely regarded as modern-day slavery and has been reported to ‘enslave’ more individuals than any other practice in history. It is considered to be one of the most profitable and illicit industries and it continues to grow each year. Despite empirical evidence, the international community has yet to take steps to effectively end human trafficking. By illuminating the root causes behind human trafficking, which act to expand and sustain this heinous industry, it will be argued that human trafficking has exploded due to globalization and is especially active in developing countries, due to poor social, political, and economic factors. This will explain the need to adopt a multidisciplinary approach when addressing human trafficking because of the complexities enabling this industry.

A four-part strategy will be suggested, which incorporates measures to prevent trafficking, protect and assist victims, implement effective legislation, and promote international cooperation. If the international community adopts a parallel strategy to the one proposed, then it may be able to bring an end to human trafficking.

According to the U.N. Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, human trafficking is, “the recruitment, transportation, transfer, harbouring, or

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receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.” Victims of trafficking can be subjected to sexual exploitation, forced labor, or both. All types of trafficking include various forms of human right violations. There is a distinct difference between human trafficking and smuggling. Smuggling refers to the illegal, but voluntary transport of individuals across borders.1 Trafficking, on the other hand, is specifically defined by exploitation and the violation of human rights.

It has been hard to empirically estimate the exact number of trafficking victims and many studies have provided varying numbers. The International Organization for Migration (IOM) has said that it is not possible to produce accurate numbers on trafficking.2 Experts from governmental agencies and international non-governmental organizations (NGOs) have estimated that the number of individuals trafficked annually internationally is anywhere between 700 000 to 2 million.3 Despite difficulty in collecting data, many experts agree that trafficking is a growing phenomenon. It has been estimated to

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2016 bring in $27.8 billion annually. Human trafficking could not have become such a lucrative industry without the support of powerful market forces. Human trafficking can be thought of as an illicit market fueled by the interaction between supply and demand.5 There is always a demand for cheap labor and sex in ‘destination countries’, those to which victims are trafficked.6 In ‘source countries’, from where victims come, there is always a supply of vulnerable individuals with the dream of a ‘better life’ beyond their situation.7 Human trafficking is reported to connect “as many as 127 countries of origin, 98 transit countries, and 137 destination countries.”8 Increasing globalization - driven by expanding international trade, investment, and the development of new information technology - has allowed these demands to be met by increasing the supply of potential victims and ways to transport them to destination countries.9 Although many thought modernization, and its resulting globalization, would make an especially positive impact on developing countries, it has seemingly worsened conditions. Globalization, in this context, refers to the spread of modernization across international borders. It is the integration of different economic, political and social cultures and, for the most part, this has been heavily western-influenced.10 Instead of being a primarily beneficial phenomenon as predicted, globalization has had an overwhelmingly negative consequence. It has created instability within governmental institutions and a large income-gap between the rich and poor, causing the socio-economic status of many developing countries to suffer. As Howard Handelman wrote, “analysts were particularly disturbed to find that the very process of social and economic modernization 4

often ushered in political instability and violence… industrial growth and income inequality unleashed bitter class conflict, causing the collapse of democratic institutions and the rise of repressive military dictatorships.”11 The consequences of globalization have led to the poor social, political, and economic situations of many countries, leaving millions of people vulnerable. It is through such conditions that human trafficking has become such a booming industry and has made victims out of countless susceptible individuals.

Globalization is generally described as “a major driving force that has empowered criminals and weakened agencies in charge of fighting them.”12 Research into human trafficking has shown there is no single cause supporting the growth of this industry; rather, many complex factors linking supply and demand contribute to the growth of this industry.

One reason for the growth of this industry is that globalization has made it easier to traffic people throughout countries.

Historically, border controls of many current source, transit, and destination countries were strictly controlled. However, when the end of the Cold War came, many systems collapsed and countries became more negligent with their border controls.13 Open economies have also added to the permeability of border: the more open and integrated an economy is in the international community, the more open its borders are to the movement of both legal and illegal goods.14 Illegal activities are detected less frequently as the permeability of a border increases in relation to the country’s globalization.15 This means it will be more susceptible to the trafficking of humans in and out of its borders.

In addition, many countries lack the legal and physical means to properly punish and prevent human trafficking. There

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The Pre-Law Review is often lack of legislation to properly prosecute and punish those who traffic people across borders.16 This is especially problematic in developing countries where governments may be unstable or inefficient. Even if such legislation exists, many countries find it difficult to even enforce it. It is not uncommon for corrupt government officials to profit from elements of human trafficking, such as payments for false visas and documentations, and thus lack the motivation to enforce appropriate legislature.17 Furthermore, some countries, mainly developing, suffer from a lack of manpower and resources. Their borders are frequently unguarded or only protected by weak border patrols, adding to the permeability of their borders.18 Countries with the worst border protection are often those targeted as source countries. In comparison to other forms of illicit global trade, such as drugs and weapons, human trafficking is one of the most profitable and lowest risk activities.19 Consequently, it often attracts the attention of large-scale criminal organizations, further expanding its international network. Without proper legislation and border protection, human traffickers will be more likely to carry out their crimes because there is less threat of being caught and punished severely.

Arguably the most significant reason for the boom in human trafficking is the ready supply of vulnerable, potential victims. This is especially problematic in developing countries due to poor social, political, and economic factors. Potential victims of trafficking are usually members of marginalized or extremely vulnerable groups; they generally have the least education and come from the poorest parts of a country and/ or from areas with extensive unemployment.20 Women and children tend to be the most targeted groups for trafficking. Trafficking victims

are usually those affected by a deteriorating economic situation.21 Globalization has created a severe income gap between the rich and the poor, leaving large groups without basic necessities such as food and shelter, as well as social provisions such as education and health care.22 Individuals in harsh economic situations often dream of a ‘better life’ beyond their circumstances. Deepening poverty leaves people susceptible to the traffickers’ false promises of opportunities for jobs and education in other countries.23 Women, in particular, are at an even greater disadvantage because of the gender inequalities they face.24 Due to such discrimination, women are less capable of earning an income, owning property, and providing for themselves and their families.

Children are also at a particular disadvantage because of few job and educational opportunities, as well as the state of their struggling families. Aderanti Adepoju writes that in many child-trafficking cases, poor families give up their children to traffickers under the assumption they will provide them with a better life.25 In some cases, he explains, families are desperate enough that they may even sell or contract their children in exchange for cash.26 Other children may simply be orphaned and vulnerable to traffickers who promise they will take care of them.27 As the causes supporting the human trafficking industry have been explored, this paper will now turn its attention towards the multifaceted approach the international community must take in order to address this issue. There is no one-dimensional solution to human trafficking.

Many complex factors continue to enable this industry and all must be addressed. As Kristof Van Impe warned, “there is a real danger that… industrial countries might attach a disproportionate importance to a set of narrow and ad hoc measures, focus-

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2016 ing on short-term cures.” It is important to focus on the long-term cures, as well as short term, to properly address and remove the root causes of human trafficking. In order to resolve human trafficking, a four-part multidisciplinary strategy is proposed that effectively incorporates measures and effective legislation to end and prevent future trafficking, protect and assist victims, and promote effective international cooperation. If the international community is able to implement and uphold such a strategy, it will be able to effectively address and eliminate the human trafficking industry.

The first part of this strategy requires that preliminary measures be taken to prevent trafficking. Education and awareness are important to inform the global community of the extent of human trafficking Awareness campaigns can achieve this in two ways. Campaigns are able to inform individuals in source countries, who are at risk of trafficking, of these dangers.29 Moreover, campaigns are also able to educate individuals in transit and destination countries about the plight of trafficking victims. As Aronowitz explains, “too often the victims are criminalized because of their illegal status in the country or their involvement in prostitution.”30 It is important that individuals in transit and destination countries understand that trafficked migrants are victims and require social services and legal protection.31 Further research must also be done to better understand human trafficking. Research is essential for preventative measures; it can help identify at risk groups for trafficking and reveal if campaigns, services, and laws are working effectively.32 Furthermore, action must be taken to improve the political, social, and economic factors of origin countries in order to prevent trafficking. As this paper 28

has shown, poor socio-economic factors greatly enhance the vulnerability of individuals to trafficking. Overall poverty levels must be decreased. People must have access to basic necessities such as food, clean water, and shelter. The educational, training and, especially, job opportunities in origin countries need to be increased. Destination countries can significantly assist in increasing the socio-economic status of source countries through economic alternative programs.33 The United States, for example, offers such programs that provide training, economic opportunities, and help in small business development to at risk individuals in source countries.34 It is reported that this program has dedicated over $3.1 million to providing economic alternatives for women in source countries.35 Finally, intervention and deterrence measures can also help prevent human trafficking. It is important that those in “consular offices, immigration, police and health care workers (can) recognize a situation and be able to intervene to assist trafficking victims.”36 These measures will hopefully prevent the further trafficking of current victims and deter the trafficking of potential victims.

The second feature this strategy incorporates is strengthening protective measures and assistance to trafficking victims. Victims require many services to help reintegrate them into society. It is the responsibility of individual countries to ensure these services are accessible to victims. This includes everything from financial, legal, and psychosocial assistance to them and their families.37 If the victims want to return to their source country there should also be cooperation between the destination and source countries to ensure the reintegration is as smooth as possible. Victims should furthermore be offered legal protection.

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The Pre-Law Review Ideally, they should be given the right to safely remain in the destination country for as long as they like. For example, Italy implemented Article 16, which allows the chief of police to give a special resident permit to a foreign victim of exploitation whose life is believed to be in danger.38 Furthermore, NGOs are often the primary organizations working with trafficking victims, so it is imperative to strengthen their power and resources. Providing adequate funding is crucial to make sure they can efficiently carry out their work. Also, it is important for the police and NGOs to maintain a strong working relationship.39 NGOs are generally able to successfully help victims work alongside the police, who they often distrust, in order to conduct criminal investigations into the large-scale trafficking networks.

The third, and arguably most important, part of the strategy requires the implementation and enforcement of effective legislation in order to prosecute those involved in trafficking. Every country must implement explicit legislation and furthermore enforce it. The success of legislation is directly dependent on the commitment to follow through with and uphold it. It is also important to strengthen the penalties for those involved in trafficking. The length of a sentence generally determines whether the defendant can be held on remand.40 It is imperative that the criminal justice system is able to hold the suspect on remand before the trial, as they are more than likely to flee the country.41 Increased sentencing and harsher penalties will act as a good deterrence for those likely to commit human trafficking and human rights violations. The more criminals convicted of these crimes, the less likely others will be to commit them.

The success of effective legislation will act as an essential prerequisite to sustain the two aforementioned parts of the strat-

egy. Work must also be done to reduce corruption in governments so they can fulfill these duties. It has already been shown that government officials may actually benefit from trafficking; therefore, they will not want to enforce legislation against it. It is essential that governmental corruption be addressed. Anti-corruption reform can include economic and social progress, the rule of law, strong civil society, and establishing democratic values.42 Again, effective legislation must be created and upheld in order to end and prevent corruption within governments.

Aronowitz discusses the importance of strengthening law enforcement and ensuring they have adequate resources to properly fight the war on human trafficking. It is imperative they keep up to date with new technology. Technical assistance programs are required for strengthening law enforcement and to help criminal justice systems effectively fight.43 Regular awareness-raising and training for law enforcement is also important.44 Officials need to recognize the difference between document forgery and prostitution cases in comparison to human trafficking. Developing concentrated task forces who specialize in trafficking is also ideal.45 Law enforcement cannot solely rely on testimonies and evidence from trafficking victims. Instead, they must take disruptive and proactive measures, such as intelligence gathering and the implementation of health and safety regulations, to interfere with the business of suspected traffickers and gain evidence of wrongdoing.46 Improving data collection and information sharing, on local, national, and international levels, is also imperative to ensure an effective fight against the trafficking industry.47 Finally, the last part of this strategy necessitates international cooperation.

Without international cooperation, law

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2016 enforcement and the criminal justice system will not be able to function to their full potential. Harsh measures in one country will not end human trafficking; it will only displace it.48 Almost every country can be classified as a source, transit, or destination country and, in some cases, can qualify as more than one.

Traffickers can generally find other countries in which to conduct business where legislation is not as stringent. Thus, it is imperative that the international community works as one to put an end to this heinous industry. As suggested by Aronowitz, international cooperation can include initiatives such as “the exchange of information, coordination and harmonization of national policies and laws, bilateral or multilateral agreements with respect to victim protection and repatriation and reintegration assistance, and extradition of criminals.”49 She stresses that developed countries should provide technical assistance to developing and transitional countries.50 Countries should all have the same access to technology. Important information on human trafficking should be made available to all nations so they are equally informed of the situation. Assistance and training should be provided to help eliminate corrupt government officials so all governments can function efficiently.51 Furthermore, they should all uphold similar legislation in the context of human trafficking. It is only when the force of the entire international community fights against human trafficking that they stand a chance at ending this heinous industry.

In conclusion, this paper has demonstrated the multifaceted factors contributing to human trafficking and the need to adopt a strategy that effectively addresses all of these in order to end this industry.

It has explored the root causes behind human trafficking that work to sustain this

industry. In particular, it has discussed the impact globalization has had in aiding the expansion of this industry. It is evident how trafficking is especially active in developing countries due to poor social, political, and economic factors. Furthermore, this paper has identified the need to adopt a multidisciplinary approach when addressing this industry because of the complexities enabling it. It has demonstrated the need to adopt the four-part strategy that has been proposed, which combines measures to prevent trafficking, protect and assist victims, implement effective legislation, and promote international cooperation. If the international community applies a strategy parallel to this then they will be able to bring an end to human trafficking. Until the international community recognizes and implements this strategy, millions of lives will continue to be affected by the heinous activities of human trafficking. ________________ 1 Gergana Danailova-Trainor and Patrick Belser, Globalization and the Illicit Market for Human Trafficking: An Empirical Analysis of Supply and Demand 2 (2006).

2 L. Kelly and L. Regan, Stopping Traffic: Exploring the Extent of, and Responses to, Trafficking in Women for Sexual Exploitation in the UK. London: Home Office, Policing and Reducing Crime Unit, Research, Development and Statistics Directorate 12 (2000).

3 Alexis A. Aronowitz, “Smuggling and Trafficking in Human Beings: The Phenomenon, The Markets That Drive It and the Organizations That Promote It,” in European Journal on Criminal Policy and Research 169 (2001).

4 Danailove-Trainor and Belser, supra note 1, at 21.

5 Aronowitz, supra note 3, at 172.

6 Ibid.

7 Ibid.

8 Stephanie A. Limoncelli, “Human Trafficking: Globalization, Exploitation, and Transnational Sociology.” Sociology Compass 76 (2008).

9 Nayef R.F.Al-Rodhan and Gerard Stoudmann, “Definitions of Globalization: A Comprehensive Overview and a Proposed Definition.” Program on the Geopolitical Implications of Globalization and Transnational Security 4 (2006).

10 Ibid at 6.

11 Howard Handelman, The Challenge of Third World Development 20 (2013).

12 Danailove-Trainor and Belser, supra note 1, at 7.

13 Aronowitz, supra note 3, at 170.

14 Helene Pellerin, “Borders, Migration, and Economic Integration: Towards of New Political Economy of Borders”, Global Surveillance and Policing: Border, Security, Identity 54 (2005).

15 Danailove-Trainor and Belser, supra note 1, at 8.

16 Aronowitz, supra note 3, at 184.

21

The Pre-Law Review 17 Ibid, 185.

18 Ibid.

19 Kristof Van Impe, “People for Sale: The Need for a Multidisciplinary Approach towards Human Trafficking.” International Migration 119 (2000) 20 Limoncelli, supra note 8 at 75.

21 Aderanti Adepoju, “Review of Research and Data on Human Trafficking in Sub-Saharan Africa.” International Migration 80 (2005) 22 Limoncelli, supra note 8 at 80.

23 Adepoju, supra note 21 at 80.

24 Limoncelli, supra note 8 at 80.

25 Adepoju, supra note 21 at 80.

26 Ibid, 81.

27 Ibid.

28 Impe, supra note 19 at 115.

29 Aronowitz, supra note 3, at 186.

30 Ibid.

31 Ibid.

32 Ibid.

33 Ibid.

34 S. Warnath, “Trafficking of Women and Children: The Future Direction of the United States Policy”. Report of the US-EU Trafficking in Women Seminar 64 (1998).

35 Ibid.

36 Aronowitz, supra note 3, at 187.

37 Ibid.

38 M.G. Giammarinaro, “Legislation, Protection, and Victim Assistance: Italy’s Recent Experiences”. Report of the US-EU Trafficking in Women Seminar (1998).

39 Aronowitz, supra note 3, at 187.

40 Ibid, 189.

41 Ibid.

42 Irene Hors, Fighting Corruption in the Developing Countries. OECD Observer. Apr. 19, 2000.

43 Aronowitz, supra note 3, at 188.

44 Ibid.

45 Ibid.

46 Ibid, 189.

47 Ibid.

48 Ibid, 190.

49 Ibid.

50 Ibid.

51 Ibid.

22

2016

Gun Violence in American Schools Meghan Collie

23

Source: everytownresearch.ca

The Pre-Law Review Guns and schools should never mix, and yet, landmark cases of school rampages have plagued the American population for years. From a child accidentally getting their toddler hands around the trigger, to a mentally ill boy just weeks from graduation who legally buys a gun from the local WalMart: the prominent culture of guns, and fear, in the United States, permeates the walls of schools and the lives of children every day. While it is (arguably) true that a major contributor to such a culture is the constitutional right to bear arms, there must be factors particular to the event of a school rampage. By closely analyzing the cases of Columbine High School, Heath High School and Pearl High School, accumulating 20 fatalities when combined, there emerges a pattern of similarities in the lives and deaths of the shooters. Should the strongest and most frequent sources of aggression in cases of school shootings be determined, policy can become one step closer to keeping helpless kids out of the crossfire.

a

According to the Federal Bureau of Investigation, one murder occurred every 35.4 minutes in the United States in 2012.

Startlingly, this high level of crime permeated the walls of educational institutions.

In the same year, students ages 12 to 18 were victims of approximately 1,364,900 nonfatal victimizations at school, 89,000 of which were considered to be serious violent victimizations.1 A serious violent victimization specific to this study is that of the school rampage, in which a student carries a deadly weapon to their current or previous school, opens fire on other students or faculty members and has several victims, some symbolic and others random. This phenomenon has been demonstrated by landmark cases like that of the Columbine High School, Heath High School and Pearl High School, which accumulates to 20 fatalities combined. In these specific cases and many others, the educational institution failed to recognize the perpetrator and their signs of aggressive behaviour as a threat until it was too late. It is important to note that if the central sources of aggression are pre-determined, policies and programs can be implemented to minimize the frequency of these brutal crimes. It will be argued that the three factors most heavily influential in school shootings in the United States are gender, violence in the media, and the availability of guns.

b

Societies are most often structured in two ways: (1) in the determination of where people stand with regards to their status within the social system, and (2) the expectations of these individuals according to their status within the social system.2 Sexuality always influences one’s social status, and the expectation is for one to conform to the most common behavioural attitudes for that specific sex. Gender is a ubiquitous social creation, and “gender involves a complex of socially guided perceptual, interactional, and micropolitical activities that cast particular pursuits as expressions of masculine and feminine ‘natures.’”3 In the United States, there is a perspective that behaviour can be predicted from reproductive functions, which is reinforced by societal structures.4 When one does not conform to their respective female or male role, there is disconnect between the individual and their ability to live within the structures established by sexuality.

Within a school setting, one’s inability to perform their gender causes him or her to be perceived negatively or as a minority.

As asserted by Kimmel and Mahler, supported by their analysis of secondary media reports on random school shootings from 1982 to 2001, nearly all the boys who committed school shootings within these records were bullied, particularly for a failure to fulfill societal expectations

24

2016 of masculinity. The perpetrators, Luke Woodham at Pearl High School, Michael Carneal at Heath High School, and Dylan Klebold and Eric Harris at Columbine High School, were all notably different because of the way they enacted their masculinity: they were either academic, shy, physically inferior to other boys their age (either overweight or underweight), artistic, and all were consistently attacked with homophobic slurs.5 Newman and Fox (2009) assert that 7 out of 9 shootings from the years 2002 to 2008 note severe bullying as a factor.

Bullying is currently considered a social epidemic of sorts in the United States, with 30% of a 15,686 student survey group, ranging from grades six to ten, reporting involvement in bullying in some form or another.6 The short-term effects of bullying include: problems with adjusting to new environments, difficulty achieving academically, negative perceptions of the school environment, and little to no success establishing peer relationships.7 Although not all instances of bullying result in long-term consequences, the situation often leaves both the bullies and their victims to experience lasting low self-esteem and social withdrawal.8 Often times, bullying and marginalization for failure to identify with one’s assigned gender role can cause those involved to externalize their emotional response toward others through aggression and disobedience. As asserted above, masculinity is directly connected to aggressive behaviour, for which exists the explanation of self-control theory.

The general theory of crime asserts that individuals who lack self-control are more probable to enact criminal and deviant behaviours.9 A meta-analysis of 21 studies using self-control revealed that a strong way to predict for criminal behaviour is through an analysis of self-con-

trol.10 Self-control theory argues that the sex gap in crime may be due to the fact that the principle source of self-control is parenting, which may vary depending on the sex of the child.11 Parenting that differs according to the sex of the child contributes to different levels of self-restraint instilled within the child and the child’s gender socialization, “the process through which children internalize the capacities, values and motivations that are considered appropriate for their sex within a given culture and time.”12 Furthermore, it is asserted that children are socialized based on their sexuality; the socialization of femininity focuses on developing affection, passivity and dependence, whereas the socialization of masculinity focuses on developing hegemony through being forceful, assertive and independent.13 The findings from this study done by Nofziger conclude that self-control is more strongly correlated with femininity than with masculinity.14 Therefore, it can be argued that with the socialization of boys, the selection for masculinity has little focus on the need for self-control. Since those who commit criminal behaviour are said to lack self-control, this begins to explain the overwhelming presence of male perpetrators in school shootings. However, identifying with the assigned traits of femininity and masculinity varies for each individual. A male’s lack of self-control, combined with the frustration from not “appropriately” identifying with masculinity, may be the recipe for disaster. Of interest to us now is how the marginalized student, lacking a place in their school environment, becomes aware of the violent narrative that leads them to commit a school rampage.

The average American child spends approximately 7 hours a day consuming media in the form of television, movies, video games, music, and the Internet

25

The Pre-Law Review (Kaiser Family Foundation, 2010). Wilson (2008) asserts that approximately 90% of movies, 68% of video games, 60% of TV shows and 15% of music videos contain violence. An important quality of modern media is its interactiveness, such as that of the Internet and video games.

By placing a child in the hypothetical position of someone who must save the world by killing all the ‘bad guys’ (as many video games do), this child “may learn that aggression can be used to try to solve interpersonal conflicts” in real life.15 This type of internalization is explained by the theory of social learning, and the ever-changing landscape of modern multimedia can be considered a major influence on aggressive and criminal behaviour when explained as such with learning theories.

The theory of social learning asserts that techniques and motives for criminal behaviour are learned, namely through interaction and imitation. Important to note is that observation and imitation of other people begins at a very young age16, and that the source of a child’s social skills is often the observation of other’s social skills.17 As stated above, children are assaulted with several types of screen media for hours everyday, and so through observation, violent media, becomes a primary source of learning. Once these scripts are learned, they can serve as cognitive guides for future behaviour. The likelihood that children will implement deviant scripts into their collection of social interaction will increase with repeated observation (which occurs arguably multiple times a day, according to the data above).18 Not only will the child internalize the violent behaviour he observes in media forms, but the presence of violence will also affect his perception of the world in general, and his beliefs about what kind of behaviour is deemed

acceptable.19 Media violence does not impact all viewers in the same way, which is why it is important to analyze the character of the individual, the media content, and the social environment. In the case of Woodham, Carneal, Klebold and Harris, the short- and long-term psychological impacts of bullying explored earlier, such as lasting low self-esteem and social withdrawal, caused frustration that was externalized in the form of violence against their peers. It can be argued that this behaviour was not only learned, but also reinforced, by the various forms of media violence the boys consumed each day, in which dealing with interpersonal conflict is frequently resolved through violent acts. Although blaming the media for violent acts is sometimes considered scapegoating,20 it is definitely a possibility that it plays a role in the learning of violence. These shooters each had a source of aggressive behaviour in their bullying situations, and they learned parts of their violent scripts from the influence of violent media consumption. However, after establishing the source of aggression and the source of the violent script, the easy accessibility of the firearms is what made each violent act a possibility.

The overwhelming amount of guns in the United States is a global concern, with an unprecedented 100 million privately owned firearms in circulation at any given time.21 Among the data from incidents during July 1, 1992 to June 20, 1999, illuminated within two studies conducted by authors for The Journal of the American Medical Association, the majority of the firearms used in the school-associated violent death events were obtained from perpetrators’ homes, or from friends or relatives.22 This is not to say that the plethora of firearms is a direct cause of violence, but it may be inferred that the

26

2016 ease with which a gun can be accessed may be the deciding factor for a gunman to commit a school rampage: if he could not access a gun, he would have no way to go through with his violent crime. A study conducted by Martin Killias reveals that where there are more guns, there are more deaths: in a comparison of 14 industrialized countries, the United States had the highest percentage of households in possession of one or more firearms, as well as the highest number of homicides with a gun per million.23 However, the problem is not only the presence of guns, but also that American gun culture is rooted in a historical misunderstanding that the right to bear arms means all people should bear arms.

Tonso asserts that, after analyzing and cross-referencing a series of literature concerning the issue of gun control, social scientists have been able to establish that the United States would currently benefit significantly from gun controls.24 Specifically referenced was that when the United States was still in the transformative stages, moving from a rural stage into the urbanized country it is today, where citizens had need for firearms as a way to, “provide themselves with food and/ or protection” and thus entrenched this right in their Constitution so as to always protect the right to providing for themselves.25 However, the United States has since become industrialized with many forms of protection for private citizens available, but the thousands of firearms in circulation due to the Second Amendment “continue to get into civilian hands [and] no longer serve any useful purpose, and are more trouble than they are worth.”26 Finally, perpetuating the American gun culture through legislation is the domestic firearms industry and the National Rifle Association, both of which maintain that the right to bear arms is an inherent,

ethical and honourable entitlement that every American citizen should be granted as stated in the Constitution.27 The vast availability of guns in the United States is thoroughly supported by its archaic legislation, the inability of the government to amend this legislation, and the sub-culture of gun supporters (and fear-mongers) that has emerged as a result.

The intersection of a strict socially constructed concept of gender, the promotion of violence by mainstream media as a seemingly necessary vein of society, and the constitutionally-supported widespread availability of guns has cultivated an America that is scared of itself. This fear infiltrates the minds of young students, combines with the ability to walk into the local WalMart and buy any gun one could want and takes the lives of hundreds of innocent people a year. To begin to remedy the issue, both amended and new policy must point at the roots: education about the fluidity of gender in its natural state, a turn of media outlets away from glorifying violence, and finally, all policy must attack the constitutional protection of the second amendment.

Barack Obama, President of the United States, has faced the nation several times with the same awful message to send: another person has been killed by a gun for simply no reason. However, arguably the most powerful man in the world has little to no power in the fight for gun control. It is not the general public in need of education: it is Congress. Until policy-makers understand the sociological creation of a culture of fear, the ingredients for which are clearly outlined here and in several statistics, gun control will be an impossible task. ________________ 1 United States of America, Federal Bureau of Investigation, U.S. Department of Justice. (n.d.). National Crime Victimization Survey. Retrieved December 3, 2014, from http://www.fbi.gov/ about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012 2 Heiss, J. (1976). An introduction to the elements of role theory. Family Roles and Interaction: An Anthology.

3 West, C., & Zimmerman, D. H. (1987). Doing Gender. Gender

27

The Pre-Law Review & Society, 1(2), 125-151.

4 Ibid.

5 Kimmel, M. S., & Mahler, M. (2003). Adolescent Masculinity, Homophobia, and Violence: Random School Shootings, 19822001. American Behavioral Scientist, 46(10), 1439-1458. doi: 10.1177/0002764203046010010 6 Nansel, T. R. (2003). Relationships Between Bullying and Violence Among US Youth. Archives of Pediatrics and Adolescent Medicine, 157(4), 348-353. doi: 10.1001/archpedi.157.4.348 7 Nansel, T. R. (2001). Bullying Behaviors Among US Youth: Prevalence and Association With Psychosocial Adjustment. JAMA: The Journal of the American Medical Association, 285(16), 20942100. doi: 10.1001/jama.285.16.2094 8 Burgess, A. W., & Roberts, A. R. (1995). Crisis intervention for persons diagnosed with clinical disorders based on the stress-crisis continuum. Crisis Intervention Handbook, 136.

9 Hirschi, T., & Gottfredson, M. (1990). Substantive Positivism and the Idea of Crime. Rationality and Society, 2(4), 412-428. doi: 10.1177/1043463190002004002 10 Pratt, T. C., & Cullen, F. T. (2000). The Empirical Status Of Gottfredson And Hirschi’s General Theory Of Crime: A Meta-Analysis. Criminology, 38(3), 931-964. doi: 10.1111/j.1745-9125.2000. tb00911.x 11 Nofziger, S. (2010). A Gendered Perspective on the Relationship Between Self-Control and Deviance. Feminist Criminology, 5(1), 29-50. doi: 10.1177/1557085109353892 12 Ibid.

13 Ibid.

14 Ibid.

15 Anderson, C. A., Berkowitz, L., Donnerstein, E., Huesmann, L. R., Johnson, J. D., Linz, D., ... Wartella, E. (2003). The influence of media violence on youth. Psychological Science in the Public Interest, 4(3), 81-110. doi: 10.1111/j.1529-1006.2003.pspi_1433.x 16 Bandura, A., & Adams, N. E. (1977). Analysis of self-efficacy theory of behavioral change. Cognitive Therapy and Research, 1(4), 287-310. doi: 10.1007/BF01663995 17 Meltzoff, A. N., & Moore, M. K. (1977). Imitation of Facial and Manual Gestures by Human Neonates. Science, 198(4312), 75-78. doi: 10.1126/science.198.4312.75 18 Anderson, C. A., Berkowitz, L., Donnerstein, E., Huesmann, L. R., Johnson, J. D., Linz, D., ... Wartella, E. (2003). The influence of media violence on youth. Psychological Science in the Public Interest, 4(3), 81-110. doi: 10.1111/j.1529-1006.2003.pspi_1433.x 19 Huesmann, L. R., & Moise, J. (1998). The stability and continuity of aggression from early childhood to young adulthood.

Youth Violence: Prevention, Intervention and Social Policy, 73-95.

Retrieved December 3, 2014.

20 Rafter, Nicole. “Jeff Ferrell, Keith Hayward, Wayne Morrison, and Mike Presdee, Eds. Cultural Criminology Unleashed (London: Greenhouse Press, 2004).” Crime Law Soc Change Crime, Law and Social Change 42.4-5 (2005): 409-11.

21 Jeffreys-Jones, Rhodri. “James D. Wright, Peter H. Rossi, Kathleen Daly, Under the Gun: Weapons, Crime and Violence in America (New York: Aldine, 1983). Pp. Xviii, 342.” J. Am. Stud. Journal of American Studies 18.02 (1984): 283.

22 Kachur, S. P., Stennies, G. M., Powell, K. E., Modzeleski, W., Stephens, R., Murphy, R., ... Lowry, R. (1996). School-Associated Violent Deaths in the United States, 1992 to 1994. JAMA: The Journal of the American Medical Association, 275(22), 1729-1733. doi: 10.1001/jama.1996.03530460033027 23 Killias, M., Rehbinder, M., & Hirsch, E. E. (1993).

Cross-border crime. Amsterdam: Kugler Publications.

24 Tonso, W. R. (1983). Social Science And Sagecraft In The Debate Over Gun Control. Law & Policy, 5(3), 325-343. doi: 10.1111/j.1467-9930.1983.tb00302.x 25 Ibid.

26 Ibid.

27 Ibid.

28

2016

Non-Refoulement:

History and Modern Challenges May White-Vilmouth

29

Source: theblaze.com

The Pre-Law Review One of the cardinal rules of international law regarding the status of refugees is non-refoulement, expressed by Article 33 of the 1951 United Nations Convention on the Status of Refugees. Nonrefoulement forbids states to either expel or return refugees to situations in which they might face persecution, or where their basic human rights may be at risk. However, section 2 of the Article 33 states that a refugee for, “whom there are reasonable grounds for regarding as a danger to the security of the country” may not claim the benefits of the provision. The broadness of the article’s language has permitted a number of exceptions, which poses a threat to the preservation of non-refoulement and may result in the exclusion of legitimate refugees from protection. This issue is especially pertinent in regards to the ongoing Syrian refugee crisis as well as in the wake of the recent Paris attacks. In order to prevent countries from refusing entry to refugees who do not pose a threat to national security, Article 33(2) should be revised.

a

“The turning back of a refugee to the frontiers of a country where his life or freedom would be threatened on account of his race, religion, nationality or political opinion would be tantamount to delivering him into the hands of his persecutors” -Article 33(1) The 1951 Convention relating to the Status of Refugees The 1951 United Nations Convention on the Status of Refugees was grounded in Article 14 of the Universal Declaration of Human Rights, which recognizes the rights of persons to seek asylum from persecution in other countries[1].

One of the cardinal rules of international law regarding the status of refugees is non-refoulement, expressed by Article 33 of the 1951 Convention. Non-refoulement forbids states to either expel or return refugees to situations in which they might face persecution, or where their basic human rights may be at risk.

Both the Universal Declaration of Human Rights and Article 33 illustrate the twentieth century concerns regarding the aftermath of the World Wars, and the need to find both relief, and a long-term solution for the displaced populations of Europe. Nonetheless, the influx of immigration and the global terrorist threat in a post-9/11 world has put non-refoulement to test. Article 33(2) states that a refugee for, “whom there are reasonable grounds for regarding as a danger to the security of the country” may not claim the bene-

b

fits of the provision. The broadness of the article’s language has permitted a number of exceptions, which poses a threat to the preservation of non-refoulement and may result in the exclusion of legitimate refugees from protection.

Article 33 has acquired the status of a non-derogable pillar of customary international law.1 Virtually all states have recognized that the principle of Article 33 applies to all refugees.2 Although Article 33 of the 1951 Convention is nonderogable, Article 33(2) does permit exceptional practices of “refoulement”.

It states that an asylum seeker, for who there are reasonable grounds to suspect that he or she is a risk to national security, or who has been convicted of serious crime, cannot gain refugee status. While states have an obligation to uphold national security especially in the face of imminent terrorist threats, there is the risk of governments using Article 33(2) to unfairly discriminate against asylum seekers.

In the wake of the 9/11 terrorist attacks, many Western countries, which are attractive for refugees, have established new anti-terror policies. The broadness of application of Article 33(2) highlights the possibility for states to use these exceptions to adopt measures that aim at countering the global terrorist threat.3 This has negatively impacted the type of protection that is offered to refugees. Thus, the

30

2016 broad language of Article 33 has allowed for extensive protection of refugees, but may now have the unintended effect of denying asylum. A government’s tendency to prioritize their own security in the wake of terrorist threat therefore threatens both the rights of asylum seekers as well as the compliance to international refugee policy.

The current conflict in Syria has catalyzed the movement of desperate populations where an estimated 4 million refugees have resettled in neighboring countries.4 As a result of the deteriorating conditions of refugee camps across Lebanon, Turkey and Jordan, many refugees are risking their lives to reach Europe.

Although social and economic consequences of housing refugees are an issue for host countries, the major concern for European governments is the threat of terrorism.

The Paris attacks of November 13th 2015, in which one of the suicide bombers was carrying a Syrian passport, is a prime example of how the legitimate fear of terrorism is weighty for international refugee policy and the compliance of non-refoulement. The attacks raise important ideas regarding refugee status and the importance of non-refoulement, even in light of such attacks. The attacks can instigate a general fear of foreign populations, which are seen as potential threats to national security. As a result of this, countries may look to reject a higher number of refugees, leaving them to suffer in their current situations, which in turn can lead to the possibility of certain refugees being radicalized by terror groups such as IS. Nonetheless, the UN Secretary-General Ban Ki-Moon stresses that the rights to asylum and non-refoulement must be upheld even in the wake of these new terrorist attacks.5 Non-refoulement, as a cardinal rule, must apply to all the signatory states without exception. However, the rapid

changes in our globalized world have impeded international refugee policy as a whole, as states tend to act individually in response to new forms of international threats. The ambiguity of Article 33(2) may result in the misapplication of the law, which may be one of the biggest challenges to the adherence of non-refoulement. Thus, Article 33(2) should be revised in order to prevent countries from refusing entry to refugees who do not pose a threat to national security, as exemplified in the Syrian refugee crisis, where countries like the United States have been increasingly cautious in accepting refugees. As the state of the world is constantly changing, international law must change and adapt with it to retain its universality. ________________ 1 Klug, Anja, and Tim House. “The Concept of State Jurisdiction and the Applicability of the Non-refoulement to Extraterritotrial Interception Measures.” Extraterritorial Immigration Control: Legal Challenges. By Bernard Ryan and Valsamis Mitsilegas. Vol. 21.

Leiden: Martinus Nijhoff, 2010. N. page. Print.

2 Goodwin-Gill, Guy. “Non-refoulement in the 1951 Refugee Convention.” The Refugee in International Law 3rd ser. (2007): 201-84. (204) 3 Farmer, Alice. “- Non-Refoulement and Jus Cogens: Limiting Anti-Terror Measures That Threaten Refugee Protection.” Georgetown Immigration Law Journal 1 (2008): n. pag. Web. 6 Apr. 2015.

4 UNHCR. “Syria Emergency.” Syria Crisis. UNHCR, n.d. Web. 22 Nov. 2015. <http://donate.unhcr.org/international/syria>.

5 UN News. “Ban Warns of “misplaced Suspicions” of Muslim Refugees, Migrants after Terrorist Attacks”” UN News. United Nations, 20 Nov. 2015. Web. 22 Nov. 2015.

31

The Pre-Law Review

Colonial Terror and Indigenous Tobacco: A Critical Analysis of Bill C-10 Sarah Pringle

32

Source: rand.org

2016 The enactment of Bill C-10 has disadvantaged Indigenous communities in Canada, as it outlaws the distribution, sale and possession of Tobacco produced on reserves. In addition to criminalizing one of the most profitable Indigenous products, it is argued that the bill allows for the Canadian government to dominate the people of these communities. The Bill establishes principles prevalent in colonization, where the government exercises complete social, economic, and political control over the Indigenous bodies. Bill C-10 grants a surveillance program which permits the justice system to excessively target Indigenous people, prevents the sale of Tobacco products that would undermine the potential revenue and prices of Canadian taxed products, and insinuates the Indigenous people as lawless, to justify laws that restrict Indigenous autonomy.

a Though tobacco has long held a special place in Mohawk traditions and practices, in recent years it has become a profitable commodity on many First Nations reserves. This is particularly true with respect to Ahkwesáhsne, a Mohawk community whose traditional territory stretches across the borders of New York, Ontario, and Quebec. In November 2014, the Canadian federal government passed Bill C-10, otherwise known as An Act to Amend the Criminal Code (Trafficking in Contraband Tobacco), creating a new criminal offence for trafficking ‘contraband tobacco’ and installing minimum penalties of imprisonment and fines for repeat offenders. Bill C-10 criminalizes First Nations tobacco producers for exercising their right to free trade with Mohawk partners, as well as Indigenous consumers who possess tobacco produced and distributed on the reserve.

In response, there has been widespread resistance to the law

by Aboriginal leaders, the Chiefs of Ontario calling it a, “direct attack on the livelihood of First Nations people.” To trace the logic of this resistance, it will be argued that Bill C-10 places Indigenous communities under the authority of the Canadian criminal justice system in service to the ongoing colonial legacy: wherein, the Canadian state continues to exert social, economic, and political control over Indigenous bodies. By constructing Indigenous tobacco as a

b criminal activity, the Canadian state justifies the surveillance and incarceration of indigenous bodies. Moreover, the law promotes the economic interests of the Canadian political and economic elite, while subverting Indigenous commercial systems. Finally, by capitalizing on the historical trajectory of colonial ‘civilizing missions’, the Canadian state frames these communities as lawless and ungovernable in order to justify the statute’s cunning undermining of Indigenous sovereignty.

Tobacco is deeply embedded in the social fabric of Mohawk peoples in Ahkwesáhsne ; yet, in the years following the collapse of the World Trade Towers in 2001, the border community’s tobacco trade has become known as a terrorist threat. In 2013, the MacDonaldLaurier Institute published a study titled Border Integrity, Illicit Tobacco, and Canada’s Security, in which it identified ‘contraband tobacco’ in Ahkwesáhsne as a major threat to Canadian national security.

Similarly, the Canadian government argues that given its geopolitical location, Ahkwesáhsne can facilitate international smuggling of ‘contraband tobacco.’ It is contended that several organized crime groups take advantage of this situation for more serious crimes: “many of the same organized crime groups that are involved in contraband tobacco are also involved in illegal activity, such as the smuggling

33

The Pre-Law Review of drugs, humans and arms.”

Indigenous leaders were quick to dispute these claims surrounding the tobacco industry in Ahkwesáhsne. In response to the Macdonald-Laurier study, Grand Chief Mitchell of the Mohawk Council of Ahkwesáhsne maintained that, “there is no evidence that tobacco smuggling in this area contributes in any form to terrorism or mafia crime.” Gary Kinsman argues, in Whose National Security?, that the Canadian state has mobilized the cause of ‘national security’ against a number of oppressed groups within Canadian society. His writing serves as a reminder that it is important to question what, or whom, the state constructs as a threat. The Institute’s research, as well as other corresponding ideas about Ahkwesáhsne tobacco, helps clear a path for the state’s agenda: the expansion of colonial power in Indigenous communities.

In declaring a threat of ‘terrorism’, the state creates an atmosphere of urgency that calls for the implementation of a security culture in Ahkwesáhsne. In 2014, the Canadian state allocated over 90 million dollars to the RCMP for the extension of a surveillance program in Ahkwesáhsne, citing the threatening presence of tobacco smuggling in the region. Through the implementation of the new surveillance infrastructure, the Canadian government installs a watchful gaze over Ahkwesáhsne, identifying and regulating Indigenous inhabitants. This implementation has already produced ‘criminal’ bodies for the colonial legal system: 28 arrests of alleged tobacco smugglers were made in the spring of 2014. C-10 follows a long history of laws that disproportionately target indigenous populations with discernible consequences—namely, their overrepresentation in the criminal justice system. The regulation, criminalization, and incarceration of Aboriginal bodies is made possible by laws like C-10. The

threat to Indigenous livelihood continues, as there is an increase of power of the Canadian state over First Nations communities.

The culture of heightened security coincides with the advancement of state and bourgeois economic interests.

Ahkwesáhsne’s lucrative tobacco industry technically owes substantial levies to the government; under Section 87 of the Indian Act, tobacco products are sold without Canadian federal tax on reserves, resulting in considerably cheaper pricing compared to Canadian taxed goods. Up until now, this fact has also denied the State tax revenue from Indigenous tobacco products. Yet, Bill C-10 directly rectifies this issue. The statute prohibits the selling, offering for sale, transportation, delivery, distribution or possession for purposes of sale of nontaxed tobacco products.

Furthermore, compulsory minimum fines are paid directly to the Canadian state. Thus, the Canadian government financially benefits through the new law. Additionally, Bill C-10 promotes the economic interests of Canadian tobacco companies. In fact, Canada’s largest tobacco company noted their role in pressuring the government to pass a statute like C-10: “for many years we have been working to impress upon various levels of government how serious and rampant the illegal trade in tobacco has become in Canada” . Thus, while hampering the profitable Indigenous tobacco industry, Bill C-10 shores up the economic interests of the State and Canadian business elites.

The final, and perhaps most critical, reason why Bill C-10 acts in service to the enduring colonial legacy is its reflection of the perseverance of the colonial desire to conquer and civilize the lawless land of Aboriginal peoples. Audra Simpson notes how representations of Indian “lawlessness” does not begin with Mohawk “cigarette smuggling,”

34

2016 but that it, “extends back to the earliest moments of recorded encounter, when Indians appeared to have no law, to be without order, and thus, to be in need of the trappings of civilization.” The State’s desire to police tobacco smuggling revitalizes an understanding of Aboriginal territory as a lawless frontier that must be governed; Bill C-10 is only the most recent expression of this logic.

Bill C-10 continues the Canadian state’s colonial war against Indigenous peoples. Its armory consists of mass imprisonment, economic repression, and the socio-legal apparatus of the Canadian state. In order to justify this campaign, the Canadian state constructs Indigenous tobacco as a threat, which in turn, necessitates the surveillance, criminalization, and incarceration of Indigenous bodies under Bill C-10.

Furthermore, the law guards the economic interests of the Canadian political and economic elite over those of Indigenous peoples. Citizens across Canada are witnessing the continuation of this war’s historical ‘civilizing mission,’ under which the State justifies its continuing undermining of Indigenous sovereignty in Ahkwesáhsne. Under the semblance of the Canadian Criminal Justice system, the colonial war quietly creeps forward, terrorizing the social, economic, and political livelihood of Indigenous people. ________________

Integrity, Illicit Tobacco, and Canada’s Security. (MacdonaldLaurier Institute for Public Policy, 2013.)

7. Nicol & Bernal-Castillero, supra note 1, at 3.

8. Id, 3.

9. The Mohawk Council of Akwesasne. Mohawk Council: Tobacco Smuggling Study Poorly Researched, Misleading. (Mohawk Council of Akwesasne, 2013.) Available at http://www.akwesasne. ca/node/315.

10. Kinsman, Gary William. Whose National Security?: Canadian State Surveillance and the Creation of Enemies 4 (2000).

11. Id, 4.

12. Government of Canada. Enhancing Support to Combat Contraband Tobacco. Available at http://actionplan.gc.ca/en/ initiative/enhancing-support-combat-contraband-tobacco.

13. CTV Montreal, Police arrest 28 in tobacco busts. CTV News Montreal, April 30th, 2014, http://montreal.ctvnews.ca/police-arrest28-in-tobacco-busts-1.1799019.

14. Indian Act, R.S.C., 1985, C. 1-5.

15. Nicol & Bernal-Castillero, supra note 1, at 4.

16. Id, 8.

17. Caroline Ferland, Bill C-10 takes aim at illegal tobacco. CNW, Oct 15, 2014. http://www.newswire.ca/en/story/1428262/bill-c-10takes-aim-at-illegal-tobacco 18. Audra Simpson. Subjects of Sovereignty: Indigeneity, the Revenue Rule, and Juridics of Failed Consent, Law and Contemporary Problems, 71 (2008).

1. Nicol, Julia, and Miguel Bernal-Castillero. Legislative Summary, Bill C-10: An Act to amend the Criminal Code (trafficking in contraband tobacco). (Parliamentary Information and Research Service, Economics, Resources, and International Affairs and Legal and Social Affairs, p. 5-9, Nov 2013, Publication No. 41-2-C10-E). Available at http://www.parl.gc.ca/Content/LOP/ LegislativeSummaries/41/2/c10-e.pdf 2. id, 8-9.

3. Moir, Matt. Bill C-10 will hurt First Nations communities.

Rabble.ca, September 5, 2014. http://rabble.ca/news/2014/09/bill-c10-will-hurt-first-nations-communities.

4. Chiefs of Ontario. News Release. (Chiefs of Ontario, June 2014).

Available at http://www.chiefs-of-ontario.org/node/866 5. The Haudenosaune Confederacy Council. Haudenosaune Confederacy Council issue Official Statement on Bill C-10. (Two Row Times, June 13, 2014.) Available at http://www.tworowtimes. com/bill-c10-2/haudenosaune-confederacy-council-issue-officialstatement-on-bill-c-10/ 6. Daudelin, Jean, Stephanie Soiffer, and Jeff Willows. Border

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The Pre-Law Review

Judicial Decision Making Clarisse Olhaberriet ArtorĂŠ

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Source: Ottawamuseums.com

2016 When applying written law to particular cases, judges rely on the intent of the law’s framers, precedents, interpretation and personal predispositions. In order to provide a semblance of stability, an overarching principle in judicial decision-making is to apply law equally, which involves interpreting the law as it is written and how it has traditionally been applied. But, in cases of extenuating circumstances such as survival cannibalism in Queen vs. Dudley, ignoring the context by applying the pertinent law traditionally would result in an arguably unfair judgment. The same problem occurs in cases that challenge the norms and social mores of past generations: should judgments be catered to reflect current beliefs or would this challenge the firmness of law in general, as judges would be creating rather than applying the law? The need to determine when to abandon precedent and when to adhere to it makes the personal biases and moral beliefs of judges inherently part of the judicial decision making process.

a

Famously recognized as one of the most important cases in English common law history, the Queen versus Dudley case presented a question regarding the appropriate balance between the written law and its interpretation. Following a shipwreck, several sailors and a cabin boy were stranded in open water. On the twentieth day, after seven days without food and five days without water, the sailors resorted to killing the cabin boy, already nearing death, in an act of survival cannibalism. Lord Coleridge, the judge who oversaw the case, was faced with a complex decision: was it just to take the life of one person in order to save the lives of others, or was this simply a case of murder? One of the core principles of rule of law is that judges are to apply the law and not make it, allowing everyone to have an unambiguous account of their rights. However, should room not be left for judges to use their personal values and morals?1 Finding the right balance between respect for the law and a fair decision is a challenging task. What if there are extenuating circumstances, such as those of the Dudley case? Court decisions result from a complex calculation between the law as it is written and the context in which it is applied. Ambiguities arise when judges are faced with unique circumstances that may justify exceptions to the written law. Sections of the Canadian

b

Charter of Rights and Freedoms require interpretation: for instance, Section 7, which states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.2 These considerations are quite challenging for judges, as they must decide what the fundamental principles of justice are and how they should be upheld. In this decision making process, four key factors emerge: precedent, framer’s intent, statutory interpretation, and policy preference.

The Supreme Court has created precedents, which are guidelines based on past judgements to be followed by other courts moving forward. Precedents are founded on the doctrine of stare decisis, meaning “let the decision stand”. Precedents are seen as a vehicle for stability in the law, but their role has also generated critiques on the grounds that it could lead to problematic results if followed inappropriately. If the precedent is fixed in time and does not evolve with societal progress, could it not be said that it may lead to inapplicable results?

Another factor that judges consider is framer’s intent, that is – the way in which the law was originally prescribed. Yet, we no longer live in the same world in which we lived when the Constitution was written, and laws must evolve with new societal values. The Constitution is portrayed

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The Pre-Law Review as a living tree, that is, it will develop alongside societal norms. Judges must consider these developments when dealing with original prescription of the law.

The other determinant factor lies around the interpretation of the law.

This is where judges disagree and diverge: the plain text approach argues that the only reliable source should be the text along with its basic and ordinary meaning. However, is this not a simplification of the law? The new approach, called the Driedger approach, states that the judge should always consider the text, the context, and the objective.

This is where it becomes evident that morality and personal values influence the judicial decision-making process.

The final factor is the policy preferences of the judge. This is where their personal background is intricately related to the way in which they approach the decision making process.

The existence of policy preferences may produce decisions based not on the principles of justice, but rather on the biases and predispositions of judges.

Answering the question â&#x20AC;&#x153;to what extent can judges fairly use their standards of morality and personal values when interpreting the lawâ&#x20AC;? presents difficulties, as it depends on each judge as a person and on the case itself. There may always be this dichotomy that is inherent to the law, yet one thing is for certain: Canadaâ&#x20AC;&#x2122;s constitution is a growing tree and judges must flourish alongside it; constantly developing judicial standards in accordance with an ever-evolving society. ________________ 1 David Dyzenhaus, Sophia Moreau & Arthur Ripstein, Law and Morality, Readings in Legal Philosophy. 106. (2007).

2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

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2016

Public Opinion:

Reinforcing The Judicial System Kate (So Eun) No

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Source: iPolitics.ca

The Pre-Law Review

Many judicial cases are covered by the media, from local issues to national concerns. Regarding controversial matters, sometimes, Supreme Court justices do not consider public opinion in their judgements. This article argues that public opinion should be taken into account by Supreme Court justices in order to align with societal values. This is relevant because evolving values outweigh constitutional statutes. Also, policy implementations and legitimacy of the Court are other important aspects to consider when taking judicial decisions. Those decisions must be able to strengthen the political process and maintain people recognition of Canadian law.

a The Supreme Court of Canada continues to assert itself as one of the most prestigious institutions in the country.

Its power is legitimized by the Constitution, and therefore, the decisions made by the Supreme Court greatly impact Canadian society, from a mere influence of one’s thoughts to major public policy change. It is recognized as a symbol of unequivocal justice, thus adding to its legitimacy. While the decisions must be free from any bias, it cannot be denied that decisions are influenced by several elements. One of the many factors that play a significant role in judicial decision-making is public opinion: an aggregation of individual thoughts that reflect the views of the majority. Justices of the Supreme Court should value public opinion to allow its influence on controversial matters in order to stay in accordance with evolving societal values, to strengthen policy implementations, and to maintain the legitimacy of the Court.

Public opinion is relevant in modern contentious cases because of evolving societal values that clash with the Canadian Constitution. The living tree doctrine allows the Constitution to be read in a broader interpretation within its natural limit so that it conforms to society’s evolving values. The Constitution had been written in flexible terms in order to serve various issues in the long-term without having to go through frequent

b amendments; however, as society’s values continue to change, it is an arduous task to strictly adhere to the Constitution.

Although the document can be interpreted broadly, regarding certain contemporary issues, some statutes of the Constitution many not reflect public opinion.

Some societal values held today are not represented by the antiquated Constitution, thus reflecting a lack of modernity.

Subsequently, when it is applied to such cases, the result appears contradictory to the majority’s opinion. Outcomes concerning controversial legal issues should be plausible and justified to the majority of Canadians. The Canadian legal thought has held that “judges do not, and should not, “make law”. It is something that already exists and the [role of] judges is to merely discover its meaning and declare it” [1]. While placing preference over the Constitution to the public opinion clearly encroaches this terminology, such encroachment is necessary because societal developments are inevitable.

While the Constitution provides the fundamentals to each and every decision, it is important to take greater consideration of modern popular opinion as opposed to the outmoded values of 1867 and 1982.

Aligning with public opinion allows the Supreme Court to strengthen policy implementations. Whether a justice adopts a policy-making approach or an adjudicatory approach has significant political im-

40

2016 plications. Since 1982, the policy-making approach, which allows judges to keep the law “in tune with the times” and to arrive at “just” decisions in the circumstances [2], has been popular amongst the justices. Additionally, the Court has successfully maintained its effectiveness as a policy-making body by adopting this mindset. This allows the institution to exercise a considerable amount of impact on public policy changes. According to Hausegger, the Courts’ justices may be concerned with the external environment to not only strengthen their decisions, but also to further their policy goals [3].

Public support when attempting to further pursue a policy goal is vital, since it decreases the chance for a certain decision to be interfered with by other branches of the government. Going contrary to the majority may provide a legitimate reason for the other branches to question the validity of the decision. With support, however, it makes it tremendously challenging for the other branches to interfere, as they may be subjected to disapproval by acting in contrary to the public opinion.

Valuing public opinion is important in protecting the Court’s legitimacy. Justices, far from being immune to societal views, are profoundly concerned about defending the legitimacy of their institution [4]. According to Baum, the ideological stance of the public may influence the Court by forcing the latter to move in the same direction [5]. Public’s ideology plays quite an important role on the Court.

From Baum’s statement, it can be inferred a decision going contrary to public opinion can affect people’s recognition of the judicial body. In order for the Court to exercise a considerable amount of impact among the population, its importance in our society must be maintained by sustaining the thoughts and needs of those that it concerns. In order for the justices to remain significant, it must therefore come in alignment with the public’s voice.

One might counter argue that if the Supreme Court is swayed easily by public opinion, the Constitution would lose its relevance. While reflecting the current societal values remains an important task for justices, public opinion is not binding, like law and precedents. Due to its volatility, it cannot serve as a firm ground for the basis of every decision. Therefore, the Constitution is relevant because it provides a basis for justices’ decisions. The loss of legitimacy and impartiality that arises from this issue should be considered of greater urgency than the loss of legitimacy from the lack of public support.

The Supreme Court must be careful in holding its impartiality by continuing to refer to the Constitution. In addition, the influence of the majority should only matter for controversial cases that trigger strong public sentiment. Public opinion, when negligible, is irrelevant regarding uncontroversial matters. By referring to society’s beliefs, this can undermine the legitimacy of the Court’s decision in those cases. It could also set a convention by always referring to public opinion, and possibly result in a perversion of justice. The effect of public opinion is only important for the cases that are too vague or produce unacceptable conclusions.

Moreover, if the decisions of the Court meet the similar direction of public opinion, this does not suggest that justices have allowed public opinion to exercise influence upon them – perhaps the same force that moved the public opinion has had the same effect on the justices.[6] It is difficult to determine whether the Court’s decision mirrored the public opinion, or both were simply influenced by the same factors. However, both are relevant in providing legitimacy to the Court.

The Supreme Court of Canada holds an important role by not only enforcing legal measures to keep our society civilized, but also in preserving the tradition and heritage of our country inherent in

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The Pre-Law Review the Constitution. As the country continues to evolve with the progressive societal values that are to occur, the Constitution cannot transform in such a fluid manner. Furthermore, the personal values and pursuits of the judges, no matter how impartial the institution is, cannot be ignored. In order for the survival of this judicial body, its legitimacy must continue to stem from the very source of its power – the people. “Without the anchor of absolutes, there is no stability for society” [7]; however, when the anchor keeps the boat from moving forward, a re-adjustment is warranted. ________________

[1] F. L. Morton, “Political Jurisprudence”, Law, Politics, and the Judicial Process in Canada (Alberta: University of Calgary Press, 2001), p. 31 [2] Lori Hausegger, Matthew Hennigar and Troy Riddell, “An Introduction to Politics, Law and the Judicial Process”, Canadian Courts: Law, Politics and Process (S.I: Oxford University Press, 2015), p. 20 [3] Hausegger et al., Canadian Courts; Law, Politics and Process, p.

128 [4] Donald Songer, C. L. Ostberg, Matthew E. Wetstein, and Susan W. Johnson. Law, Ideology, and Collegiality: Judicial Behaviour in the Supreme Court of Canada. (Montreal and Kingston: McGill-Queens UP: 2012) p. 63 [5] Lawrence Baum, “Decision Making”, The Supreme Court (Washington D.C: CQ, 2010), p. 141-142 [6] Hausegger, Canadian Courts: Law, Politics and Process, p. 129 [7] Blackman, Lorne, “Why Do We Need a Constitution”, Jaredstory. com, Dec 16, 2000. http://www.jaredstory.com/the_constitution.html

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2016

Canadian Law Schools: Which Is Right For You?

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Source: Pixgood

The Pre-Law Review

McGill University

pic here

The McGill Faculty of Law is comprised of a diverse community of intellectuals in the pursuit of justice and excellence from all around the world. Our students go through a rigorous curriculum that develops their problem-solving skills, critical thinking and academic creativity while building bridges across languages and jurisdictions.

The Faculty offers a bilingual transsystemic program that creates a dialogue between civil law and common law. Our program allows students to receive two law degrees, a B.C.L. and a L.L.B, from McGill University. The two law degrees can even be combined with a joint MBA or Master of Social Work program. Recognized nationally, and internationally, The Faculty of Law at McGillâ&#x20AC;&#x2122;s integrated approach is unparalleled.

Beyond the classroom, students at McGill can get involved in law through the Moot Court team, Legal Information Clinic at McGill, student clerkships, exchange programs, or even write for and produce one of our three highly respected law journals.

We also hold a plethora of networking opportunities for students to meet potential employers as well as various seminars by experts on specific issues in the legal field.

McGillâ&#x20AC;&#x2122;s law program fosters opportunities in the legal field everywhere from Montreal to the United States and beyond. The cohesive program qualifies students for the

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2016 Bar Admission Program in all provinces of Canada as well as the U.S. states of New York and Massachusetts. This has resulted in a strong network of alumni who have served on myriad courts, including eight in Canada’s Supreme Court. Over the past 150 years, our graduates have also held political office and many manage renowned law firms in Canada and the United States.

Our law professors work towards inspiring the next generation of lawyers, judges, and businesspeople to break down geopolitical barriers so that they can help solve the legal issues facing our world today.

My name is Dan and I am a second-year student at McGill University’s Faculty of Law. One very prominent and defining feature of our Faculty is the Transystemic Program where students learn both the French (Québec) Civil Law and the Canadian Common Law legal system concurrently. While McGill is most proud of this unique program, I believe that its fundamental approach to the law is what sets it apart from other schools. At McGill, professors not only seek to demonstrate to students what the law is and how to apply it, but most of all, they hope to teach why the law exists. Whether it be a Supreme Court Constitutional Law case or a Civil Law Property doctrine, we as a class will always try to understand why the judge decided the case or why the legal scholar interpreted the codal article in the way they did. Through this understanding, we as jurists, are able to adopt a critical and holistic approach to legislations, doctrines or cases studied in class. Ultimately, McGill Law forces its students to look past a simple interpretation and application of the law and engages them to innovate, enrich and reconstruct their understanding of it. To me, this is what leads to the unique and well-rounded approach to the Law found at McGill.

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The Pre-Law Review

Osgoode Hall

Internationally renowned as one of Canada’s largest and most distinguished law schools, Osgoode Hall Law School offers an extraordinary legal education. With some of the world’s leading scholars comprising our full-time and adjunct faculty, students have the unparalleled opportunity to learn from, and work with, Canada’s top legal minds. Within our state-of-the art, student-centred facility, students are exposed to a rich, innovative and interdisciplinary curriculum. Our tremendous array of upper year seminars, lectures, special programs and optional curricular streams allow students to tailor their academic program to suit their unique interests and career aspirations.

In addition to our three-year Juris Doctor program, Osgoode offers four joint degree programs: JD/MBA, JD/MES, JD/MA (Philosophy) and JD/BCL (with the Université de Montréal).

Osgoode is renowned for leadership in innovative legal education. We were the first Canadian law school to introduce a public interest graduation requirement, and the first to establish an Office of Experiential Education, which offers a multitude of handson learning opportunities. Students can choose from over 16 clinical and intensive programs, develop their advocacy skills in mooting and lawyering competitions, provide free legal services through Pro Bono Students Canada, and participate in high school student outreach through Law in Action Within Schools. They can also gain international experience through exchange programs and a diverse array of summer internships.

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2016 Our holistic admissions policy ensures excellence and diversity among our students.

They can become involved in the Law School by joining one of more than 45 student clubs and organizations, volunteering at our onsite legal aid clinic, writing for the student newspaper, or appearing in our annual revue, Mock Trial. Many students live steps away in the Law School’s dedicated residence apartments, Osgoode Chambers.

Osgoode is committed to students’ academic, professional and personal success. The Career Development Office works tirelessly to help students define and achieve their career goals, through career coaching, résumé review, mock interviews, job postings, programming and workshops and networking events. Osgoode introduced the first Student Success and Wellness Counsellor at a Canadian law school – a professional lawyer and counsellor who provides support through individual counselling and wellness programing. We offer a full range of accommodations for students facing challenges because of physical, medical, sensory, mental health or learning disabilities.

Last year, Osgoode awarded more than $4.3 million in student financial aid. This year will mark the first year of our five-year innovative income contingent loan program, which allows five eligible students to pay no tuition while in law school, and instead repay their tuition after they graduate, if their income level permits them to do so.

Osgoode Hall Law School provides a multifaceted educational environment, which prepares students for a broad range of careers in private practice, policy development, business, government, politics, social activism, the judiciary or academia. As an Osgoode graduate, you will join a community of 15,000 Osgoode alumni shaping the legal landscape in Canada and beyond.

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The Pre-Law Review

University of Toronto

I remember thinking that I’d never study at U of T. I thought fleetingly about law school while I was an undergraduate student at McGill.

As a student in Political Science and International Development Studies who wasn’t entirely certain what his future held, I considered law to be a logical next step. I enjoyed the intellectual challenges that many of my courses offered. I liked the thrill of long hours working with my peers as President of the Inter¬Residence Council and the Arts Undergraduate Society. I wanted to study something that would enable me to make an impact in my community, whatever that community was.

But while I liked the idea of studying law, I never considered pursuing that course of study at the University of Toronto. I didn’t think I’d get in. More importantly, I didn’t think I’d want to.

I had heard that U of T was the most competitive place to study law in Canada. The smartest, most cut¬throat A¬types in the country getting together in their spare time to discuss the latest Supreme Court of Canada judgment? Thanks, but I’d pass. I had done well in my undergraduate studies, and I was keen to understand the law. But I wasn’t ready to leave what I had become accustomed to at McGill ¬ a group of peers whose intellect was matched by their collegiality and enthusiasm for the intrinsic value of learning.

So, it was with great enthusiasm that I started my law degree at my old stomping ground of McGill in 2012. I wasn’t disappointed: the curriculum was challenging, my professors were approachable, and my peers were not only top¬ scholars, but great people as well. But as my knowledge of the law expanded, my end-¬goal of studying law grew more and more specific. I realized that what truly interested me was the intersection of law and public policy; the implications of law for decision-¬makers; and the role of the law in society writ large. I was learning the “what” of law, but I wanted to know more about the big picture ¬ the “why” of the law – as well.

I decided that I needed to complete a Master’s of Public Policy (one of the few degrees that McGill regrettably does not offer), and that it would be most valuable if I

48

2016 could pursue it concurrently with my law degree. In what I perceived to be a minor crisis at the time, McGill’s administration would not allow me to take a sabbatical from my law degree to complete a Master’s of Public Policy at another University. So I took a leap of faith and transferred to one of the few schools that offered a joint J.D./M.P.P. degree ¬ U of T. My accidental decision to become a U of T Law student turned out to become of the best decisions of my life.

All of the trepidation I harboured in my pre¬law school days came flooding back when I received my acceptance from U of T. But once I stepped on campus, those fears dissipated just as quickly. In place of cut¬throat competitors, I found life¬long friends.

Instead of menacing evaluators seeking perfect recitation of legal doctrine, I found professors whose passion for the law is inspiring (if not sometimes also the source of some bad puns). I found an environment in which students are encouraged to try out new and varied experiences to truly understand what it means to work with and in the law.

The proximity of U of T to Bay Street, to all levels of Ontario Courts, to the seat of provincial power and to the provincial tribunals for human and workers’ rights gives us a unique opportunity to learn from and work with the people at the top of all aspects of the legal profession. As a U of T Law student, I have had the opportunity to participate in two different clinical legal educational programs, helping secure compensation for injured workers at one, and learning first¬hand about constitutional litigation at the other. By third year, I had mooted in front of two Supreme Court of Canada justices as part of the national Laskin moot, and U of T’s Grand Moot. Off-¬the-¬wall elective courses had enabled me to simulate a criminal trial at the Ontario Superior Court of Justice in Toronto, to learn about contracting risks in Public¬Private Partnerships, and to write a paper statistically analyzing judicial decisions. With my final semester around the corner, I have had the privilege of working with a close¬knit team of my peers at a law firm on Bay Street (three subway stops away from the University), and I’m looking forward to starting my career with more close friends from U of T at a firm in New York next year. Importantly, through each of these experiences, I forged life¬long relationships with people who will be at my side in work and in life for many years to come.

U of T gets a particularly bad rap for being a highly competitive place. While it’s certainly true that admission to U of T is competitive, the atmosphere is anything but. The courses are quite challenging, and there is always ample support from your professors and peers. As a U of T student, I am constantly in awe of the brilliance of my peers and friends, whether we’re having a class discussion, or having a drink at our weekly pub night. It’s a place where students are encouraged to be the best they can be at whatever area of the law interests them – and at which we uniquely have the resources to meet that goal.

My only regret is not having thought about a legal education at U of T earlier.

Dave Marshall 4L (J.D./M.P.P., 2016) Faculty of Law School of Public Policy & Governance University of Toronto Please feel free to be in touch with the author at da.marshall@mail.utoronto.ca

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The Pre-Law Review

Queens University

The Faculty of Law at Queen’s University is housed in Macdonald Hall, at the hub of a compact campus. It is located within walking distance of historic downtown Kingston and the shores of Lake Ontario. Kingston lies halfway between Toronto and Montreal and is easily accessible by car, train, bus or by air. For more information, please see http://www.queensu.ca/discover/visit and watch the video at http://www.queensu.ca/ discover/queenskingston.

Queen’s is one of Canada’s leading law schools, known for the academic excellence of its curriculum.

Our Faculty also provides students with an unrivaled range of international and experiential opportunities. We offer programs in international law at the Bader International Study Centre at Herstmonceux Castle in England, and international exchanges to leading law schools in Britain, Europe, Asia, Israel, South Africa, Australia and New Zealand. Almost one half of Queen’s Law students study abroad while pursuing their education with us.

Closer to home, our hands-on experiential opportunities include five clinics focusing on business law, poverty law, elder law, family law and prison law, now housed in a new state-of-art professional law firm setting in downtown Kingston.

We also offer one of the largest competitive moot programs in the country, internships with the federal government and community clinics, and various funded summer public-interest internships. Aspiring academics and law clerks can earn academic credit and gain practical legal skills as editors for the Queen’s Law Journal or the Canadian

50

2016 Journal of Labour and Employment Law. Each academic year, about 50 percent of our upper-year students are either engaged in competitive mooting or volunteering in clinics or editing our journals.

Applicants can consider applying to a full roster of interdisciplinary combined degree programs: Master of Public Administration-JD; Master of Industrial Relations-JD; Master of Arts (Economics)JD and Master of Business Administration-JD. A new opportunity is the Graduate Diploma in Business (GDB), a summer program offered by Queen’s School of Business which covers the foundational courses in the MBA at a fraction of the cost. Successful completion of GDB courses can be credited toward later completion of the MBA either during the JD program or up to ten years after. The GMAT test is waived for the GDB. Queen’s Law students can also study for a year after graduation at Université de Sherbrooke to earn a civil law degree.

Our residential setting in Kingston allows our students to live close to campus, avoiding long commutes and ensuring that the law school hums with activity from morning to night. A strong sense of community is a signature feature of our Faculty, providing a law school experience that is personal and collegial as well as challenging and stimulating.

Queen’s also takes pride in its outstanding placement rate, among the best of any law school in Canada. By the start of third year of studies, 75-85 per cent of the graduating class secures an articling position. In most years, 100 per cent of Queen’s students seeking articles are placed no later than six months after graduation.

Queen’s Law is the school of choice for law students seeking a first-class education, with an exceptional degree of student-faculty interaction, and with a unique array of international, interdisciplinary and experiential learning opportunities.

See http://law.queensu.ca.

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The Pre-Law Review

University of Ottawa

Located in the heart of downtown Ottawa, within walking distance of Parliament Hill and the Supreme Court of Canada, the University of Ottawa provides the best opportunity in the world to study Canada’s legal systems in English or in French. With an emphasis on critical thinking skills, the Common Law Section’s solid curriculum can prepare students for any legal career in Canada or abroad.

Our programs concentrate on more than just the letter of the law; we address the spirit of the law and the ideal of justice. In our view, it is the duty of the program to respect and promote the full range of diversity reflecting the multi‐lingual, multi‐cultural and multi‐racial characteristics of the women and men in our programs and in Canadian society. Our students are Canada’s future leaders.

The Common Law Section offers one of the richest sets of course offerings in the world in a wide variety of disciplines, including International Law, Social Justice, Law and Technology, Environmental Law, Public Law, Health Law, Aboriginal Law and Dispute Resolution. Students can undertake their Common Law education in English, French or both.

With several prominent Research Chairs, and countless teaching and research award winners every year, Common Law’s faculty members are truly changing the way Canada’s legal system is practiced, taught and conceived. uOttawa’s law school hosts the Human Rights Research and Education Centre, the Centre for Law, Technology and Society, the Centre for Environmental Law and Global Sustainability, the Secretariat of the IUCN Academy of Environmental Law, the CGA Tax Research Centre, a Public Law initiative and a Health Law Group, all of which are engaged in cutting‐edge re-

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2016

search in their respective fields.

A variety of legal clinics operate in close conjunction with the law school, allowing students to earn course credit or undertake internships while working on real legal cases in environmental law, law and technology, human rights, business law or community legal issues.

Ottawa also offers wonderful opportunities to enjoy nature with nearby cycling paths, ski resorts, hiking in the Gatineau Hills, and the longest skating area in the world, the Rideau Canal.

Website: www.commonlaw.uottawa.ca Email: comlaw@uottawa.ca Phone: (613) 562â&#x20AC;?5800 ext. 3270

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The Pre-Law Review

McGill Pre-Law Students’ Society Executive Team, 2015-16

Back row: Meghan Collie (Editor-in-Chief), Gordon Lee (VP University Affairs), Nathaniel Kostiw-Gill (VP External), Brett Hartley (Co-President), Adam Sherman (VP Finance) Front row: Cat Guo (VP Internal), Juliette Mueller (Chair of Moot Court), Richad Hirani (Co-President), Maddy Sequeira (VP Communications)

McGill Undergraduate Moot Court Team, 2015-16

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McGill’s Undergraduate Moot Court Team has achieved a remarkable degree of success in its second year. The delegation grew in size with the addition of a number of talented students from a variety of faculties on campus. As its membership increased, so did the number of awards it has received since its founding. At Capital Cup, the first tournament of the year, all sixteen participants from the McGill delegation ranked among the top twenty-five highest-scoring mooters. In addition, three out of eight of the teams that broke to quarterfinals were McGill students. Out of seventy-one competing teams, three McGill teams placed within the top ten. The tournament ended with two Distinguished Oralist awards received by McGill students, as well as the award for Top Oralist, and the title of Finalists, being separated from winning the tournament by a single point. To date, McGill has won the Osgoode Cup, placed second in the Capital Cup for two years, and has received more than ten “Distinguished Oralist” awards.

In January of 2016 the Moot Court Team hosted their second-annual mooting tournament at Chancelor Day Hall, drawing contingents from York, and Toronto.

The delegation hopes to continue their successes at the upcoming Osgoode Cup.

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2016

A Few Words From Our Co-Presidents

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Dear Readers, Throughout the 2015-2016 school year, our editorial team has been hard at work writing, editing, fundraising and designing this year’s issue of The Pre-Law Review.

We have thoroughly enjoyed seeing their hard work come to fruition; evident in a finished prod¬uct the entire journal staff should be very proud of!

The McGill Pre-Law Students’ Society is an undergraduate club founded in 2009 that strives to provide invaluable opportunities for students interested in pursuing a career in law. In this short time the club has become an integral student resource for law school and beyond, serving 250+ members and growing every year.

The ‘MPLS’ hosts the Canadian Law School Forum, international law school presentations, guest lectures, speaker panels, and networking events. Students also participate in a growing mentorship program, Princeton Review LSAT seminars, application workshops – and of course, in the production of McGill’s preeminent undergraduate law journal. A favourite among members this year was Dr. Cassandra Steer, PhD. University of Amsterdam, who presented a fascinating account of her research undertaken at McGill’s Institute for Air and Space Law. Another highlight was the continued achievement of our MPLS Moot Court Team in only its second year. The team competed in Ottawa and Toronto with resounding success, nearly accomplishing a clean sweep with victory at Osgoode and a close second at Capital Cup. In addition, the MPLS and its Moot Court executive hosted an immensely successful 2nd Annual McGill Pre-Law Tournament at the Faculty of Law, featuring four other schools for the first time, and judged by McGill law students and practicing lawyers. Most importantly, the team has provided an opportunity for students to hone their advocacy skills in simulated court proceedings, preparing students for comparable competition at the law school level.

In 2016-2017, the MPLS hopes to build on the club’s success, hosting more events and establishing greater opportunities to further benefit our members. I encourage all McGill students interested in law to become a member and get involved, joining hundreds of fellow ‘Pre-Law’ students with likeminded interests and career objectives.

We’re always seeking feedback from students and would love to hear from you – be sure to like us on Facebook, explore our website, and please con¬tact us with any comments, concerns or suggestions. We’re here to help!

Congratulations to Meghan and the entire journal staff on a tremendous publication!

Sincerely, Brett Hartley & Richad Hirani Co-Presidents McGill Pre-Law Students’ Society president@mcgillprelaw.ca

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MPLSS and The Pre-Law Review wish to thank all their The Pre-Law Review

partners for their support.

The Pre-Law Review McGill Pre-Law Studentsâ&#x20AC;&#x2122; Society McGill University Leacock Building 855 rue Sherbrooke Ouest Montreal, QC. H3A 2T7 Cover Photography by Meghan Collie Journal Design and Layout by Jay Rajpal

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www.mcgillprelaw.ca info@mcgillprelaw.ca