Page 1

ISSUE 12 - March 11, 2013 obiter-dicta.ca

Submissions are due at 5 p.m. on March 16, 2013. Please send your articles to: obiterdicta@osgoode.yorku.ca

The Definitive Source for Osgoode News

The reason it’s ok to mess around with periods of limitation and speed limits and the number of times someone can be tried is because these are not inherent, pre-institutional rights. They are contingent.

” Questioning the right to due process KAROLINA WISNIEWSKI Opinions Editor

COME TO THE PEER SUPPORT CENTRE! JEAN-PAUL, A PEER SUPPORTER

Osgoode Peer Support Centre (OPSC): Changing the law school lexicon to include compassion, caring, and underMARIA KAIKOVA & PHI NGUYEN Contributors The Osgoode Mental Health Association (MHLS) and the Osgoode OUTlaws (Osgoode’s LGBTQA student organization) successfully launched the Osgoode Peer Support Centre (OPSC) on January 28th, 2013. This initiative grew out of a joint mission to create a safe, comfortable, accessible and welcoming space for students to combat feelings of isolation, stress, and lack of support. It was the appropriate next step after Osgoode’s appointment of a Student Success & Wellness Counsellor, Melanie Banka Goela. Melanie has been a great resource and supporter of the OPSC. While her professional counselling services have greatly contributed to the betterment of the student body, she sees value in creating a positive space wherein students can

relate their experiences and provide each other with support. She views this service as a muchneeded addition to the successful Mentor Program, which is primarily focused on academic and career advice. The OPSC fills an unspoken void, provides a platform for support based on shared experiences, and facilitates a strong sense of collegiality among Osgoode students. It is premised on a “care ethic” and the belief that a community reaches its full potential when its members uplift and support one another. The centre also serves as a hub of resources relating to mental health issues and it seeks to remove the stigma associated with mental health concerns.

Let’s be honest for a second: as a law student, filling your schedule with extra-curricular seminars and lectures might not seem like the most tempting way to spend free time. Wouldn’t it be nicer if we used that time to, I don’t know – top up the two hours of sleep we usually get? Or prepare a real meal, one that doesn’t consist of untoasted Pop Tarts and Red Bull? Or finally spend some time exercising outside after inhaling nothing but stale and dusty library air? Just joking about the last one – I would obviously catch up on the latest episode of Honey Boo Boo instead. True as all this may be, when I heard that Christopher Heath Wellman was coming to speak at the U of T Centre for Ethics, I was determined to be there – even if that meant falling behind on my reality TV schedule.

The OPSC has received a surprising amount of support from student volunteers who dedicate an hour of their time each week to staff the centre and respond to anonymous phone calls and

A philosophy professor at Washington University in St. Louis, Wellman’s research focuses largely on legal and political philosophy. His argumentation is always focused and sharp, and his ideas are daring. This time was no exception. The talk he delivered, “Rights Forfeiture and Procedural Rights,” argued for the idea that there is no general moral right to due process. Yeah, you read that right. Convicting people sans fair and public trials is sometimes ok. Outraged/incensed/shocked? Then you have something in common with the twenty or so people

» continued on pg 14

» continued on pg 15


page 2

OBITERdicta

The Definitive Source for Osgoode News Osgoode Hall Law School, 0014G York University 4700 Keele Street Toronto, ON M3J 1P3 E-mail. ObiterDicta@osgoode.yorku.ca Website. www.obiter-dicta.ca Twitter. @obiterdictaoz “Your health is bound to be affected if, day after day, you say the opposite of what you feel.” - Boris Pasternak, Doctor Zhivago (1957) Senior Editor-in-Chief: Nancy Situ Editors-in-Chief: Thomas Mastoras, Travis Weagant Business Manager: Adam Cepler Features Editor: Cass Da Re News Editor: Nadia Guo Opinions Editor: Karolina Wisniewski Arts & Culture Editor: Maximilian Paterson Sports Editor: Andrew Cyr Staff Writers: Citlally Maciel, Jihee (Marie) Park, Daniel Styler, Angie Sheep, Harjot Atwal, Michael Capitano Crossword: Emily Gray Contributors: Maria Kaikova, Phil Nguyen, Elena Iosef, Camille Dunbar, Marisa Lau, Jennifer Brown, Lucia Costa, Christina Lee-Chan, Lisa Ostrom, Setareh Nasseri, Carrington Hickey, Luis Quail, Erika Murray Layout Editors: Julia Vizzaccaro, Devin Santos, Patricia Wood, Wendy Sun Website Editor: Ricardo Golec Articles are due at 5 p.m. on March 16, 2013. The maximum length is 1200 words. Please submit articles in Microsoft Word format to obiterdicta@ osgoode.yorku.ca. Please attach photographs separately; do not include them in your Word document. The Obiter Dicta is the official student newspaper of Osgoode Hall Law School. The opinions expressed in the articles contained herein are not necessarily those of the Obiter staff. The Obiter reserves the right to refuse any submission that is judged to be libelous or defamatory, contains personal attacks, or is discriminatory on the basis of sex, race, religion, or sexual orientation. Submissions may be edited for length and/or content. The Obiter Dicta is published biweekly during the school year, and is printed by Weller Publishing Co. Ltd.

monday - march 11 - 2013

editorial

The writing’s on the wall It is difficult to overstate the importance of freedom of expression. It is more than a legal right. It is more than a constitutional right. It is a manifestation of human freedom at its most basic level. And it informs a number of other rights we cherish as Canadians. It is inseparably linked to democratic rights, religious rights, associational rights, and so forth. Universities and the academy have a unique role to play in its maintenance and advancement.

club’s beliefs. There is no shortage of ugly incidents of censorship across Canadian campuses. Universities must be incubators of critical thought and the free exchange of ideas – even controversial ones. This is essential to creating

Of course, freedom of expression is not without restriction. There is no proverbial right to yell “fire” in a crowded theatre. Some restrictions can be justified under section 1 of the Charter. The Supreme Court has, controversially, justified limitations on free expression in a number of cases, and most recently in IMAGE COURTESY OF CUPWIRE.CA; CONTROVERSY COURTESY OF CARLETON UNIVERSITY. its Whatcott decision. At the same time, consideration of freedom of expression questions has occurred in our school. Osgoode and the International Legal Partnership have laudably undertaken to promote freedom of expression. I was heartened to see free speech “posters” posted in the foyer of the law school in connection with this initiative. Freedom of expression is inextricably connected to freedom generally. To the extent that our institution is advancing this initiative in its international outreach, we should be rightly proud. I am likewise heartened to see the level of respect and tolerance toward the posters at Osgoode. A casual reading of the postings evidences some basic but, more importantly, respectful debate. This is a testament to our institution.

constructive learning environments and widening the ambit of human knowledge and inquiry. Students will not always agree with the ideas of other students or faculty, and in many cases there will be parties who are upset or offended. But universities in Canada must err on the side of free speech. It is not just a principle, it is the first principle.

Moreover, it stands in marked contrast to what transpired at Carleton University, where a selfappointed student “activist” tore down a free speech wall in light of comments the student did not agree with. There is nothing less progressive than this unsolicited act of censorship. It hearkens back to a similar ugly incident at Carleton, which sought to decertify a pro-life students’ club on the basis of its disagreement with the

On Thursday, March 14, come on down to the JCR for a gender-bending night of singing, dancing, beer, and fundraising. This year, the Obiter Dicta is proud to sponsor the one and only Mock Trial Band (they refused to change their name to The Obitoids), who will be there to alternately serenade and rock you. Also, Prof. Allan Hutchinson will be in high-heels.

duty to warn

Wendy Babcock Drag Show

Tickets are $10, and will be on sale in Gowlings Hall until they’re all gone. Don’t miss it.

The Obiter Dicta is a member of Canadian University Press.

the OBITERdicta


page 3

feature - health law

Osgoode’s inaugural Mental Health Awareness Week (MHAW): re-shaping the law school’s approach to promoting health and wellness among the student body ELENA IOSEF & CAMILLE DUNBAR Contributors This academic year, the Legal and Literary Society partnered with the Osgoode Mental Health Law Society (MHLS) and the Osgoode administration to deliver the first annual Mental Health Awareness Week (MHAW): Creating a Culture of Wellness from November 19th - 21st, 2012. The driving force behind MHAW stemmed from the widespread recognition that students were seeking opportunities to meaningfully engage and challenge the stigma associated with discussing mental health within the law school. Too often, students shy away from speaking out and to others about stresses brought on by a range of law school pressures, ranging from academic demands to personal relationship issues. This apprehension is complex and layered. Reluctance to discuss mental health can be rooted in a fear of appearing weak or ashamed, or an apprehension that some personal issues are insignificant and should not be discussed. With the myriad of barriers in mind, we wanted to start a conversation about mental health and wellness at Osgoode. As a result, Osgoode hosted MHAW to re-shape the way we construct and address mental health with the support and guidance of Melanie Banka Goela, the new Student Success & Wellness Counsellor, Dean Sossin and Assistant Dean Mya Bulwa, and the Osgoode administration. Our goal for MHAW was three-fold: 1) to initiate discussions about mental health in relation to legal advocacy and the Osgoode community; 2) to assist students in developing strategies to cope with personal stressors and promote mental well-being; and 3) to gather suggestions for ways we can strengthen Osgoode’s support for students. We kicked off MHAW with an insightful discussion panel led by Dean Sossin, “The Future of Mental Health Law and Justice.” Panelists Justice Richard Schneider and Kelly Bryan reinforced the idea that a better understanding of mental health issues is needed in different areas of the law. The panelists also stressed the importance of legal advocacy and the ways it can be improved through active listening and a compassionate understanding of client needs. Day 2 of MHAW featured a student wellness fair aimed at offering valuable insights into the range of support services and resources available at Osgoode and York more generally. With the help of adorable and friendly therapy dogs, we aimed to provide students with some of the varthe OBITERdicta

ious stress relief options available. In addition, we hosted the Student Conversation on Mental Health. The discussion included a diverse range of students who generously shared their experiences regarding mental health issues while at Osgoode. Students passionately brainstormed ideas to promote mental health and wellness at Osgoode and ways to build a stronger sense of community. We also hosted the “Healthy Food” student potluck, as well as yoga and mindfulness sessions to nourish the body, mind, and spirit. To be clear, this year’s MHAW was just the beginning. The Legal and Literary Society and the MHLS are committed to on-going reform and support for student wellness. Together, we are compiling a report with concrete, viable, and responsive recommendations for enhanced mental health supports and an Osgoode curriculum that addresses the unique concerns of first, second, and third year students as they transition through various phases of their law school career. The report will also detail the various changes that have been effected throughout the law school as a result of MHAW, including reform to student programs and support resources. The Mental Health Student Survey has provided us with valuable insight into the needs of Osgoode students, and we will endeavour to find solutions to offer a range of programming and resources that will take into account different experiences and stressors experienced by students while at Osgoode. Our goal is to better educate professors, administrators, and students about mental health biases and issues while offering various coping tools to effectively address personal, academic, and systemic challenges . We hope that this year’s MHAW will serve as a foundation for long-term Osgoode initiatives. We are confident that our student government and other student clubs and organizations will continue to expand and develop

programs that foster a culture of wellness at Osgoode. Elena Iosef is the President of the Legal and Literary Society, and Camille Dunbar is Equity Officer for same.

Should you really put that on your skin? MARISA LAU Contributor Dove, Body Shop, Softsoap, Old Spice, Dial, Crabtree and Evelyn, Bath and Body Works, etc. There are so many brands of personal care products and this can become overwhelming for busy law students. And those brands are just brands of body soap. Some people may choose Dove because it is a well-known brand or Body Shop because it advertises itself as a fair trade company. Others may choose Bath and Body Works because they have a variety of innovative fragrances. What Canadians may not be aware of is that most of these brands contain harmful chemicals. With names like ethylparaben, methylparaben, and propylparaben, these chemicals usually receive no more than a glance because they sound so scientific. Yet, they have been widely used in the cosmetics industry as preservatives. Unfortunately, they act like the hormone estrogen, which is known to play a role in developing breast cancer and lowering sperm counts. Can you believe it? The very product that is in close contact with your skin is carcinogenic. You may ask what the harm is, since we are not ingesting these chemicals. Unfortunately, » continued on pg 14 monday - march 11 - 2013


page 4

features - health law

Burnout in the legal profession JENNIFER BROWN Contributor

of an issue that we become overwhelmed with compassion fatigue.

As a mental health worker for the past 15 years, I am very excited for this edition of Obiter Dicta! Many of us have heard the warnings about stress management and time management as law students and future legal professionals. What I would like to talk about today are two different, yet significant, issues of liability for anyone engaged in a helping profession. Those issues are compassion fatigue and vicarious trauma, more affectionately known as burnout. Compassion fatigue and vicarious trauma, however, are very specific forms of burn out and require an extra special level of self-care when engaged within a helping profession.

There are definitely solutions for compassion fatigue that can keep us from becoming jaded and despondent with our clients, colleagues, and ourselves. Self-care is essential, as is ensuring a work-life balance. Because we are so passionate about our work, it is easy to become very engrossed in the task. It is necessary, however, to take time off, and to take time to play. There is much evidence to verify that people are more productive when they have a balance between work and play. It is also very important to know when to put the work away as the facts of someone else’s life start to take up more space in your head than the events of your own life. Another way to manage this fatigue is to make use of mentorship and supervision. Our colleagues will understand and certainly be able to relate. They will definitely be able to see when we aren’t coping well, so it is encouraged that we use those professional resources that will help us cope well. Remember, we are very fortunate to have earned a law degree from Osgoode Hall; if we need to shift our chosen discipline, the transition is possible. Ongoing professional development is a mandatory requirement and may be the opportunity we need to explore our professional options as lawyers. We may find less fatigue in one discipline than another.

As rationally minded as law students may be, I have had the opportunity to meet quite a few people that are equally idealistic. By this, I mean that they have great ideas and hopes about what they will be able to accomplish with their law degree, both for themselves and for the future development of society. The reason I am pointing this out is to say that many of us have a great deal of compassion and are driven by this force to make a difference. For those of us that think we are not so idealist, I will submit that even Harvey Specter, who “eats billionaires for breakfast,” has a compassionate side. With this compassion comes the risk that there may be times when we will feel like we care more about an issue than our clients or our colleagues. There may also be times where our degree of caring is disproportionate to the circumstance and there is an imbalance between our reason and compassion. Perhaps it is because of our ability to foresee the outcome and understand both sides

The second issue I want to discuss is vicarious trauma. The definition may appear self-evident and some of us may have already experienced traces of this while reading gruesome case law. Vicarious trauma is the emotional and subconscious reaction we experience as a result of listening to, counseling through, and processing

information about traumatic events. There are particular elements of the helping professions that are fraught with disturbing issues, facts, situations, and scenarios. Often people will be seeking legal services at the peak of a crisis. These crises are not limited to criminal law, tort law, human rights, or family law. They could present during the death of a loved one, a corporate takeover, purchasing a home, or trying to help someone obtain citizenship or residency. People are going to walk through your office door and tell you things that you may be prepared for, but unprepared for the effect you will experience as a result. In the helping profession this is called “getting slimed.” As a result, we can become prone to sliming others. Because we work within the confines of confidentiality, what that can look like in our relationships with others is aggression, becoming easily frustrated, exhaustion, cynicism, uncontrollable crying, risky behavior, depression and anxiety, over eating, over drinking, and over working. Some of us may quip that we are immune to such circumstance, but vicarious trauma, though not an absolute, is definitely anticipated throughout several aspects of the legal professions. Communication is necessary for managing vicarious trauma. If we are working in a team environment this may be easier than a solo practice. The Ontario Lawyers’ Assistance Program offers extensive services that may be of value to you at some point in your career. Again, however, self-care and is the greatest remedy for vicarious trauma. This care moves beyond the usual work-life balance and may require deep decompression through more intimate activities. Whether they are spiritual, psychological, or relational, it is necessary that these activities provide the opportunity for reconnection and affirmation. Personally, I tried snorkeling for the first time last December. I had never done anything so quiet and peaceful. Some of my former colleagues are marathon runners and triathletes. Of course, we may not be able to snorkel or run a marathon every day, so it is equally valuable to have more accessible practices in place that provide a brief space for calm or comfort. Find what works best for you, that moment when you are able to catch your breath and exhale deeply, and do this as often as you can. I hear cat videos are very helpful. Mental Health affects all areas of our lives. No matter what our professional discipline, selfcare will be necessary. I wish you good health. Jennifer Brown is a 1L with extensive experience in cat videos.

monday - march 11 - 2013

the OBITERdicta


page 5

features - health law

Rethinking the consumption of mental health crusades LUCIA COSTA Contributor Mental Health “talk” is everywhere. A few weeks ago Bell launched its “Let’s talk” campaign; this exemplifies just one of many of these campaigns aimed at leveraging awareness and, as the Mental Health Commission cliché goes, have mental health come “out of the shadows.” Philanthropists have been stepping up too. Years ago, no rich donor would dare bestow a substantial offering towards a psychiatric cause – it was an embarrassment. These days it’s different; generous donations are forthcoming and are rewarded with prestigious plaques adorning the sides of newly redeveloped buildings. The future promises more of these initiatives and they will definitely target universities and colleges as the emerging problems in postsecondary mental health reach a crisis point (apparently, according to Maclean’s). Also emergent is the public personal disclosure speeches for audiences hungry to understand the mind of the mad consuming every salacious detail with the most compassionate of gazes. These public testimonials, though different in small ways, follow the same overall trajectory: a descent into madness with the subsequent rise to recovery, all thanks to medication. Biology is the problem; drugs are the answer. Rarely do these disclosures stray from that archetype. There are also the relentless stigma-busting projects. Has any lawyer ever taken “stigma” to court? Why the fixation on stigma as opposed to discrimination? Usually we need to identify an individual or organisation that will be accused, no? In whose interest is this stigma-busting? There is evidence that stigma campaigns aimed at illness recognition are not effective unless they include attention to amelioration of structural problems.

While I don’t aim to rain on anyone’s parade, awareness campaign, or use of psychiatric services, I would like to reflect on what these campaigns and personal disclosure stories do and don’t do. While the upshot of such campaigns may be that more people have access to information (mostly biomedical) in order to improve their quality of life (though if you are on ODSP there is not much improvement), these campaigns and personal disclosure spectacles raise nothing of the state of advocacy for persons with psychiatric disabilities. Here is one example: presently, the advocacy available in hospitals in psychiatric facilities is minimal. Historically, the Psychiatric Patient Advocate Office (PPAO) has provided rights advice and advocacy to hospital clients, but in the summer of 2011 the Liberal government announced a proposal to divest the services of the PPAO. As a result of protest by many organisations, lawyers, and individuals, the divestment was halted. While this was good news, the fact of the matter is that this government has no interest in supporting a rights agenda for persons in the mental health sector. While advocates provide rights advice as required under the Mental Health Act, their broad-based advocacy has been considerably diminished if not extinguished. Previously the PPAO took a strong lead in advocacy with the police, in inquests, and other related rights issues. However, presently, we are unclear about whether there is even legal counsel readily available at head office for assistance to the advocates providing rights advice across 10 major mental health facilities. In 2008, the Coroner’s Jury at the inquest into Jeffery James’ death in restraints recommended that the PPAO create a model of governance allowing for sufficient institutional independence, and that a governing board consist of a majority of persons who were patients or ex-patients. This has never been implemented. In December 2012, the Globe and Mail published an article critiquing the failure of a psychiatric hospital to notify the Ontario Review Board of a restriction of liberty of a client who had been in seclusion for two months. And apparently all psychiatric hospitals were report-

the OBITERdicta

edly leaving it to their discretion to determine the interpretation of section 672.56 of the Criminal Code. This is but one example that was fortunately able to garner some media attention – there are many more that don’t. In other news, current Ministry of Health’s regional Local Health Integrated Networks (LHIN) are reforming all services in the mental health sector in an attempt to cut costs. Community agencies have been merging in order to survive the changes. All hospitals will receive no budget increases in the next fiscal year. Essential programs are being cut such as recreation services, and popular treatment modalities. Patients are being transitioned haphazardly into community supports that are non-existent, often for organisational convenience or organisational restructuring as directed by the push to move “bed blockers” out and get new people in, especially the ones who have potentially been lingering in jail for a number of weeks. These are the personal stories you won’t see at campaign parties or at philanthropic ribbon cutting ceremonies. And these are the stories that need to be heard and need to be included in strong legal reform and legal aid modernisation agendas. Yes, let’s talk. The Kitty Lundy Memorial Lecture has sponsored a wide-ranging series of lectures and events over the years which has enriched academic and cultural life on the York Campus. They are all open to the public, and alumni from every part of the University are encouraged to attend. This year's lecture on March Thursday 28th 2013 focuses on "Mobilising Mental Health Advocacy". Guest Speakers include activist and author Pat Capponi and Barbara Hall, Chief Commissioner, Ontario Human Rights Commission. For more event details please visit: http://www. yorku.ca/laps/lundy/. Lucia Costa is an LLM student at Osgoode. monday - march 11 - 2013


page 6

features - health law

The counsellor in doctor’s clothing CHRISTINA LEE-CHAN Contributor A friend of mine recently went for counselling. During her first session, the counsellor’s medical degree was displayed on the wall of his office, but the counsellor told her that she did not have to call him “Doctor” – she could refer to him by his first name. He explained that he wanted to facilitate a more informal and relaxed atmosphere. Over the course of several sessions, she started to build a trusting counsellorpatient relationship with the counsellor. When my friend told me about her counsellor and that he told her not to call him “Doctor,” I was reminded of a situation Professor Gilmour had mentioned in my Legal Governance of Health Care course. We studied a case where a physician’s licence to practice medicine was revoked, and the unlicensed physician continued to treat patients in the role of "counsellor" or "therapist," unbeknownst to the patients. I suggested to my friend that we try Googling the counsellor’s name and we were shocked to discover that his licence had been revoked by the College of Physicians and Surgeons for professional misconduct, including sexual abuse of a patient. We were fortunate to have uncovered this information at an early stage. But how could this have happened?

matters as long as it is not a communication that a health profession Act authorizes members to make.” The RHPA also restricts the use of the title “Doctor” – only certain health professionals may use the title “in the course of providing or offering to provide, in Ontario, health care to individuals.” An understandable rationale for this prohibition is the fact that Doctors are held in a position of high public trust by patients. If a member of a College commits professional misconduct, the College may discipline and/or revoke the member’s licence. Once a licence has

an unlicensed physician from calling himself a counsellor instead of a Doctor, hanging his medical degree on the wall, and telling patients that they do not need to call him Doctor. In the extreme cases, criminal charges are laid. For example, Ravi Devgan was criminally charged and found guilty of fraud and assault for continuing to medically treat patients with cerebral palsy after the CPSO revoked his licence to practice medicine. Although criminal law may provide some relief, it does not address the root issue. Criminal law is reactive to the problem, rather than protective of the public interest.

Regulation of Health Professions In Ontario, 28 health professions have been granted authority for self-regulation pursuant to the Regulated Health Professions Act, 1991 (“RHPA”). Each health profession has a College, which is the governing body with the authority to regulate the members of that particular health profession. The Colleges are mandated with the duty to serve and protect the public interest. For example, the College of Physicians and Surgeons of Ontario (“CPSO”) regulates physicians by licensing them to practice medicine, maintaining standards of practice, and investigating allegations of professional misconduct. The RHPA sets out a list of “controlled acts”, which no person may perform in the course of providing health care services, unless they are authorized to do so by the Act for their particular health profession. For example, the Medicine Act, 1991 is the Act which authorizes members of the CPSO (i.e. licensed physicians) to perform the controlled act of “communicating a diagnosis identifying a disease or disorder as the cause of a person’s symptoms.” There are exceptions; for example, if you are rendering first aid or temporary assistance in an emergency, you may perform a controlled act. There is also an exception for providing “counselling about emotional, social, educational, or spiritual monday - march 11 - 2013

been revoked from a health professional, they are no longer a member of that College. Gap in the Regulatory System The Colleges have continuing jurisdiction over past members, for professional misconduct or incompetence referable to the time when the person in question was a member of the College. This jurisdiction, however, does not help if a situation arises after the licence has been revoked. There is a hole in the legislative scheme. Since counselling is an exception to the controlled acts, any person can provide counselling as long as it is not a “communication that a health profession Act authorises members to make.” As a result, physicians whose licences have been revoked can still see patients in the role of a counsellor while pretending to be a licensed physician. The CPSO does not have the authority to stop

Ideally, a physician whose licence has been revoked should be required to disclose this fact, when subsequently “counselling” patients. At the very least, he or she should be prohibited from creating the perception of being licensed. How can you protect yourself? More must be done to raise public awareness of this issue. My friend and I would not have known, if not for Professor Gilmour’s course. It is imperative that you search your health professional’s name on the Colleges’ websites to ensure that his or her licence has not been revoked for professional misconduct. For the CPSO’s “All Doctors Search”, visit http://www.cpso.on.ca/ publicregister/default.aspx?id=2048. I urge you to share this information for the protection of the general public. Christina Lee-Chan is in her third year, and is Co-President of the Health Law Association. the OBITERdicta


page 7

features - health law

Why mental health law applies to every practicing lawyer (or, three things I’ve learned after six years working as a psychiatric nurse) LISA OSTROM Contributor Mental health law and related personal or client-centred mental health issues will affect every single lawyer practicing in every field (even corporate) throughout the course of his or her career. After five years of working as a nurse in mental health, I have come to realize the extent to which mental health issues pervade one’s daily life in any career in which one has regular contact with people who are under stress or strain, as I’m sure any Osgoode professor can attest. Conveniently, lawyers also tend to deal with people who are going through some of the most difficult life events imaginable, including death, divorce, or a messy merger. Lawyers aren’t normally needed when things are going well in our clients’ lives, which is why I have adapted the list of the three things I’ve learned from my experiences in emergency psychiatry for the legal profession. 1. People are funny The emotional (and possibly financial) pressure of legal proceedings can make people act in ways they wouldn’t normally, and therefore, this provision applies to all clients, and to all lawyers themselves. Rule 2.02 of the Law Society of Upper Canada’s Rules of Professional Conduct maintains that lawyers must be honest and candid with clients. What happens in cases where a client is clearly not making decisions from a place of optimal mental health? Or where clients are needlessly dragging out disputes because of an irrational desire for revenge or to satisfy an unhealthy desire to be “right” at all costs? From a practical perspective, speaking out in these types of situations, although ethical, may result in the client firing you, and finding another, more opportunistic lawyer. Given the current state of the legal job market, it may be phenomenally difficult to intervene when clients are acting funny.

Lawyers are certainly not immune to the effects of stress, pressure, and overwork. Are you aware of how you respond to stress? Have you put into place effective coping mechanisms that do not involve drugs or alcohol that will be feasible when you have little free time? Lawyers have stratospheric rates of alcohol and drug addiction in comparison with the general population, approaching 25% in some legal sectors. Similarly, have you thought about how you’re going to respond when a senior associate or a partner starts acting in an abusive manner toward you? Again, it may be challenging, if not impossible, to intervene when your superiors are acting funny. However, it may help to understand that people who are acting funny may be dealing with personal and professional issues beyond anything you can imagine, and outbursts may have little or nothing to do with anything you’ve done. 2. Love is strange As Beyoncé, and any family, immigration, criminal, estates, or litigation lawyer will tell you,

love makes people do crazy things sometimes, particularly in cases where a formerly loving relationship has soured. I can imagine that it is very difficult for lawyers working in these fields of practice to determine what qualify as legitimate client concerns, and what actions are being motivated primarily by emotion or hurt feelings. Again, given that lawyers have a duty to be candid with clients at all times, in cases where it appears that clients are allowing feelings of love, lust, or a lack thereof, to dictate their actions, at what point should the lawyer intervene, or act as the voice of reason? At any rate, it is important to consider the extent to which feelings of intense love or hate can determine an individual’s state of mind, even though lawyers are certainly not psychotherapists. If a soured relationship or wounded feelings can be the catalyst that prompts an individual to attempt suicide, it is not outlandish to think that the same act could be an impetus to initiate legal action. 3. Don’t do crack Now, this little tidbit doesn’t apply to legal practice per se, but should be considered a general life rule. In the words of the immortal Whitney Houston, “crack is wack.” For further clarity, UrbanDictionary defines “wack” as “lame, sorry ass, ain’t even legit.” So, don’t do crack. It’s a terrible, life-ruining drug. Lisa Ostrom, RN MN, is a 2L at Osgoode. She doesn’t do crack. She also gives credit to Dr. Mara Goldstein MD CM FRCPC for the initial development of the list of three.

the OBITERdicta

monday - march 11 - 2013


page 8

features - health law

Access to essential medicine in developing countries SETAREH NASSERI Contributor Essential medicine refers to pharmaceuticals that satisfy the priority health care needs of the population. More specifically, it refers to medicine that is lifesaving and/or life prolonging, including but not limited to vaccines and antiretroviral medications used to treat individuals infected with HIV/AIDS. Each year individuals in developing countries die unnecessarily due to lack of access to these medicines. One of the barriers to access to essential medicine in developing countries is the lack of research and development geared towards the needs of people in those countries. Research surrounding tropical illnesses sometimes lags behind, and even the treatments currently available are becoming less effective due to resistance. Another major barrier to access to essential medicine in developing countries is patent law. Typically, patent rights afford the holder, mainly pharmaceutical companies, exclusive rights to the production of the drug for 20 years. This creates a monopoly over their production and importation, reducing access due to high costs.

The Agreement on Trade-Related Aspects of Intellectual Property (“TRIPS”) is an international agreement created by the World Trade Organization (“WTO”) that regulates intellectual property internationally. To “play” in the WTO, signatories must sign on to the minimum requirements set out in TRIPS (including patent protection for pharmaceuticals). Interestingly, Article 31 of TRIPS provides an optional compulsory licensing mechanism, which provides that an individual or a company can use another patent holder’s intellectual property without seeking the holder’s consent and/or pay the patent holder a set of fees for the license. This, however, is subject to certain requirements, which need to be met. For example, the generic copy must be produced mainly for the domestic market and attempts must be made to obtain a voluntary license first from the patent holder. With respect to exclusive domestic use of drugs, the 2001 Doha Declaration changed this requirement such that countries that are unable to manufacture necessary pharmaceuticals are free to obtain cheaper versions elsewhere.

Despite these advances, the situation is not resolved. In order to use the system, exporting countries must change their laws as well. To date, only the European Union, Canada, Norway and India have complied with this scheme. Though compulsory licensing seems to solve the issue, access to the essential medicine issue has not been resolved. HIV/AIDS is prevalent in South Africa, with about 5.7 million South Africans infected as of 2007. Despite this number, the South African government has never issued a compulsory license. This is attributed to the pressure that Western countries place on South Africa to avoid issuing such licenses. Médecins Sans Frontières (Doctors Without Borders) has developed the “Access Campaign,” and continues to put pressure on various governmental organizations to resolve the aforementioned issues. They also work towards improvement of access to essential medicine through other means, such as medical innovation. For more information visit www.msfaccess.org. Setareh Nasseri, RN is a 3L and the Co-President of the Health Law Association.

The North American “obesity epidemic”: should the government be limiting consumer choice? LUIS QUAIL Contributor It is no secret that there is an increased concern over the “obesity epidemic” that is sweeping across North America. According to the Organization for Economic Cooperation and Development, among developed countries, the United States and Mexico hold the #1 and #2 ranks for worldwide obesity rates, respectively, while Canada is #6. There is clearly something about our North American culture that allows us to truly excel at gaining these pounds. The question is: what, if anything, should be done about it? In September 2012, the New York City Health Board approved a ban on sugary beverages over a certain volume. The ban, which is to take effect on March 12th, imposes a $200 fine on restaurants, delis, movie theatres, and other eateries that sell high-sugar drinks in containers larger than 16 ounces (470 mL). This governmental effort to shed the pounds is the first of its kind in the US, and is being challenged by beverage makers and sellers in the New York State Supreme Court. The Judge will have two interesting arguments to consider. On the one side, it is argued that the ban will help reduce obesity, monday - march 11 - 2013

thereby reducing costs associated with treating obesity-related illnesses such as Type 2 diabetes, heart disease, and hypertension. On the other side, it is argued that the ban is an infringement on consumer freedom, liberty, and autonomy. Health research has had a major effect on the public’s willingness to accept government action that limits our choice as consumers. This has been the case with respect to cigarettes and products containing trans fats. The detrimental effects of these products were proven without question. The research has led to governmental action limiting the public’s access to these products and the public has largely accepted those limitations – it is common sense to limit and ban the sale of deadly substances. But is sugar deadly? What about alcohol? Water may be deadly if I drink 10 litres in 2 minutes. The difference between the limitations placed on cigarettes and trans fats, and the limitations being placed on the sale of large sugary drinks in New York is the deadliness of the product. There is nothing that can be done about the harmful health effects of tobacco and trans fats. It makes sense for the government to limit, and even ban,

consumer choice with respect to those products. However, the harmful effects of sugar, alcohol, and even water only arise if they are consumed in excess. Sugar is a natural part of our diet and healthy when consumed in moderation. Similar claims can be made with respect to alcohol and, of course, water. I believe that, rather than government regulation limiting our ability to make lifestyle choices, there are other ways to change the way we decide how much of product “X” to consume. I think these changes begin with education and some of them have already begun to take hold in Canada. Studies in the last 20 years have led to an increased awareness of the benefits of exercise, and have resulted in more people engaging in activities such as yoga and attending fitness clubs. We did not need government regulations requiring a minimum number of weekly exercise activities. We used the information we had to make our own informed lifestyle decisions. I have faith that North Americans can and will become aware of the harmful health effects associated with 16 ounces of pop, and that many will opt for the 10 ounce cup without the need for government intervention. the OBITERdicta


page 9

features - health law

Botox, beauty, & blatant contravention of the Food and Drugs Act CARRINGTON HICKEY Contributor In the race against time, men and women are increasingly trying to reduce or revert the visible signs of aging. For those hesitant to go under the knife, injectable dermal fillers and Botox Cosmetic Injections have become a viable alternative. Over the past decade, Botox has experienced a surge in popularity throughout North America and Europe. In fact, Botox injection is among the most common minimally invasive cosmetic procedures in Canada. Botox is a protein and toxin derived from the Clostridium botulinum bacterium. Botox is injected into the underlying facial musculature to prevent the muscles from contracting. This reduces wrinkles and – theoretically – gives skin a more revitalized, youthful appearance. However, Botox treatments are not without risk. Botulinum toxins are among the most lethal naturally occurring poisons known to man. The safety and effectiveness of Botox greatly depends on the accuracy of the dosage and, in

turn, the proficiency of the person administering the injection. The consequences of inappropriate dosages or improper injection can be life threatening. According to its product monograph, Botox

should only be administered by a qualified and experienced physician. Yet, any medical doctor can legally perform an array of non-invasive cosmetic procedures, including Botox injections, without specialized training. Perhaps » continued on pg 14

Would you be able to afford assisted human reproduction? ERIKA MURRAY Contributor During law school, the majority of students do not think about trying to conceive a child. Most thoughts about children, if any, are typically focused on preventing conception, and understandably so. After all, it would be difficult for any law student to afford a newborn with no income and substantial tuition costs to worry about. While it may seem like a long time away, your childbearing years are just around the corner, and, for some, conception may require a large sum of money. Approximately 15% of us will be unable to conceive naturally. Infertility is not just a women’s issue. Remarkably, assisted human reproduction (AHR) has progressed to a point where there is a range of techniques available to assist most infertile individuals with conception. Furthermore, the possibilities of AHR have provided a means for same sex partners to have children of their own. I would argue that AHR has been the greatest medical development of our time. However, it is unfair that only the middle to upper class can reap the benefits of AHR. In Canada, the average cost of a single “standard” in vitro treatment is $10 000. Often, couples require several treatments before achieving success and some never conceive even after paying for multiple attempts. While the procedure is somewhat regulated (i.e. the OBITERdicta

no octomoms), AHR is not government funded in any province other than Québec. Currently, the government regards conceiving a child as similar to getting breast implants. If you want them, then you must pay for them yourself. In many other countries, including England, Australia, and Israel, the government covers the costs of infertility treatments. As a result, not only is economic status irrelevant to conception, “reproductive markets” are sharply constrained and controlled. In Canada, while payment for eggs, sperm, and surrogacy is illegal, research suggests that the underground markets in the area are thriving. Individuals are renting out their wombs and exploiting themselves in order to conceive a child of their own through AHR. Ads on Kijiji vividly demonstrate the unfairness and exploitation faced by the infertile lower class. For example, some women advertise that they will become a surrogate in exchange for payment of the amount of an AHR treatment. It is troubling to live in a country with a declining birth rate and a “top” health care system where treatment for infertility, which produces a future contributing member of society, is only available to a certain class of people.

While you may not care at this moment in your life about the high costs of AHR, consider graduating, having large debts and then not being able to conceive. Then consider what you might be willing to do to have a child. For lawyers who typically have a decent income, money will be the answer. For others, however, money can never be their answer. Without exploitation they may never achieve a fundamental purpose in life: reproduction. Even breast implants are funded in certain circumstances, such as following intrusive surgeries for the treatment of cancer. Furthermore, the government pays millions to treat self-induced cancers from cigarettes and alcohol abuse, yet, for those who are infertile, the government has so far taken a hands-off approach. A positive obligation on the government ought to be recognized to fund AHR. AHR costs substantially less than prolonging the death of an elderly person or the treatment of a self-induced disease. Most importantly, it produces a future tax-paying member of society who will contribute to those costs, which are continually increasing with our aging population and declining birth rate. Erika Murray is a 2L and sits on the Health Law Association Executive. monday - march 11 - 2013


page 10

diversity week

Diversity Week 2013: Coming Together! Diversity Week has always been a memorable event at Osgoode. Since strong panels, free food, and a fresh perspective on the law are always attractive, we kept some things tried and true. But this year, we decided to do something a little different. We wanted to bring the Osgoode community together to share lifestyles, cultures, beliefs, and experiences by simply having some fun! On Wednesday February 27, 2013, Gowlings Hall was transformed into a cultural and expressive celebration of the many ways we are wonderfully diverse. It was vibrant and energetic with a host of overall good times. Cultural performances, treats from around the globe, celebrations of formidable legal professionals, and highlights of the wide array of student resources available at Osgoode made the Celebration one to remember. Diversity Week 2013 kicked off with an international breakfast in the Cube on Monday Febru-

ary 25, 2013. Dean Sossin, as always, showed his support, reminding us why diversity in the legal profession is not only essential but also beneficial. Students were also passionate, sharing their concerns and suggestions for addressing equity and diversity issues at Osgoode at a lunch event. On Tuesday February 26th, 2013, John Ralston Saul, a long-time champion of freedom of expression, shared his unique perspective on Aboriginal Peoples and the law. Later in the evening, students and a variety of legal professionals from the Black and South Asian Bars enjoyed an informal night out, getting together and building community. The Annual Flaming Feminist Cabaret on Thursday February 27th, 2013 wrapped up the week on a high note with poetry, music, dance, and live jazz. The pieces were impressive, original, and thought provoking, indicative of the

immense talent at Osgoode. We hope you enjoyed Diversity Week 2013 as much as we enjoyed putting it all together. And though the Week’s events have come to a close, issues of diversity, equity, and equality in the legal profession never rest. Let’s continue to make Osgoode and the legal profession representative of our various lifestyles, cultures, and experiences in order to better serve our greater community. Thank you for making Diversity Week 2013 a success! The Diversity Week Organizing Committee is Camille Dunbar, Rahim Jamal, Jacquie Kiggundu, Susannah Alleyne, Sharifa Khan, Devina D’Silva, Simaroop Dhillon, Avnish Nanda, and Shubham Sindhwani.

PHOTOS TAKEN AND EDITED BY HARJOT ATWAL

monday - march 11 - 2013

the OBITERdicta


page 11

diversity week

the OBITERdicta

monday - march 11 - 2013


page 12

features

The Happiness Project: Say no CASS DA RE Features Editor Maybe law school attracts over-achievers. In fact, I’m sure it does. It may have been that you padded and packed your law school application to strategically demonstrate what a wellrounded, philanthropic, and diverse student you are. You listed all your extracurricular activities, likely waned and waxed about working yourself through undergrad, and described how you honed your time management skills as a research assistant and graduate student. Maybe it’s habit, or maybe it’s the fact that we never stopped filling out applications (replace law school with job), but it seems like the padding and packing never stopped. Now your extracurriculars might include the Obiter Dicta, SALSA, HOLA, RELA, OWN, ILP, OUTlaws, Legal and Lit, Student Caucus, Mock Trial, or one of the stellar academic journals, to name just a few. Unless you are particularly privileged, you are likely working part-time to stay on top of student debt and tuition fees. Lastly, your time management skills have never been so honed, as you are likely doing extra research for a professor, took on a peer mentor, or are a Dean’s Fellow or Dean’s Tutor. Of course, it’s not all for nothing. Your busy and demanding life is documented and codified in your golden CV. Besides the altruism, the giving back to the community, and pursing your passions outside of school, which are all commendable; ultimately, all of this effort demonstrates what a well-rounded, philanthropic, and diverse job applicant you are. That’s why we say yes. Yes to all the opportunities, openings, and organizations. We say yes to overwrought schedules, lunchtime meetings, and too many late nights. We say yes to spending more time on school-related things than on actual school work. As your Happiness Guru, I ask you to say yes one more time, to my advice to say no.

to know is that no one is capable of doing and having it all. Lastly, stop pursuing prospects for the sake of the pursuit and on the possibility that it will impress someone, even the right someone. Law school is harrowing enough all on its own, without the added pressure and time constraints. Get back to basics. Ground yourself by prioritizing the essential and eliminating the extra and unnecessary baggage. By doing so, you will likely rediscover a sense of peace and regain a

sense of balance. Moreover, by unloading your schedule, you will have more time for innovation, improvement, and enjoyment. Put your energy where your priorities lie. Be great at fewer things, rather than mediocre across a very busy board. You’ll be happier, and better rested for it. Say yes to saying no, and see how much further that takes you in life, in your career, and in your path to happiness.

Steve Jobs famously said, “People think focus means saying yes to the thing you’ve got to focus on. But that’s not what it means at all. It means saying no to the hundred other good ideas that there are. You have to pick carefully. I’m actually as proud of the things we haven’t done as the things I have done. Innovation is saying ‘no’ to 1,000 things.” Despite your over achieving, over eager, ready to take on the world and a bag of chips disposition that compels you to say yes, say no. Give yourself permission to focus on the most important things, tasks, and people. Forgive yourself for not being able to do it all; no one expected you to. The dirty truth that nobody wants you monday - march 11 - 2013

the OBITERdicta


page 13

news

Toronto: a sanctuary city CITLALLY MACIEL Staff Writer On February 20, 2013, a motion was carried to declare Toronto a “Sanctuary City.” This motion was introduced by Councilor Joe Mihevc (who happens to be the Councilor of my very own ward) with the objective of asserting City Council’s commitment “to ensuring access to services without fear to immigrants without full status or without full status documents.” Accordingly, this motion will have the effect of giving individuals access to government services without being questioned about their immigration status in Canada. The motion was introduced partly in response to a number of reports indicating that the lack of access to government services has left undocumented individuals extremely vulnerable and with no support. The motion makes reference to the fact that, given the kinds of occupations in which undocumented workers engage (agriculture, construction, hospitality and manufacturing), they often work under unsafe conditions, receiving low wages, and are often victims of unfair dismissal and abuse. Moreover, according to a report created jointly by Toronto Public Health and Access Alliance Multicultural Health and Community Services, although newcomers are healthier overall than Canadian-born residents, research shows that the health of newcomers tends to deteriorate as time passes (due to varied factors) and that this situation is worsened by the fact that newcomers are sometimes unable to access health care services. Consequently, this may lead to more serious health problems that will translate into increased future costs to the health care system. In addition to their physical health, undocumented workers are also exposed to a high risk of developing metal illnesses such as depression and anxiety. Like most things political, the motion has been received with mixed feelings. Supporters of the motion argue that society must actively protect vulnerable individuals. In addition, others argue that, when it comes to health care at least, it is best and more economical to ensure that members of our society (including undocumented individuals) remain healthy. Yet, there are others who oppose this measure, arguing that our society should not bear the costs associated with the safeguarding of undocumented individuals. Indeed, this is a complex situation that involves issues regarding immigration laws, humanitarian responsibilities, financial burdens and duties, human and civil rights, and politics. However, this situation is hardly novel. The notion of sanctuary cities has been around since the OBITERdicta

Greek and Roman times. Immigration policies and issues have been, for decades, constantly adjusting and creating polemic due to the movement of masses created by the wars and decolonization process of the last century. In her article, “The Natural-Law Claim to the Right to Sanctuary,” Amy E. Hoyt describes the roots of sanctuary cities. According to Hoyt, the practice of providing sanctuary existed in Ancient Greece and Rome and has continued until now, especially through the Catholic Church. Churches, as early as 313 AD, would provide temporary asylum to fugitives who were being persecuted. By the fifteenth century, the notion of providing sanctuary was adopted by whole towns, creating an ancient version of what is now known as a sanctuary city. In modern times, the idea of providing sanctuary gained special momentum in the United States in 1981. As a result of the coup in El Salvador in October of 1979, and the ensuing violence, Salvadorians left their country and sought refuge in the United States. When the US Government denied these refugee claims, many churches, cities, and organizations assisted these individuals to settle and it was during this time that many sanctuary cities in the US were created.

COUNCILLOR JOE MIHEVC INTRODUCED MOTION TO DECLARE TORONTO A “SANCTUARY CITY”

Not surprisingly, sanctuary cities have created controversy in the United States; and the concept has been looked at from many angles. Amy Hoyt explains that religious institutions justify their sanctuary practices by claiming “both the ancient tradition of asylum and the precepts of the Bible support their efforts to help Central American refugees.” Hoyt also makes reference to Hugo Grotius’ argument (he is considered the founder of international law) that that the right to sanctuary is derived from natural law because individuals have both the right to self-preservation and basic necessities, and the right to free movement. He stated that as long as refugees were not disruptive and obeyed the law, perma-

nent residence should not be denied to them. Finally, Hoyt argues that the right to sanctuary is supported by international human rights documents such as the Charter of the United Nations and the Universal Declaration of Human Rights (UDHR). The Charter declares rights to personal security and sovereignty; and the UDHR declares the right to personal freedom and security, the right to freedom from torture, and the right to freedom of movement. Another angle is whether the declaration of a city as a sanctuary and the policies that this declaration creates are unconstitutional (i.e. the policies disregard federal immigration laws) or just antagonistic to national policies. Rose Cuison Villazor, in her article “Sanctuary cities and local citizenship” makes a similar claim in relation to the particular situation experienced in San Francisco. The City of San Francisco joined the group of sanctuary cities in 1985. On October 24, 1989, the city passed an ordinance that removed the City from federal immigration enforcement, by ordering “no department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law…” The law was then amended in 1992 to exempt from protection those non-citizens convicted of certain crimes. Nonetheless, Villazor argues that the City’s ordinance prevents police officers from keeping the public safe and uses the case of the Bologna family’s lawsuit to illustrate this point. In 2008, Anthony Bologna and his three sons were driving when an individual pulled up beside their car and began shooting at them. Only one of the sons survived. The accused shooter was allegedly a member of a dangerous gang and was living illegally in the United States. The surviving family members brought a lawsuit against the City of San Francisco, claiming that the city’s ordinance actually protected individuals known to have committed crimes. This claim was based on the fact that the accused had been subject of criminal proceedings in the past and that if this had been reported to the immigration authorities, he would have been deported and the shooting would have never happened. Is declaring Toronto a sanctuary city a good thing? City Council made an informed decision that resulted from the recommendations made by multiple professionals and government officials, in addition to the persuasive work conducted by organizations such as No One Is Illegal. Whether this is a good thing certainly depends on the way one chooses to look at it. But even the most cynical of critics can make an affirmative conclusion. monday - march 11 - 2013


page 14

news

Osgoode Peer

On your skin

Botox

» continued from pg 1

» continued from pg 3

» continued from pg 9

emails. The OPSC volunteers have undergone anti-oppression training that aims to foster a sense of self-awareness of the various prejudices that they may hold, and provides volunteers with the tools to combat those prejudices. The OPSC volunteers have also undergone OPSCspecific training with Melanie Banka Goela to help them develop active listening skills and a deeper understanding of expressing empathy for fellow students. While each volunteer is well equipped to provide peer support, they are also available to just hang out and talk with students who have spare time between classes.

recent studies have shown that there is a risk they may be absorbed through the skin and into your bloodstream. In one Norwegian study, they found that women who used more cosmetics had more parabens in their blood stream. As a result, the European Union took heed to these warnings and banned the use of parabens in skin-care products aimed at children under six years old. This ban showed the seriousness of the problem and prompted some consumers to reconsider the toxicity of their personal care products. However, it put the burden on consumers because they had to study the ingredients list of every product.

The OPSC’s office space is comfortable and inviting. It is a place where students can come to unwind and relax. We hope to provide coffee, tea and snacks for students to enjoy while they hang out on the couch and chat with our volunteers. A phone line will be installed soon, so that students can call in and express any psychological or emotional stresses that they are experiencing. This hotline, along with the peer support forum on the OPSC’s website at www. opsc.webs.com, allows students to receive peer support anonymously. The OPSC’s goal is to promote a meaningful sense of community, to help reform the competitive, individualistic, and isolating culture of law school, and to combat the barriers and stigma associated with seeking support, be it through a friend, a peer, a counselor, or a doctor. The OPSC hopes to serve as an indication to the legal community that Osgoode is committed to producing compassionate, caring, openminded, healthy, and happy lawyers who feel a sense of responsibility to others. The hope is that other law schools will follow suit and help transform the legal profession as a whole.

As a result, companies realized the seriousness of the problem and many of them signed the “Compact for Safe Cosmetics” which involves pledging to take steps to remove all harmful chemicals from their cosmetics and personal care products. People also started blogs on which companies offer paraben-free products. At the same time, natural home remedies have become popular. Many websites show how household products can be used for various parts of the body and face. For example, extra virgin olive oil can be used not only as a facial cleanser but also to moisturize cuticles and dry hair, and as lip balm. So, what does this mean for us law students? Of course, it may be hard to cut parabens out of your personal products immediately. That would mean throwing away a lot of household products, and that will surely be a waste, especially for law students with so much debt. However, as you run of products and need to replace them, I encourage you to look for paraben-free products or natural home remedies. It will not only be good for your wallet but also for your health.

more frightening is that unlicensed individuals with no medical training are increasingly offering Botox at spas, nail salons, and online. Any departure from the product monograph constitutes a violation of the Food and Drugs Act. However, unlicensed individuals appear to be slipping through the cracks. The Canadian Broadcasting Corporation (CBC) conducted an undercover investigation of several “medical spas” offering Botox injections. Some of the spas advertised that a physician would administer the Botox. Upon further inquiry, some of the Botox providers admitted that they had no medical licence. Although the worldwide manufacturer of Botox only sells its product to licensed physicians, individuals with no medical training can readily purchase counterfeit Botox online from China, Turkey, and Mexico. Real Botox bears a holographic label to distinguish itself from knock-offs. So why are individuals and companies permitted to blatantly contravene the Food and Drugs Act? The answer may be rooted in prevailing public attitudes towards cosmetic procedures. Cosmetic surgery is often seen as a narcissistic pastime of the rich and bored, and many feel that caveat emptor should apply to elective and privately funded cosmetic procedures. However, such perceptions should not influence the regulation of the industry. This dichotomy not only fails to recognize the immense pressure on women – and men – to pursue eternal youth and aesthetic perfection, but also puts the health and well being of Canadian consumers at considerable risk. Carrington Hickey is a 1L and the Executive Secretary of the Health Law Association.

monday - march 11 - 2013

the OBITERdicta


page 15

opinions

Questioning the right to due process » continued from cover who unforgivingly grilled Wellman following his presentation. Unthinkable as this surely is to most law students, the way Wellman argued toward his conclusion is undoubtedly interesting and worth a look (if not convincing in the slightest). Wellman began by illustrating that there is no right against double jeopardy. He did so mostly by analogy. Think of a statute of limitations. There is huge instrumental benefit to adopting such laws, but we can argue without much trouble that they don’t represent a moral right or truth. Is there some objective, pre-institutional ethical principle that justifies pursuing legal action within 7 years, but runs out at the 7 year mark, thereby rendering it not ok to pursue that same action after 8 years? Of course not. The time period specified in a statute of limitations is largely (if not entirely) arbitrary. It represents a time period that we think is fair to both the plaintiff (so that they have time to decide whether to pursue legal action and prepare accordingly) and the defendant (so that they are not tried for a crime committed 50 years ago). But we can all agree, without much debate, that if the date of a limitation period was moved forward or backward by a year, this wouldn’t do much to violate the rights of any of the parties involved (except for in some truly exceptional circumstances that are so exceptional they don’t do much to affect the other 99.99% of the time that there are no negative effects). Moving on. The right against double jeopardy, says Wellman, is like the time period laid out in a statute of limitations. Just as we could move the date of a statute of limitations, or alter a speed limit by 5 km/h without violating rights, we can change the right against multiple prosecutions. The distinction between single or multiple prosecutions is the same as the distinction of a statute of limitation being 7 or 8 years. As long as there is some rule (like, say, you can’t be tried for a crime more than twice), to ensure that defendants are not harassed by never ending prosecutions and that there are some guidelines that officials have to stick to, no rights will be violated. Think of the following scenario: Jane commits a crime, is tried and found not guilty. And say the prosecutor believes she is guilty, so he tries her again. Say this time, she is found guilty. Wellman says that as long as she actually did commit the crime, her rights are not violated. There is a preinstitutional right against being punished for a crime you don’t commit, which is why this scenario wouldn’t work if Jane was innocent. But otherwise, we should have no problem allowing courts to try people two or three or four times: if they are innocent, they won’t be convicted, and if they aren’t, well then, all the better to increase the odds of conviction, right? Right (disclaimer: the OBITERdicta

I agree with none of this). The reason it’s ok to mess around with periods of limitation and speed limits and the number of times someone can be tried is because these are not inherent, pre-institutional rights. They are contingent. There is no reason our legal system will fall apart and the dignity of persons everywhere will be threatened if we change the speed limit on Main Street from 40 km/h to 50 km/h. And if people have 8 instead of 7 years to commence legal action. And if we dispose of the right to due process. Look how flawlessly each of these premises follows from the previous one! The right to due process, says Wellman, is instrumental too. Let’s modify Jane’s situation a bit to illustrate this. Suppose that she commits some heinous crime that has wide-reaching effects on everyone and there is great pressure on law enforcement officials to figure out who the culprit is. Now suppose there are absolutely no leads and Jane is cackling evilly, convinced she got away with it. So the Prime Minister or President or whoever is fed up with all this really bad publicity holds a referendum asking people to think about whether they’re cool with the following situation: we hold a lottery, pick a name, and punish that person. And suppose everyone agrees and the lottery goes ahead (please try to stay with me; I’m almost done). For a final twist, suppose Jane’s name was chosen. In this case, her rights were not violated. The rights of her compatriots were, but they willingly forfeited their rights by agreeing to that referendum. If someone forfeits a right, we can’t say it was violated, for the very reason that it was forfeited. Jane, says Wellman, is like the compatriots who choose to forfeit their rights, because when you engage in criminal activity, you choose to forfeit your rights. Wellman went on to consider some objections from Anthony Duff, Professor at the Faculty of Law at the University of Minnesota (who, incidentally, is speaking at Osgoode this week, on March 14th and 15th – be there!). One of Duff ’s points is that justice is not fully done unless it is public; we need this procedure to be fair and reliable, which means they must be public. Wellman’s response, in a nutshell: publicity is nice, but we shouldn’t conflate the notion of its niceness with the idea that it is necessary.

Duff also notes that doing away with due process is essentially doing away with the right to be heard. Only a trial can ensure this. Wellman says that Duff confuses the reconstruction of what we would like a liberal democracy to look like and the fact that there may be very real instrumental reasons to have a right to due process with the idea that it is a pre-institutional moral right. Wellman was very clear that he was not advocating that we actually do away with due process and the right against double jeopardy – he was just urging us to rethink these ideas. Essentially, he was suggesting that if we did eliminate these principles from our legal system, no rights would be violated. The whole presentation reminded me of Alan Dershowitz’s ideas regarding torture. Dershowitz argues against an absolute prohibition of torture, saying that it can sometimes be justified. Like Wellman, Dershowitz builds these absurd thought experiments (if we knew there was a bomb and we knew it would go off at exactly noon, and we had captured one of the terrorists that planted it, and we knew that he knew where it was, it would be ok to torture him in order to find out its location, because it would save thousands of lives) that conjure up a far-fetched scenario purely to undermine commonly held moral and legal norms. Thought experiments can be useful in some cases, where you only need one counter-example to throw into question an entire theory or supposition; the idea that you only need to point to one black swan in order to disprove the idea that all swans are white. But the discussion Wellman and Dershowitz are building is assuredly not one of these cases. And what about the idea that Wellman flippantly mentions: there is no moral right to due process. Um, isn’t there? If he’s trying to subvert the legal and moral status quo, the burden of proof is probably on him to account for why he is doing so. You can’t build your argument from the premise that the sky is green and expect me not to question your starting point. All in all, it was a thought-provoking and illuminating talk. And from a law student’s perspective, mildly infuriating and hugely unsettling. I’m dying to to hear what other Ozzies think, so please feel free to type up a reply and we’ll include it in our next issue. monday - march 11 - 2013


page 16

features

The worst fishing teacher in the world RORY MCGOVERN Staff Writer “You can give a man a fish and feed him for a day, or you can teach a man to fish and feed him for the rest of his life.” In the context of modern international economics, this truism would, more often than not, reflect a development agenda which would be better captured thus: “you can give a man a fish and feed him for a day, as long as the fish you give is either a) collateralized with significant public assets in the target nation or b) can generate a criminal return on investment for the fish giver via interest payments. As far as teaching people to fish, why would anyone want to do that?” For decades, Western governments (most notably our greedy, war-mongering neighbours to the south) have engaged in an economic war against the rest of the world. The main weapon that has been used is ironically called “development assistance.” The weapon is deployed in three stages: 1. A bunch of half-wit economists who think there are free-standing necessary laws rather than system-generated contingent “laws of economic growth” generate economic predictions for developing nations which justify outrageous loans from the International Monetary Fund and the World Bank at crazy interest rates

(see John Perkins’ Confessions of an Economic Hitman). 2. In turn, American companies (who supply or conspire with the half-wit economists) get huge infrastructure contracts for roads, power lines, servers, and hydro-electric dams. As a result, most of the “development assistance” is exported back to the United States or other Western governments in the form of construction and consulting contracts. 3. The “developing nation” is turned into a debt slave and told to feel “grateful that the United States brought them out of the Stone Age.” The target is then forced to service their debt and pay off the companies that secured the construction contracts (eg. Halliburton et al). This leaves little money for health care, education, and, most importantly, funding research and development at universities. The nation appears to have developed, but there is almost no economy other than a service industry. Major resources are controlled by foreign-owned corporations. In addition, manufacturing Westerndesigned products at unconscionably cheap prices becomes the icon of an economic miracle. As Perkins observes, these systems of economic control provide one main advantage to Western

advance with confidence Share our vision of what’s possible. At Gowlings, we help make your ambitions your realities. You’ll know where you’re going, and you’ll have the resources to get there ahead of the pack. To learn more about our student program, go to iwantgowlings.com

expect teamwork resources flexibility expect mentoring respect growth

montréal • ottawa • toronto • hamilton • waterloo region • calgary • vancouver • beijing • moscow • london • gowlings.com

monday - march 11 - 2013 Osgood Hall ad Jan.indd 1

nations – it creates a nefarious kind of political leverage due to the dependent economic relationship. This leverage is used for, among other things, securing votes at the UN, securing support for idiotic wars (remember the pathetic “coalition of the willing” in the Iraq war?) and ensuring that no real economy develops in the target nation. I submit that there are two additional long term disadvantages to this kind of activity which we are clearly observing now. The first disadvantage is the emergence of anti-American/anti-Western trading blocs. Not every nation is run by complete morons. Intelligent and un-corruptible leaders figure out the debt slave game and in turn refuse to do business with the United States or Western nations. They then form their own trading blocs which will one day compete with Western trading blocs (see, for example, the BRIC countries). The second disadvantage is that these economic policies have brought about the early stages of a currency war. As the commerce within the trading bloc develops, the members start using different currencies which then run parallel to Western currencies like the dollar and the euro. As a result, Reals, Rubles, and Yuan (Renminbi) have started to become the preferred means of exchange for BRIC countries. At some point in the not-too-distant future, scarcity will become a phenomenon which will require a global coordination of resources. A global coordination of resources will require a global coordination of currencies for settlements of transactions involving resources. If you were Russia, India, Brazil, or China your first move is to destroy the petrodollar so that you are not beholden to the monetary policy of the competing trading bloc. What happens after that? The part which is left out of the fisherman story is this: One day, after receiving a fish laced with arsenic and toxins, a poor farmer and all of his friends decide to destroy the fisherman who poisoned their community. The fisherman, supreme in his arrogance, sits idle on the dock upon which he started his nefarious enterprise. Suddenly he realizes that the dock on which he is sitting is floating out in the middle of a lake. He is alone, hungry and his fat American ass is starting to destroy the structural integrity of the dock. the OBITERdicta

11/01/2013 11:28:40 AM


page 17

Are the Toronto Maple Leafs good?

sports

TRADITIONALLY THE TORONTO MAPLE LEAFS ARE NOT VERY GOOD AT HOCKEY.

DANIEL STYLER Staff Writer Prior to the end of the indefensible NHL lockout, I wrote that the work stoppage had forced me to quit the Toronto Maple Leafs in a way that I couldn’t have done myself, and that I was happy with it. Fast forward to today: it’s a Saturday; the Leafs are not scheduled to play, and I am incensed that what I thought was a right guaranteed by the Canadian Charter of Rights and Freedoms – the ability to watch the Leafs on a Saturday night – has been infringed upon. What the hell is wrong with me? What changed? Well, somewhere along the way, I think the Leafs actually became good. Believe me when I say that I’m almost certain that I’ll regret saying that when, in between the time I write this article and the time it appears in the Obiter Dicta, the Leafs lose six games in a row or something. Despite losing arguably their most complete player, Joffrey Lupul, to a broken forearm three games into the season (thanks so much for your predictably poorly aimed slapshot, Dion Phaneuf), the Leafs record is 13-9. If they keep winning at that pace, they’ll be a playoff team for the first time since 2004. It may all be a mirage, and they may regress, but it doesn’t feel like they will. For the first time in a long time, this team almost always plays smart hockey. They don’t turn the puck over in their own end, they don’t take stupid penalties, and they’re not the worst team in the league at the OBITERdicta

penalty killing (something which has almost become an annual rite of passage). I find myself asking “why did he just do that?” a lot less when watching games than I have in recent years. Their coach, Randy Carlyle, deserves credit for that. I don’t really agree with fighting in hockey, if only because of the increased awareness of the negative long-term effects of concussions, but it is undeniable that this team has become harder to play against. Their toughness doesn’t just manifest itself in fighting, though that’s something they do with startling regularity. It manifests itself in hitting people and hitting them hard, and wearing down opponents as the game goes on. What stands out about this team is how coherent their roster is. They have players who are very good at playing a very specific role – James van Riemsdyk scores, Tyler Bozak wins faceoffs, Jay McClement kills penalties, Mark Fraser defends, Mike Brown fights, Leo Komarov hits and Dion Phaneuf misses the net with really hard slapshots. Individually, none of those players are stars; together, though, it works. Oh, and then there’s Phil Kessel. Say what you want about the enigmatic and shy former Boston Bruin, but do so with the knowledge that he is only 25 years old and will very likely score his 200th goal next season. He hasn’t been great this season, but he’s also been unlucky. His shooting percentage is a paltry 4.9 percent, a far cry from his career mark of 10.5 percent, and

he seems to hit more goal posts than should be humanly possible. Kessel is still dynamic, and I have a hard time believing that he won’t go on a prolonged, team-carrying hot streak before the season is over. There is also young talent on the roster, which makes it easy to believe that this team is only going to get better over time. The aforementioned Kessel, Matt Frattin (with his explosive speed and 7 goals in 10 games prior to being injured), Cody Franson (the best defenseman on the team) and Nazem Kadri represent hope for a team and a fanbase in desperate need of some. Kadri, only 22 years old and a point-per-game player, has been a revelation. Last year, he was a player that couldn’t find ice time, with the explanation likely being equal parts former coach Ron Wilson being an asshole and Kadri being a defensive liability. This year, though, he is very often the best player on the ice and has more “wow!” moments per game than any recent Maple Leaf. I’m not delusional, and don’t think that the team is perfect. Their goaltending is still shaky, as both James Reimer and Ben Scrivens are prone to giving up bad goals that necessitate angry texts to friends. They can’t seem to win at home, and sometimes come out flat against teams that a playoff team should beat. But things are getting better. And, really, it’s about time. monday - march 11 - 2013


page 18

arts & culture

A Little Sheep Told Me: The Pantsuit Craze ANGIE SHEEP Staff Writer To be honest, I have never been a fan of the pantsuit. I have always opted for ensembles featuring skirts, as they always seemed more flattering and feminine. Recently, however, I have converted. The designers and celebrities at Mercedes Fashion Week in New York have completely convinced me. The business suit is likely to be our daily uniform in the future and, to my surprise, there are numerous ways to individualize this style. In this article, I will reveal how to wear a pantsuit without losing your bold personality and feminine silhouette. Your Cut The pantsuit has come a long way since its inception. The boxy shapes of the 80s have been long replaced by modern and tailored fits. When searching for this professional ensemble, therefore, opt for cuts that are more contemporary, such as boyfriend-style blazers, embellished lapels, and cropped trousers. These character-

istics are complementary to any fabric color, so even if you prefer traditional darker shades, your pantsuit will still remain unique and current. Heels, Always I cannot emphasize enough the importance of wearing heels with the pantsuit; even kitten heels will make a world of difference (see picture). For most of us who do not have a model figure and mile-long legs, the pantsuit can often shorten one’s figure to a most unflattering degree. Being relatively petite, this was always one of the reasons why I shied away from the style. However, nice heels are almost always the solution; they immediately elongate your figure and give that illusion of “model legs.” Heels also add a fierce femininity to the menswear influence, which will literally elevate your status to “commander in chic.”

Color-ize As your resident fashionista, you have undoubtedly taken note that I adore colour, and the pantsuit is no exception. Although I do not recommend wearing bold neon-hued pantsuits at the office (at the risk of looking like a clown), a vibrant top under a darker blazer can connote confidence, poise, and style. Whether you’re walking down Bay Street, at the office, or in the boardroom; the subtle splash of color will distinguish you from a sea of monochromatic black suits. But don’t forget that moderation is key, even when it comes to silk shells. Texturize Some may argue that the women’s pantsuit craze has overtaken that of men’s due to the numerous textures and styles that have been designed uniquely for the increased female workforce. » continued on next page

WEAR HEELS

COLOUR-IZE

monday - march 11 - 2013

the OBITERdicta


page 19

arts & culture

DON’T DRESS LIKE BRUCE VILANCH

of the many ways texture can be incorporated into your outfit. The contrast between the two fabrics brings depth to your style. A soft satin also fits loosely and comfortably for more casual days. Embellishments

EMBELLISHMENTS

» continued from last page Therefore, one should take every advantage and vary one’s pantsuit selection by texture. Tweed or wool blazers paired with silk trousers is one

One of the best ways to add personality to your pantsuit without jeopardizing your professionalism is to find pieces that contain subtle embellishments. Hints such as shimmer and sparkle incorporates a traditional feminine style without over-dazzling your colleagues and clients. Many jackets are now made with sequin details on the necklines and lapels. If you work for a more unconventional office that welcomes surprising and unorthodox fashion statements, try a completely sequined blazer as shown in the

picture. The embellished piece provides a focal point to the entire outfit, and remains to be work appropriate. There you have it Ozzies: this fashionista has come around to the power of the pantsuit. The horror of 1980s shoulder pads are out, and new modern cuts and unique accents give this staple an updated interpretation perfect for today’s law student. Suits, although traditional attire for the professional world, do not have to be devoid of style. Mixing textures and shades, they can be as vibrant, feminine, and individual as you make them. In addition, the usual concern of being drowned in your pantsuit is extinguished if you opt for modern and fitted styles, and invest in good tailoring. And don’t forget to pick up a pair of comfortable heels!

Memorial University looks at possibility of law school LAURA HOWELLS The Muse ST. JOHN’S (CUP) — Memorial University of Newfoundland (MUN) has announced that it will be reviewing the feasibility of opening a law school. The review will look at the demographics of current law schools, the need for more lawyers, and what benefits a law school could bring to MUN. There are currently no law schools in Newfoundland. “It’s an appropriate time to again examine the feasibility of establishing a law school at Memorial,” said MUN president Gary Kachanoski in a press release. “It’s been 25 years since the university last reviewed this avenue, and the local legal community is supportive of another review.” The university has not explored this possibility since 1987 when the Bruce Report endorsed a law school, however felt it was not right for MUN at the time. Prior to the Bruce Report, the OBITERdicta

the 1976 Harris Report stated that MUN had no need for a law school. This decision was made with the help of the Newfoundland and Labrador branch of the Canadian Bar Association (CBA-Newfoundland and Labrador), and the Law Foundation of Newfoundland, who debated the concept of a faculty of law last year. The announcement has sparked much discussion, with many students excited by the idea. Kate White is an undergraduate student with aspirations of becoming a lawyer. She thinks that having a law school at MUN would be great for students already in debt after their undergrad. “It is nice to go away for university, but law school is expensive, plus the cost of living.” White also hopes that such a school in Newfoundland might mean more opportunities for Newfoundland students to be accepted into law

programs. However, not everyone’s reaction is so enthusiastic. Dennis Browne is a graduate of Dalhousie Law School, and has been practicing law in St. John’s for nearly 30 years. Browne is surprised at MUN’s decision to look into this matter, as he believes that there is no need for a law school in the province at this time. “The population is well served by the system we have right now,” said Browne. “Everything’s declining here, we can barely hold on to what we have. I’m rather surprised this would be an issue at this particular time, when the province is projecting a four billion dollar deficit and the future does not look so bright from a financial perspective.” The committee is expected to present a report later this year. monday - march 11 - 2013


page 20

sudoku Courtesy of: CUPwire SUDOKU #1

SUDOKU #2

monday - march 11 - 2013

the OBITERdicta

Issue #12 - March 11, 2013  

Obiter Dicta is the official student paper of Osgoode Hal Law School.

Advertisement