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January 23, 2012

Singing Their Praises for the JCR. amirite? Fake It Or Make It: JCR Etiquette

What If You Got Sick During An Exam?

Equality Officer For Students by Students

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“The definitive source for Osgoode news”

Our 2012 prediction (albeit late): Osgoode will be the first law school to require the completion of a clinical intensive program prior to graduation.

Osgoode Hall Law School, 0014G York University 4700 Keele Street Toronto, ON M3J 1P3

This, ladies and gentlemen, is a good thing.

Tel. 416.736.2100 x77527 Fax. 416.736.5736 E-mail. Website.

“There are three reasons for becoming a writer: the first is that you need the money; the second is that you have something to say that you think the world should know; the third is that you can’t think what to do with the long winter evenings.” - Quentin Crisp Editors-in-Chief: Cassie Burt-Gerrans, Andrew Monkhouse, Jennifer O’Dell Osgoode News Editor: Kyle Rees Opinions Editor: Nick Van Duyvenbode Features Editor: Rory Wasserman Arts & Culture Editor: Nancy Situ News Editor: Hassan Ahmad Sports Editor: Joe Marcus Staff Writers: Dave Shellnutt, Travis Weagant, RJ Wallia, Karolina Wisniewski, Hashim Ghazi Contributors: Andrew Emery, Rachel Stark, Jacquie Kiggundu, Ashley Stacey Layout Editors: Julia Vizzaccaro, Harjot Atwal, Nancy Situ Photography: Harjot Atwal

Articles are due at 2 p.m. on the Wednesday before date of publication. The appropriate maximum length for articles is 1200 words. Please submit articles in Microsoft Word format via e-mail attachment to obiterdicta@osgoode. 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 weekly during the school year, and is printed by Weller Publishing Co. Ltd.

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The application for Osgoode’s intensive programs are open. We don’t want to sound overly dramatic, but applying and participating in one of these 12 programs may be the most formative thing you ever do here at Osgoode. Last year Osgoode had 563 total applications, from 331 students for 181 total placements. This year there will be 191 total spots available. Many-a-students have arrived at an OCI or articling interview to find out that they share a common experience with the person on the opposite end of the table. Clinical intensive alumni occupy positions as senior partners, judges and law professors. Anita Herrmann, Director of the Office of Advancement, estimates that there are over 2,400 students who have walked through these intensive programs. “Alumni universally find that the clinical education programs have a huge impact on their legal careers. I have Bay Street partners tell me that their experience changed their lives.” “Apply. Sometimes students think they don’t have what it takes to participate, but every Osgoode student has the ability to participate in a program. Fear of rejection should not be an impediment to applying,” says Natia Tucci, Director of the Clinical Intensive Program. You don’t have to love ‘poverty law’ to participate in an intensive either – the Osgoode Business Clinic or the Advanced Business Law Workshops cater to folks who aren’t necessarily

on the social justice train. These programs offer an in depth look at mergers and acquisitions, banking, equity and finance under the supervision of lawyers from Stikeman, Elliot LLP and Davies Ward Phillips & Vineberg LLP. When we spoke with Stacey McFarlane, a caseworker in the Criminal Division of CLASP, she summed up her experience as such: “CLASP is a great program because you start out knowing nothing and you get a ton of experience – I’ve been in court 7 times. You get facts from cases and sit there thinking, “wow, this doesn’t look like law school text book.” “On my second day at the clinic I was in the intake room and was face-to-face with people’s problems – real legal issues that you cannot help but be engaged with emotionally and professionally,” comments Dave Shellnutt. Shellnutt spent 8 months at Parkdale Community Legal Services in the west end of Toronto. When each of us finally emerges from our three years at Osgoode, 100% exams won’t be how the world works. We will have to interact with clients, colleagues and deadlines that cannot necessarily be summed up or studied in advance. Your on the spot problem-solving skills will be tested like a written exam can never properly simulate. Whether you want to escape the desolate atmosphere of York University for 4 months, see if criminal law really is for you, take up a placement with the Aboriginal Intensive program in the Northwest Territories or work trying to right the wrongs the justice system has committed through the Innocence Project, we encourage you to apply to one of Osgoode’s intensive programs. Deadline is Thursday, January 26th at 4pm.

Letter To The Editor Letter to the Editor: There is nothing offensive about playing on the perception that Davies students work like slaves. It is as offensive as just saying the word “slave”. Just saying a word doesn’t make it offensive. The joke is so mild even my Grandma could laugh at it and she thinks women shouldn’t show their elbows on television. If someone is actually offended by this then I would hate for them to watch “The Office” or “All in the Family”. They might fall out of their chair. Even the Beverly Hillbillies might be considered risque. After all, I came from a rural community and the show just gives fuel to the perception

that we are stupid hillbillies who strap grandmas to our roof. I work as hard as a beaver at school. Does this offend animal activists because beavers actually have to work hard to make their dams in real life and I am poking fun at their hard work? When I get scared and say “you gave me a heart attack”, am I being offensive because people actually have heart attacks in real life and I am poking fun at a real problem? Give me a break. Andrew Emery

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Legal and Literary Society

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Equality Officer For Students By Students COMRADE SHELLZ (AKA DAVE SHELLNUTT) Legal & Lit President

By now you should realize that I’m an imperfect human being. I’ve regaled you with stories of my brazen email communications, battles with government bureaucracies and even questionable pub night behaviour (ok I haven’t come clean about that, but ask my friends…) It should therefore come as no surprise to you that I was recently verbally skewered by someone close to me over my insensitivity towards a certain issue. My actions ran counter to the productive end they were seeking with a certain project. Basically, I was not being an ally (guys look it up, I had to at one point). Where I’m going with that bit of honest self -assessment is that I am a work in progress. I don’t know everything, sometimes I claim to, but I don’t. Most of us don’t (well maybe Sonia Lawrence, she’s epic). It’s because of these imperfections, those situations where we might not see every angle and therefore fail as an ally, that the Equality Committee, L&L, Student Caucus and hopefully you, will be debating the establishment of an Equality Officer. The idea of having a student representative focused squarely on equity issues at Osgoode was first raised at an Equality Committee open forum last term. The idea was put forward by a student and seemed to garner some support, at least in principle by those who were there, and later with people I began bouncing the idea off of. Before getting to why there is a need for a new

position on L&L it should be acknowledged that this is a new idea, not set in stone, and totally malleable. In fact, I would encourage you all to contact L&L or the Equality Committee ( to put forth your thoughts. So keeping in mind that this is a rough draft of a rough draft, it’s important to set out the need. Now quite aside from the points on our own imperfections I raised above, there seems to be three key areas that this Equality Officer could work on. First, the Equality Officer would be a point person for dealing with equality issues with the administration. Yes, they would sit on the equality committee, but this person would not just sit on the committee and have other tasks to do on council, they would be all equality, all the time. This person would be beholden only to students and could act as an unflinching advocate in dealings with the administration and York. An example of usefulness would be if a Professor made insensitive comments, the student would have an elected official with a student executive body behind them to make formal complaints and recommendations. Power in numbers. Secondly, I see it as important that we promote equity issues amongst ourselves. The Equality Committee does some of that with the upcoming Diversity Day on February 15th (in conjunction with student clubs). Great, but we need more. Issues around sensitivity and promoting a safe place for us all deserve daily attention. Information sessions, peer mediation, supporting student organized initiatives, these are all things the Equality Officer could

Duty to Warn • Monday, January 23rd, 12:30 PM, TBA: Asian law Students of Osgoode Year of the Dragon Celebration • Monday, January 23rd, 12:30 - 1:30 PM, Room 2008: Lunch and Learn: Academic Integrity and Legal Citations Session • Tuesday, January 24, 9:00-2:00 AM, Room 1337: The Obiter Dicta presents: Underwater Basket Weaving, an Expert’s Guide • Thursday, January 26th, 12:30-2:00 PM, Room 2027: Book Launch: The Payment Order of antiquity and the Middle Ages by Ben Geva • Friday, January 27th, 1:40 - 3:00 PM, Room 2027: Feminist Friday - Celebrating Graduate Students • Saturday, January 28th: Canadian International Law Students’ Conference (Tickets on sale now in main foyer of Osgoode) the OBITERdicta

do to promote better understanding and respect amongst ourselves. Finally, I think having someone on the executive of L&L and sitting in on Student Caucus meetings would bring a greater equity focus on the things that we do. Is this event accessible to all? Are we doing enough to reach out and include the entire student body, drinkers and non-drinkers for example? Maybe an issue regarding, for example gender, we might not pick up on in discussion of an L&L initiative. Anyways, speaking from the inside I think we could use someone who’s sole focus is on making this a more equitable place to learn, which would encompass dealings with the administration, students and our student government. I also think, and this is hotly debated, that the position be an elected one. An elected official would have a vote equal to all other members. If someone were appointed (from no doubt qualified candidates) I feel a tiered system may develop on the executive. Questions of legitimacy may arise and the person, because not elected, could not be said to truly represent students in dealing with the administration or York. The problem with electing an Equity Officer is surely that not enough people would run, that someone without a background in the area wins the election, and that the same type of candidate dominates the position because of the inherent inequalities and social hurdles that are involved in running for student government. I accept all those criticims and really am not sure on this point. Thoughts? I guess I would only say that our goal this year is to encourage candidates from every section of Osgoode society. So if we do that job this issue may not be as contentious. I say MAY. A way around some of the problems may be that this person, once elected, reports quarterly to equity seeking groups on campus. Potentially they could agree on direction in terms of where the Equality Officer ought to focus their energies. Perhaps it would also help that a committee or representatives be formed from these groups to work with the Equity Officer on a regular basis. How this is going to work is up to you, if it is to work at all. But in 1000 words or less there is a very complicated constitutional amendment we are looking at. This position is not an affront to our school or the great work done by so many at every level in this place. It is more of an honest admission that we are not perfect and that sometimes we need help in figuring out how we make ourselves better human beings. The Equality Officer will be the watchful eye and helpful hand of student government in promoting all of our needs and protecting all of our rights.

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Osgoode News

What If You Got Sick During An Exam? ANDREW MONKHOUSE Co-Editor in Chief What would you do if you started to feel sick during an exam? This is a question that affects many Osgoode students every year. Many an Osgoode student has found themselves feeling fine to write an exam before it begins, only to find themselves vomiting uncontrollably during. Now, if you are too physically ill to write an exam before it starts (and of course have physical proof to back it up) then you can have your exam deferred. This happens all of the time. But what happens if you stop writing during an exam? The answer, from Osgoode's perspective, is simple. You fail. Although technically Academic Rule 11.F.2.2 allows students to defer their exams even during the exam, Associate Dean Gavigan has clarified at faculty council that this is not allowed 'in practice'. No matter the circumstances the policy of the Osgoode Administration currently is that once you have seen the exam you either finish the exam, or fail the exam. A motion was moved on November 29, 2011 at faculty council affirming that this is Osgoode’s policy. The motion was tabled to the Academic Planning Committee for further investigation because of the concerns raised by Student Caucus. As of publication the issue has not returned to faculty council. This stalemate has effectively enshrined the decision to not allow deferrals without having to conduct a vote at faculty council. Deferrals are a Valid Solution At the November meeting of faculty council Associate Dean Gavigan stated that they preferred a 'bright line' test for exams separating those who had seen the exam from those who had not. The reason for this, other than administrative efficiency, is that it would eliminate the chance for students to cheat. For instance, students getting into the exam, figuring out they were in over their heads, faking illness and going home. However it must be noted that deferred examinations are in fact different examinations. While there is an argument that students who spot-studied and realize that they studied the incorrect spots would be able to abuse this, at least under this system there is a person that they must interact with, must fake being 'very sick' with, in order to get an exam deferred (as monday - january 23- 2012

well as, having presumably, a doctor's note). Considering Osgoode must generally rely on the written doctor’s notes it must be a step up to actually have a person witness the student when sick and be able to give a report on the severity of the illness. It is also notable that a deferred exam is held only a week or two later, and students are tested in conditions similar to their peers. A student failing a course and writing a supplementary exam (if they are even allowed to) months later is obviously much less comparable to their peers than a deferred exam, as is a student who fails and has their grade 'commuted' to be a pass by petition. Deferrals are just as safe before and afterwards and optimize the ability to compare the students to their peers; thus, they seem to be a valid option. The Other Options to Deferrals are not Reasonable The preferred method suggested by the Osgoode Administration is that once an exam is started students should ‘not be in a position to get a deferral, but should use the petition process instead. The petition process means appealing on the basis of having failed the exam but having the mark overturned on compassionate or equitable grounds.’ Based on the observations of this writer, the reason why the Osgoode Administration feels that this is not unfair is because they perceive that failing a class is not so terrible. If you go before the committee and you can prove that you failed the class because you were sick then you have a number of solutions. We cannot necessarily speak to the likelihood of getting such options, but since these options are generally based upon being fair, one would imagine that such options would be preferred as the alternative would be demonstrably unfair. The main option is aegrotat standing which is effectively similar to a 'pass' and is awarded where a student is unable to take, or pass an examination. However from the wording of the Osgoode policy at 11.27 this is only possible where students fail, not when they do poorly. The other option is supplementary examinations. Theoretically, as stated at 11.27 of the Osgoode handbook these are where: “for medical, compassionate or equitable reasons he/she was unable to write, or to demonstrate his/her ability at the regular examinations.” However, it seems that this is not the standard practice. This is supported by the policy itself stating that, “they are not to be considered a regular method of enabling students to

complete the requirements of the year.” This results in the perverse situation where it could be better to fail than to pass. For instance if you were to get sick during an exam and chose to keep writing, maybe ending earlier, maybe stepping out to throw up every few minutes, maybe laying half-comatose waiting for time to be called. If, somehow you still manage to squeak out a C (or the Professor feels sympathy for you), then the options above which you might utilize if you fail are generally not available to you. This is due to the fact that if you are looking to appeal a grade which is not a fail then you have to appeal based on the merits of the content which was provided, as opposed to extenuating circumstances (Handbook 11.28, based on grounds for appeal). This means that people who are sick, but still able to pass end up in a worse situation, if they receive a grade lower than they would achieve if they were not sick. The worst part is that students who suddenly start to feel sick are not in any position, nor are they given the information, to make informed choices on the matter. They are just told that they will fail if they leave. Add this to students who are already feeling sick and stressed and of course you will see this additional stress adding to the list of impediments they face. If they continue, they are assuredly going to receive a worse mark than they deserve and if they leave then they automatically fail. While it might seem that in this case the clear answer would be to walk away hoping the committee would side with you based on the extenuating circumstances it is important to note that first of all there are no guarantees what a review will do, and secondly, even if in the end you have a successful appeal/ rewrite of the exam, you will have a failing grade on your transcript during the intervening time - a death-knell for any job applications you may send out during that time. As human beings physical sickness can strike all of us. It is unfortunate that the current Osgoode policies deny that. In their effort to make exams 'fair' Osgoode has also inadvertently introduced an element of complete randomness, the random chance of getting sick during an exam. This factor is uncontrollable and can result in otherwise exceptional candidates hurting their entire law school career. I have been lucky enough to never get sick during an exam. I hope that you reading this have also been lucky. But not everyone has and there was nothing they could do about it. But for the grace of god go I, or any of us. the OBITERdicta

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Cancun Graduation Trip! NICK VAN DUYVENBODE AND RACHEL STARK Opinions Editor & Contributor

want to party it up hard, you will get exactly what you want.

You may now have taken note of the many posters around Osgoode. Well now it’s also confirmed in print here in the Obiter, that yes, the Class of 2012 is set to jet down to Cancun after our very last, last, last, set of exams. We’re heading down on April 23rd for one week of surf, sun and plenty of outrageous times.

Please see the Facebook open event page by searching for OSGOODE LAW GRAD TRIP, CANCUN 2012!! You will find all of the event details and how to book under the event details section.

It’s been three hard years at Osgoode and it’s time to celebrate our accomplishment. This is a fantastic time to take advantage of an incredibly relaxing week of paradise, sandwiched between finishing exams and cracking open of bar course materials (collective shudder). In order to plan this trip, we’ve partnered with an established student event organizer, S-Trip, who have selected the 5* Gran Caribe resort in beautiful Cancun, Mexico! In addition to all-inclusive food, alcoholic and non-alcoholic beverages at the resort, there will be beach parties, pool parties, exclusive predrinks and themed parties every night. Busses will also be available for heading out to Cancun’s nightclubs, and Osgoode will have access to discounted passes to these bars (including unlimited drinks). This trip has been designed so that no matter whether you want to relax and do absolutely nothing (completely veg out), or whether you 11-084 OSG DeanForDay2012(186)_Dean Ad 12-01-18 2:50 PM

Video Submissions Welcome

Also, if you want further information, you can contact the organizers of the event, by emailing Rachael Stack at, or Nick Van Duyvenbode at Cheers. Here’s a further rundown of the details of the resort: Rooms: • All rooms will be a Junior Suite or better • 1 King Bed or 2 Queen Beds • Personal Balcony or Terrace • Satellite Television • Mini Bar Fridge with soft drinks, bottled • water and beers (refilled free each day) • Safety Deposit Box Included • Marble Bathroom with shower, vanity mirror and hairdryer Restaurants: • 8 Restaurants to choose from: • Albatros: casual all day dining, show cooking, buffet and a la carte Page 1

• Gaviotas: beachfront restaurant open for breakfast, lunch and dinner, buffet and show cooking • Maria’s: new Mexican specialty a la carte restaurant • Sunset Grill: outdoor Steakhouse with a patio overlooking the water • TradeWinds: beach and snack bar open for breakfast, lunch and dinner • Poolside Health & Sushi Bar: freshly made sushi, teppanyaki and more • The Club: a 24hr self serve area with hamburgers, hot dogs, nachos etc • Room Service: Full menu available from 8am until 10pm Bars: • 8 Bars at the resort serving up drinks and cocktails • The Lobby Bar: a meeting spot pre-bar with full service bar and beer taps • Beach Bar: opened exclusively for S-Trip participants • Trade Winds: located on the beach and step away from the pool • The Club: 24hr self serve bar with 26ers and mix and a beer tap • Pool Bar: poolside bar with full waiter service until 10pm • Maria’s Bar: located inside the a la carte, full menu of quality cocktails • Show Bar: Open during the nightly show • Gaviotas Bar: in restaurant bar serving drinks for dinner and beyond

The 2012 Dean for a Day Contest


Win a pair of tickets to see The Black Keys & Arctic Monkeys at the Air Canada Centre on Wednesday, March 14

Enter now for a chance to trade places with the Dean and rule Osgoode for a day!

Dean Lorne Sossin is offering one lucky student the opportunity to set forth his or her vision of the future of Osgoode Hall Law School and an entire day to make it a reality.

Contest Rules:

All Osgoode students are free to enter.

Continuing a tradition that was originally established by former Dean Harry Arthurs, the winning student will assume direction of the Law School for one day. He or she will be able to:

Contestants are required to submit a short essay (maximum 500 words) or video, setting out what they would do if they were appointed Dean of Osgoode Hall Law School for the next five years.

• • • • •

Essays or videos must be submitted to Virginia Corner in IKB 2024 or by e-mail to no later than noon on Friday, February 3.

All submissions will be reviewed by Assistant Dean Ronda Bessner and Associate Dean Shelley Gavigan, who will select the winning entry. The name of the winner will be announced on Monday, February 6 and the winning essay will be published in Obiter Dicta on Monday, February 13.

The winner will serve as Dean for a Day on Monday, February 13.

Occupy the Dean’s office Chair meetings of the Law School’s senior administration Enjoy a free lunch with a guest Contribute a video to the Osgoode History Project See The Black Keys & Arctic Monkeys on Wednesday, March 14 at the Air Canada Centre with a friend

Meanwhile, Dean Sossin will go back to school, attending the student’s classes for that day, armed with numerous multi-coloured highlighters, sticky notes and his trusty iPad for taking copious notes.

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Good luck!

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What I Learned On My Summer Vacation And How An ILP Fellowship Blew My Mind (In A Good Way) JACQUIE KIGGUNDU Student Executive Director, ILP

It was a hot July day in Salone. I stood at the front of the room smiling through my nerves at 52 uniformed police officers seated in a semi-circle. The room had an excited buzz from the previous session on national and international children’s rights. It was now my turn to present a session on child-friendly sentencing options. The two Justices of the Peace from the Freetown Juvenile Court conspicuously sat at either end of the group like bookends. The Court’s four Police prosecutors sat together. Their bright blue uniforms stood out compared to the general service officers’ green and brown. I knew the prosecutors well by this point, and they smiled back warmly with anticipation. Most of the attendees had come with pens and notebooks which were now poised and open waiting for me to say something useful and relevant. I hoped against hope that I wouldn’t disappoint. I took a deep breath before I began. I couldn’t help but think how far the day’s objectives were from what I thought I would be doing when I applied for an ILP Fellowship. Before coming to law school I worked internationally in development and human rights. I knew that I wanted to have an international opportunity when I came to law school, so ILP was the right fit for me. I thought I would stick with my safe zone and apply for a position that related to an area of law I had experience in. The Fellowship advertised for Sierra Leone was one relating to sexual and gender-based violence. Since I had done some work on these issues in Canada and East Africa before, I thought I could build on and bring the skills I gained in these experiences to the Fellowship. I was thrilled to be accepted as a Fellow. My big brother dropped me off at Pearson airport on a Saturday. After a bleary 6 hour layover in Brussels, a hot and seemingly endless pit-stop in the Gambia, a surprisingly smooth ferry-ride to Freetown and a much-needed air-conditioned induced sleep, I was finally in the office of the host organization on Monday morning. The NGO’s Executive Director was a small and energetic man with the kind of “I can do anything” attitude that inspired staff to work equally as hard. After giving my partner and I a breakdown of the work the organization was responsible for he told us that there would be a change of plans. Instead of working on a projmonday - january 23- 2012

ect relating to child sexual abuse, I would be working with the juvenile justice team. At first, this work involved monitoring juvenile court proceedings at the Freetown Juvenile Court. Later, with the encouragement of my boss, the Magistrate, the Defence lawyer and the prosecution, the work turned into the development of a police prosecutor’s training guide and the facilitation of a related workshop. I never thought I would be asked by a child’s rights organization to help the prosecution be better at their job of prosecuting children. But after learning more about the way juvenile justice functioned in post-war Sierra Leone, I realized that the organization I was working for really had the best interests of the children they served in mind when developing this program. In Sierra Leone, the prosecution of juvenile offences is undertaken by a designated division of police officers. These police prosecutors are not trained as lawyers and have very little job-specific training related to litigation, criminal procedure and juvenile justice. Historically, children appearing before the Court would represent themselves at trial. The capacity of the prosecutors, though low, was clearly greater than the abilities of unrepresented children. As such, juvenile cases were often quickly (and unjustly) disposed of. This changed when the government of Sierra Leone received funding from international sources to furnish the Court with a legal aid lawyer. The legal aid lawyer placed with the court has a great deal of litigation experience and of course, legal training. In contrast, the police prosecutors remained poorly equipped to do their job. The organization I worked for assumes that it is this imbalance that led the Magistrate to litigate cases from the bench. Officially, the Magistrate is to decide cases with the assistance

of two Justices of the Peace. Sierra Leone is part of the Common Law system and, as such, the Magistrate is supposed to remain impartial and relatively silent during the proceedings. Yet, he would often ask the prosecution inquisitorial questions about the case, which the prosecution would in turn pose to the witness. Moreover, the Magistrate often made arbitrary rulings in favour of the prosecution even where the decision was not supported by the evidence before the Court. For this reason, the Court’s stakeholders believed that building police prosecutor’s capacity would contribute to the rule of law and lead to better outcomes for children accused. At first, it felt very strange to help the prosecution get better at prosecuting the children that we were working in other capacities to protect. But over the course of my Fellowship I realized that this was just one strategy of many the organization used to support children in contact with the law. The NGO ran youth group-like sessions for girls to reduce juvenile criminality and to teach children their rights. The NGO also advocated for and monitored the conditions of incarcerated children in police stations and remand homes. Additionally, they provided the only educational programming available to children incarcerated in Freetown’s remand home. The NGO and the defence lawyer worked on the project to develop prosecutorial capacity because they recognized that unless all actors in the court knew of and respected the rights of children and knew how to do their job effectively, justice would not be served. Seeing all of this unfold over 12 weeks was an incredible experience. I learned what it meant to think outside of the box. I carried this lesson with me all the way back to Canada and I know I will have it with me throughout my legal career.

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Opinions Aboriginal Self-Government: Say No To The Indian Act ASHLEY STACEY Contributor

The disillusioned view that Aboriginal selfgovernment is derived from the Indian Act (Act) is a dangerous one indeed. A popular myth is that First Nations cannot administer their own justice systems without the federal government’s “approval” or without complying with the Act. This presumption is warranted since Aboriginal people have been trying for centuries to develop as independent nations, while carrying the burden of this legislation on their shoulders. That being said, it is time to return to our roots, for the Act, with all its fame and glory, was initiated as an assimilation tool and continues to remain outdated and oppressive. Most Aboriginal courts have been set up within the limited confines of s. 107 of the Act. This section states: 107. The Governor in Council may appoint persons to be, for the purposes of this Act, justices of the peace and those persons have the powers and authority of two justices of the peace with regard to

gated by the federal or provincial government, rather it should be recognized that Aboriginal people are constitutionally protected and have the power to govern their own territories. Aboriginal nations should be choosing how to develop their own justice systems, without the “permission” of federal authority. There is no greater understanding of Aboriginal values, customs, traditions and beliefs than through the eyes of the native people. As Carl Roberts, former chief of the Roseau River Band stated: colonialization. This section was created as a means to place power in the hands of Indian agents, not First Nations. First Nation communities can use this section to assert some control over the administration of justice but it can be best described as only a short-term measure. Thus, while section 107 courts may be a step towards self-government, it is a small step indeed. If a First Nation community wishes to assert full jurisdiction over the administration of justice, these powers should not have to be dele-

The imposition of foreign laws as supreme is totally unjust. The notion that English Common Law and French Civil Law supersede First Nations Law was and is based on racist and colonist attitudes. To imagine inviting a person into your home and having that person dictate to you that your authority and your laws are of no value and that theirs is supreme is totally racist and borders on insanity. Therefore, we must promote self-government. If we fail to do so, we may lose another generation of youth to the Act.

(a) any offence under this Act; and (b) any offence under the Criminal Code relating to cruelty to animals, common assault, breaking and entering and vagrancy, where the offence is committed by an Indian or relates to the person or property of an Indian.


Still, the level of restriction dominating the Act is inevitably the result of goals towards the OBITERdicta


SAME LAW, DIFFERENT FIRM. Love your job at one of the most dynamic legal practices in Canada. Contact our Assistant Director of Student Programs, Leigh-Ann McGowan, at or visit us at


The Aboriginal Justice Commission, an advocate for aboriginal self-government, makes it clear that the fact that First Nations have worked with federal bureaucracy should not be interpreted to mean full compliance or acquiescence to a derivative form of government dependent upon delegated powers from a federal authority. The Commission further elaborates that Indian bands operating under provincial or federal laws, such as the Act, was most likely the result of being denied more appropriate arrangements, and should not be misunderstood as Aboriginal nations relinquishing their rights.

© 2011-2012 Cassels Brock & Blackwell LLP. All rights reserved. | | 416 869 5300

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Cassels Brock - 2011/2012 season

Obiter Dicta student ad Learn to Lead (“lioness”) 4B Prestige, b&w

Designer: Heather Murray 416 869 5782 - fax 416 642 7137

Please PRINT a hard copy of the 1/5/2012 1:37:11 PM file and either FAX it or SCAN and EMAIL it back to me, thanks!

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Features Fake It Or Make It: JCR Etiquette KYLE REES News Editor RABJEET WALLIA Staff Writer So by now you have all had a chance to appreciate the glory that is the finally-open JCR at Osgoode. Yes, there is no longer a need to sneak alcohol into your classes through a skilfully-designed turtle-neck. That said, there are still students among the Osgoode population who could stand to learn a little bit of etiquette when it goes to how to act in our newest hangout spot. But first, some commentary about the JCR itself. Currently, the space is open on Thursdays from 12:30PM-2:00AM, with additional openings in the works. There is enough space for about 100 people to fit comfortably, with seating and a bar long enough to accommodate a crowd. While the place is pretty brightly-lit (think ‘70’s dystopian future’) and the music system is underpowered, there are plans in the works to make the JCR more ‘bar-like’. For now, though, it’s a great student space with excellent prices ($5.00 pints are nice) that is run by students for students. This is an atmosphere worth preserving, but it will take a bit of effort to stop lawyers from ruining this like they ruined Administrative Law.

Do tip well: The tipping situation is unique at the JCR. Instead of conventional ‘slip-thebartender-an-amountthat-corresponds-withhow-badly-you-wantto-sleep-with-them’ (which would have most of us throwing c-notes at Dave, let’s be honest), the JCR has us tipping towards worthwhile causes. Currently, tips go towards the Wendy Babcock Bursary Fund, donations to which the Osgoode administration will match dollar for dollar. Apparently, tips have been good, because the JCR raised more than $300 last week. So put a dollar in the jar and keep that karma going. Don’t talk about law: We’re law students. We love doing this. But every once in a while we need refuge from the “trials and tribulations” (ahem, thank you) of the law and law school. This is what the JCR can provide. Try to keep the law talk at a minimum and let law students relax a bit.

So we sat down with the two individuals who know best: Dave Meirovici (Bar Manager extraordinaire) and Dave Shellnut (who hangs out in the bar for some reason). The Daves (Davi? Daves[squared]?) gave us a list of ‘Dos’ and ‘Don’ts’ for the JCR, to guide you on your path to Thursday inebriation. Here’s what they said:

Do stay thirsty: The Daves say that the JCR has a license to open any day of the week until 2:30am. This means that it will open to meet demand. If students want the bar open on a Monday night, it will do so, provided enough people will be buying to justify the set-up. So if you want the place open more often, make sure to tell the staff (or e-mail Legal and Lit), and then actually show up and spend money.

Do try the specialty drinks: The Daves have some unique goods on offer. Dave #2 recommends the $6 Patron shots. Dave #1, meanwhile, has created something special: The Osgoode. This is a red-and-white shot one-part Sambuca, one-part grenadine, and 7-parts awesome. Rumor has it that JCR mixologists are currently experimenting with lowering the mass of brandy so as to make this shot even more potent.

Don’t yell at the bartender: If you want a drink, get up and ask for one at the bar. Don’t yell from across the room to get your order. And don’t yell while at the bar if the bartender is busy with something else and isn’t giving you their attention right away. Apart from them being a fellow human being, they are a fellow law student and have earned some respect. Keep it classy people.

Don’t judge that they are open at 1230: Look, let’s face it, people are going to be drinking in the afternoon. And why shouldn’t they? Some people may want a lunch time brew to go with their sandwich or stir fry. Others may want to have a drink for whatever reason. Trust the folks behind the bar to know what they are doing and leave your judgment at the door. They’ll know when someone has had too much and will act accordingly. monday - january 23- 2012

Do chat up the staff: This isn’t some dive in the annex where everyone’s a stranger and you can treat the bartender like hired help (though you shouldn’t do this anyway). The people working the bar and buying the drinks are your friends and colleagues, and deserve to be treated as such. So chat up whoever you meet—we’re all friends here. Don’t fight!: This segues nicely with the whole

classy bit. Why on earth would you want to fight there? Not just physical brawls, but verbal jousting matches that go beyond the usual discourse. This is a bar, not your basement. You want to have a fight, do it somewhere else. This isn’t the place for it. Do make suggestions: The JCR exists to make students happy, and they are looking for feedback. So if you have ideas for products you’d like the bar to stock, or events you’d like to see (karaoke and trivia have already been floating around), let one of the Daves know! Don’t be an elitist: The general theme of the JCR is a laid back lounge for students who seek a place to get away for a bit and relax. There is some booze at reasonable prices, chairs, tables, all you need as the bare essentials to just chill. Nobody wants to hear about how other bars do it better with fancier drinks and fancier anything. You have a suggestion, take it to the front, but check the elitist attitude at the door. It permeates throughout the place and can ruin the time for everyone. Everyone is welcome and as long as everyone acts civil, things are just fine. Dave2 gave us a unique opportunity to see their vision of what the JCR is and what it could be. They want it to be a place of solace for the law school community. A place where people can just walk in, have a drink if they wish but most importantly, a place to relax. There are plans to have an open mic night and allow people to promote their talents a little bit. Student clubs will be able to use it to raise interest congregate for their events. There are a lot of ideas being thrown around but the main thing is that any idea or event that is thrown will always be in students’ interest first. And that is welcome news indeed. So, enjoy the new JCR, and make sure you let them know if you want it open more days. They are working off of demand, so let’s give them something to work off of. the OBITERdicta

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The Unreasonable Man Cures Your Winter Blahs TRAVIS WEAGANT Staff Writer In my last appearance, I attracted some questionable karma by publishing real-life spoilers without warning. Incidentally, I also received a smug email from the Iranian intelligence service informing me that my reference to their beloved President’s impending death by seafood was naught but bluster, for His Tyrannical Majesty does not eat oysters. Imagine my disappointment. But I digress. Since last Tuesday, I have had a rash of bad experiences culminating in an injured toe and a most irritating head cold. So, to repair my relationship with the universe, I have decided to make a positive contribution to your lives this week by giving you four eclectic ideas that will liven up the rest of your boring winter.

1. Curling For those of you who have never tried curling, I highly recommend it. It’s easy to learn (and extremely difficult to master); anyone can play (including people with mobility problems); it’s a strategy-intensive game, which keeps you sharp, and most of all, the culture surrounding the sport affirms and encourages the typical law student’s special relationship with alcohol. The curling season usually begins in early fall. Many clubs will allow you to join a league midseason for a discounted rate if there are spots available, and most do not require that you own any special equipment apart from clean running shoes. If you don’t have a team, you can register as a spare player and stand in for folks who couldn’t make it that week. Every club has men’s, women’s, and mixed leagues, and every club has competitive and non-competitive leagues. The Toronto Curling Association ( has 24 member clubs from Oakville to Oshawa to Newmarket. Unfortunately for Ozzies living on campus, there are no options within a convenient distance, but commuters from the 905 or downtown may want to think about giving this sport a chance. And for all the naysayers who think that lawyers don’t curl, I would have you Google one Jennifer Jones.

network, and by “it” I mean shutting down for 24 hours in an attempt to stick it to Congress. The Stop Online Piracy Act (SOPA) and its Senate counterpart, the Protect IP Act (PIPA), are bills currently being considered by Congress, both of which would make web hosts responsible for the content accessible through their sites. Subsequently, a copyright holder could obtain a court order against a search engine or a web host requiring them to block access to copyrighted content.

off. Personally, I have decided to conduct a little experiment: every time I would normally look something up on Wikipedia, I will instead obtain my information from Uncyclopedia, a spoof wiki that is currently operating under the pseudonym “Zombiebaron”, and conduct myself accordingly. I will publish the results of this experiment next issue, and thus settle the question that’s been torturing us all: just how important is Wikipedia to our effective operation as human beings?

A particularly controversial provision in the House version of the bill would require Internet Service Providers to block access to any offending websites. Admittedly, this provision has only lukewarm support and will likely be removed from the final version. However, it certainly does help to explain CNN’s recent report that a whopping 11% of the American citizenry approves of how Congress is doing its job. I, for one, find the clueless irony of Congress seriously considering the implementation of Internet censorship to be altogether amusing.

4. Go to Law School I’m not sure who I was trying to fool here, but I am sure that law students rarely experience winter boredom. Last weekend, another of the Unreasonable Man’s highly scientific polls of the Osgoode community revealed that anyone not currently working on a moot, Mock Trial, a column for the Obiter, readings for class, an OPIR or clinical placement, job applications, or some damned Civil Procedure assignment is, in fact, procrastinating. Already. And the year is barely three weeks old.

All legislative hijinks aside, I think Jimmy Wales (remember that asshole that plastered his own face all over Wikipedia in a baffling fundraising campaign?) may have underestimated the impact of his 24-hour blackout of the world’s cheat sheet. There are two possible outcomes: either the English-speaking world will turn elsewhere for its information, or it will simply take the day

Boredom is not for Ozzies – remember that. If you think you’re bored, take a good, hard look at yourself in the mirror. You’ll see the face of a procrastinator pretending that his or her aversion to school work is simply a manifestation of the ennui of the season. You know I’m right, and even if you don’t, you’ll have to take my word for it: Wikipedia’s blacked out.

2. Eating I do not mean to suggest that immediately upon feelings of winter restlessness you commence an ice cream and pizza bender. Instead, I would recommend perusing the Internet for a few recipes that intrigue you, making a grocery list accordingly, and spending your lazy afternoons preparing tasty dinners instead of staring at your ceiling or watching Storage Wars. Students tend to prefer quick and easy meals because of their hectic schedules, but if you have nothing else to do, spending time cooking generally results in a healthier – and often cheaper – meal. 3. Protest the SOPA Everyone’s doing it, and by “everyone” I mean Wikipedia, Reddit, and the entire Cheezburger the OBITERdicta

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Arts & Culture

Is The AGO On The Path To Mainstream Success?

KAROLINA WISNIEWSKI Staff Writer Now that the immensely popular Chagall and the Russian Avant-Garde exhibition has closed at the Art Gallery of Ontario, I’m sure the burning question on everyone’s mind is what other tricks the gallery has up its sleeve. The horizon for upcoming exhibitions is rarely riveting immediately after a blockbuster like Chagall. The AGO may plan one major temporary exhibition a year; if there are two, they typically are bookends to the year with a somewhat lagging middle. But now, the gallery has surprised everyone: Masterpieces from the Musee National Picasso, Paris is set to open on May 1st. This may not seem especially soon, but by the time the recently ended Chagall exhibit is dismantled and the artworks are sent back from whence they came, there will scarcely be enough time to build a new exhibition space and install paintings before May rolls around. The AGO seems to be going into overdrive, and I can’t help but wonder why. Could it be that they are making a conscious effort to organize a more exciting program in response to the ever-dwindling attendance numbers? Or is it an attempt to climb higher up the ladder of world-class art institutions? Since the AGO’s permanent collection is grossly lacking in, well, anything other than Canadian art,

upping the number and frequency of temporary exhibitions is their best bet at staying relevant, apart from expanding their collection. It’s not hard to see why they prefer the former. It’s infinitely easier to advertise exhibitions (being temporary, there’s a sense of urgency for the public to see them) and draws larger crowds (read: larger profits) than an acquisition. Could you imagine hordes of people eagerly awaiting to see the newly acquired Edvard Munch oil painting? Yeah, neither can I. The AGO’s method is savvy, if slightly disingenuous. Ideally, their goal would be to lend legitimacy to themselves as an institution by growing their collection and giving their sometimes disastrous curatorial methods a facelift. It’s a business yes, but shouldn’t that be secondary? I suppose my idealistic recommendations are easier said than done, especially when a recent multi-million dollar renovation is necessitating the gallery bring in more revenue than ever. Maybe that’s why the monstrosity of a gift shop spans half the ground floor…and why the inclusion of a gourmet restaurant was necessary… But if high attendance numbers is what the AGO is going for, it seems to be achieving its goals. Showcasing Chagall and the Russian Avant-Garde was a wise choice indeed. Chagall is notoriously easy to view and enjoy, even to those who have never stepped foot in a gal-

lery before. Extremely colourful, gestural and expressive, his paintings need not be studied extensively for enjoyment of them to be possible. They offer themselves readily for viewer consumption. What’s more, the surrealistic influences that permeate Chagall’s work render it off-beat, to say the least. His disorienting images utilize hyper-realistic tones and out-of-context figures inhabiting fantastical spaces; his work is meant to be jarring, shocking and provocative. Viewers might love it or hate it, but they won’t ignore it, or be bored by it. Populist summaries of Chagall’s life and work was easily digestible, if somewhat abbreviated and incomplete. But on a whole, the exhibition was extremely viewerfriendly and accessible. Cue Picasso, arguably the most talented and influential artist of our time, or perhaps all time. It may sound like I’m speaking in hyperbole, but such ideas are more than popular opinion – they’re often suggested and supported by pre-eminent art historians. Indeed, Picasso has managed to strike a chord with everyone, from the most artistically uninformed to the likes of Clement Greenberg (the most influential art critic of the 20th century, who saw Pollock as a direct aesthetic descendant of Picasso, and consequently, the pinnacle of modern art). The Continued on next page.

A Dangerous Method (2011) NANCY SITU Arts & Culture Editor Apparently, the former king of venereal horror has found a new genre to explore. Unfortunately, he did so with the same approach Jung accused Freud of taking with the inner psyche – he managed to open the door but made no progress or innovative improvements. A Dangerous Method, based on a play (“The Talking Cure”), which was in turned based on a book, proved to be an exercise in mediocrity and missed opportunities. The relationship between the two pioneer psychoanalysts was only tangential to the storyline, which focused primarily on Jung’s medical and romantic struggles with his patient, Sabina Spielrein. Thus, A Dangerous Method isn’t really a film about psychoanalysis. Rather, it is another romantic period drama against the blurry backdrop of psychoanalysis/psychiatry/psychology/whatever the audience can understand. David Cronenberg must assume that as his films become more and more mainstream, his audience in turn are exponentially less intelligent. The criticisms Jung issued are laughable, akin to the questions of a high monday - january 23- 2012

she never failed to overact every line, beat, and scene. To be fair, Viggo Mortensen had a paucity of screen time to really do his character justice. Again, the film would have been much improved had the focus been more on Freud, and less on Keira Knightley’s jaw. The only saving grace was Vincent Cassel whose brief scenes show off the sleazy charm he’s known for.

school student who has just been introduced to the Oedipal complex. The dreams he recounts to Freud for analysis are contrived, obtuse, and unrealistic. The portrayal of psychoanalysis makes a mockery of the subject (as if it needed any help in that direction). It is almost unfathomable that such a strong cast could deliver the lackluster performances in A Dangerous Method. Except Keira Knightley, whose luster was so strong that it was blinding in that nauseating way. From beginning to end,

I feel obligated to finish on somewhat of a positive note. If there is any reason to watch this film, it’s for the visuals. From the costumes to the beautiful European landscapes to the camerawork, A Dangerous Method was a pleasure to look at. It would make a good screensaver for your mother. Rating: Watch it Rent it Skip it

the OBITERdicta

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Sports The Black Mamba Strikes Again HASHIM GHAZI Staff Writer Kobe Bryant is the greatest player in the NBA...there is no doubting that. Yes, he’s got a lot of miles on his body, especially factoring in the lengthy playoff runs the Lakers have made in the past, and yes, he has very severe knee problems for anybody to deal with, no less an NBA athlete, but there’s no doubt in my mind that he is the best player in the league right now. Wade may have the swag, Durant the jumper, Derrick Rose the strength, and Lebron the everything, but Kobe? Kobe has the Kobe Face. What is the Kobe face you ask? KB24 makes this very unusual, grotesque face when he knows he cannot be stopped. Now, Kobe thinking he cannot be stopped says a LOT. The guy is arguably the most arrogant and confident player to play in the league since Mike, and he thinks he can make any play, any time, on any area of the court. However, when Kobe is doing the Kobeface, he does not think he can do anything, he KNOWS he can do anything. Double-crossover-hesitation pull-up Js? Money. Turnaround baseline fadeaways? Bucket. Weak hand reverse layups while splitting a double team? Wet. Kobe is unguardable in most situations, but when he’s in Kobe Face mode, there’s no point even checking him. You know a guy is good when he takes an absolutely ridiculous shot, and rather than reacting with a “What the f*ck was this guy thinking, Fisher was open!!” response, people say “Wow, how did he miss that?” Most of Kobe’s shots are one billion on a scale of one to ten. He wants it that way. He wants to take shots that nobody else would make because he knows he can, and he wants the defender and opposing team to know he can to. He’s cold-blooded.... they call him the Black Mamba for a reason. The best part about it is that he came into this year with many question marks. Suffering from bad knees for which he (allegedly) went to Germany for this secret knee treatment, and missing a ligament in his wrist (no, literally, he is missing an entire ligament in his wrist); many wondered whether KB24 still had it in him. Factor in the draining post-lockout schedule, and the fact that he was going through a divorce where at least half of his $150 million empire was at stake (Holler we want prenup. WE WANT PRENUP!), it seemed unlikely that Kobe had it in him to lead the Lakers like he has all these years. In fact, the Lakers were SO certain of the decline of Kobe, which they tried to get both Chris Paul and Dwight Howard to join him to keep their run of championships alive. Everyone had written him off, including his staunchest supporters. However, Kobe don’t play like that. the OBITERdicta

He has stepped up his game to another level this year, almost looking like the Kobe of old. The guy is a scoring machine, leading the league in scoring at just over 30 PPG. He had a stretch of four straight games where he dropped more than forty. Usually, that is an accomplishment, but for a guy that in his career has once dropped 40+ in 11 straight, 50+ in four straight and 81 on the Raptors, four straight forties was nothing... to him. However, for the rest of the league, they were scared shitless. They realized that the blend of the haters, his divorce, and everybody turning their back on his greatness made the perfect concoction for him to feed off. The league forgot about one of the most unforgettable players of his time. And in response of that, Kobe is going to be Kobe Facing every game of the season. He. Will. Not. Lose. This ‘feeding off negative energy’ is what makes the Black Mamba such an enigma in the league. Here is a guy that does not ignore the spotlight, but rather craves it. He does not say what is best to say, he says what he wants to say. Kobe is not like other pro athletes. Most pro athletes ignore the paper and media outlets lambasting them, because it affects their psyche in a negative way and disrupts their focus. Kobe, on the other hand, knows what everyone is saying about him, and makes it his M.O. to do all he can to prove them wrong. People want to be successful to make themselves and their loved ones proud. Kobe wants to be successful so he can make those who doubted him look like idiots. Case in point: at the beginning of the season, ESPN ranked the players in the NBA based on their skill set, and Kobe was given No. 7. In a league of 450+ players, being number seven is quite the accomplishment in most regards. To Kobe, he could not believe that six other guys ranked higher than him. After dropping 42 on the Cleveland Cavaliers a few weeks ago, his

third straight forty point game, he was quoted as saying “Not bad for the seventh best player in the league,” in reference to the ESPN Rankings. He knew what was said about him, and he called them out on it with substance to back it up. The next day, ESPN republished their list of the best players in the NBA. Who was at the top of the list? The Black Mamba. Check. Mate. B*tches.

The AGO Continued Continued from last page. upcoming exhibition will certainly prove to be a success, not on account of the AGO’s organization or curation of it, but simply on the merits of the artwork itself. The Musee Picasso in Paris, the world’s largest collection of Picasso works, including everything form sketches to works in oil to sculptures, is currently undergoing renovation. Of course, unlike the AGO might like you to believe, only a small fraction of these works will be on loan in Canada. A majority of them will reside in storage until the renovations are completed in summer 2013, and the rest are on loan locally in Paris. It will be interesting to see which works make it to the AGO. The recent Chagall exhibit only featured a handful of his paintings, a smattering of some sketches or works on paper; comprising a majority of the exhibit were the obscure and sometimes mediocre works of “the Russian Avant-Garde”, or as one might more fairly call it, filler. But perhaps the upcoming Picasso exhibition will feature less unwelcome surprises and more timeless art, impeccable curatorial work and accurate explanatory materials. Then again, maybe not.

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Bingo Instructions How to play: you play by filling out the score card in all of your classes. You play against your friends in all of their classes. Although the cards are the same you don’t have the same classes as your friends, so the competition is on like donkey kong! Make sure to write into the Obiter Dicta and tell us about how you won the game! How to win: in order to win the game you have to get ‘five in a row, or diagonal’. So an entire column, row, or from one corner to the other diagonally. Then you must ask a question that involves the word ‘bingo’ in it. It is better if it is emphasized but can be any use. Example 1: “Ok, so let’s say that the fetus’ father was driving along in Dobson v. Dobson, but the mother acts negligently causing distraction and the crash, then “bingo” we’ve got a baby, how would you apportion liability?” Example 2: “Right, so the question I have is how would Childs apply to not for profit organizations such as bingo halls?”

At Davies we measure our achievements by one simple standard: your success. If you have a record of outstanding achievement and are interested in joining our team, visit us at or contact Frances Mahil at


monday - january 23- 2012

the OBITERdicta

Issue 13 - Jan 23 2012  

Issue 13 of the Obiter Dicta, the Definitive Source for Osgoode News