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ISSUE 14 - April 8, 2013 obiter-dicta.ca

This is Obiter Dicta’s last issue of the year. Many thanks to our loyal readers and even to our nay-sayers. See you in September! Please send your summer epiphanies to: obiterdicta@osgoode.yorku.ca

The Definitive Source for Osgoode News

It is imperative that the law school’s administration evaluate spending levels in light of their commitment to accessibility and social justice within the current environment where articling positions are increasingly scarce, an untested Law Practice Program is being rolled out for those without articling placements, and salaries for newly called lawyers are in decline...

” Starting the conversation on tuition MARTIN HUI Contributor

First among equals: Osgoode Hall Law School joins the Law Students’ Society of Ontario TOM WILSON Contributor During the L&L and Student Caucus elections that concluded on March 21, Osgoode students voted to join the new Law Students’ Society of Ontario (LSSO). With 80.6% of the vote, Osgoode is the first law school in Ontario to join the LSSO. The LSSO, inspired in no small part by the fractured and ineffective student response to the recent articling debate, is a non-partisan issues-based advocacy organization representing Ontario law students. Over the past six months, law student governments in Ontario have designed an organization capable of building relationships and advocating on our behalf. This organization is the LSSO and I am proud to proclaim that Osgoode has been a standard-bearer and chief proponent for the society. Kudos is owed to all members of Student Caucus, Kasia Kmieć in particular, Dean Sossin, and the Queens University SLS for getting the ball rolling.

The hard work, however, has just begun. To butcher Aristotle, “one constitution does not an organization make.” The seed has been sown, but sweat and lost sleep are now needed to raise the LSSO up from the ground. By approving the LSSO, Osgoode has taken a monumental step forward — our efforts, present and future, must now match our ambitions. Until the formation of the LSSO, there was no national or provincial advocacy organization specifically dedicated to issues facing law students. However, the recent developments surrounding the shortage of articling positions and the attendant reforms to the licensing process, and rapidly increasing tuition fees drew Ontario’s law students into the business of group advocacy. If and when Ontario law schools ratify the LSSO constitution, the organization will meet to elect leaders and set its agenda for the next academic year.

Have you ever wondered who sets the level of tuition at Osgoode and how they do it? Maybe the better question is: who hasn’t? The amount of tuition we pay has a direct effect on the choices we make after law school. First year students entering Osgoode in September 2012 will likely graduate with over $100,000 in debt, taking into account tuition, ancillary fees, and living costs. For a law school with a “commitment to public law, social justice, and ethical lawyering,” this severely restricts the ability of students to pursue careers in smaller law firms that are critical to improving access to justice. This also disproportionately affects the ability of those in lower socioeconomic and equity-seeking groups to complete a law degree at Osgoode. Your 2012-2013 Student Caucus approached Dean Sossin and Osgoode’s new Executive Officer, Phyllis Lepore Babcock, to discuss how tuition is determined. While this article will not answer all students’ questions, it will hopefully spark a dialogue that will continue into the future. How are tuition fees set? A now-expired provincial tuition framework was established for professional programs that allowed an 8% increase for 1L students and 4% increase in each of 2L and 3L » continued on pg 4


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OBITERdicta

The Definitive Source for Osgoode News Osgoode Hall Law School, 0014G York University 4700 Keele Street Toronto, ON M3J 1P3

editorial

Some Reflections on 2012/2013 This year, on March 20, 2013, we celebrated our first International Day of Happiness. It’s easy to forget under the pressures of law school that the pursuit of happiness is a fundamental goal. We hope our own Cass Da Re’s Happiness Project series have helped the Osgoode community achieve that goal over the past two years. Osgoode, you deserve to be happy!

E-mail. ObiterDicta@osgoode.yorku.ca Website. www.obiter-dicta.ca Twitter. @obiterdictaoz The best thing about the future is that it comes one day at a time. - Abraham Lincoln Senior Editor-in-Chief: Nancy Situ

This year, we saw the inauguration of a new Pope, a new Liberal leader, a new Ontarian law school, and a new way to complete LSUC licensing requirements. Time will tell how these changes will take effect.

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

Did we ever solve the curious case of the missing forks?

Website Editor: Ricardo Golec

Congratulations, Osgoode – we’ve made it yet another year. We’ve survived the supposed 2012 apocalypse, which turned out to be a deadly storm in the form of Hurricane Sandy, the epic fail of iOS6 maps, and an infectious virus commonly known as “Gangnam Style.” We’ve survived 9 York Security Bulletins, 14 issues of the Obiter Dicta, and 1000 missing forks. We’ve survived – just barely – another year of Rob Ford’s comical incompetence as mayor (and sometimes, as a rational human being).

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.

This year, we landed our arguments as successfully as the Curiosity rover did on the surface of Mars. Osgoode won the Gale Cup, the Client Consultation Competition, the Fox Moot, the Great Lakes Mediation Tournament, the Walsh Family Moot, and the Winkler Award for Mediation Advocacy.

The Obiter Dicta is published biweekly during the school year, and is printed by Weller Publishing Co. Ltd.

On October 14, 2012, Austrian skydiver Felix Baumgartner jumped from 39km above the Earth’s surface at a top speed of 1342km/hr, breaking the sound barrier and a number of world records. What kind of barriers did Osgoode break this year? We’d like to think that Osgoode broke down some gender and sex discrimination barriers with another successful Wendy Babcock Drag Show. Wendy would have graduated alongside many of us this summer. She was an inspiration to many of us and we hope to see her legacy continue.

Staff Writers: Citlally Maciel, Jihee (Marie) Park, Daniel Styler, Angie Sheep, Harjot Atwal, Michael Capitano Crossword: Emily Gray Contributors: Nick Francis, Martin Hui, Michael McCarthy, Tom Wilson Layout Editors: Julia Vizzaccaro, Devin Santos, Patricia Wood, Wendy Sun, Maximilian Paterson

The Obiter Dicta is a member of Canadian University Press.

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Now we can only hope that that we’ll Usain Bolt through the exam period. Thanks for a great year, Osgoode and best wishes for all your future endeavours!

Yours through thick and thin, Obiter Dicta

note on TWU submissions As of the Obiter Dicta’s deadline, three submissions were received concerning the proposed law school at Trinity Western University, all of which appear herein. The Obiter’s official position on the proposed accreditation is diplomatically vague and was expressed, complete with multiple allusions to the Lord of the Rings, in the March 25 editorial. However, we do understand that this is a topic on which many Osgoode students hold diverse opinions. There having been no poll, it is impossible to say which position is the majority opinion (if there is one) and which is the minority. In either case, no point of view holds a monopoly in these pages. In the spirit of debate, the Obiter will continue to accept thoughtful submissions of less than 1200 words on the topic until Thursday, April 11, and will publish them forthwith in its online edition. the OBITERdicta


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letter to the editors

Letters: the Obiter’s policy on anonymous submissions I have been dismayed by this publication’s policy of publishing anonymous opinion pieces. From my vast journalistic experience, and by this I mean writing for student newspapers and watching TV shows about journalism (i.e. a hardnosed mix of House of Cards and Gilmore Girls), anonymity is usually only accorded in two instances: 1. As an editorial board, speaking uniformly as the voice of the newspaper. Individuals are subsumed into the collective voice, and the opinion is put forth as that of the collective. 2. If a journalist grants a speaker/information source anonymity usually grounded on the legitimate fear of violent reprisals. These tepid law school opinions, which the Obiter regularly publishes anonymously, do not begin to cover the continuum of acceptable positions in the outside world. If the names of these opinion-holders were available, and I agreed with them, I could give these people high-fives when I saw them next in Gowlings Hall. If I disagreed with them, I could roll my eyes at them and say “Really?” while playfully frowning and discussing their opinion with them. Neither of my responses are violent. At worst, if an upperyear classhole got all red-faced while bloviating in opposition to a named person’s opinion piece, this would still not approach violence. Please worry about violence in any York parking lot at any time of day, but not from some oppositional, opinionated law student who detests your considered thoughts on jeggings. Writing anonymously in a newspaper column is

problematic, because readers cannot tell if the anonymous writer is singular or plural. Readers cannot match the words to the reputation of the real-life analogue responsible for this opinion. Also, an anonymous writer may seem to represent a larger group of people than she does, like a quasi-editorial board of undefined size. Worse still, the Obiter could seem to lend unwarranted credibility to these views by making them anonymous, since this fashion is reserved for editorials and persecuted rebels. And no opinion on jeggings rises to the threshold of rebellious. Maybe persecuted. Maybe. So, why is anonymity requested of the Obiter so much? If people are worried that their beliefs might get questioned, it may be an indication they are not strong in their convictions, or that they are wrong, do not hold those beliefs, and are trolling everyone. If people cannot stand next to something they find meaningful enough to form an opinion on, I recommend other options beyond the cover of anonymity: 1. They could keep their opinions to themselves. I recommend this course, since I often think up nonsense that I save for my tumblr of sad poetry and pictures of cats, more as a matter of politeness in not burdening newspaper readers. 2. They could change their opinion if they do not actually have the courage of their convictions. I did this recently regarding Twitter. It is very freeing admitting I am wrong, and having another place to post haikus (e.g. “Little cat wearing / my rimless black spectacles / badass

Talking about tuition transparency

LORNE SOSSIN Dean

Tuition transparency is a vital aspect of Osgoode’s commitment to accountability. Students ought to know where their tuition dollars go (and what other revenues the Law School relies upon), and ought to understand the relationship between tuition, the costs of legal education, and the quality of the student experience. The article in this week’s Obiter provides a helpful catalyst for our conversation about tuition. This is a conversation with many perspectives – how does Osgoode’s tuition compare with peer institutions? How has financial assistance risen to meet the challenges of Osgoode’s tuition? How has Government investment in legal education and postsecondary education generally evolved in the context of tuition? What are the monday - april 8 - 2013

implications of increasing tuition and increasing debt loads for Osgoode’s students, programs, and community? Any conversation about tuition is also a conversation about the costs of legal education. It should come as no surprise that salaries and benefits represent the lion’s share of the expenses of the Law School (like the University generally). Legal education, in other words, is about people. Tuition supports our ability to attract and retain the very best – to enhance our full-time faculty complement, bring visiting lawyers and academics to Osgoode, establish new programs and staff services, expand our experiential offerings, and enrich the academic experience. While tuition makes the delivery of legal educa-

instagram”). 3. They could actually discuss their opinion, stand by it, refine it in conversation with others, and learn to live with the dislike their reinforced opinion may garner. It is one thing to worry about violent reprisals. Maybe worrying about being disliked subjectively feels similar to violence, but it is not objectively similar. Being disliked by some is the price of holding and sharing any opinion, no matter how sparkly or boring. Further, if other people dislike someone based on a solitary opinion, who needs those fair weather readers? I call on the Obiter to end the practice of allowing frivolous anonymity. The Obiter should stop enabling opinion-holders from acting cowardly and hypocritically, or, at best, holding untested, solipsistic opinions. Sharing an opinion is giving someone a view into your mind. While this could be intimidating in any environment, demonstrating how you think is part and parcel of foisting your opinion on other people. If someone has an opinion and feels the need to share it in written form to a base of readers, she should also have the obligation to answer for it in conversation. - Evan Vella Note: Obiter Dicta publishes one uncredited editorial per issue. The three Editors-in-Chief, whose names appear in the masthead, take joint responsibility for the opinions expressed therein. Other uncredited opinion pieces appear at the aforementioned Editors’ discretion. That’s our story and we’re sticking to it. See page 10.

feature - tuition transparency

tion possible, increasing the cost of a legal education too much or too fast risks undermining our goals of accessibility, equity, and inclusion. Consultations to date have made it clear that we need to expand existing financial aid through scholarships and bursaries to incoming students and students in-program. Additionally, through the Accessibility Fund (established with surplus revenues generated from Osgoode’s successful Professional Development Centre), Osgoode has established our first graduation bursaries and “back-end” debt relief initiatives. We need to build on these commitments, and, most importantly, work together to ensure students remain involved and engaged in all aspects of their legal education at Osgoode. To this end, I welcome the conversation on tuition transparency. the OBITERdicta


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feature - tuition transparency

Starting the conversation on tuition » continued from cover On March 28, 2013, the Government of Ontario released a new framework that caps all increases at 5% per year The 5% increase means that tuition fees double every 15 years If tuition increases continue at the present rate, it will likely amount to over $32,000 in 9 years – not including rising living costs The situation is even more ominous at the University of Toronto, where tuition is estimated to exceed $44,000 in 9 years How are annual tuition increases of 5% justified? According to Phyllis, there are three reasons why Osgoode’s tuition’s increases are justified:

While Osgoode’s degree programs (JD, LLM & PhD) are supposed to break even, the law school ran deficits of between the 2007-2008 and 20102011 academic years During this time, Osgoode’s non-degree programs (programs operated by Osgoode Professional Development) generated sufficient income to offset the deficits It was not until 2011-2012 that Osgoode’s degree programs generated a $67,381 surplus that was combined with Osgoode Professional Development’s $2.3 million income Of this, $1.7 million was transferred to a newly created Flexibility Fund, while future surpluses will be put towards the Flexibility Fund and improve Osgoode Professional Development programs

A rough calculation of total available financial aid per student, including scholarships, bursaries and awards, shows that there is just under $4,000 available to each Osgoode student As a percentage of tuition and ancillary fees, this amount is roughly 19.6%, higher than Western and Ottawa but lower than Toronto Osgoode will disburse $3.8 million in financial aid in 2012-2013, including $2.28 million in fall bursaries, $639,477 for graduating 3Ls who are experiencing financial distress, $317,500 in upper year scholarships, and $240,608 in entrance scholarships Has Osgoode been running budget surpluses or deficits? monday - april 8 - 2013

How have Osgoode’s revenues changed over the years? Under the current York University budget model, Osgoode receives a large, lump sum base allocation and tuition differential from York University’s Central Administration The base allocation includes JD tuition and government funding, less a portion retained by Central Administration to pay for certain services (e.g. building utilities and maintenance, payroll and human resources, counselling and disability services, etc.)

A series of York University budget cuts to the base allocation has put pressure on Osgoode’s revenues, including a 3.5%, 2.25%, and 3.25% cut in 2010-2011, 20112012, and 2012-2013, respectively

2) New funds are necessary to increase Osgoode’s complement of full-time faculty

How do Osgoode’s financial aid programs compare?

o $300,000 for Osgoode Professional Development to invest in IT infrastructure

The tuition differential represents the JD tuition increases each year (less a portion withheld for York University services)

1) Additional revenues are needed to enhance the quality of Osgoode’s academic programs and student experience, such as the establishment of the Office of Experiential Education and the hiring of a new Student Success & Wellness Counsellor

3) Increasing revenues are necessary to pay for increasing salary and benefit costs, which rise in accordance with collective bargaining agreements

o $890,120 for the newly created Contingency Fund

What is the Flexibility Fund? The Flexibility Fund was established this year in order to advance the law school’s Strategic Plan goals until the end of next year It also includes a contingency fund to help mitigate any negative future changes to Osgoode’s budget (e.g. York University budget cuts and the new budget model) The Flexibility Fund includes: o $200,000 for the newly created Accessibility Fund to enhance accessibility of a legal education, including funds for bursaries, matching grants, and new student RA positions o $150,000 for the newly created Experiential Education Fund to expand and enhance experiential learning at Osgoode o $150,000 for the newly created Research Intensification Fund to enhance Osgoode’s reputation as a leading research intensive law school

How have Osgoode’s expenses changed over the years? Osgoode spent $23.9 million to run the law school in the 2011-2012 year Full-Time Faculty - $10.7 million in 2011-2012 Since 2005-2006, this cost has increased by $3.16 million, or 41.67%, which works out to an annual growth of 6.0% each year (inflation rate fluctuated between 1.0% - 2.7% during this period) Since 2005-2006, Osgoode has only gained a net 1.05 in full-time equivalent faculty (55.77 in 2011-2012) – there were just under 50 full-time faculty members when Dean Sossin arrived at Osgoode in 2010-2011 and since then, 7 have been hired and 4 will be added by 2013-2014 This works out to a rise in average compensation from $138,460 in 2005-2006 to $192,469 in 2011-2012 While Osgoode is home to some of Canada’s leading legal scholars who are equally strong the OBITERdicta


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feature - tuition transparency instructors in the classroom, these statistics are alarming given that Osgoode’s 16.2 student-tofull-time faculty ratio is among the worst for any common law school in Canada Dean Sossin notes, however, that to focus on the student-to-faculty ratio overlooks Osgoode’s rich and varied adjunct faculty, new initiatives that feature visiting professors which enhance the curriculum (e.g. McMurtry Visiting Clinical Fellowships) and the law school’s rich experiential education programs, many of which are led by non-full-time faculty. According to the Dean, Osgoode’s faculty complement has not significantly moved beyond 2005 levels because of budget cuts, unexpected faculty departures, and the decision of the Faculty to hire senior, lateral faculty at higher salaries over entry level faculty

as in the last 7 years, no additional government funding, and Osgoode receives the same percentage of tuition increases every year, the law school needs to increase tuition by the previous maximum of 8%/4%/4% each year just to break even The new provincial tuition frame released on March 28, 2013 has set a lower maximum increase of 5% per year – with no additional government funding – which means that the law school will need to decrease spending or risk running budget deficits A transition to York University’s new activitybased budgeting model will likely decrease the law school’s revenue by forcing Osgoode to pay more for central York University services

commitment to accessibility and social justice within the current environment where articling positions are increasingly scarce, an untested Law Practice Program is being rolled out for those without articling placements, and salaries for newly called lawyers are in decline despite the rising debt levels of the new calls. More research should also be conducted to determine how various levels of government can more effectively support legal education. Whether this is through increased direct funding, re-introduction of some form of matching program to grow University financial aid endowments, or perhaps income-linked postgraduation debt relief, law students need a stronger voice at the table. The Law Students’ Society of Ontario, of which Osgoode’s student government is now a member, may assist in this front.

Osgoode’s full-time faculty formed the Osgoode Hall Faculty Association this year and is currently in negotiations for their first collective agreement

Other questions that may be explored include: How will York University’s new budget model affect Osgoode’s operating budget?

Support Staff - $6.0 million in 20112012

What value do Osgoode students receive from the ancillary fees paid directly to York University and how are fees changing?

This category includes student services staff, administrative assistants, librarians, teacher’s assistants and other professional or managerial staff Costs in this category increased $1.07 million between 2005-2006 and 2011-2012, an increase of 21.91%, which works out to an annual growth of 3.1% each year

a recent globe and mail article suggests that middle-class law graduates often carry more than $100 000 in debt, most of it from commercial loans (Sarah Rankin: “ Tdoay’s law grad: six figures in debt and heading to bay street,” Apr 2, 2013)

Most of this increase was due to small annual increases in salaries as negotiated in various collective bargaining agreements Operating Costs - $3.4 million in 2011-2012 Between 2005-2006 and 2011-2012, operating costs increased $531,667, or 18.58%. The breakdown of costs for each operating expense was not provided by the Office of the Executive Officer In a general sense, operating costs are those expenditures critical to the daily functioning of the law school, including, but not limited to: furniture, office supplies, photocopiers, postage, library books, and select grants to students Funds are also spent enhancing the academic and student experience, including improvements to experiential education and student wellness How will the situation change going forward? Assuming the same level of spending growth monday - april 8 - 2013

– instead of Osgoode receiving a base allocation and a portion of the tuition differential, the law school will receive all revenues directly (e.g. tuition and government subsidies) and be responsible for remitting a portion back to York University for shared central services (e.g. building utilities and maintenance) – which may require Osgoode to pay twice for certain services (e.g. student services and the career development office) Concluding thoughts: how do we move forward from here? To enhance the value of an Osgoode legal education, it is necessary to make investments in the law school – but what is “right” level of investment? To what extent should law students – and the communities they will be serving – be responsible for paying for the value received from a legal education? It is imperative that the law school’s administration evaluate spending levels in light of their

What other fees do Osgoode students pay (e.g. ExamSoft) and how are they changing?

In what way do funds from de-regulated (and substantially higher) JD tuition subsidise Osgoode’s LLM and PhD programs (e.g. through teaching credit to full-time faculty)? How can Osgoode continue to leverage external funding partnerships? How can Osgoode continue to improve JD student research opportunities? Regardless of the challenges, there are ways to move forward. Your Student Caucus is committed to addressing the issue of rising tuition and we look forward to working with other members of the Osgoode community during the summer and in the coming year. Martin Hui is a Student Caucus 2L Representative. Article includes contributions from Tom Wilson (Chair, 2011-2012), Jeff Mitchell (Chair, 2012-2013), Dean Lorne Sossin, and Executive Officer Phyllis Lepore Babcock. This is a summary of an article that will be concurrently published in the online edition of the Obiter Dicta and we strongly encourage readers to review the online article in its entirety.

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opinions

TWU: controversial Christians can be cool HARJOT ATWAL Staff Writer “The social intuitionist model offers an explanation of why moral and political arguments are so frustrating: ‘because moral reasons are the tail wagged by the intuitive dog.’ A dog’s tail wags to communicate. You can’t make a dog happy by forcibly wagging its tail. And you can’t change people’s minds by utterly refuting their arguments.” - Jonathan Haidt, “The Righteous Mind: Why Good People Are Divided by Politics and Religion” (2012).

implicitly discriminatory community standards are not suitable as a forum for legal education, largely because they marginalize individuals on the basis of “sexual orientation” in a manner contrary to the Charter. Indeed, the petition distributed by the Osgoode OUTLaws states: “While the Charter may not apply to private schools such as TWU, all law schools should seek to uphold it.” In the last two paragraphs, I have purposefully avoided using rhetoric. Now, let me show you

I first heard this quote at the National Christian Law Student Conference in February 2012, and then used it in an article published on Canadian Lawyer 4Students Magazine entitled “Christians Can Be Cool.” Today, I’m going to use this quote to explain the difference between argument and rhetoric.

However, as I continue to say in a rather exasperated tone, such Justice Scalia or Lord Denning comparisons are just rhetoric. They are not argument. Thankfully, while I cannot change people’s mind by utterly refuting their arguments, I can and will continue to utterly refute any and all rhetoric.

When I was younger and irritated with my parents, my method of arguing was the following: “I’m right. You’re wrong. Either love me, or leave me alone.” Having since taken “Informal Logic,” “Formal Logic,” and “Argumentation Theory” during my undergraduate degree, I now know that really wasn’t an argument at all. It was merely rhetoric. In my mind, this very same rhetorical problem is what truly creates controversy in the now well-publicized debate about whether Trinity Western University (TWU) should become accredited as a law school, despite the fact that they seek to enforce a “Community Covenant” where LGBT individuals would need to respect the Christian view of marriage in their personal lives.

how it clouds the issue.

On one side, you have the Christian community, and they have some legitimate arguments. Christians are outraged by the idea that they would not be able to train competent lawyers that respect all enumerated and analogous grounds under s.15 of the Charter, including “sexual orientation.” They will point you to a variety of arguments, including the fact that TWU has received an A+ rating every year in the Globe and Mail for its quality of education since 2005, in addition to the case of Trinity Western University v. British Columbia College of Teachers which essentially decided that there was no evidence that TWU’s teaching program discriminated against LGBT students.

On one side, you have Christians making ridiculous comments about how Lord Denning kept a Bible near him while writing his judgments, and that he claimed “It is the most tattered book in my library.” On the other side, you have LGBT individuals criticizing the fact that TWU cites biblical verses when justifying its Community Covenant, such as Romans 1:26-7, and you may occasionally see memes like the one I have included with this article.

On the other side, you have the LGBT community, and they also have some legitimate arguments. LGBT individuals contend that TWU’s

At the end of the day, I’m still a Christian even though I signed the letter distributed by the Osgoode OUTLaws. I could point you to all

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kinds of arguments regarding biblical interpretation of homosexuality, and then criticize people who subscribe to biblical literalism in a very intelligent and argumentative way. On the other hand, I could make fun of literalists by comparing them to legal originalists like Justice Scalia (who, by the way, thinks all kids should read all 85 volumes of the Federalist Papers before graduating high school, in order to understand what Thomas Jefferson and his pals were thinking when they created the United States’ Constitution).

Then, you have people who are really on neither side, and don’t care about the issue. Lastly, you have someone like me; I am on both sides and just want to see justice done.

Now, since I believe this former Logic TA has adequately explained the difference between argument and rhetoric, let me tell you what worries me about the debate I have seen. Basically, groups who claim to be marginalized, such as Christians and the LGBT community, continue to marginalize each other in order to fight for their rights. Do you see how circular that logic sounds? Instead, I beg everyone who has debated this issue to remember the following. Religion is an enumerated ground under s.15 of the Charter. Sexual orientation is an analogous ground under the same section. S.15(1) starts off with: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.” Equality rights are at issue on both sides of the debate. Do me a favour. Go study for your exams, and leave the analysis of conflicting Charter rights for an adjudicator to decide.

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opinions

In support of our friends and colleagues at Trinity Western University NICOLAS L. FRANCIS Contributor In recent weeks, Trinity Western University’s (TWU) proposal for a law school has sparked much debate and discussion. The popular reaction from students, as reflected by tweets, status updates, and petitions, has generally been one of strong disapproval. However, often drowned out — but not absent — are the alternative voices in the debate. For instance, President Lindsay Lyster of the British Columbia Civil Liberties Association, the same group that fought for LGBTQ rights in the Little Sisters case, has written to the Federation of Law Societies (FLS) in support of TWU’s proposal. In this piece, I also wish to challenge some common perceptions and voice why TWU has a strong case for a law school. At the outset, I note that much of the recent controversy surrounds TWU’s Community Covenant. Among other provisions, the Covenant requires community members to “voluntarily abstain from” activity such as gossip, lying, pornography, drunkenness, and “sexual intimacy that violates the sacredness of marriage between a man and a woman.” It is especially important to note the use of the word “voluntarily.” Signing and adhering to TWU’s Community Covenant, (an aspirational document that applies only on campus and during the academic year) is a voluntary act: it is part of accepting the offer of admission and choosing to join a private community. Likewise, TWU accepts no public funds. Like other religious schools in Canada, TWU has the freedom to set rules that best foster its desired environment, one that is supportive for its faith adherents, seekers, and their collective goals. Tuition at TWU is far from cheap, but such is the cost that many students are willing to bear — rather than going down the path of public accommodation — in order to obtain their desired educational environment. For now, any issue of alleged discrimination is not central to the matter before the FLS. FLS must decide whether TWU can provide adequate legal training to its students to merit accreditation. The Federation of Law Societies (FLS) has already confirmed this much in its reply, dated 4 December 2012, to the Canadian Council of Law Deans. In that letter, the FLS stated that its mandate is to assess solely whether TWU would be able to offer a curriculum that includes the “substantive knowledge of Canadian law” as defined by national requirements. The wisdom of the Community Covenant, for now, is not on the table.

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TWU has a compelling case supporting their application. The reality is that TWU has received much recognition for its excellence in teaching and its academic environment. The Globe and Mail’s Canadian University Report gave TWU an A+ rating in Quality of Teaching and Learning for seven consecutive years, a recognition that no other university in Canada has received. Moreover, TWU has consistently ranked among the top universities in the Maclean’s rankings, and the 2012 Canadian University Survey Consortium listed TWU as one of the top three universities in all five of its categories. From this record, there is nothing to suggest that TWU cannot bring the same level of excellence to its proposed law school, a level of excellence that it currently brings to its three professional schools and 13 other graduate programs. Opponents of TWU’s proposed law school have contended that the Community Covenant discriminates against LGBTQ individuals and, as such, makes TWU unfit to host a law school — notwithstanding its religious affiliation. This argument finds support in Justice L’HeureuxDube’s dissent in Trinity Western University v British Columbia College of Teachers (TWU), in which the Honourable Justice stated that one cannot “separate condemnation of [the] ‘sexual sin’ of ‘homosexual behaviour’ from intolerance of those with homosexual or bisexual orientations.” The logic seems to be that if TWU requires students to abstain from homosexual sex, then TWU must be intolerant of LGBTQ students and therefore should not be allowed to train lawyers who will have to uphold Charter values. However, I respectfully reject this argument for a few reasons. First, the assertion that certain classes of individuals are unwelcome at TWU is simply untrue. Every year, TWU admits and boasts a diverse student body that includes LGBTQ individuals and members of various faiths. Once at TWU, many of these individuals have found a learning environment that is both respectful and supportive. In fact, from the time that this controversy had arisen, many LGBTQ students and graduates at TWU have publicly voiced their support for TWU and defended the Community Covenant. On CBC’s Early Edition on 28 January 2013, one such TWU graduate, Bryan Sandberg, spoke of a “powerful acceptance” at TWU that far surpassed his expectations. While Sandberg did not agree with all of the rules in the Covenant — many students do not — he was, nevertheless, willing to abide by them. It is also worth pointing out that the Community Covenant also operationalizes many tenets central to the Christian faith, such

as compassion and respect for every individual, and prohibitions against harassment and verbal intimidation. Second — and perhaps most important — the view that intolerance for homosexual acts necessarily indicates intolerance for homosexual individuals is based on the presumption that, if one is homosexually (or bisexually) oriented, then he or she will necessarily engage in homosexual sex. Consider this for a moment: do we honestly believe that an individual cannot be homosexual unless he or she acts on his or her homosexual orientation? This cannot be true. Surely, one may have a certain disposition and choose not to act on it; this holds true for all people irrespective of their sexual orientation. I can understand if this argument might sound absurd to those who believe that a denial of homosexual acts is a fundamental denial of LGBTQ identity itself. However, this fact is not foreign to many seekers and adherents of the Christian faith, heterosexuals and homosexuals alike, who have willingly pursued such a path of abstinence. There is no monopoly on the LGBTQ experience or what it should be. LGBTQ individuals should have the option of attending a school that reflects and supports their choices. Third, even if TWU’s Community Covenant might be considered discriminatory in that it requires persons in same-sex civil marriages to abstain from sexual activity on campus, this fact alone does not mean TWU produces students who will engage in discrimination. While much has changed since 2001, when the TWU case was decided, the central holding of TWU has not: the freedom to hold beliefs is broader than the freedom to act on them. Nor has there been any evidence since 2001 that TWU nurses, teachers, or business professionals have engaged in conduct contrary to Charter values. In terms of law, many graduates of TWU currently attend law schools across Canada, and in fact, many are at Osgoode. All of these students have once upheld TWU’s Community Covenant, and many still live out some form of the Covenant in their personal lives. In spite of this, law school admissions officers here and nationwide still believe that these students are capable of being successful lawyers who will uphold the Charter and the values of professionalism at their schools and in their future practices. The same reasoning also applies to graduates of private American Christian law schools who choose to practice law in Canada. If any of these individuals be found to have engaged in any discriminatory conduct, their Law Society could accordingly deal with these individuals

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page 8

dean’s formal

Please note: this resolution is insufficient to properly display Dean sossin’s cufflinks emblazoned with the let ter “s.” This reportedly stands for “sophisticated.”

monday - april 8 - 2013

Please also note that these photographs were all taken before 11PM, at which time neckties naturally began to migrate to the forehead.

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dean’s formal Photos Taken and Edited by Harjot atwal

dean’s formal 2013, held March 22nd at the eglinton grand, was the site of much reminiscing, feasting, and carrying on. Special thanks to preston macneil and Alex wilkins for organizing a superb event.

Student Caucus: a year in review, or, “where doth the time go?” TOM WILSON Beastly Bard Graduating students will recall that Hannah Askew (’13) won the 2010-11 “Dean for a Day” contest. Her winning entry was a timely and thought-provoking meditation on how Osgoode could, and should, become a more welcoming place for Aboriginal students and scholarship. Some students might recall that the contest’s Selection Committee gave an honourable mention to a student for his submitted poem, “Lean Mean Dean Machine.” Fewer still will remember that the Selection Committee remarked in a York University press release that the poem “surely qualifies him [the author] to be Osgoode’s Honorary [sic] Poet Laureate.” But surely no one can recall the name of that JD student – that troubadour of hoarding walls turned Gowlings Hall. No one save the beastly bard himself— Thomas Reid Wilson. Now, I can overlook the Selection Committee’s unfortunate spelling of the word “honourary,” but I cannot rest, in my final days at Osgoode, without fulfilling my ode-ious obligations. To that end, I present a review of the work of this year’s Student Caucus... as a Shakespearean Sonnet. Seriously. Reflections on Service Our tale begins with a cabal of three Who toiled as one and made a strong Exec. Yes, Tom and James and Oyinkan worked for free. Without their help it would have been a wreck. The full team met in summer’s dying light And learned the ins and outs of Robert’s Rules. monday - april 8 - 2013

On articling we fought for what was right And stood for equal access to our school.

Pictured: Tom Wilson

When winter ushered whispered winds of change We thought it over; made a solemn choice. L-S-S-O: a conference we arranged. JDs together speaking in one voice. I tip my cap to you, oh Osgoode fair. A privilege it has been to serve as Chair. To the outgoing members of Student Caucus and Faculty Council Committees: my sincerest thanks. To the incoming members of Student Caucus: my best wishes. To the graduating class of 2013: my heartfelt congratulations. And, finally, to Osgoode Hall Law School: it has been an honour and a privilege. Farewell.

Student Caucus: 2012-2013 Camille Dunbar (Equality) Davina Finn (Equality) Elena Iosef (Nominating) James Stevenson (APPC; Academic Standing) Jeffrey Hernaez (APPC) Jeffrey Mitchell (Library; Priorities and Finance) Jenn Aubrey (APPC) Kasia Kmieć (Tenure and Promotions) Leeanne Footman (Teaching and Learning) Martin Hui (Clin Ed; Equality) Melanie Thomas (Admissions) Oyinkan Akinyele (Admissions; Clin Ed) Sabrina Lyon (Clin Ed) Semhar Woldai (Information Technology) Thomas Wilson (Nominating; Priorities and Finance) Yousaf Khan (APPC; Academic Standing) Yuxi Yu (Faculty Recruitment) Valued Contributors and Committee Members: 2012-2013 Fahad Siddiqui (Faculty Recruitment) Lawrence Forsnter (Faculty Recruitment) Lawrence Schwartz (Admissions) Madison Robins (Research and Seminars) Ricardo Golec (Information Technology) Robert Woodford (Information Technology) Sandra Alsaffawi-David (York Senate) Simon Wallace (Teaching and Learning) Stefan Radovanovich (Teaching and Learning) Victoria Riley (Awards) Thomas Wilson is Honourary Poet Laureate of Osgoode Hall and Chair of Student Caucus. the OBITERdicta


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opinions

If you can’t stand the heat, stay out of the kitchen ANONYMOUS CONTRIBUTOR

this policy is not discriminatory on that basis. The discussion sparks controversy only when we talk about couples in a marital relationship. Statistically, there are very few married couples who attend law school, and so this discussion is futile from a purely numbers perspective. However, one cannot overlook discrimination based on the rarity of incidents; it’s about the principle

Of late, it has been almost impossible to visit a social media website and not encounter some discussion regarding Trinity Western University’s (TWU) request to accredit a new law school. As a law student who is also gay, I would have to be living in a cave to ignore this heated discussion. The purpose of this article is to relay my opinion on this issue. I am a strong supporter of gay rights, including but not limited to gay marriage. The current debate over Prop 8 in California that has also been gaining massive public attention these days strikes me as strange. However, I am not blindly driven by “gay” propaganda. I do my best to consider the different values of our Canadian Charter, while trying to formulate my own perspective on relevant issues. My view, in short, is that TWU’s policy regarding sexual abstinence is discriminatory; the scope, however, is extremely narrow, and more importantly, its implicathe worst thing globe and mail respondents tions affect only those who voluntarily had to say about twu was that the buildings are choose to attend the institution. ugly. We agree (photo: twu.ca). First, I want to discuss the narrowness of the scope of this provision. For the purpose of clarity, let’s consider the implications in both pre-marital and marital contexts. Note, however, that by marriage, I mean a marriage as recognized by the law. As per the TWU Community Covenant, any kind of sexual intimacy is prohibited in a pre-marital context. Here, one’s sexual orientation plays no role whatsoever, and thus,

of ensuring equality, and therefore, we need to consider whether or not the policy is discriminatory. As I stated above, this particular narrow-scoped policy must be recognized as discriminatory. It is not fair to allow sexual intimacy between heterosexual married couples and deny the same act between homosexual married couples. How-

ever, this distinction is not an arbitrary one. In fact, I find it very reasonable since it is part of the zone of TWU’s religious freedom. Framed this way, we must consider if there is a dispute between two conflicting Charter rights (i.e. religious freedom and equality). The answer is both no and yes. No, because the Charter does not apply to the actions of a private institutions like TWU. Yes because, from the perspective of upholding Charter values in our society, the application of this policy will inevitably infringe on either one of the two Charter rights. The relevant question then is: what course of action would do the least damage to our Charter values? If TWU is granted accreditation, then the equality rights of the LGBTQ members, albeit only in the narrow context of marriage, will be infringed. On the contrary, if TWU is denied accreditation, then the religious freedom rights of TWU will be infringed. Upon further deliberation, it must be noted that while the latter option promotes the equality rights of LGBTQ members, it denies the equality rights of those who wish to study in such an environment by preventing them from associating freely, and this strikes me as hypocritical. In this case, I believe preventing a private institution from regulating its policies not only infringes its religious freedom, but also its equality rights, which are the same set of rights that form the basis of the opposing party’s claim. While the above discussion is pertinent to this issue, it is also extremely important to note » continued on next page

Friends and colleagues » continued from previous page through its pre-bar admission character assessment or professional disciplinary committees. Some have argued that an institution like TWU, with its Community Covenant, should not be in the business of training future lawyers. Again, I disagree. TWU-trained nurses, teachers, and business professionals have been quite successful in their fields, and they all work in fields that arguably have the same, if not a greater, public dimension to them as law. It is difficult to conceive of an attribute that is unique to law that would prevent TWU law students, as opposed to other TWU graduates, from being similarly successful in the field of law. Perhaps the concern is that, unlike some of the more empirical subjects such as physics, the law is more susceptible to subjectivity and might be taught in a way at TWU that encourages discrimination. This view, however, makes little sense. Just as there is no course on “Christian Physics” at TWU, there will be no

monday - april 8 - 2013

course on “Christian Criminal Law.” Canadian law is not anti-LGBTQ, and so the law taught at TWU will not be anti-LGBTQ. TWU law graduates will have to pass the same bar admission exams as students at Osgoode if they wish to practice; if they wish to succeed, they will also have to learn and use the same law to its fullest measure. Before concluding, I also invite you to consider this matter from a slightly different perspective: from that of an individual who is or seeks to be a part of a private religious school, organization, or community in Canada like TWU. Just as it is paramount for Canadians to affirm the Charter rights of the LGBTQ community, it is also important to recognize the freedom of religion, freedom of association, and the equality rights of those in the TWU community. It is often said that the debate over accrediting TWU’s law school is the classic clash of rights. On balance, however,

and in light of the facts and evidence, the denial of accreditation of TWU’s law school — on the sole basis of its having the Community Covenant — would be the greater injustice. If TWU’s track record is indicative of its future success, the institution is certainly capable of building an excellent law school. If TWU were to be denied accreditation because it cannot provide a quality legal education or because of some other reason (such as the oversupply of lawyers or the FLS’s blanket refusal to go down the path of private legal education), so be it: the legal world will continue without TWU’s law school just as it will with TWU’s law school. But denying a private institution and their members the freedom to uphold certain beliefs, however disagreeable those views may be, is neither legal nor right; it certainly is not becoming of a free and democratic society that is truly committed to the Canadian Charter of Rights and Freedoms.

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news

Bringing the wisdom of the taxi driver to the towers of bay street – Jaime Watt’s guest lecture at Osgoode OBITER DICTA STAFF Various Contributors

Jaime Watt, the founder and Executive Chairman of Navigator Ltd., and a panelist on CBC’s The Insiders, spoke in Neil Finkelstein and Ron Podolny’s Assessment of Litigation and Regulatory Risk seminar. Mr. Watt specializes in complex public strategy issues, serving both domestic and international clients in the corporate, professional services, not-for-profit, and government sectors.

importance of increasing revenues necessary to upgrade Canada’s aging infrastructure and the importance of upholding Canadian values and human rights abroad, against one another. The outcome of the transaction illustrates the importance of a public affairs and government relations strategy in addition to a purely legal strategy in executing international transactions of this magnitude.

Mr. Watt, who describes his work as located at “the intersection of law and public affairs,” and of “law and strategy,” spoke on the importance of understanding the government relations and public affairs environment, in addition to the purely legal issues at hand when prosecuting high profile litigation cases or commercial transactions. According to Mr. Watt, “politics are affecting capital markets to the extent they never have before.” Accordingly, an understanding of the political and media environment is now a prerequisite for a successful career in corporate law.

Mr. Watt concluded his lecture with reflections on the recent Alberta provincial election, and the limitations of online and telephone polling. In Mr. Watt’s opinion, there is no substitute for the careful, qualitative analysis of public opinion. Only advisors that understand the “wisdom of the taxi driver,” in its non-partisan complexity, can understand the motivations and predict the decisions of elected officials that shape the corporate transactions they lead.

Mr. Watt’s talk turned to the particularities of assisting clients in today’s political environment. He highlighted the structural changes that have occurred since the Conservative government came to power, and in particular the introduction of the Federal Accountability Act, as well as the campaign finance reform efforts. Mr. Watt also noted that all governments now operate in the age of a “permanent campaign” due to the 24-hour news cycle and the pervasiveness of social media. While social media does not frequently move votes, and represents more of an “echo chamber,” it does push a rush to judgment by the public and a rush to air by journalists. Accordingly, advice on government and public relations is part of the factual matrix counsel must consider in advising on high profile transactions. Mr. Watt then illustrated these principles with reflections on some of Canada’s biggest stories at the intersection of business and government relations; in particular, the CNOOCNexen Inc. deal. The deal, in addition to its financial complexity, raised important public affairs issues due to the involvement of a corporate entity owned by the Chinese government. The deal pitted the various motivations of the federal and provincial government, such as the importance of encouraging foreign investment in Canada’s resources sector, the monday - april 8 - 2013

jaime watt spoke at osgoode on march 4 (photo courtesy of Navigator ltd.)

If you can’t stand the heat » continued from previous page that students voluntarily choose to apply to and attend this institution, which is clearly not the only law school in Canada. It is extremely common for private institutions to have their own set of standards to which they expect their attendees to adhere. For example, a mosque requires men and women to dress and act differently; men and women are even required to be in different areas on the same premises. These rules exist irrespective of one’s motivation to visit a mosque, be it for religious, architectural, cultural, or aesthetic reasons. I may or may not agree with these rules; however, these rules apply only if I choose to enter the mosque. This is an entirely personal and voluntary choice. So, essentially, if I choose to enter the mosque, I am choosing to be subject to differential treatment based on my gender, which may be considered discriminatory by some. However, I find the requirements completely reasonable within the context. To say that we cannot allow mosques to exist because they have discriminatory policies is absurd, because to eradicate mosques would infringe upon people’s freedom of religion, expression, and association rights. The case of a private religious institution, albeit an academic one, is no different. In conclusion, I believe that this issue is a lot simpler than what it has become. I recently

came across an ad campaign with respect to gay marriage rights that impressed me: “Against two dudes marrying each other? Well, then don’t marry one.” The same sentiment is equally applicable in this context: “Against private institutions that prohibit homosexual married couples from being sexually intimate on campus? Well, then don’t attend one.” It’s that simple, really. As a gay law student, I am very content at Osgoode Hall Law School, where there is a lot of support for LGBTQ folks. However, I fail to understand how, as a member of a minority, I can petition to prevent other minority members – a faith-based law school, in this case – from acting within their rights, especially when their actions do not infringe upon my rights unless I voluntarily subject myself to their rules. TWU’s success is highly recognized with respect to the professional training they provide in other academic spheres, so I have no reason to believe why TWU, as a law school, would not be capable of equipping me with adequate legal training, which is the only relevant subject matter to be assessed by the Federation of Law Societies. Therefore, the issue of alleged discrimination is moot for the purposes of accreditation because ultimately, the choice to attend such an institution rests with us, the students.

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features

The Happiness Project: Happy hour CASS DA RE Features Editor

difficult time, I can suggest an alternative piece of counsel.

It’s that time of year again. The Red Velvet Ropes have come up, the library hours extended, the short window of time when wearing work-out wear to school is acceptable (tolerated?) has opened, and the pitter patter of 1Ls’ collective hearts beat in nervous anticipation. Endless days and nights spend summarizing, studying, and sleeping (just kidding), are behind and before us. It is not a happy time. And yet, with the swift sounding of the final buzzer, it will all soon be over.

Set your sights above and beyond this. Give yourself something to look forward to when it’s all said and done; when the last buzzer rings, when the last word is written, the last page printed, and the final book closed; thou shalt be rewarded. I don’t mean in regards to grades, the curve, or anything academic. I am not referring to delayed gratification, as in these grades will go on your transcript that will be looked at by some unidentified employer who will applaud you for your hard earned A in some course that he/she also took with the same professor. This,

How to stay sane through all of the insanity? I’ll level with you Ozzies, I don’t know myself. Of course I have an entire roster of sound and reliable advice. For example, one ought to sleep a requisite number of hours, eat well, do fun and varied exercise, make yourself a priority, dance, laugh, sing, spend time with loved ones and friends, give back, set small goals, indulge, organize your surroundings, and the list goes on. However, these bite-sized pieces of happiness-inducing instruction are of little use. Even I know it all goes out the proverbial window.

my friends, is all about immediate gratification.

Relish in the anticipation of something really wonderful. It may be a vacation, a shopping spree, a fabulous dinner, or time spent with neglected friends. Whatever this “reward” is, it will most likely include some good old-fashioned debauchery, which often includes a few libations. On that note, may I suggest Osgoode’s unofficial Post-Exam Bash: The Feelgoodery 2013 Prohibition Edition, held at the Steamwhistle Brewery on April 25th (doors open at 9 pm). Reasons why your happiness will be significantly improved by attending this year’s Feelgoodery Event: All of your friends will be there •It’s an open bar •The theme (prohibition/speakeasy) is awesome •Who doesn’t love a good Gatsby reference and/ or a flapper outfit? •All proceeds are going to the SPARK Initiative’s School for Skills! •The event and its cause are both organized by fellow Osgoode students •The Feelgoodery is a not-for-profit organization, therefore you are not feeding the big corporate machine •Poutini’s will be serving poutine •Also, it’s open bar Get excited, get happy, and get your tickets before they’re sold out.

I accept that happiness is not anyone’s priority when faced with a 25-page take home; a closed book exam; twenty different statutes with thousands of provisions; an 8000-word essay; and/or the most convoluted fact patterns that make you think that your professor must, in fact, derive pleasure from your misery. I surrender Exams, you win; my happiness will take a back seat to your incessant needs and demands that keep me up at night and/or induce really disturbing nightmares about ExamSoft. Don’t worry kids, it’s not all doom and gloom, because, like anything else in life, this too will pass. Exam time, for better or worse, is fleeting. While I can’t realistically tell you how to successfully, never mind joyfully, get through this monday - april 8 - 2013

© 2012–2013 Cassels Brock & Blackwell LLP. All rights reserved. | 416 869 5300

Cassels Brock 2012/2013 season

Obiter Dicta student ad “Doodle - School Kid” 4B Prestige, b&w

Contact: Heather Murray hmurray@casselsbrock.com 416 869 5782 - fax 416 642 7137

the OBITERdicta

Please PRINT a hard copy of the file and either FAX it or SCAN and EMAIL it back to me, thanks!


page 13

Weeding out wild justice CITLALLY MACIEL Staff Writer On the night of January 12, 2011, a police officer lost his life in the line of duty. His name was Ryan Russell, a devoted and exemplary officer, a loving father, a husband, and a son. His killer’s name is Richard Kachkar. That night, Sergeant Russell was called to check up on a man who had been reported to be driving a snowplow in a dangerous manner. After a short chase, Sgt. Russell got out of the cruiser he was driving and tried to stop Kachkar, but Kachkar did not stop and ran him over with the snowplow. Sgt. Russell died shortly after at a Toronto hospital. Kachkar was arrested and charged. His trial concluded on March 27, 2012, finding him not criminally responsible on account of mental disorder (NCRMD). Given the circumstances of the case, specifically the testimonials from different witnesses regarding Kachkar’s odd behavior that night, the verdict does not come as a surprise. Sgt. Russell’s widow, family and friends, however, were astounded. Mrs. Russell said to the media after the verdict was rendered that “[Sgt. Russell] deserved a lot better than this” and similarly, other family members expressed their disappointment. As if the justice system had let them down. Gosh, even Toronto’s Mayor, Rob Ford, and hockey commentator Don Cherry have expressed their outrage! Evidently, all these people have equated an NCRMD verdict with impunity. In addition, the need to retaliate is a common response among victims of crime. The question is: what role does vindicating victims play within the Canadian justice system? In other words, is providing redress to victims of crime part of the objectives of criminal punishment? Certainly, recent developments in the law indicate that the subject has become somewhat relevant. On February 8, 2013, Prime Minister Stephen Harper announced the introduction of the Not Criminally Responsible Reform Act, the purpose of which is to “enhance the safety of victims and promote greater victim involvement in the Criminal Code mental disorder regime.” Indeed, the goal of the Act is public safety and not retaliation per se. However, the effects of the proposed amendments would make conditional or absolute discharge more challenging for an accused found NCRMD. Yet, is decreasing an accused’s likelihood of being released good enough or is a more severe punishment needed? Should an NCRMD individual go to jail like any other person found guilty of a crime? In the book Introduction to Psychology and monday - april 8 - 2013

Law: Canadian Perspectives (2001), authors Ogglof and Whittemore give a comprehensive account of the history of criminal prosecution of the mentally ill in Canada. Essentially, the modern approach to the prosecution of the criminally ill surged in 1992. Before that, the approach remained unchanged for almost a century. Adopted in 1894, this approach was, not surprisingly, derived from the case law and the Criminal Code inherited from England at the time. The most significant feature of this approach was that the Lieutenant Governor was vested with the power to detain, on an indefinite basis, any individual found not guilty by reason of insanity. Accordingly, in a review prepared in 1976, the Law Reform Commission of Ontario revealed that this arrangement resulted in some mentally ill individuals remaining in detention for longer periods than those who were actually found guilty. However, it was not until 1991 that the Supreme Court recognized the need for reform and prompted the legislature to act. The catalyst was the decision of R v Swain, a case that challenged the constitutionality of automatic detentions of individuals found not guilty by reason of insanity. The Supreme Court held that such detentions infringed an individual’s Charter rights because they were conducted without a proper hearing. The next year, the government proclaimed Bill C-30, thereby establishing the modern approach to prosecuting the mentally ill. Additionally, the Review Board was established as the body in charge of conducting reviews of those individuals deemed NCRMD. Presently, when an accused is found NCRMD, a court may make an order for the accused to be discharged absolutely or conditionally, or to be detained in custody in a hospital. The standard used to determine whether it is appropriate to grant an absolute discharge order was established in the case R v Winko, decided in 1999. Essentially, an absolute discharge order must be granted when the accused does not pose a significant threat to the safety of the public. If an order for absolute discharge is denied, the corresponding provincial Review Board is then in charge of conducting an assessment to determine what disposition is best for the accused.

news

a hospital under the supervision of the hospital administrator. Detention does not always entail the absolute confinement of an accused. The administrator has the authority to allow the accused to leave hospital grounds under certain conditions. However, unless an accused obtains an order for absolute discharge, the accused will remain under the authority of the Board until such an order is made. Are NCRMD verdicts get-out-of-jail-free cards? Although this is a common belief, it could not be farther form the truth. An analysis of the Review Board system conducted by the Department of Justice found that only 12.5% of the orders were for absolute discharge, while 51.7% were detention orders. In addition, of all detention and conditional discharge orders made, 30.9% of cases remained under the supervision of the Board between 1 and 5 years, 24.9% remained under supervision between 5 and 10 years, and 35.1% remained under supervision longer than 10 years. Although victims of crime may understandably feel like NCRMD verdicts are unjust and that the accused should go to jail, incarcerating mentally ill people cannot erase their anguish. In fact, their anguish may not be so much about the punishment but about the designation. Indeed, finding an accused “not criminally responsible” is a label that does not fulfill the denunciation purpose of punishment. The designation implies that the accused is not guilty of his wrongdoings. Conversely, finding someone guilty of murder bestows the accused with a scarlet letter that will forever hound him. Thus, a distinct label other than NCRMD may be enough vindication for victims. However, the idea that the morally innocent should not be held criminally responsible must remain the basis of our justice system. It is often said that the courts are slow to catch up with societal changes. In the case of the purpose and significance of NCRMD, it is perhaps society which has not caught up with the courts. As Francis Bacon once said: “Revenge is a kind of wild justice, which, the more a man’s nature runs to, the more ought law to weed it out.”

These Boards are normally directed by a judge (or an individual qualified by official appointment) and comprised of at least four individuals, one of which must be a qualified psychiatrist. If a Board makes an order for conditional discharge, the accused is released to the community under specific conditions. Alternatively, if detention is ordered, the accused is placed in the OBITERdicta


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arts & culture

A Little Sheep Told Me: Toronto Fashion Week ANGIE SHEEP Staff Writer If you were too busy with summary-building to catch all the highlights of Toronto Fashion Week, read about the dominating trends here! There were some bizarre creations, but from some unconventional creativity arose incredible looks that you will fall in love with. So make this year’s Fashion Week your perfect summer fling. It’s a wrap… dress After many decades in fashion oblivion, the wrap dress has returned to the runways this season, and it’s no wonder why. The look is flattering, flexible and chic. For those of you who are in a professional setting, opt for wraps of neutral or dark shades (see picture). It is also a good idea to stay with solid fabrics to avoid overwhelming your colleagues and clients with dazzling polka-dots or stripes. Wrap dresses also tend to be more revealing and becomes looser over the day so make sure you pair the dress with a complementarily-coloured camisole. Given its simple nature, the wrap dress is an excellent canvas for all accessories. You can sport chunky bangles and necklaces for a more bohemian aura or wear subdued pieces to show off your demure side. You can also be as creative as you’d like with footwear. Strappy sandals are perfect for a relaxing day at the beach while pointed heels or almond toed heels may be better suited for the office. The wrap dress stands unparalleled in its versatility and adaptability. Pretty in (hot) pink I indicated in my previous article that emerald green has established itself as the color of the season. And while that remains true, hot pink has also squeezed its way in as a noteworthy contender. Many designers have brilliantly struck a balance between smartness and vitality – a match made in heaven for the colourjunkie professional! The dress in the picture debuted at the DKNY show and has already gained worldwide admiration. One drawback about this color is that, unlike emerald green, it can be quite unforgiving. It tends to expound all imperfections or even create ones where none previously existed. So for those of us who are not constantly mindful of our postures and mannerisms, try incorporating hot pink pieces instead of adorning the entire body with it. Bringing together two ends of the style spectrum This style is all about contrast – clashing edgy with chic, fluidity with ruggedness, and classimonday - april 8 - 2013

PINK! (not the singer)

Stern... but fair

cally feminine cuts with more tailored pieces. You have heard the adage about “too much of a good thing;” well, an entire outfit pulled from the same look or style can come up as subdued and unimpressive. But pair them with their antonyms and they undergo a major attitude adjustment (kind of like we do during exam time). Such bipolarity can often be counter-intuitive, making you quadruple guess your wardrobe choices, but trust your instincts and never stop exploring. Even the most prestigious designers don’t always get it right on the first try. And if they are forgiven for failing in front of the entire fashion world, you can definitely be excused for some odd days and mismatched looks.

sesses its own personality and time and place, much like all of us. So wear this temperamental piece wisely. The summer is upon us (finally!) and you are now equipped with key fashion knowledge fresh off this season’s runway. With the last Obiter issue of this school year and the impending end of our semester, I cannot help but feel a mix of excitement and melancholy. But not to worry because the break will fly by, bringing this little Sheep back soon enough to continue the fashion pieces in the new term. In the meantime, have a wonderful summer Ozzies!

The mini It’s only one more month before we bid farewell to the lovely Osgoode Hall for an entire four months. Before sadness and devastation consume you, let me remind you that you can finally break out those pieces that you felt were just too crazy or unsuitable for Osgoode’s halls. For me, it’s the mini collection – mini dresses, mini skirts, mini shirts, etc. But what may have been too provocative for Gowlings Hall are perfect for Toronto’s summer streets. Many designers embraced the concept of the “mini” this season and this summer staple style never disappoints. The main reason why I adore mini skirts and dresses is that they seem to have been created primarily for people of a shorter stature. Their most significant attribute lies in their ability to transform an average frame into model-like proportions. Minis are also special in that it is not a style you can incorporate into any setting; it does not simply “fit” into any mould. It pos-

aLWAYS REMEMBER TO WRAP IT UP!

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It’s a good time to be a Canadian hockey fan ANDREW CYR Sports Editor A few issues ago, I made predictions as to the fortunes of the NHL’s Canadian franchises this season. As is to be expected when predicting sports outcomes, I was almost entirely wrong. While I predicted that Winnipeg and Edmonton would each take considerable leaps forward and become playoff teams, only the Jets remains in the hunt, while the Oilers have stumbled down the stretch and appear to need another year or two of seasoning before they become contenders. Meanwhile, while I projected that neither Toronto nor Montreal had the right ingredients to make the postseason, both are currently in the thick of the playoff race, with the Canadiens holding onto the Northeast Division lead. Ottawa and Vancouver are also in the playoff mix with less than a month remaining in the NHL’s regular season. While I may not be the best in the world at forecasting sports success, there is some upside to my failure. For much of the past few seasons, the Vancouver Canucks and Montreal Canadiens have been Canada’s only consistent representatives in the postseason. While a lot can happen in the next month, it appears, for now, that this is about to change. If the season ended today, Montreal, Ottawa, Toronto, Winnipeg, and Vancouver would all qualify for the postseason. The last time that five Canadian franchises qualified for the NHL playoffs was in 2003-04 – before the old lockout, and coincidentally the last time the Leafs made the playoffs. This represents an exciting time for the Canadian hockey fan, as the possibility of an all-Canadian playoff series, or even an all-Canadian Stanley Cup final looms larger than it has in decades. It also represents an exciting time for the NHL as a whole, as the increased tele-

Let’s hope we can do it again in sochi in 2014!

vision audiences and inflated ticket prices that will accompany any Canadian team’s playoff run will serve to increase league revenue.

ton’s young guns progress to the level where they can carry their team to the postseason.

That’s just the good news. The even better news is that this scenario is likely to continue for years to come. The Jets and Senators have two of the most promising young rosters in the NHL, and appear to be playoff mainstays for years to come (although the Jets path is going to become much more difficult once they leave the Southeast Division next season). Similarly, unlike past incarnations of their teams, which were filled with overpaid free agent signings and ill-considered trade acquisitions, the current Leafs and Canadiens rosters are dotted with young, homegrown talent.

In fact, it is the perennial powerhouse Vancouver Canucks that have the most uncertain future of the Canadian teams, with the Sedin twins aging and no heir apparent to their spots on the Canucks’ top line. As for the Calgary Flames, trading away their captain in Jarome Iginla may have been hard, but it was long overdue and it is a positive sign that Flames’ management is finally committing to a rebuild.

Two issues ago, my fellow sports writer, Dan Styler, asked incredulously: “are the Toronto Maple Leafs good?” He concluded that yes, in fact, they are. And as much as it pains me as a long-time Leafs nay-sayer, I’m inclined to agree. While their defense can be shaky, their goaltending has held up, and their offense has emerged as one of the league’s most potent. The Canadiens meanwhile boast one of the NHL’s best netminders in Carey Price, and a very strong defense corps, anchored by the finally healthy Andrei Markov. Both teams appear to have bright futures ahead of them. In addition, it won’t be too long before Edmon-

Not only are Canada’s teams experiencing a newfound level of success, so are Canadian players. While failing to win gold at the World Junior Hockey Championships for four consecutive years has some Canadian fans wringing their hands about the state of the game in Canada, the truth is that Canadian players are as dominant as ever on the game’s biggest stage. As of the time of writing, 4 out of the NHL’s top 5 scorers are Canadian. A healthy Sidney Crosby (assuming he recovers from his recent encounter with a puck) and the continued emergence of Steven Stamkos should ensure that the world’s best hockey players remain Canadian for the foreseeable future. These two players will form the core of a Canadian team that will look to defend the gold at the Olympics in Sochi in 2014.

Born to run DANIEL STYLER Staff Writer Shortly before Christmas, two friends and I discussed the possibility of running a marathon. What is 26 miles when you already jog for 20 minutes on a semi-regular basis, anyway? Within an hour, we had all signed up for a marathon that would take place in early May. Four months later, I have managed to successfully follow the first 13 weeks of an 18-week training schedule that requires me to run six times a week for a total of somewhere between 50 and 75 miles per week. I have missed only monday - april 8 - 2013

two runs. Unfortunately, a lower body casualty has cost me one of my running partners. First, he hurt himself skiing. It wasn’t clear when, because he fell a lot. Second, he hurt himself from overexertion during his recovery from said injury. Now, he is weeks behind in training, has what he describes as a “twisted muscle group,” and may miss the marathon that he told everyone he was going to run. We joke that they may have to amputate; if they did, I suppose he could crawl. Luckily, I have managed to avoid significant injuries. Sometimes, though, I feel like I am

aging at an unnatural rate. I wake up in the middle of the night because my knee feels like someone is repeatedly hitting it with a hammer. I take Tylenol pre-emptively. I also walk like Frankenstein some days because I can’t properly bend my legs. When we were about two weeks into the training schedule, we would gleefully talk about how this could become a yearly tradition. Why stop at one marathon? Why not ten or twenty or two hundred? We could run one on every continent (even Antarctica). Nothing was stopping us. » continued on next page the OBITERdicta


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Born to run » continued from previous page I signed up for a two month trial membership at a certain gym that prides itself on how extreme it is. During my initial sign-up period, some overly muscular guy came up to me and said, “Hey, have you signed up for a long-term contract yet? We can lock you in for the next year for only $70 per month. That’s about a quarter of our regular price.” For some reason, I couldn’t rationalize spending $70 per month for the next year when I was only paying $14 per month for my trial membership, particularly when I hadn’t set foot in the actual workout area yet. I dutifully ran alongside my Extreme running partner, virtually every day. Our long runs took place on Sunday, which would almost always be followed by a comically large combination of pancakes, bacon, and eggs (and maybe alcohol) that my girlfriend graciously prepared. And then something slowly started happening. I grew to resent running, just like I resent people who unnecessarily ask questions in class or getting on an unmarked St. Clair West turn back train. I ran, but I ran angrily. There is something that is both mind-numbing and soul-crushing about running up to three hours on a treadmill. You see people come and go, doing normal people runs. You finish the bottle of water you brought, and rapidly dehy-

monday - april 8 - 2013

pictured: not daniel styler.

drate to the point where you can no longer sweat. You watch an entire hockey game, and get mad when the game doesn’t go into overtime because you have nothing else to watch. And then you finish. You walk home, lay down, and no one really cares. It makes me feel like a nihilist, asking questions like, “What is it all for?” The recent warm weather has reinvigorated me, though, which would lead me to believe that signing up for a marathon that required me to train almost exclusively in the dark depths of the Canadian winter months was not a good idea. Running outside is a revelation. You actually

see things other than a wall or your reflection in a pane of glass. It is a little more difficult than running on a moving object, but this difficulty is more than made up for by not running on a rubber belt destined for nowhere. I am going to run this marathon on May 5th, and I will temporarily feel an inflated sense of self. I imagine myself being showered with adoration upon reaching the finish line, and my running partner and I being carried off into the distance by all of our closest friends. That may temporarily mask my feelings about these past four months. Let this article serve as a reminder to me of one thing: I will never do this again.

the OBITERdicta

Issue #14 - April 8, 2013  

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