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March 5, 2012

It’s the Health Law & Mental Health Law Issue! Read this Obiter, Get Fit and Have Fun! (ps. Hal, bring back the 80’s ‘stache...)

Legal & Literary Society Update

Health Law & Mental Law Health Articles

The Invisible Wall of York Security

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“The definitive source for Osgoode news” Osgoode Hall Law School, 0014G York University 4700 Keele Street Toronto, ON M3J 1P3 Tel. 416.736.2100 x77527 Fax. 416.736.5736 E-mail. Website. “It is health that is real wealth and not pieces of gold and silver.” - Mahatma Gandhi Editors-in-Chief: Cassie Burt-Gerrans, Andrew Monkhouse, Jennifer O’Dell Sponsorship Manager: Rory Wasserman Business Manager: Kristina Bliakharsky Osgoode News Editor: Kyle Rees Opinions Editor: Nick Van Duyvenbode Arts & Culture Editor: Nancy Situ News Editor: Hassan Ahmad Sports Editor: Joe Marcus Staff Writers: Dave Shellnutt, RJ Wallia, Harjot Atwal, Eric Marques, Contributors: Dimitri Bollegala, Lauren Blumas, Lesley Freiberg, Seterah Nasseri, Ryan Heighton, Lisa Ostrom, Amanda MacNaughton, Jeff Rochwerg, Martin Hui, Roy Wellington, Rana Arbabian, Amanda Laren, Saneliso Moyo, Denise Mertiri, Sandra David

Editorial How’s the heart rate? The VO2 max? Your sodium intake? Your binge drinking? This week the Health Law Society and the Mental Health Law Society took over the Obiter. Jeff Rochwerg talks about ineffective government policy and childhood obesity. Lisa Ostrom discusses the prevalence of alcoholism in the legal profession, with first hand experiences in the emergency room of a Toronto hospital. The concerns around private cosmetic clinics operating in Ontario are explored by Setareh Nasseri. Lesley Freiberg provides an interesting perspective on the intersection of Fetal Alcohol Syndrome and the law. Regardless of which articles you choose to read, you’ll undoubtedly learn something about your community and your health. Plato is often quoted as saying, “attention to health is life’s greatest hindrance.” Seeing as he was approximately 80 years old when he died, maybe we should listen to him. Worrying about one’s health is a massive stressor, but it is nearly impossible not to be concerned when you’re not feeling in tip-top shape. Have a lingering cold you just can’t get rid of? Can’t get more than 3

hours sleep in a night? Can’t kick that downtrodden feeling? Can’t remember the last time you felt carefree? In the three years we’ve spent here, your editorial team can attest to the fact that the above are all common in law school. It’s important to take care of ourselves in this environment, but it’s easy to lose sight of that. How many of us have told ourselves we were going to make that doctor’s appointment only to realize we “don’t have time”? How many times have we complained of the same health ailment to our parents all the while doing nothing to remedy it, because hell, reading isn’t going to do itself. The habits we create here will influence our professional lives profoundly. It follows that if you go through law school getting an appropriate amount of sleep (at least 7 hours), drinking lots of water, exercising 3-4 times a week and eating properly, you’ll be in better shape to tackle what looms ahead. Of course, if you do none of those things, it’s hard to believe you’ll find the time to be ‘healthy’ in the near future. In any case, as exam season approaches, remember to relax, breathe and watch some crap TV every now and then.

Letter to the Editor

A common plea to my fellow Ozzies:

Our new law library has large windows, lots of seats, and of course, the great group study rooms. These rooms provide us with much needed space to collaborate and work together. Given the massive number of students here at Osgoode, having designated areas where we can get together and make as much noise as we need to is a great educational feature.

Website Editor: Nancy Situ, Cassie Burt-Gerrans

And yet it is not uncommon to pass by the group study rooms and see a sole individual occupying a room that holds up to eight people, happily watching a movie and enjoying their lunch with their feet up (Never mind that there is a prominent sign as you enter the library which says ‘NO FOOD IN LIBRARY’). In addition, many students are booking the rooms and then not showing up to use them. I don’t think this should be acceptable behaviour, and I hope you don’t either.

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.

If you see a group study room that has not been booked, you shouldn’t think that this is an invitation to set up your own private reflection room for a couple of hours. Group study rooms are a great resource, but they are meant to be used for group work. When you book one, you keep a potential group of students from using it. These rooms are meant for 2 or more students. Some might suggest that it is up to library staff to enforce these requirements. But they don’t - they have more important things to do than appoint a hall monitor patrol to make sure we aren’t abusing the group study rooms. This is law school, not kindergarten.

Layout Editors: Julia Vizzaccaro, Harjot Atwal, Nancy Situ Photography: Harjot Atwal

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.

Unused rooms are equally frustrating. If you book a room, please do your best to either use it as a group, or conveniently cancel your booking by going online. It is just plain inconsiderate to reserve a room and not show up to use it. We Osgoode students are the only ones who can book these rooms. It only takes one person to do so. Please, don’t use these rooms for things that they are not intended for. You are keeping groups of students from potentially using them. There are only twelve of these rooms in total. Undoubtedly, the day will come when you will need to use a group room for some group work, and when you see a fully booked timetable but only seven rooms in use, coupled with three rooms with one person in them, and two empty rooms, you won’t appreciate this kind of conduct either. Let’s take advantage of this great resource, rather than hoard or abuse it. - Christopher Los

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Legal & Literary Society L&L Update: Gender Bending Hotness, How to Avoid My RoboCalls, and The Last Hurrah(s). COMRADE SHELLZ (AKA DAVE SHELLNUTT) Legal & Lit President

It’s the first week of March Ahhhh! Everyone panic! Sorry I couldn’t resist relating the sensation I felt the first Monday after reading week and I think that feeling is palpable in the halls of Osgoode. That’s ok, refer to my November article from last term and stay cool. You still have four weeks to finish those papers and start going to Estates class. You also have time to check out some of the amazing things going on at the school and get involved (via democracy) in the day to day running of Osgoode’s awesome machine (L&L/SC of course) next year. Osgoode’s Big Ass Drag Show This Thursday March 8th in the JCR Let me start with filling you in on Osgoode’s Big Ass Drag Show (“OBADS”). Yes, this is happening. Yes, Sossin, Pilkington, Farrow, Hutchinson, De Luca, Hoffman, Marques, and Aubrey will be performing in some fashion. I will even been going the full monty. Wait, if that means full drag then yes, that is what I’ll be doing for the show. Wendy’s friends describe her as a persistent challenger of the status quo, with a spirit unflinchingly dedicated to fun times. When asked how best to honour Wendy it was decided that she would have loved the idea of gender bending and challenging norms within the walls of Osgoode. A drag show would do just that and connects us with a community she was very close with. We as students challenge ideas and norms everyday in our schooling (shakes fist at Plessy v. Ferguson). Let us take it a step further, if you aren’t already there, and come out for a night of gender bending hotness and hilarity. There will be live performances by the above named Osgoode rock stars. The Mock Trial Band is going to crank out a halftime show that will probably be better than any Glastonbury festival. There will be a raging tribute to International Women’s Day. I’ve even got wind that the Mancers will shimmy their way into the JCR on a trail of baby oil grease to support. Honestly, the evening will be nothing short of epic. Tickets are on sale this week in the main foyer for $5.00. See you Thursday, I’ll be the six foot bedazzled hottie winking at you from the bar. L&L/SC Wants You! In the interests of democracy, I have decided to abandon the shadow ops program I started to convince everyone the Presidency was a twoyear term. It was tough, but Marcel’s fear of criminal action was enough to have me ditch my sinister intentions. Seriously though, below are the election dates (99% for sure). I know that March is hectic and you might be thinking that with all the commitments you have now, all coming together at the the OBITERdicta

same time, how could you possibly add another responsibility to your plate? Fair, but this is for next year, sign up for the election and kick the football of responsibility down the field to midMay! My decision to run for L&L last year was one of the best things I have done with my time at Osgoode. I have met so many of you awesome people that I can’t help but smile ear to ear when I walk down the hall. It has been a pleasure to work so closely with the Administration, faculty and student groups. My point: do it. L&L/SC really wants to encourage you to declare your intention to run for a position by March 15th. You can run for multiple positions as well! Take that fear, that overburdened feeling and shove it, and don’t miss out on this amazing opportunity! Email me or anyone from L&L/SC if you want to talk about positions or what it’s like to work in the basement. Email our new Chief Election Officer, Edward Lamson, for anything election related studentelections@ For your information here is a timeline for the election process: • Election Application Released - Before Thurs. Mar. 8, 10:30AM

• Nominations Due - Thurs. Mar. 15, 10:30AM • Mandatory Candidate Meeting - Thurs. Mar. 15, 12:30PM • Campaign Start Date - Thurs. Mar. 15 2:30PM • Campaign End - Thurs. Mar 22, 11:59PM • Polling Start - Fri. Mar. 23, 12:00AM • Polling End - Mon. Mar 26, 11:59PM Last Hurrah(s) March is full of great events like OBADS, OWN Fashion Show, Deans Formal and the soon to be sold out first year INFormal. We have a couple final great times at the JCR in the works. There is even talk of bringing up last year’s class for a Thursday pub night towards the end of March. My point is (as usual): don’t hunker down and abandon all life as you know it just yet. You are on top of your work, you just don’t know it. Stay positive folks, the end is nigh and you are going to victory dance all over it. Expect updates on the Equity Officer position and much more before the curtain drops. One Love.

OPIR / PBSC INFORMATION SESSION When: Wed., March 7th, 2012 Where: IKB #1003 Time: 12:30 p.m. to 1:30 p.m. **PIZZA WILL BE SERVED** OPEN TO ALL OSGOODE STUDENTS! monday - march 5 - 2012

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Health Law & Mental Health Law Issue

Canada’s Health Care System - Let’s Set The Record Straight On A Common Misperception DIMITRI BOLLEGALA Contributor Canadians are experts at expressing disapproval of our American neighbours’ failings on a number of issues, from high crime rates to lackluster public education. One issue we really love to get on our high horse for is health care, especially as we’ve watched Barack Obama struggle against political rivals to implement some form of health care coverage that would benefit the estimated 59 million people in the United States who lack health insurance. “Why,” we ask, “can’t those Yanks be just a little more like us?” After all, we’ve got a universal, singletiered health care system where everyone from caretaker to corporate lawyer can flash the same health care card and walk into the same hospitals and clinics for treatment. Or do we? A look at the legislative scheme governing our health care system leads the way to some insights. Under the Constitution Act, 1867, the provinces have primary jurisdiction over health care issues; section 92(7) for instance gives them control over the establishment, maintenance and management of hospitals. However, the federal government has found its way into the mix using a valuable tool: money. In exchange for cash and tax points, the federal government—via the Canada Health Act—gets the provinces to commit to putting in place health care systems that are: i) accessible (offer reasonable access to health care without financial

or other barriers); ii) comprehensive (cover all medically necessary hospital and medical services); iii) universal (cover all legal residents of a province); iv) portable (cover residents even when they are temporarily absent from their province or when moving between countries) and v) publicly administered. The Canada Health Act also prohibits extrabilling and user fees in the provinces, meaning that doctors can’t bill patients more for a service than the provincial health insurance system would pay. The penalty for a province failing to meet these requirements is that Parliament may (and in certain circumstances, must) withhold its cash contribution to the province. In case you were wondering, the Supreme Court of Canada essentially allowed this arrangement in Re Canada Assistance Plan when it confirmed that it is within the power of the federal government to authorize conditional grants to the provinces for use in areas of provincial jurisdiction. So what’s the problem? The problem is that rising health care costs are putting pressure on cash-strapped provinces (just see the recent Drummond Commission report for a look at how dire Ontario’s straits are - There is incentive for the provinces to turn a blind eye to the delivery of health care that violates terms of the Canada Health Act and take any financial hit Parliament might (but likely won’t) throw their way.

This is why in Quebec’s 2010-2011 budget the government was so bold as to propose a $25 health care user fee that many think violates the terms of the Canada Health Act. It is also the reason why when Googling “private health care Toronto,” a number of results come up, pointing the way to private clinics where for a hefty fee one can receive private medical treatment. At one such Yorkville clinic, patients can purchase a platinum health care package including among other things a physician consultation, physical exam and suite of diagnostic tests. In testimonials customers rave about the experience being “unlike that which one typically encounters in the mainstream Canadian medical system.” Most Canadians’ perceptions of health care in our country are disconnected from current realities. This is troubling because as fiscal constraints darken the skies of our province and others, there will be need for cold, hard thought on how we intend to keep health care accessible, universal, comprehensive, portable and publicly administered (assuming that’s what we want). Having that discussion will require us all to be educated and informed about what is really taking place in our health care system. Dimitri Bollegala is a second year student in the JD program and Vice President of the Health Law Association. He completed an Honours Bachelor of Science and Master of Public Health in Epidemiology from the University of Toronto.

Capacity Issues in the Administrative Justice System LESLEY FREIBERG Contributor The administrative justice system in Ontario presupposes that all persons have the requisite ability to make decisions about their legal affairs and the capability to instruct legal counsel accordingly. Accordingly, issues can arise when people are involved in legal processes for which they lack the mental capacity to meaningfully participate. In such situations, steps must be taken to ensure that the integrity of the legal system and judicial processes are upheld while respecting and preserving the personal autonomy of the individual involved as much as possible. Where persons with mental disorders or developmental disabilities are implicated in the Canadian criminal justice system, procedural safeguards exist to channel accused persons monday - march 5 - 2012

towards a mental health focused stream and away from the punitive nature of a criminal proceedings. Where persons with capacity issues are involved in civil matters before the courts, the Rules of Civil Procedure sets out a detailed protocol on how and when litigation guardians are appointed for “parties under disability.” Where parties have proceedings before administrative tribunals, however, there is no unified scheme or singular protocol outlining when and how substitute decision makers should be appointed. This legislative void has effectively forced tribunals to devise their own protocols or, in many cases, compel adjudicators to determine on an ad hoc basis how parties with capacity issues are to be treated.This informal response is problematic given the prominence and ubiquity of administrative justice in Ontario. As Chief Justice McLachlin has noted: “many more citizens have their rights determined by these tribunals

than by the courts.” The absence of any procedural guidance, in conjunction with the limited professional supports offered to lawyers, often renders lawyers advocating on behalf of persons with capacity issues in a rather precarious position. Where counsel has hesitations regarding a client’s capability to give instructions, a lack of guidance on how to proceed can place a client’s interests at risk and potentially expose the lawyer to professional liability. Moreover, when determinations of how to address capacity issues are developed by individual tribunals on an informal and extemporized fashion, nothing is done to combat systemic barriers faced by persons with capacity issues. When viewed as a whole, the lack of a comprehensive policy detailing how administrative tribunals should respond to parties with capacity concerns potentially has the effect of hindering access to administrative justice for persons with mental health issues. the OBITERdicta

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“Sanism – the last acceptable form of discrimination?” LAUREN BLUMAS Contributor Feel good, always. That is the message thrust upon Westerners day-in and day-out. In a culture that is inundated with “feel goodisms” emphasizing quick fixes and fostering abhorrence to pain or discomfort, feelings of anxiety or depression are often rendered pathological. The inability to suppress the experience of such “bad” emotions is often considered a reflection of some underlying mental disorder. Where persons are deemed to have such a disorder, they become labeled as “depressed” or “anxious”, the semantics of which describes the person as a whole. In response, our society tends to view those persons as inherently less stable or somehow less capable than persons who are not afflicted by mental illness. The labeling of a person as “depressed” or “anxious” is then problematic as it allows for generalization, deindividualization, stereotyping and ultimately discrimination against those persons. This is what is referred to as sanism. While disorders such as anxiety and depression have become the most socially acceptable and least feared forms of mental disorder, there can be no doubt that sanism persists in the context of these disorders. No mental disorder, even those becoming increasingly mainstream such as anxiety or depression, is free from sanism. Sanism, in the context of these more socially acceptable forms of mental disorders, is reflected in the discriminatory way the law and society at large treats persons that have depression or anxiety disorders. Society views persons that are afflicted with depression or anxiety as being inherently less

capable. This stereotype is particularly harmful when it is applied to one’s ability to parent. The common myths surrounding anxiety and depression disorders include the inability to function as a good parent. Persons with depression and anxiety are problematically portrayed as emotionally or physically absent from their children’s lives or as consumed by “bad” emotions such that they are unable to attend to the emotional needs of their children. Myths generalizing anxiety and depression sufferers as emotionally unavailable and less capable parents are fuelled by the media generally and, not surprisingly, drug companies in particular. I recently came across an advertisement (see the link below) for Cymbalta’s “depression hurts” campaign, which uses imagery that undermines the functionality of persons suffering from depression. The commercial is composed of segments depicting depressed persons as withdrawn from various activities. The most troubling image, common to anti-depressant advertisements, shows a mother distant from her children who appear to be distressed by her emotional absence. This powerful image is a manifestation of the stereotypical notion that people affected by depression or anxiety are lower functioning adults and less capable parents. In a quick, informal polling of a few classmates, a majority felt that depression and anxiety were relevant concerns with respect to custody of children. Upon further probing, words such as “instability” and “unreliability” were used to defend the relevancy of such concerns in the context of custody hearings. Some went so far as to argue that these considerations go to the best interests of the children involved.

Use your smartphone’s camera and the free ScanLife app to scan the barcode. You can get the free ScanLife app at ToronTo • new York • CaLgarY

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This poll, albeit informal and composed of a miniscule sample size, demonstrates that even among educated and generally progressive youth, discrimination against persons who are affected by what are the most socially acceptable forms of mental illness are not only present, but considered prudent. The media has been quite effective in characterizing persons with depression and anxiety as less capable, leading to a clear distinction between the perceived stability of the physically ill and the mentally ill. Persons who have some physical affliction, let’s say cancer, may become less able to attend to the needs of their children for periods of time and the length and timing of those periods may be unpredictable. However, most peoples’ sensibilities would be offended if we labeled these people as inherently unstable and less able to function as a good parent. Yet, when it comes to persons having a mental disorder, we are comfortable labeling them as “unstable” and allowing negative inferences to be drawn regarding their ability to parent. The damaging myths held by society at large regarding the parenting skills of persons with anxiety or depression has bled into the legal landscape. Not only do we see these stereotypes being replicated in young legal minds at Osgoode, they are also ingrained in the very fabric of Canadian Family Law. Affirming the beliefs of some of my polled colleagues, the law considers mental illness such as anxiety and depression in the context of child custody hearings.# This presumes that depression and anxiety are definitively tied to the capabilities of a person to carry out their role as a “good” parent. As one of the last socially acceptable forms of discrimination, sansim is pervasive and undeniably destructive. We have become comfortable justifying the damaging myths about persons that have anxiety or depression as truthful prudence, when in fact they are rooted in fearful misconceptions. While anxiety and depression can be very serious and even debilitating at times, we cannot continue to undermine the capabilities of persons afflicted. Mental illness is not the same as instability or incapability. There is no laudable reason, particularly with respect to one’s ability to parent, to devalue the functional capabilities of persons with anxiety and depression. Cimbalta – Depression Hurts link Rcw&feature=related Lauren Blumas is in second year at Osgoode and Co-President of the Health Law Association.

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Safeguarding Patient’s Safety in Private Clinics SETAREH NASSERI Contributor In September 2007, Krista Stryland, a 32-year-old real estate agent, died after receiving liposuction performed by Dr. Yazdanfar at the physician’s private clinic.1 Dr. Yazdanfar began her practice as a family physician in 1996. She underwent a change in scope of practice and was approved to perform liposuction and breast augmentation in May 2007 by the College of Physicians and Surgeons of Ontario (“CPSO”).2 Various patients and Krista Stryland’s family made complaints to CPSO alleging incompetence on the part of Dr. Yazdanfar and in December 2011, CPSO found her guilty of professional incompetence in relation to Krista Stryland’s death.3 Failing to limit her practice based on her training served as part of the basis for this decision.4 Though this was a tragic situation for both Krista Stryland’s family and Dr. Yazdanfar, the real analysis of the issue is much deeper. The underlying issue is not isolated to this physician, but it lies within the regulation of physicians who are performing invasive procedures that involve significant risks. Prior to this incident, physicians who were trained as general practitioners and wanted to practice plastic surgery could apply for a change of scope of practice with the CPSO. Though some training is required, the training does not equate to the six years of surgical training that board certified plastic surgeons are required to complete during their residency program.5 This raises a significant concern for the public, as many patients are unaware of this dichotomy or how to determine who is a board certified plastic surgeon. Furthermore, after general practitioners obtain approval for the change of scope in practice, they can practice outside of the hospital in private clinics or their current general practice offices without much supervision and at times, less resources than hospital facilities. While today’s physicians can apply to the CPSO for a change of scope of practice, practical realities are such that this area required further scrutiny in order to protect the public. The CPSO “is the body that regulates the practice of medicine to protect and serve the public interest.”6 In response to this issue, in April 2007, CPSO offered four objectives to improve public safety when it comes to cosmetic surgery.7 First, in order to enhance inspection powers of out-of-hospital premises, CPSO proposed the Regulated Health Professions Amendment Act monday - march 5 - 2012

(the “Act”), which came into force April 2010. The Act allows CPSO to inspect and assess outof-hospital premises to ensure that all physicians who perform cosmetic procedures are fully qualified to do so safely, and are equipped with adequate resources such as emergency medical supplies.8 Second, in October 2007, to enhance the assessment competence of physicians performing these procedures, CPSO demanded that all members performing cosmetic procedures complete a mandatory questionnaire and specify: i) where they practice, ii) what services are provided in their facilities, and iii) what formal training and continuing professional development they have completed.9 This was done to ensure that all members are practicing in areas where they have the necessary knowledge, skill, and training to perform cosmetic procedures.10 Third, in order to improve the regulation of facilities and to enhance the public’s knowledge regarding the qualifications of a physician, CPSO11 made amendments to the Medicine Act12 and enforced the Out-of-Hospital Premises Standards.13 The section 9 amendment of the Medicine Act prohibits physicians from using the word “surgeon” or “surgery” unless the member is certified by CPSO in a surgical specialty or the member has been formally recognized as a surgeon by CPSO.14 It also prohibits physicians from indicating or implying specialization unless CPSO recognizes the physician as a specialist. This was done to ensure that physicians communicate or advertise their qualifications and training to patients in a clear, accurate, and consistent manner. The Out-of Hospital Premises Standards in force in September 2010 requires facilities to meet the specifications set out in the standard. Physicians are not permitted to begin practicing until their premise has passed inspection. Physicians must meet aforementioned standards irrespective of when they changed their scope of practice.15 Finally, the fourth objective of CPSO was to develop an initiative to educate the public. CPSO has made “Getting the Facts” available to the public on their website, which includes information on methods to check qualifications, issues to consider when contemplating plastic surgery, and questions to ask the physician. The enforcement of these objectives demonstrates CPSO’s commitment to address and enhance public safety regarding cosmetic procedures. Though the regulations are specific to cosmetic procedures, CPSO plans to address

specialty-specific standards of practice such as endoscopy, interventional pain, and ophthalmology by consulting with physicians who are certified in such specialties. Setareh Nasseri is a second year student in the JD program and the Executive Secretary of the Health Law Association. She is a Registered Nurse who completed her Bachelor of Science in Nursing at Ryerson University. Footnotes Yazdanfar v College of Physicians and Surgeons, [2009] OJ 2478, at para 7. 1


Ibid para 4.


Ibid para 10.

Yazdanfar v College of Physicians and Surgeons, [2011] OCPSD 37. 4


Supra note 1.

About the College: Self-Regulation and the Practice of Medicine, online: College of Physicians and Surgeons of Ontario < http://> 6

Action taken by the College to improve patient safety with respect to cosmetic procedures, online: < uploadedFiles/policies/positions/cosmetic/ cosmetic-procedures-initiative_may11.pdf> 7



Steps to Improve Patient Safety, online: < uploadedFiles/policies/positions/cosmetic/ timeline4pointplan.pdf> 9



College amendments limit specialist title, demand clarity of credentials, online: < www. cosmetic/RegUpdateApr08.pdf> 11


SO 1991, c 26, s 15

Out of Hospital Premises Standard, online: < policies/guidelines/office/ohp_standards.pdf> 13


Supra note 12.


Supra note 7. the OBITERdicta

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The Corruption of Scientific Discovery: Gene Patenting RYAN HEIGHTON Contributor Health policy intersects with nearly every category of law, and one of the most predominant progressive fields is intellectual property law. In recent years, the patenting of biological material (especially genes) has been a hot button issue with deep roots in law, public health policy, and life science research. In Ontario alone, life sciences and biotechnology industries generate over $15 billion, comprising a significant and ever-growing portion of our economy.1 Although the American Federal Circuit overturned the trial verdict that the diagnostic breast cancer genes BRCA1 and BRCA2 are not patentable material in the Myriad Genetics case in 2011,2 the gene patenting saga will continue in the US, thereby directly affecting public health and genetic screening in Canada. The consequences of patenting diagnostic genes can be dire, and indeed the cost of breast cancer screening using the BRCA genes (which is the most widely used genetic test for predisposition to breast cancer) has tripled since Myriad was allowed to obtain a patent on the diagnostic genes.3 This remarkable increase in cost is a direct result of the granting of the patent and has no pragmatic basis outside of corporate greed. Unfortunately, increases in health testing costs are only the tip of the iceberg of health policy issues surrounding gene patenting. As a former breast cancer researcher, I can speak to the fact that the costs of patented life science materials are certainly prohibitive to scientific discovery in an academic setting, in addition to a medical setting. The study of proteins and nucleic acids require antibodies, which are synthesized by companies that either hold patents on the sequences or have to pay royalty fees to those that do. The resulting costs are sometimes exorbitant and have unfortunate results on innovation and discovery. What is worse is the great impediment that these patents have on the advancement of public health and the increasing prominence of the commercialization of scientific discovery,4 a previously pure and noble endeavor. There are significant risk factors in the increasing commercialization of scientific research, including a lack of collaboration, premature implementation of technology, and feigned results.5 These concerns are highly relevant policy considerations that must be factored into the discussion of any bureaucratic decisions involving the future of scientific research, as they will have direct and far-reaching affects on public health. Perhaps the most troubling aspect of the gene the OBITERdicta

patent discussion in a legal context is the apparent lack of scientific sophistication applied by the individuals arguing in favour of granting the patents. Myriad Genetics has presented the seemingly ingenious argument that the genes are patentable because they are isolated in a laboratory outside of the body, and are therefore markedly different from the chemical codes within our body (which are transformative, coding for RNA).6 However, it must be established that this function of the genetic code is sufficient to deem it patentably different. There are slight variations in every gene within the human body, often due to random point mutations. Would this mean that genes do not truly exist as a tangible chemical due to these slight variations? Further, should it really be a matter for the courts to balance scientific evidence and come to a decision on a highly technical matter? While Myriad and other biotechnology companies should certainly not be forced to sell their diagnostic products for free since money is invested into isolating the genes and developing the tests, allowing patents on the gene itself has the serious danger of producing absurd results. Isolating genes7 is no different than the isolation of granulated sugar from sugar cane. Working with this example, it is highly unlikely that anyone would agree that the granulation process should deem the end product patentable from the initial source, particularly based on the policy concern that if granted, the resulting patent would cause the price of sugar to triple. While the most beneficial result for public health would be for the courts to deny gene patents, it seems unlikely that the trend will shift in this direction. This is particularly evident when considering that as of 2005, nearly 20% of the human genome was subject to private patents in the US.8 Perhaps a band-aid solution would be for the government to provide a level of subsidy for the tests or for public researchers to work on alternative diagnostic solutions while absorbing some of the cost resulting from the patents. However, it is unlikely that this is a feasible solution as it would come directly from the taxpayers’ pockets and would not guarantee success. At the moment, it is most prudent for the policymakers to avoid propagating the trend toward the commercialization of science,9 which will undoubtedly corrupt scientific discovery. Unfortunately, what was once a pure and intellectually-driven field has been pulled into the vast economic motivation of modern society, and it may be to the detriment of the very society that is contributing to its destruction. Ryan Heighton is a first year student in the

JD program and First Year Representative on the Health Law Association. He completed an Honours Bachelor of Science and Master of Life Science at Trent University. Footnotes Industry Canada, Ontario Economic Overview - February 2011. 1

Association for Molecular Pathology v US Patent and Trademark Office (2011), United States Federal Court of Appeals. 2

Barbara Puffer “Is Myriad’s Patent on Breast Cancer Genes Valid?” New Haven Independent (16 February 2012), Online: < http://www. entry/is_myriads_patent_on_breast_cancer_ genes_valid/id_44443>. 3

Timothy Caulfield, “Do gene patents hurt research?” Science Progress (29 October 2009), Online: < do-gene-patents-hurt-research/>. 4



Katja Petzold & Hashim M. Al-Hashimi, “RNA structure: Adding a second dimension” (2011) 3 Nature Chemistry 913. 6

Cheryl P. Bailey, “RNase one gene isolation, expression, and affinity purification models research experimental progression and culminates with guided inquiry-based experiments” (2009) 37 Biochemistry and Molecular Biology Education 44. 7

Kyle Jensen & Fiona Murray, “Intellectual property landscape of the human genome” (2005) 310 Science 239. 8


Supra note 4.

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Screw the ‘Stigma’ Behind Mental Health Issues: Advocating for a Stress-Free Awareness Week in January HARJOT ATWAL Staff Writer

“Dear Law Student: I have good news and bad news. The bad news is that the profession that you are about to enter is one of the most unhappy and unhealthy on the face of the earth—and, in the view of many, one of the most unethical. The good news is that you can join this profession and still be happy, healthy, and ethical. I am writing to tell you how.” This quote was reproduced in the “Mental Health Toolkit for Student Bar Organizations and Administrators” that was created by the American Bar Association (ABA) in 2008; this document was a part of a Mental Health Initiative, undertaken by the ABA, and it was meant to encourage both students and faculty to begin confronting some of the major mental health issues faced by students in law school. As was mentioned during the recent Open Forum about the “Assiniboine Shotgun Incident”, mental health issues are surrounded by a huge ‘stigma’ since they have often contributed to safety concerns for the well-being of all individuals in our community. One important concern articulated was that if a disturbed or unbalanced individual began brandishing a shotgun in class, fellow students could be injured or killed. Of equal concern to me is the potential for self-harm by individuals affected by mental health issues, especially in light of the number of Anonymous articles published in the Obiter Dicta on the topic this year. For example, one particularly popular article – “Take a Number” – discussed difficulties obtaining counselling at York, advocated for a dedicated Osgoode office of therapists and psychiatrists to tend to the mental health of the student body, and mentioned the recent loss of a fellow Osgoode student to suicide. Personally, I’m tired of the ‘stigma’ behind mental health issues, especially if lack of awareness continues to cause harm to my fellow students. If I were to tell you that I have a mood or personality disorder that presents with major depression, are people going to look at me as less stable or weaker than other students? Maybe, monday - march 5 - 2012

perhaps even probably, especially if my health falters after such an admission. However, having volunteered at a hospital for children with disabilities for six consecutive summers, I can tell you that I don’t look at people with mental health issues as ‘weak’. In contrast, after watching these kids grow up for six years, I found them to be more interesting individuals who have gone through difficult times that have challenged them to become stronger people. I respect and admire people who have overcome adversity, and I feel the need to be as supportive as possible to friends who I know are currently facing more challenging mental health issues. For this reason, I recently wrote a Dean for a Day submission advocating the implementation of some of the suggestions made in the “Mental Health Toolkit” in the hopes of raising awareness and destigmatizing these issues, and thought I would adapt it for the Obiter Dicta given the theme of this newspaper issue. In general, I think students need to be made more aware of the following: 1. Mental health resources available at Osgoode Hall and York University; 2. Risk factors to keep in mind such as substance abuse and dependency; 3. Signs and symptoms of depression, anxiety or suicidal tendencies; 4. Tips for prevention and healthy living. Although the school does offer discussions on academic strategies and coping with stress, in addition to promoting healthy living through yoga and free massages, I feel as though mental health issues still need to be more directly addressed by Osgoode. For example, I think it would be beneficial to get in contact with the Ontario Lawyers Assistance Program (OLAP) and work with them to develop a “Stress-Free Week” that would occur in January of each year when Fall Term grades are released. Particularly after seeing some distressed looks on my firstyear colleagues’ faces after grades were released this year, I feel as though it is important to conduct yearly campaigns designed to promote awareness of mental health issues at this time in the academic term.

discussions on substance abuse issues in the legal community and the myths and realities behind grades. Additionally, the school could arrange for students to watch “A Terrible Melancholy: Depression in the Legal Profession”, a 30-minute documentary that shows legal professionals discussing their experiences coping with mental health issues; this film could be shown in the Moot Courtroom and also be followed by a discussion or perhaps a speech from an OLAP representative. This is not the first time such a “Stress-Free Week” has been advocated for at Osgoode or at other law schools. Recently, in this newspaper, an Honourable Mention for the Dean for a Day competition also advocated for a Mental Health Awareness Week. Additionally, the “Mental Health Toolkit” makes mention of the Vanderbilt Bar Association working closely with their Office of Student Affairs and the Tennessee Lawyers Assistance Program (TLAP) in organizing a “Stress-Free Week” in January, 2008. The importance of developing such initiatives is particularly underscored by the following facts taken from a study quoted in the very introduction of the “Mental Health Toolkit”: • Practicing lawyers exhibit clinical anxiety, hostility, and depression at rates that range from 8 to 15 times the general population. • 20 to 40 percent of law students suffer from clinical depression by the time they graduate. • Out of 104 occupational groups, lawyers rank the highest in depression. • Lawyers rank 5th in incidence of suicide. • Lawyers exhibit very high levels of substance abuse. The facts don’t lie. So, seriously, screw the ‘stigma’. If you are a law student facing more challenging times because your mental health is faltering, always remember the old Japanese proverb: “Fall 7 times, Get up 8.”

This “Stress-Free Week” could include panel the OBITERdicta

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Alcoholism in the Legal Profession LISA OSTROM Contributor I decided to write about lawyers and alcoholism after I noticed a distinct pattern emerging while I was at work. I’m employed in the emergency room at a large downtown hospital, and at least weekly, lawyers present to the emergency room after a drinking problem has spun so far out of control that their jobs and bar licenses are at risk. I could, admittedly, be more sensitive to the number of lawyers seeking help as I now hope to become one some day, but when two well established and prestigious lawyers came to the emergency department suffering from alcohol withdrawal in the space of two days it became obvious that there is a serious issue. Alcoholism is a huge problem for legal professionals. There are many different studies reporting varying rates of alcoholism among lawyers, with rates hovering around 15%, with the rate varying depending on gender, location, and practice area. By contrast, the rate of alcoholism in the general population in Canada is approximately 4%. There’s even a special term for lawyers and other highly educated professionals who drink: they’re known as “high functioning alcoholics” as they’re able to drink to excess and still juggle multiple obligations, although for how long is debatable.

Salt: Time to Regulate? AMANDA MACNAUGHTON Contributor Everyone loves salt. A salty snack can be the only saving grace after a long day at the library or after the curve has kicked you to the ground. Unfortunately, salt can hurt a law student too! Canadians eat too much salt.1 Salt is made up of sodium chloride.2 Humans need sodium to survive but Canadians eat more sodium than is required or recommended.3 On average, 60% of women and 85% of men eat over the upper limit amount where health risks can occur.4 Most of this ingested sodium comes from salt and consuming this much everyday may put us at risk for strokes, heart disease, and stomach cancer.5 Where does it all come from? Contrary to popular beliefs, most of the salt in our diet comes from everyday foods that you would not suspect like breads, soups, processed meats, dairy products, and cereals.6 Health advocates have been lobbying the Federal government for regulation on salt in pre-packaged and restaurant foods.7 In 2007, the Government of Canada established a MultiStakeholder Working Group (Working Group) to review sodium levels and to recommend a reduction strategy.8 The Working Group’s final report was released in July 2010 and was made the OBITERdicta

Why is it that lawyers drink so much? I think after even a semester of law school, I can take a stab at some possible reasons. Long hours and a high stress work environment for starters. There’s also the congenial element of drinking, where lawyers will congregate together after work for drinks to commiserate about lawyerly things. The most disturbing part about lawyers and alcoholism is that it seems to me that the association between law and drinking begins in law school. I can’t think of any other scholarly discipline that has its own well stocked bar in the same building that houses classrooms and libraries. There’s no equivalent to the JCR across the way in the nursing building, that’s for sure. Although Schulich has a licenced restaurant, I’d argue that it would be difficult to make comparisons between the two facilities. To be clear, I’m not saying that drinking is bad and that no one should do it anymore, or that the JCR shouldn’t serve alcohol. I just think that Osgoode students need to be aware of the fact that there is a very fine line between frequent social drinking and alcoholism, and that alcoholism is endemic in the legal profession. How does one know if his or her drinking has become problematic? There are many screening tests online. One brief test that’s used regularly as a screening tool in the health care setting conup of several recommendations to reduce daily sodium intake by a third in six years.9 The most controversial recommendation of the report asked the food industry to voluntarily remove a large amount of salt from the food supply.10 Great! So do we still need to worry about salt? The short answer is yes. The Working Group’s recommendations were never adopted by the Harper government.11 In fact, at the recent Federal, Provincial, and Territorial ministers of Health meeting, Health Canada announced it would not move forward with the reduction strategy as currently planned and instead would be developing a new plan.12 So what could be the hold-up? First, government mandated salt levels could be viewed as overly paternalistic and as an unwanted intrusion into liberty. We like salt. No one physically forces us to drown our woes with a slice of pizza. Second, salt has more functions in food than just taste; removing it could have consequences on food texture, shelf life, and safety.13 Lastly, the Federal government may be hesitant to regulate because of costs in a recession. While removing salt from our diets could reduce health care expenditure overall, salt is a comparatively cheap food ingredient.14 Foods lower in salt may become more expensive and could reduce profit margins for restaurants and food manufacturers. The future of salt in our food supply is uncer-

sists of four questions: 1. Have you ever felt you should cut down on your drinking? 2. Have people annoyed you by criticizing your drinking? 3. Have you ever felt bad or guilty about your drinking? 4. Have you ever had a drink first thing in the morning to steady your nerves or help you recover from a hangover? Two “yes” responses suggest that one may have a problem with drinking, and that further questioning and assessment be recommended. One final note, which, although it has been mentioned in the Obiter on several previous occasions, I feel the need to mention it again: Osgoode doesn’t have a counseling service for law students. Other contributors to the Obiter have mentioned the shortcomings of the York counseling center, particularly in regards to the long waits for appointments. Given the unique demands of law school and the legal profession, Osgoode badly needs a dedicated counseling service. Alcoholism often goes hand in hand with depression and drug abuse. It’s important to develop healthy coping strategies now before we have legal licenses and careers to lose to alcohol. tain. Without more Federal action, several provinces have hinted that they will go forward with salt reduction strategies of their own.15 Only time will tell but expect some conflict. The Canadian food supply is regulated at several levels of government; division of powers issues could arise.16 Stay tuned. Amanda MacNaughton, MSc-Human Biology and Nutritional Sciences, Osgoode Hall JD Candidate 2013. Footnotes 1 Didier Garriguet, “Sodium consumption at all ages” (2007) 18 Health Reports 2. 2 Ibid. 3 Ibid. 4 Ibid. 5 Health Canada, Sodium Reduction Strategy for Canada (Ottawa: Minister of Health, 2010) at 9. 6 Ibid at 12. 7 Carly Weeks, “Harper must demand action on salt reduction, health groups urge”, Globe and Mail (9 January 2012) online: <ttp://www.theglobeandmail. com/life/health/new-health/health-news/harper-mustdemand-action-on-sodium-levels-health-groups-urge/ article2296439/> 8 Health Canada, supra note 5. 9 Ibid. 10. Ibid at v. 11. Carly Weeks, supra note 7. 12. Ibid. 13. Health Canada, supra note 5 at 20. 14. Ibid at 22. 15. Carly Weeks, supra note 7. 16. Health Canada, supra note 5.

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The Children’s Fitness Tax Credit: Effective Health Policy Or Idelogical Tool? JEFF ROCHWERG Contributor In an effort to use the tax system to combat childhood obesity and increase physical activity, the 2006 federal budget proposed the creation of a Children’s Fitness Tax Credit (CFTC) believing it would serve as a catalyst to support a lifelong love of active lifestyles for young Canadians that could combat childhood obesity.1 However, the CFTC has been ineffective in meeting this objective because of barriers to participation. While childhood obesity is most prevalent among lower socio-economic groups, the CFTC by design mainly benefits those with sufficient taxable income. In this sense, the CFTC has only succeeded in rewarding the parents of children who are already involved in organized physical activities. The CFTC was rooted in the idea that fiscal policy needed to be part of the strategy to improve diet and physical activity. The CFTC allows parents to claim a non-refundable tax credit of up to $500 in eligible fees for the enrolment of a child 16 years old or younger in an eligible program of physical activity.2 Calculated at the lowest personal income tax rate of 15%, this means that parents who enroll a child in a hockey program – which costs an average of $1000 - could claim a maximum credit of $77.50.3 For a soccer program – costing an average of $125 - parents would claim $19.38.4 By its nature, the CFTC rewards higher income families with children already involved in physical activity. The CFTC provides a moderate rebate that cannot be claimed by parents whose income is not taxable. This includes social assistance recipients and parents from lower socio-economic communities who cannot shoulder the cost of a physical activity program for an entire year. In effect, the $90 million that the government awarded to parents who claimed the CFTC in 2007 has been “sucked up right away by people who are already involved in organized hockey, soccer [and] baseball.”5 So if the CFTC has been ineffective in getting more children active, why did government chose to make the tax credit its main mechanism to combat childhood obesity?

Canada was not in the government’s interest.”7 Martin’s analysis suggests that the CFTC had little to do with combating childhood obesity, and everything to do with broadening the Conservatives electoral prospects.

Prof. Neil Brooks has decried boutique tax credits such as the CFTC, insisting that the tax system be used sparingly to engage in various forms of social and economic engineering. Instead, he told the Standing Committee on Finance that the tax system is best designed to raise revenue and achieve a more equitable distribution of income.8 He argued that the CFTC, “has nothing to do with the tax system, other than the fact that it’s being offset against [parents’] tax liability as a way of delivering the subsidy.”9 The purpose of tax expenditure is to correct a perceived market failure and ideally turn negative externalities into positive ones. Here, the market failure is clear: children – especially from economically disadvantaged communities – are becoming more obese and less active, often because of barriers to participation. However, there was little acknowledgment that the cost of participation in sports ranks as the most prevalent barrier to children’s physical activity. Though there is a desire among parents in lower socio-economic communities to use the CFTC, in reality there has been little take-up. This means that the goals of the Expert Panel in having the CFTC serve as a catalyst to promote a lifelong love of active lifestyles, combating childhood obesity, and removing barriers to participation have not been met. Perhaps the Expert Panel came up with an ineffective mechanism because they had the wrong goals in mind. While they had laudable goals to promote a love of active lifestyles at an early age and get sedentary children active, the Panel may have found greater success had they approached the market fail-

ure through a focus on child development. However, a multi-dimensional response from all levels of government is unlikely in the current political climate. The 2011 election promises show no indication that market failures would be remedied with comprehensive approaches based on statistical evidence. For example, the Conservative’s new $500 children’s arts tax credit will have a similar effect in that it will reward middle-to-high income earners who have already enrolled their children in piano lessons or ballet classes. The same is likely true for their proposed Adult Fitness Tax Credit, which would be modeled on the CFTC. Until this government changes its course and realizes that boutique tax credits such as the CFTC are ineffective mechanisms at correcting market failures, these market failures will persist. Jeff Rochwerg is a second year JD student and coPresident of the Osgoode Health Law Association. He loves children and hates bad public policy. Footnotes 1. Report of the Expert Panel for the Children’s Fitness Tax Credit (Ottawa: Department of Finance Canada, 2006) at 5. 2. Ibid. 3. Sheila Block, “The Children’s Fitness Tax Credit less than meets the eye” Canadian Women’s Health Network (Spring/Summer 2007), online: Canadian Women’s Health Network <> [Block]. 4. Ibid. 5. CBC News, “Extend tax credit to non-fitness activities for kids, some urge”, online: (29 December 2006) <>. 6. Lawrence Martin, Harperland: The Politics of Control (Toronto: Penguin Group, 2010) at 48. 7. Ibid at 273. 8. Standing Committee on Finance Debates, 39th Parl, 2nd Sess, No 36 (14 April 2008) (Prof. Neil Brooks). 9. Ibid.

The answer is ideology and electoral gain. Lawrence Martin notes how Prime Minister Stephen Harper’s policy biases were small-scale, consumer-oriented issues that allowed citizens rather than the state decide what to do with money.6 Seeking to solidify Conservative party support, Harper and his advisors sought to hone in on segments of the population that they believed were most amenable to Conservative ideals. Statistical analyses which showed that childhood obesity is most prevalent among lower socio-economic communities was cast aside by this government. They believed “empirical data was the enemy. Sophisticated research too often got in the way of ideology. The work of Statistics

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Mental Wellness of Osgoode: Take Action Today SETAREH NASSERI Contributor There have been frequent conversations among students about the mental health wellbeing of students at Osgoode Hall. Many of these conversations stem from students’ concerns regarding mental wellness of themselves and/ or their peers. Though there are a number of resources available to students including counseling by the administration, the issue seems to require further intervention. Legal and Lit and Student Caucus have been paying careful attention to this issue. There has

been much discussion among them regarding possible solutions including the possibility of having a professional counselor available to students at the school. The administration too has been observant of the issue and has made themselves available to speak with students and take questions, comments and suggestions. I have had the opportunity to meet with Associate Dean Gavigan to discuss this issue and she has been receptive and responsive to the needs of students. Though I have made a few suggestions to Ms. Gavigan, mainly focusing on prevention of mental distress, I could not speak on behalf of the student body. This issue seems to be real and present and whether it manifests itself in a tragedy or not, there seem to be a need for an

open dialogue. Mental Health Law Society has offered to collaborate and compile students’ comments and concerns regarding this issue in order to voice them to the administration in quest of implementing an appropriate aid. All students are welcomed and strongly encouraged to write or speak to myself, Setareh Nasseri <> or Eric Marques, the president of Mental Health Law Society <> in regards to this issue. Whether you want to voice your concern and support for the cause, share your experiences or suggest a solution to this issue, write to us today!




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Fetal Alcohol Spectrum Disorder LESLEY FREIBERG Contributor

The link between in-utero alcohol exposure and congenital malformations was first identified in the early 1970s. Medical research has since discovered how maternal alcohol consumption can severely impede the physical and mental development of an unborn child. Often causing considerable and permanent physiological, behavioral and cognitive deficiencies, fetal alcohol exposure is now considered to be the leading cause of mental retardation in Canada. The Canadian criminal justice system is currently facing the dilemma of how to appropriately respond to the disproportionately high number of accused persons diagnosed with Fetal Alcohol Spectrum Disorder. In conjunction with a myriad of physical malformations such as central nervous system damage and growth retardation, persons with FASD often have organic brain damage and below-average IQ levels. The link between fetal alcohol exposure and crime was expounded in a 1991 study which revealed that 60% of per-

sons with FASD had come in contact with the law and had either been charged or convicted of an offense. This startlingly high figure is even further elevated in persons of Aboriginal heritage. Research indicates that the proportion of Aboriginal persons with FASD is ten-times the national average. Using a sample study, it was found that of reported cases with FASD offenders, 86% involved Aboriginal offenders. While it is important to bear in mind that a host of social factors likely contribute to increased criminality such as poverty and substance abuse, persons with FASD have the additional hurdle of overcoming what can be described as a physiological disposition to criminal conduct. The cognitive deficits associated with FASD represent a significant challenge for the criminal justice system. Canadian criminal law is predicated on the presumption that all people act in a voluntary and informed manner. Free will and individual responsibility are venerated as paramount considerations and it is assumed all persons are capable of making choices, understanding the consequences of their actions and learning from mistakes. These baseline suppo-

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sitions are challenged when the law is broken by persons with mental disorders. Where an accused has a severe mental illness or developmental disability, integrated procedural safeguards are aimed at protecting people from the punitive nature of criminal justice and instead to channel them into a mental health focused stream. Particularly problematic for persons with FASD is that the permanent brain damage caused by alcohol exposure often leaves one with the basic ability to function but subject to impulsivity, memory loss and prone to manipulation or influence. Given that these inclinations engender criminal conduct, it cannot be assumed fully that persons with FASD commit crimes out of their own freewill and volition. However, their adequate level of mental functioning often places them above any reflexive integration into the mental health stream. Once arrested and charged with an offence, there are three main avenues for mental disorders to factor into the criminal process. A finding of unfit to stand trial represents the first opportunity to raise issues regarding the accused’s criminal culpability. Presenting a fairly low threshold, this requirement stems from the deeply-rooted notion that an accused must be present to respond to accusations of the State. A finding of unfitness can be raised at any stage during the proceeding and once established, the criminal proceeding against the accused are stayed indefinitely while the accused is directed to the authority of the presiding Review Board. If an accused person is found to have sufficient capacity to be tried, they have at their disposal a defense of not criminally responsible on account of mental disability (NCR). Formerly known as the insanity defense, a finding of NCR expounds the longstanding legal principle that no person who committed an offence while suffering from a mental disorder should be convicted. Like a finding of unfitness, once a person is found to be NCR he or she then becomes subject to the jurisdiction of the established provincial Review Boards. As a final recourse, if found criminally responsible, an accused person can introduce evidence related to mental illness or disability in an appeal for lighter sentencing or an order which emphasizes rehabilitation. The question at hand is which legal mechanism represents the most appropriate method for dealing with persons who suffer from FASD. As of yet there does not appear to be any clear trend in how courts have reacted to persons with FASD.

Footnotes omitted NROR1119_obiter_dicta_2012.indd 3 monday - march 5 - 2012

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Opinions The Goods on Bill C-11: The Reintroduction of the Copyright Modernization Act (Part 1) MARTIN HUI Contributor This is the first section of a two part article, split over two editions of the Obiter Dicta. I have aimed to impartially analyze some of the more contentious provisions of Bill C-11, focusing on arguments made by two “camps” – content owners (companies and individuals) and consumers. The views of these groups may overlap (individuals creating content inevitably consume content) and there are no doubt many more stakeholders at play. This week introduces the Bill and provides descriptions of provisions that have near widespread approval, along with a discussion of the more contentious digital lock provisions. Next week, provisions targeting the “enablers” of copyright infringement and the changes to the statutory damages regime will be discussed. I will also cover two additional amendments that some believe will be proposed during the Parliamentary hearings taking place right now (website blocking and internet termination). This article will not explore Bill C-30, Investigating and Preventing Criminal Electronic Communications Act (the “Lawful Access law”), the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPP), which have all generated controversy in Canada for different reasons. Nor will I analyze the Stop Online Piracy Act (SOPA) and related Protect Intellectual Property Act (PIPA), which have since been sent back to the drawing board in the United States after millions of people signed petitions and hundreds of companies staged a “blackout protest” on January 18, 2012.1 On September 29, 2011 the federal government reintroduced Bill C-11, the Copyright Modernization Act, calling it “common sense legislation [that] will help protect and create jobs, promote home-grown creativity and innovation, and attract new investment to Canada.”2 It passed second reading in the House of Commons in mid-February and has now been sent to committee for Parliamentary hearings that will run until the end of March. The government aims to have the legislation passed by the end of April.3 It was previously introduced as Bill C-32 in June 2, 2010 but died after Parliament was dissolved prior to the 2011 federal election. Reflecting Modern Reality Technology has changed the way Canadians the OBITERdicta

create and consume digital media, especially since the rise of the internet. Most changes within Bill C-11 are praised as recognizing this, including provisions dealing with:4 * Fair dealing: This is a defence against copyright infringement for uses that could have significant social benefits. Would be expanded to include education, parody and satire. Is currently limited to research, private study, news reporting, criticism and review. * User Generated Content: Permits noncommercial “mash-ups” of copyrighted con tent for blog or video-sharing sites, as long as it does not have a substantial adverse impact on the original work. * Use Shifting: Explicitly allows “format shifting” (extracting music from a CD for use on an MP3 player) and “time shifting” (recording television on a PVR for future viewing), which are widely practiced in Canada but have never been formally per mitted. Does not call for an unpopular “pri vate copying levy” on consumer electronics. * Education: Explicitly allows universities to use publicly available materials from the internet, deliver research and learning mate rials in electronic form and facilitate online learning, including distance education. * Business Innovation: Allows activities like encryption research, security testing, compatibility testing and reverse engineer ing, and explicitly allows for automatic, tech nical and incidental reproductions (like reformatting a website for mobile viewing). * Unauthorized File Sharing: Makes it clear that unauthorized peer-to-peer (P2P) shar ing of copyrighted digital works is an act of infringement and remains illegal. * Safe Harbours: Establishes that Internet Service Providers (ISPs) and search engines are exempt from liability arising from copy right infringement by their subscribers and users, as long as they act strictly as intermedi aries in communication. The Controversy There are, however, significant points of contention to a number of provisions of Bill C-11, three of which I will examine below. These contentious provisions are compounded by the fact

that amendments to the legislation could arise from the Parliamentary hearings, which will hear from over 50 organizations, including corporations, business coalitions and special interest groups. I will also briefly cover two possible amendments. In fact, much of the controversy has centred on potential amendments that Professor Geist, Osgoode Hall alumnus and law professor at the University of Ottawa has coined “SOPA-like.”5, a non-profit organization that champions an open internet, launched an online petition that is largely based on these proposed amendments.6 It currently has over 52,000 signatures (Disclaimer: I signed an petition against usage-based billing on independent Internet Service Providers in January 2011). Provisions Already Proposed 1. DIGITAL LOCKS – s. 41.1 Arguably, the most contentious part of Bill C-11 is a proposal to give legal protection to technological protection measures (TPMs), generally referred to as “digital locks.” Any circumvention of digital locks, or the marketing or distribution of tools used to do so, would be considered copyright infringement.7 Content Owners The development of music, video games, movies, and other digital works can require significant investment in resources. The underlying premise behind the intellectual property in Canada is to allow inventors and innovators the ability to enjoy the recognition and rewards of their creations, which incentivise them to make further investments of their time and money.8 Similarly, digital locks are important to ensuring that content owners can make a return on their investment by curtailing illegal copying and distribution of digital media. The absence of such protection would diminish the motivation for individuals and companies to invest in innovative, value-creating technologies. Content owners are not forced to use these tools, however, which allow market forces to drive their adoption. For example, music sold in most online music stores are not digitally locked and can be used by any MP3 player.9 If stores began to sell music with locks, the idea is that customers would shift their purchases to stores that do not use locks and content owners would adjust their behaviour accordingly. Moreover, Continued to next page... monday - march 5 - 2012

page 14 Continued from previous page. notwithstanding media reports that would suggest otherwise, consumers’ circumvention of digital locks would not fall under the legislation’s statutory damages provisions.10 As mentioned before, codifying legal protection of digital locks ensures Canada’s compliance with international treaties (arguably, the proposed law exceeds what is required).11 It also clarifies the regulatory environment that companies must navigate when conducting business in this country. This strengthens Canada’s international position as a place to invest and do business. Furthermore, Bill C-11 allows for the creation of regulations that could prohibit digital locks in areas that would unduly restrict competition.12 Consumers Most criticism of the digital lock provisions arises from its ability to override lawful uses of otherwise locked digital work. When faced with the competing property rights of a content owner and a consumer who has purchased the content, the holder of the intellectual property right always wins.13

lock legislation. The United States passed legislation similar to this part of Bill C-11 in October 12, 1998 (Digital Millennium Copyright Act), yet it proved ineffective, doing little to prevent the rise of Napster, Kazaa or Limewire.19 Stay tuned for next week’s edition of the Obiter Dicta, where I will discuss provisions targeting the “enablers” of copyright infringement, changes to the statutory damages regime and two additional possible amendments that some believe will be proposed during Parliamentary hearings (website blocking and internet termination).

Many of the praised aspects of Bill C-11 that were mentioned in the previous section, including use-shifting and fair dealing, would be ensnared by digital locks in its current form. For example, breaking a digital lock on a DVD for personal use on a tablet would be as much of a copyright infringement as selling pirated copies of it commercially.14 The act of unlocking a cell phone would become illegal, provided the individual also breaks contract with their mobile phone provider and switches to another company.15 Arguably, this reverses any freedoms gained by other aspects of Bill C-11 that offer necessary balance, reverses fair dealing provisions already in existence and outlaws activities that are currently widespread in Canada. 1 2

http://fullcomment.nationalpost.c om/2012/01/31/terence-corcoran-the-greyscopyright-wolves/ 3 4 view/6257/125/ 5 7

8 online_music_stores 9 some-observations-on-bill-c-11-the-copyrightmodernization-act/ 10 11 12 view/5080/125/ 13 technology/tech-news/can-canadas-version-ofsopa-be-stopped/article2331237/ 14



internetopic.nsf/eng/wr00332.html 15 view/6275/125/ 16 view/6275/125/ 17 view/6275/125/ 18

Geist, Why Copyright Reform Is Not the Cure for What Ails the Music Industry, Nova Scotia Music Week Keynote Address, November 5, 2011, 19


One way to balance the needs to protect content owners and the interests of consumers would be to link the circumvention of digital locks with copyright infringement. Not only would this ensure compliance with international treaties16, but would also allow individuals more freedom when consuming digital media for personal use. This is the model adopted in New Zealand and Switzerland.17

monday - march 5 - 2012

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Moreover, the proposed digital lock legislation is criticized as both unnecessary and ineffective. Canada has developed into a world leader in music sales and entertainment software development without such provisions.18 While these indicators are crude proxies for the health of creative industries, they are nevertheless evidence that success is not contingent on digital

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Features Fake It Or Make It: Being a Designated Driver RJ WALLIA Staff Writer Drinking isn’t for everyone. Despite any stories to the contrary, I actually prefer to not drink when I go out. Partly because of cost, partly because of my dislike of taking transit. Mostly however, I find that I can have more fun being the sober one out while your friends are plastered and removing their typical verbal filter. Oh yes, there are tons of sordid details you can unearth from the mouths of your drunken friends. I am kidding of course. Though people do tend to talk more while drunk, there are plenty of other reasons you would want to go out and not drink. There are plenty of good reasons to stay sober, and should you have access to a car, ways to ensure you are the hero of the night. One of the benefits to going out as the DD is the cost savings. Though this doesn’t happen often enough in my opinion, it was once pretty standard that if you were the DD, and you ordered a soda at a bar or pub, you got it for free. I still sometimes let bars know or let it slip and occasionally the bartenders will provide me with a soda on the house. I still tip, but tipping is a personal thing and I’m not getting into that debate here. What I will say, however, is that even if you’re paying for pop, you still are coming out ahead versus your friends who are making it rain while trying to grab the attention of whomever their heart desires that evening. Another benefit primarily relies upon the fact

Cooking Kyle’s Cod Uncle Eric, (Eric happens to be the name of my favourite uncle – And he loved ackee and saltfish.) For several weeks I have seen you discuss the merits of the cod fish in your articles. I have to say, I was disappointed to see that you have failed to honour, or even mention the third leg of the triangular trade: the Caribbean. In fact, Jamaicans are renowned for our love of cod, or more specifically, of saltfish. Make no mistake, ackee and saltfish is a far superior dish to your bacalhau. I mean, I can’t even figure out how to pronounce that word. Surely our mutual lover of the cod (the Freake show) has regaled you with details of the history of trade between his beloved Newfoundland and Labrador and beautiful Jamaica? Why, not only do they share a tradition of trade going back hundreds of years, but the results of the trade have entered the consciousness of its peoples. During colonial times, and possibly still today if you care to check, Newfoundland traded salted cod with Jamaica for rum. The Jamaican dark rum became more commonly

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that you are fairly certain about how you will wake up tomorrow. Usually it’s without a headache, without feeling awful, and without the desperate need for a greasy breakfast from your local diner. While the last part may be preferable, the point is, you aren’t going to have your Saturday or Sunday wasted trying to recuperate from the poison you just ingested the night before. Instead, you can get whatever errands you needed done or, hopefully, spend the day relaxing, rather than clutching your head wondering what on Earth compelled you to do what you did last night. There are some challenges to being the DD...I’m going to only focus on one because this is the one that comes up the most. Corralling everyone at the end of the night and the inevitable food run. It has been my experience that more often than not, with drinking comes the need for greasy food that someone would never be able to stand looking at while sober but somehow their body absolutely craves or they will absolutely die, like OMG! Sigh...very well. Getting everyone together and agreeing to a place is the first challenge. It’s basically like herding cats. I recommend you make it somewhere either close to where you are now, or where you wish to end up. Placing it in the middle is a disaster waiting to happen. Why, you ask? Well, some people can’t actually hold their liquor. Some even have to make you pull over on the side of the road so they can, thankfully, not vomit in your vehicle. This is better to be known as Newfie “Screech” and the cod … became more loved by Jamaicans than the fish found locally. Surely the impact of this trade, and the connection shared between two nations, grounded in our love of both booze and the cod is worthy of mention and praise? You insult both our nations!! Ackee and saltfish, what can I say about you? Greasy, you make a great hangover cure. With onion, sweet peppers and scotch bonnet peppers, your spice wakes me up and makes my nose run. Tomato - to sweeten the meal. Ackee, so confusing to small children who think you’re scrambled eggs. You are tasty, even if potentially deadly. And saltfish? You make the dish!! Not only does the time required to boil out your salt make you a true labour of love, eating you always brings surprises; this bite might contain a bone or … this bite you might never chew … I’ve been trying to find a worthy punishment for this slight. But then I thought, surely I cannot punish another cod lover. But I cannot abide any discussion of the cod without acknowledgement that ackee and saltfish is a superior dish to all others. I’m sorry, we might be cod-brothers, but .. there can be only one … just call me Roy MacLeod. I don’t expect you to take my word for it, and

done while they are near a restroom in the restaurant. If you do have to go and get that McDonalds, or late night pizza, street meat or Chinese food on Spadina North of Dundas, just go with it - it’s part of the whole DD thing. Sometimes if you’re lucky, your food will be paid for should you decide to partake. If not, well, think of all the money you saved at the bar. Last week, Kyle Rees wrote about the difficulty he faced in being sober around those who were drinking. I will preface this next bit with some personal history. There was a point in time where I went completely off booze for about 6 months. Not a drop of liquor, not even a glass of wine with dinner or a beer with the lads watching the game. I always drove every time we went out and I can honestly say that I understand that it can be uncomfortable at times. It can appear like you aren’t even having fun even when you are. People will continuously come up to you and, sometimes annoyingly, ask: “dude! What the hell, why aren’t you drinking? You not having fun? Come on man, you gotta enjoy yourself ”. However, like everything, it takes an adjustment period for everyone to get used to it. Sooner or later, people just accept the fact you aren’t drinking and still coming out and having fun. So I would just say that, like any social event, it’s what you make of it that will determine whether you enjoy yourself or not. If you can sit there without a drink despite everyone else around you being plastered, trust me, you’re better off. You’ll actually remember everything you did and be able to talk about it the next day without holding your head in shame or avoiding eye contact. I can imagine we’ve all been there and done that. being a reasonable man, I offer a proposal/challenge: we will have a cod-off. You name the time and place, bring your best incarnation of bala- howeveryousayit, and I’ll bring ackee and saltfish. We can set up a panel of tasters … and let them decide. Winner gets the satisfaction of honouring our national dish, and the loser … wears a codpiece for pub night. While we’re at it, I’ll even throw in a desert challenge. Jamaicans have some powerful fruitcake. So much rum it clears your nostrils as you pop it in your mouth. It doesn’t go bad for months! I’m sure you thieves have stolen something similar from better cultures. Mi mama fish a go tek dis, [Patois jargon for what I presume is “I’m gonna go get high”] - Roy Wellington

*** Marijuana makes everything taste good. That’s why I don’t trust Jamaican food critics. Well I’m not going to stand for it. So you better start soaking your cod, Roy. Let the games begin! - Eric Marques

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Osgoode News Animal rights? Shouldn’t We Focus On Human Rights First? RANA ARBABIAN Contributor Similar to feminism, animal rights activism is a movement often associated with its most extreme elements. At the Animal Law Society, paint throwers we are not. I, for example, am certainly not a tireless crusader for animal rights, nor am I here to make you feel guilty about that cow you ate for lunch. I am, however, a person who used to snort at animal rights activists – citing the popular argument that with so much human suffering, animal suffering is not a priority. Somewhere along the path of my post-secondary education, I came to understand the flaw in my derisive attitude: it’s all the same fight. If you concern yourself with justice or consider yourself ‘progressive,’ then humour me for a minute while I explain. If not, here comes more of that ‘lefty Osgoode slant’ you hate so much. The often-cited dichotomy between animals rights and human rights always reminds me of

unfortunate situations when progressive social justice causes are deliberately or inadvertently pitted against one another. The aim or the unfortunate result of this is to stall and inhibit progress and action. When progressive activists snub and dismiss animal rights activism, a deep engagement with justice is clearly missing. I don’t condone blindly following each other’s causes, but it is good to be aware of activism tunnel vision: believing your own cause to be the really important one while antagonizing others for wasting resources and the public’s limited attention span for engagement. As it turns out, animal rights is not merely ideologically akin to other progressive causes but literally intertwined with them. In the case of factory farming, for example, it is well documented that in such environments it is not just the animals that are brutally mistreated but the human workers too. There is also the considerable negative impact of such factory farming practices on the environment. Animal rights and factory farming also intersect with issues around poverty and food safety.

Similar to the flawed conceptualization of animal rights versus human rights, the dichotomy of ‘first’ and ‘second’ is also a false one. The idea is that first we’ll achieve human rights, and then we’ll move on down the hierarchy to animal rights. This is clearly a delusion that gets us farther from our goals. Nonviolence is a whole concept and must not be gradually handed out with arbitrary or anthropocentric approaches to priority. I have always been wary of guilt as a mechanism for inducing social change. And when it comes to how we treat animals, there is plenty of guilt to go around. However, the hope of the executive members of the Animal Law Society is that as future lawyers who strive toward justice for all, we all at least entertain the possibility that justice should extend to non-human animals too. On behalf of the Osgoode Animal Law Society executive team, I would like to invite you to the Animal Law Society Film Series screening of Sharkwater - a powerful Canadian documentary about the shark hunting industry - this Wednesday March 7th from 12:30-2:30 in Room 1004.

Harold G. Fox 2012 Canadian Intellectual Property Moot A Day in the Life of Anonymous Mooter 6A AMANDA LAREN Contributor Alex Chang, Aaron Kucharczuk, Amanda Laren, Kyle Rees and Dan Whalen comprised the 2012 Harold G. Fox Moot team for Osgoode Hall Law School. Friday, February 17, 2012 7:00 AM: [Beep, beep, beep]. My alarm sounds. The day we have all been waiting for has arrived. A day so exciting that they had to schedule a reading week after so that we could all recover. Today, my friends, marks the start of the Harold G. Fox 2012 Canadian Intellectual Property Moot. Time to suit up and change the world. 9:30 AM: Play with puppy at teammate’s house. 11:00 AM; Sign in. Receive goody bag with Fox Moot Cup special edition of Ronald Dimock’s book, Intellectual Property Disputes: Resolutions and Remedies. [Note to law students: bags do not contain pens with highlighters on the ends]. 12:00 PM: Moot kicks off with lunch and a keynote address by Prof. David Vaver entitled, “Intellectual Property - is it still a bargain?” If I wasn’t star-struck enough, I spot the Honourable Marshall Rothstein of the Supreme Court of Canada - aka

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Rothstein J. Scanning the panelist roster, I realized that the room was filled with the people who had written some of the books and decisions that I had read in preparing for the moot. It was a truly incredible experience. And sort of like when you see a person in real life that you have only seen in Facebook pictures. [Note: IP may or may not be still a bargain]. 2:00 PM: Moot, blur, finished. 7:00 PM: Chat with Honorable Randall R. Rader, Chief Judge of the United States Court of Appeals for the Federal Circuit, about his band, his contributions to IP regimes in Asia and life as the Chief Judge. But mostly about his band. Saturday, February 18, 2012 9:30 AM: Judge: “do you have any authority for that proposition?” Anonymous mooter: “yes.” [Whips out Dimock’s book, Fox Moot special edition]. AM then proceeds to discredit opposing counsel’s submission by informing the judge that “had his friends continued reading the page”, they would have realized they relied upon a decision that stood for the opposite proposition. Laughter ensues and for the rest of the competition AM’s first name becomes synonymous with “unnecessarily being a jerk.” Check it out on Other notable moments: [while refuting evidence that one consumer buys one showerhead] “your whole family uses the same showerhead?!” AFTERNOON (all a blur): Semi-finals are posted, and Osgoode is in!!!! Kyle Rees and Alex Chang killed it as Respondents for team 6R (or “Arrr” if you are from Newfoundland). Finals are posted - THEY ARE STILL IN! Joy, terror and excitement are all around us. EVENING: Ultimately, the winners were the Appellant team from Western University [Note: the school formerly known as the University of Western Ontario, much to some international student’s chagrin when he applies and does not end up in mountains]. They, as all the candidates I saw, were truly excellent mooters. A fun two days wraps up with a great dinner and a reception with all of the mooters from across the country and the esteemed panelists. Yes, I did say hello to Justice Rothstein. The 2012 Fox Moot team would like to sincerely thank all of those who helped us prepare. In particular, we would especially like to thank our coaches at Cassels Brock & Blackwell LLP, Shane Hardy, Tim Pinos and Casey Chisick, who took tremendous time to ensure that we were ready and on schedule.

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“OWN Your Style”: The Third Annual Osgoode Women’s Network Charity Fashion Show A Fashion Show for the New Professional Join us on March 7th for an evening of fun, fundraising and fashion at the Osgoode Women’s Network’s (OWN) third annual fashion show. Come watch your fellow students and Dean Sossin strut their stuff on the runway and mingle with students, faculty and representatives from Toronto’s legal community. Our purpose is to showcase the diversity and confidence of Osgoode women and men and to raise money for a great cause! The OWN Your Style Fashion Show is all about celebrating the young professional and exploring the options available for expressing your unique sense of style while staying within the bounds of work appropriate dress. No longer should the pant or skirt suit feel like a uniform. The new work wardrobe is about distinguishing yourself from the crowd and expressing yourself in a subtle yet stylish manner. It is about being yourself and having the confidence to wear clothes that are attractive, comfortable and versatile. We don’t believe that it’s “the clothes make the man or woman” but we do believe that clothes can dramatically affect first impressions and we intend to help you make your first impression a strong one. Think of us as your secret weapon for style advice and we promise not to steer you off course. The fashion show will feature everything from women and men’s casual wear to formal attire and even some cocktail attire and work-

appropriate jewelry. We have some amazing vendors, including clothing by American Apparel, Acapella Men’s Wear, RW & Co., Le Chateau, Bella Boutique, and jewelry by Three’s Company and Simply You. The Nice + Smooth Crew, featuring DJ Shine from the Nelly Furtado Band, will help us get our groove on after the show. You can even download free DJ mixes before the show at A FREE ride home for every attendee will also be provided, courtesy of Uber, an ondemand, private car service. You can order a car from your IPhone, Android or iPad device (Blackberries coming soon) by simply typing in the promotion code (which will be provided to you prior to the event), and you will be on your way! All proceeds from the event will go to Nellie’s Place. Located in downtown Toronto, Nellie’s provides shelter, safety and support for women and their children who are experiencing personal and financial crises as a result of violence, poverty and homelessness. Nellie’s provides essential programs to inform women and children about their rights and the services to which they are entitled. Nellie’s Place is committed to effecting change, removing barriers and improving conditions that affect women’s lives.

Nellie’s ultimately seeks to secure long-term independent and affordable housing for those in need and provides the resources for women and children to have their voices heard. You can learn more about Nellie’s and its programs at: OWN members will be selling tickets all week in the main foyer of Gowlings Hall from 11:30am to 2:30pm Monday and Tuesday, and from 10:30am to 1:30pm on Wednesday. Tickets can also be purchased at the door. Event Information Date: March 7th, 2012 Location: The Hoxton (69 Bathurst Street, just south of King Street) Time: Doors open at 7pm and the show begins at 8pm Tickets: $15 in advance, $20 at the door

Bringing The Global Home SANELISO MOYO & DENISE MERTIRI Contributors “I entered the classroom with the conviction that it was crucial for me and every other student to be an active participant, not a passive as the practice of freedom...” – Bell Hooks As first year law students we entered our 1L classes with similar thoughts and sentiments. With high hopes and expectations that our classrooms at Osgoode would be rich with critical dialogue and social justice discourse, we came prepared to learn and engage with the law. However, we soon began to realize that perhaps our expectations concerning the degree of critical engagement with the law were not realistic in all of our 1L classes. Learning the law, for us, meant learning what the law said but also engaging with the implications of the law on different members of society. For us, this meant looking at the complex relations of power that inform the ways in which the OBITERdicta

the state and its citizenry interact with one another through the law. It meant questioning who is behind law making and enforcement and the ways that the law is often applied discriminatorily to different groups of people. We came expecting our classrooms to be spaces where we could engage critically, with our colleagues, around issues of race, gender, sexuality, disability, and class and the complicated ways these identities intersect to inform interactions with the law. Some might characterize our expectations as naïve, or idealistic. Others might find themselves feeling similarly as they reflect on their first semester of law school. What we found was that our courses equipped us with the tools to understand and apply legal tests and theory to particular facts and scenarios. However, we felt that missing from our experience of first semester was the opportunity to ask the difficult and sometimes uncomfortable questions of the ways in which our varied experiences of privilege and marginalization interact to inform our position as future lawyers and current law students.

This International Women’s Day, we invite you to come and engage with us in a conversation about the way the law interacts with the varied and complex identities of woman-identified bodies in Canada. Through a panel discussion we hope to encourage a discourse around processes of “othering” and oppression perpetuated by the law against marginalized, gendered bodies. By confronting and challenging our understandings of the law, with lived narratives of marginalizing and oppressive interactions with the law, we hope to open up a space for critical engagement with legal discourse between law students, lawyers and the individuals who navigate the legal system on a daily basis as citizens and residents of Canada. Join us on March 7, 2012 from 12:30 to 2:30 (Room TBA) as we “Bring the Global Home” and engage with women-identified community members, activists and lawyers from marginalized communities, giving voice to the challenges faced by marginalized women in Canada when approaching and negotiating the legal system. monday - march 5 - 2012

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The Invisible Wall of York Security RJ WALLIA Staff Writer SANDRA DAVID Contributor RJ: On February 27th, Osgoode administration and staff, with their York counterparts (York Security and the Toronto Police Service), hosted an Open Forum to discuss the shooting incident that occurred in the Assiniboine apartment complex and the subsequent arrest of an Osgoode student. Their intention was to provide an opportunity for students and other concerned individuals to express their feelings and have any questions answered as best as possible regarding the incident and security in general. What ended up occurring was a conversation about the concerns students have with security as a whole at York University. The general overtone of the entire forum was one that seemed less about putting students at ease and more about extolling the virtues of York Security’s actions during this entire situation while also answering questions, albeit with as much straight-forwardness as possible. Almost too much, considering that anyone in attendance was able to learn about the laughingly (however tragically) small amount of security members actually patrolling the school (it’s in the single digits) along with York Security’s continued comparison of their own performance to every other school in Canada. It makes sense to do so, but perhaps it might better to compare your performance to other schools of similar size, location, diversity and a host of other quantifiable measurements you can put into a spreadsheet. But I digress. As I was listening to the officials speak about the incident, I decided to pay more attention to the students around me, as I wanted to try to figure out how the news was affecting the student body. As I wrote down as much of the questions and answers I could in short hand, I began to notice a theme that was building. There appeared to be a disconnect between what information was available to students from York Security and just how much we all knew about it. I decided this would be an appropriate time to comment on it. I basically told York Security that it needs to be proactive with it’s communication to how they are keeping us safe. If this means sending out emails or other such media, I believe that monday - march 5 - 2012

this is a great step in ensuring that people not just are safe but start feeling safe. There needs to be a connection between what students are saying and York Security’s actions, and the onus is on them to provide us with that sense of security along with actual security. Dean Sossin, speaking for Osgoode, was more than happy to completely agree and felt that, while protecting the privacy of individuals involved, communication is crucial to ensuring that any community can feel safe and went out of his way to ensure that he acknowledged he heard what I said and was listening. For him, it seems, this was an important point. Which makes the silence by York Security on the issue much more glaring. It was here that the silence of acknowledgement on the issue was deafening. In fact, at any point where communication to the student body was brought up, the analogy often touted by York Security’s representative was “you can bring a horse to water, but you can’t make him drink”. Here lies one of the biggest disconnect between York Security and its students. It is not our responsibility to seek out York Security Bulletins. It is not our responsibility to find out what tools are available to us when our tuition goes towards this service. It’s smart to do so, and I encourage everyone to go to the York Security website, located here at along with the weekly security bulletins found here: index.htm, but the onus is not on us. Or at least it shouldn’t be. The responsibility is with York Security and continuously taking the attitude that students are your first line of defence and should take ownership of their own security is not your mandate. This was the attitude that was the undertone of the entire forum. It seemed as if York Security basically was there to report to us an event and how they handled it, and felt that, for this form of self-congratulation, there would be the caveat of having to listen to these people speak on subjects they may know little about. If I sound that I am being a bit dramatic and hyperbolic, I apologize. I don’t wish to denigrate the hard work of the individuals who work in York Security. I also appreciate that they came to talk to us. But I shouldn’t have to. I should expect York Security to talk to me. I should expect York Security to be sending me bulletins weekly. I should expect York Security to make me feel like they take my safety seriously.

I should also expect York Security to be effective. But I think I will leave that for Sandra to go into. Sandra: I have to start off by saying how very appreciative I am for the Osgoode administration to organize the open forum with the York administration in order to address our concerns as students. As RJ said, one of our main concerns is communication and access to information and this was a great first step in the right direction. However, communication is not our only concern, and of the many concerns raised at the open forum were a recurring theme of safety and security, mental wellness, and the basic legal tenet of the presumption of innocence. Security at York campus is considered a joke by most students. Heck, we even saw it mocked in this year’s Mock Trial. The fact of the matter is that having more security on campus may not have prevented this incident from happening, but maybe it would have. It definitely would have provided a deterrent. Currently, there are 2 York security officers available and on patrol during one of the two 12 hour shifts per day, or at least that is what they admitted after I pressed them on it. This is 2 security officers for a campus of 50 000+ people and on a property of 457 acres. Security guards who are merely window dressing; wearing identifiable black and red uniforms, but who are unable to physically intervene in any incident on campus without facing the threat of having their employment terminated. It’s great that security was increased after the shooting occurred, but we’ve already been told that they’ve reduced the modified security coverage. They’re already moving back to the standard of 2 security officers per 457 acres and 50 000+ students for every 12 hour period. We’ve been told that they have increased the number of security cameras on campus. Richard Frank, York’s representative at this meeting and point person on safety/security issues, also told us that York is finally giving security officers extendable batons and handcuffs as well as training on how to use their new tools. York is doing this so that the security officers know how to use them properly when they are being attacked. That’s right; they’re being trained and given these new tools and powers not to defend students, but to defend themselves. A student in residence asked about the new the OBITERdicta

page 19 locks installed on the mailrooms in the residences in Passy. The student asked why York was so intent on protecting the most well lit area in the residences and commented that students weren’t likely worried about being victimized there, particularly with locks that though new, were not functional. The answer? They weren’t put in there for the safety of the residents, but to protect the LCD screens and the mailroom from vandalism. York administration and campus security is more interested in protecting their staff and their property than they are with protecting us as students. When asked by students why York hadn’t taken the tampering of the door locks seriously enough to call the police, we were told by Richard Frank that it wasn’t just the victim’s door lock that had been tampered with but the locks of several other units as well. We were told that the locks had been filled with glue and thus, the compromising of locks to the doors of various units in the building was deemed to have the “hallmarks of a prank”. Certainly, if one of these York officials had come home to discover that the locks to their residence and those of their neighbours had been tampered with and filled with glue, they wouldn’t have thought these acts were “hallmarks of a prank” but would have likely been concerned that they were the targets of a potential burglar. The implied message is that if you’re a student living in residence, your concerns, just like the current security presence on campus, are likely to be downgraded.

and training, I expect that it includes protecting the students, staff and faculty on campus and not just so that security can protect themselves, as was stated in the open forum. Finally, York and Osgoode administration need to take seriously the concerns of students when they indicate there is a problem regardless of whether it is an issue of harassment, the tampering of door locks or something more serious. We are all adults here. We are all responsible for our actions. But looking at such infractions and writing them off as less serious because they have the “hallmarks of a prank” is just not acceptable. I completely understand that when dealing with these concerns, that there has to be a presumption of innocence and a protection of the rights to privacy of the alleged perpetrator, but when some of the sanctions or actions that get taken are meant to protect the victim, or to alleviate concerns among the student population, then that information should be released.

wellness is extremely important if anyone is to succeed in their profession, whatever it may be; certainly in high pressure, high stress professions such as law. Osgoode students have been asking publicly for months now to have a greater availability of resources and services geared towards mental health. It was suggested at the open forum that having a psychologist on staff, or at least available 1-2 times a week for students to get help would be a great step in the right direction. The response from Dean Sossin was that we were pushing on an open door; that Osgoode administration is actively in the process of taking several steps to increase several mental wellness services, with the possibility of some sort of counselling being one of the options. This was extremely positive and encouraging information and I am sure a great many students will be happy to hear this. However, mental wellness isn’t just about reacting to situations and accessing necessary services, it’s about taking proactive steps as well. Something as simple as more open and frequent communication with the student body, as RJ suggested, is extremely important. Reactive solutions to a situation are more likely to cost more than proactive and preventative measures. Taking steps to openly communicate with students so that they are aware of what is going on is something the York administration needs to do, and we need to advocate for it through our student government and through the Osgoode administration.

In this writer’s humble Finally, I know that many of opinion, I think it is impera- There are only 2 York Security Officers available on patrol during you know or interacted with the one of the two 12 hour shifts per day. tive that the number of secuaccused. As law students and future rity officers on campus during members of the legal profession it is any given shift and who are not management important to remember that there is a presumpWe as students need to be more vigilant positions, should increase greatly since a ratio tion of innocence. We should be mindful of the about reporting things and not just relying on of 1 for every 25 000+ constituents is laughable fact that being accused doesn’t always result in York Security to do whatever they can, which I at best. I can’t accurately say what the number a conviction. But, this doesn’t mean that we can’t correctly even say what that is. If there is should be, but I’d say 10 per shift would certainly should forget the victim or what they are going a report of inappropriate, suspicious or criminal be a good start. Group them in pairs of two and through, and it doesn’t change your personal behaviour, it isn’t enough to just report it. We so that when people are going off on break, or feelings about this or any incident that occurs on must also follow up and find out what is being lunch, there are still at least 6-8 other security campus. People have already expressed feelings done. As law students we should be more alive to officers on hand to respond to calls. Furtherabout the incident and the accused and I would the fact that in order to get things done we need more, with an increased number of security simply suggest that we respect the fact that not to stay on top of them, regardless of whether it’s officers on shift, their visibility will also greatly everyone is going to feel the same way you do that paper for your class or the report made to increase. They would be able to patrol more and to please respect the difference in opinion, campus security. And if when speaking to secuareas of the campus more often. regardless of whether you share it or not. The rity you don’t feel that enough is being done, call only general consensus about this tragic incithe police and have them come take a report. Now, increasing the sheer number of secudent is shock, dismay and concern about what Don’t rely on someone else to be your advocate. rity is not enough on its own. They need to be happened and what York administration is equipped with the tools, authority and training going to do to address the very real and valid In addition to concerns regarding secuto do their jobs of securing the campus and its concerns regarding the safety and wellbeing of rity, mental health was also discussed. Mental constituents properly. And when I say authority the 50 000+ citizens of this university campus. the OBITERdicta

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Just for Fun! Sossin beastin' KD LIKE A BOSS. Sossin tossin' KD back LIKE A BOSS. Sossin during his spare time: LIKE A BOSS. How a BOSS eats KD: Sossin stylz

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monday - march 5 - 2012

the OBITERdicta

Issue 18 - March 5 2012  

Issue 18 of the Obiter Dicta.