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

Submissions are due at 5 p.m. on January 20, 2013. Please send your articles to: obiterdicta@osgoode.yorku.ca

‘The Definitive Source for Osgoode News’

The Osgoode Bursary Process 2012-2013 CAMILLE DUNBAR & SANDRA ALSAFFAWI-DAVID Equity Office, Student Senator In 2013, a Juris Doctor degree comes complete with legal acumen, classic Latin phrases and a swanky price tag to boot. In order to rise to the occasion, as shrewd law students, we have also become proficient at ferreting out all potential avenues of financial support. After all, for most of us at least, money matters! So as one would expect, when invited to meet with the Office of Student Financial Services and Assistant Dean Mya Bulwa, to discuss the Osgoode Bursary Process, we (Camille Dunbar and Sandra Alsaffawi-David) jumped at the chance. We would like to share with you what we’ve learned.

Puck Predictions: 2013 NHL Preview

With rising costs of tuition and increasing student debt, for many Ontario Law students bursaries are essential to funding a legal education. Each year, Osgoode awards upwards of $3 million in bursaries through the Osgoode Bursary Process to students with demonstrated financial need. For the 2012-2013 academic year, 569 applications were thoroughly reviewed for bursary consideration by the Student Financial Services Office (SFS). The integrity of the bursary process, to some degree, relies on student honesty, however SFS continues to monitor the bursary process very closely. SFS ensures that bursary funds are distributed fairly and equitably and to as many students as possible through tireless review and follow-up during the Bursary Process.

ANDREW CYR Sports Editor

Iginla and Miikka Kiprusoff to keep them in the hunt. They will again rely on this duo to lead the team in 2013, although their advancing age leads one to question whether they can even replicate last year’s limited success. The loss of 1st line center Olli Jokinen is offset by the addition of Mike Cammalleri late last season, but leaves them at a loss for size down the middle. On defence, Jay Bouwmeester and Mark Giordano are talented offensively, but lack the size and strength one wants out of top pairing defenders. Rookie winger Sven Baertschi is expected to earn a top-six role and is a popular pre-season pick for the Calder Trophy, but overall Calgary is too old and too small to compete in the Western Conference.

Osgoode Bursary funding is derived from 4 main sources:

Last year’s finish: 9th in the West

3. Osgoode Unrestricted Funds: These are funds, which Osgoode agreed to provide several years ago to assist students with tuition increases. The funds are unrestricted in that there is flexibility regarding how funds can be used to provide financial support for students and other bursary related projects.

During the NHL lockout, many hockey fans claimed that they would seek retribution for what the NHL and the Players’ Association did to them. They would speak with their wallets and refuse to buy tickets or merchandise, or watch games on TV once the NHL returned. I made no such bold claims. I knew I would come crawling back. I can’t help it. I could barely contain my excitement when I read that the NHL and the Players’ Association had agreed to a new collective bargaining agreement and salvaged what was left of the 2013 season. Now that the players are returning to their teams for training camp, the only question is: what will the 2013 season look like? Will the traditional powerhouses continue to prevail? Or will a dark horse team emerge in the shortened season? How will your favourite team fare this year? Below, I have outlined my predictions for the fate of each of the 7 Canadian NHL teams as well as projected standings. Calgary Flames Last year, the Flames fell just short of the playoffs, relying on the play of aging stars Jarome

This year’s finish: 13th in the West Edmonton Oilers While Calgary continues to rely on aging veterans, their provincial rivals in Edmonton continue to thrust their young players into starring roles. Of course, being awarded three consecutive first overall draft choices doesn’t hurt their cause. If forwards Jordan Eberle, Taylor Hall, » continued on pg 12

1. Tuition Set-Aside Funds (TSA): Annually, Osgoode receives $2.21 million in TSA funds from York University. These funds are generated from de-regulated tuition over $4,500 (such as Osgoode Law and Schulich MBA tuition) and their specified use is to address student financial needs. Each academic year, the Deans of Osgoode Hall negotiate with York University for additional Tuition Set-Aside (TSA) funding for Osgoode students. 2. Osgoode Donor Designated Funds: These funds are comprised of endowed and annual bursary funds.

4. Osgoode Accessibility Funds: These funds, which have been recently designated, are strictly for the purposes of making law school more accessible for all students wishing to pursue a » continued on pg 2


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OBITERdicta

The Definitive Source for Osgoode News Osgoode Hall Law School, 0014G York University 4700 Keele Street Toronto, ON M3J 1P3 E-mail. ObiterDicta@osgoode.yorku.ca Website. www.obiter-dicta.ca Twitter. @obiterdictaoz “It’s still a shocking thing really to me that as a person who has served on the highest court and served the country and been a good citizen, had a stable family life, family values, that I’m still a second class citizen in my own country.” - Michael Kirby AC, CMG, fmr High Court judge on LGBTQ rights in Australia. Senior Editor-in-Chief: Nancy Situ Editors-in-Chief: Thomas Mastoras, Travis Weagant Business Manager: Adam Cepler Features Editor: Cass Da Re News Editor: Nadia Guo Opinions Editor: Karolina Wisniewski Arts & Culture Editor: Maximilian Paterson Sports Editor: Andrew Cyr Staff Writers: Citlally Maciel, Jihee (Marie) Park, Daniel Styler, Angie Sheep, Harjot Atwal Crossword: Emily Gray Contributors: Cameron Smith, Camille Dunbar, Sandra Alsaffawai-David Layout Editors: Julia Vizzaccaro, Harjot Atwal, Devin Santos, Patricia Wood, Wendy Sun Website Editor: Ricardo Golec Articles are due at 5 p.m. on January 20, 2013. The maximum length is 1200 words. Please submit articles in Microsoft Word format to obiterdicta@ osgoode.yorku.ca. Please attach photographs separately; do not include them in your Word document. The Obiter Dicta is the official student newspaper of Osgoode Hall Law School. The opinions expressed in the articles contained herein are not necessarily those of the Obiter staff. The Obiter reserves the right to refuse any submission that is judged to be libelous or defamatory, contains personal attacks, or is discriminatory on the basis of sex, race, religion, or sexual orientation. Submissions may be edited for length and/or content. The Obiter Dicta is published biweekly during the school year, and is printed by Weller Publishing Co. Ltd.

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editorial Bursary » continued from cover legal education at Osgoode. The Student Access Guarantee Although the Osgoode Bursary is funded through various means, the policies of the Ontario government significantly impacts how Bursary funds are distributed. In September 2006, the Ministry of Training, Colleges and Universities (the Ministry) introduced new guidelines for the Student Access Guarantee (SAG). The principles of SAG provides that: no qualified Ontario student should be prevented from attending Ontario’s public colleges and universities due to a lack of financial support programs, and students in need should have access to the resources they need for their tuition, books and mandatory fees. All universities are now required to participate in the SAG and must report how TSA funds, which represent about 75% of Osgoode’s bursary funding, are being spent. More specifically, the Ministry mandates that it is the responsibility of educational institutions to ensure that students can access sufficient financial aid to cover their costs for tuition, compulsory fees and supplies, when these amounts are above the usual range of costs covered by the Ontario Student Assistance Program (OSAP). This surplus of financial need is referred to as the Tuition/Book Shortfall, a student’s remaining financial need after receipt of available OSAP funding that is due to tuition, books and compulsory fees above $4500 per year. In addressing Tuition/Book Shortfall, aid can be provided by universities in various formats including bursaries, work-study programs and employment. Financial aid to students attending second-entry programs, such as law, can be provided through access to bank lines of credit as well as bursaries, scholarships, workstudy programs and employment in accordance with the Tuition Set-Aside Expenditure Guarantee Guidelines. The Impact of the Student Access Guarantee on the Osgoode Bursary Program Upon application to the Osgoode Bursary Program, a student’s financial need is assessed and determined based on income, debt and special circumstances in direct comparison to other Osgoode students. The Bursary Program distinguishes between 3 levels of financial need (high, medium and low) through a comparative analysis of all Bursary applicants. Accordingly, bursary funding is allocated relative to the needs and circumstances of other students. For some students, it is determined that no funding is needed. Where possible, the goal of Student Financial Services is to apply the guidelines set out in the Student Access Guarantee (SAG) to ensure that the Bursary Program is not compromised.

Maximum OSAP funding is $14,217 for a single student, which is significantly less than a full year’s tuition at Osgoode. Osgoode is notified of a student’s remaining need after OSAP funding through a list received from the Ministry of Education. Under the SAG, Osgoode is required to provide funding for these students as mandated by the Ministry. Consequently, there are many cases where the Ministry who may not necessarily be assessed as a student in need by the Osgoode Bursary Program must allocate funds to students with specified Tuition/Book Shortfalls. Osgoode’s On-Going Commitment to Financial Support The recent economic downturn has significantly affected the Bursary Program and the funds available for distribution. Additionally, the Ontario Government’s Student Access Guarantee may reduce the level of funding available for students, who the Bursary Program may deem to be in great need by requiring that funding must go to students identified with a Tuition/ Book Shortfall following the OSAP process. These factors, coupled with increasing tuition costs, means that student debt loads are also on the rise. To address student financial needs, the new Osgoode Accessibility fund was initiated, a positive measure taken by the Dean to provide additional funding for the Osgoode Bursary Program. The new Wendy Babcock Social Justice Award was also established for students pursuing a career in social justice. The Student Financial Services Office continues to provide financial aid to students with demonstrated financial need through the Bursary Program as well as on-going advice and support. The Student Financial Services Office and the funding provided through the Bursary Program is critical to the success of many Osgoode students. As student representatives, we recognize and greatly appreciate the hard work and commitment of the Student Financial Services Office, and the law school more generally, aimed at addressing student debt and financial need. However we are committed to ensuring that student financial needs and concerns are met not only through back-end, reactive methods, such as bursaries, but also through proactive, frontend measures like addressing the rising costs of tuition and supplies. The ferreting continues! Welcome back and have a safe and successful 2013!

The Obiter Dicta is a member of Canadian University Press.

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news

Nadia’s Criminal Law Watch Column: Corruption, corruption, and a little vigilantism NADIA GUO News Editor This semester will mark the first instalment of Nadia’s Criminal Law Watch column. Within each issue of Obiter Dicta, I will be keeping Osgoode up to date on current and noteworthy developments in criminal law in Canada, and around the globe, with a focus on injustices. Let’s start with some of the malarky that’s taken place over the holiday break while we’ve been stuffing our faces and getting Daviault-intoxicated: US government decides not to criminally prosecute HSBC for laundering money for Mexican drug cartels This was the most significant story for me, since it pulls at the very heart of the absurdity of the entire war on drugs. Perhaps the most scathing insult from the state to any small-time offender who’s ever been convicted of a drug crime, the Justice Department signed a settlement for a pitiful $1.9 billion (only five weeks of income for the British financial giant) in early December. Matt Taibbi for Rolling Stone wrote a biting article entitled “Outrageous HSBC Settlement Proves the Drug War is a Joke,” in which he compares what happens to regular drug offenders to what happened to HSBC: “Just ask Cameron Douglas, the son of Michael Douglas, who got five years in jail for simple possession. His jailers kept him in solitary for 23 hours a day for 11 months and denied him visits with family and friends. Although your typical non-violent drug inmate isn’t the white child of a celebrity, he’s usually a minority user who gets far stiffer sentences than rich white kids would for committing the same crimes – we all remember the crack-versus-coke controversy in which federal and state sentencing guidelines left (predominantly minority) crack users serving sentences up to 100 times harsher than those meted out to the predominantly white users of powdered coke.” if there was ever more proof that was needed to prove that the war on drugs in America is entrenched in pure folly, this one certainly takes the cake. The government essentially revealed itself as its own enabler in justifying the need to spend billions in tax dollars each year on this more or less futile exertion of state power. Let me remind you that during the last five years of Mexican President Felipe Calderon’s term (which ended this past November), more than 100,000 people have died as a result of cartelrelated violence. And this is a modest calculation, considering that Calderon announced it would no longer be updating the death toll the OBITERdicta

since, in a country that investigates less than 10% of all crimes, these statistics will not be reliable. Theories for what precipitates the power of these crime organizations are aplenty, with some blaming government corruption and cooperation with criminal kingpins, and others the fruitlessness of the failed policy stance Calderon took on drug prohibition itself. Washington Post reports that despite the fact that Calderon had made it top priority in his term to wipe out the cartels, drug-related homicides have increased threefold under his presidency. What is markedly gruesome about all this business is that these crime organizations are unique insofar that they take pride in the bloody business they conduct, and want to ensure that everyone knows who is responsible for the corpses. They leave beheaded bodies strung up in places where the public is sure to see, with signs warning others not to cross them. Many of these victims are government officials themselves. And where does all the product go? Right over the border to good ol’ America, of course. The rationale given was that basically, the corporation was too large to indict, and that the consequences of a criminal prosecution would ripple damage out to the broader financial system. Hmm, it didn’t really seem like the US government expressed much of a care when the banks were busy using legal loopholes to destroy the economy before the last recession – why the sudden change of heart? Could it be that the American-led drug war is, in reality, not something propelled by the concern the government has for its people, but by… greed? Nah, you say, Obama is a chill guy. He smoked pot in college. He would never do that. But it’s not just Obama, it’s the relentless trajectory of the system itself. Reuters journalist Felix Salmon examines the purpose of the laws HSBC broke in “Why the US didn’t prosecute HSBC,” showing that in fact, these laws were not aimed to control the international banking system, but rather aimed towards economically sanctioning America’s political enemies. Because HSBC isn’t really its targeted antagonist, Salmon concludes that, “The question isn’t whether to use that power, it’s why. To do so would be bullying, and capricious, and would punish thousands of innocent individuals, and would destroy hundreds of billions of dollars of value, all for the purpose of nothing much in particular. Just because the US can prosecute HSBC doesn’t mean that it should prosecute HSBC. And sometimes, forbearance isn’t a sign of weakness, it’s a sign of maturity.” know what would be a sign of maturity, Salmon? It would be most definitely mature if the government would stop this infantile charade of what its actual objectives are in the war on drugs. The

settlement with HSBC is a baby-sized scratch if one is to compare it to any effort at deterrence, and everyone knows it’s not going to stop them, and others, from doing it again. And again. And again. If you follow the flow of money from the illegal drug trade, it will always flow through legitimate sources. You want HSBC to get away with this to protect the economy? Then you’re going to have to admit that the drug industry is inextricably bound with the economy, and that the real drug kingpins sit in the financial sector. You’re going to have to let up on the hard-nosed policy decisions that land harmless offenders with sentences that effectively ruin their lives. What is needed from a mature government is a little accountability and less hypocrisy. Tories’ fast-track refugee system fuels private immigration detention industry When Stephen Harper isn’t busy increasing minimum sentences for harmless drug crimes to fill up prisons (see Bill C-10), he’s looking for ways to start up new detention facilities. Immigration minister Jason Kenney announced a new change to refugee claimant processes late December, where the processing time for claims will be reduced from 600 to between 35 and 60 days, citing an effort to afford less time for “bogus complainants” to put claims through while somehow still protecting “real” refugees. Without commenting too heavily on the actual impetus of this decision, which doubtfully has roots in compassionate sensitivities towards refugees, what is more pressing to those paying attention to the problem of privatization of detention and mass incarceration in the US is spelled out by The Guardian’s Bilbo Poynter. While the Harper government has carefully kept away from proposing privatization of the prison system, Poynter reports that under the new changes, those seeking asylum may be detained for up to six weeks before review. Canada is reported to be listed as one of the only Western countries showing an active interest in increasing its asylum detention facilities against international human rights norms, and currently has three immigration holding facilities with management contracted out to private security corporations. One of the companies currently lobbying for “immigration service delivery” is Serco, whose facilities Kenney toured in Australia in 2010. On Christmas Island in April 2011, asylum seekers being detained at a Serco holding centre for over six months rioted in protest, resulting in burned-down buildings, and a showdown with police bearing tear gas and » continued on next page tuesday - jan 15 - 2013


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news » continued from last page bean-bag rounds. So the real question remains: Is all this really an attempt to crackdown on human smuggling, as Harper claims, or is it fuelled by the more surreptitious interest by certain investors to increase incarcerated populations? Steubenville, OH rape investigation and Anonymous A massive chorus of outrage as been voiced over the alleged mishandling and cover-up scandal of the gang rape of an unconscious 16-year old girl by Sheriff Fred Abdalla. Critics like hacktivists Anonymous accuse the town, which has a close alliance with its prized high school football team (and main source of economic revenue), Big Red, of lack of transparency in trying to protect Big Red team members from prosecution. Only two boys from the team have been charged, Trent Mays and Ma’lik Richmond, but according to Local Leaks (http://localleaks.blogs.ru), a site set up by Anonymous cell Knight Sec, many more were implicated. This site includes documents, Twitter screenshots, and a highly incriminating video of another teammate who was never arrested nor charged: Michael Nodianos. Nodianos crudely described and joked about the rape incident while naming others who were involved and not charged. Local Leaks’s disclosure claims to be ongoing and sourced from members of Steubenville society itself. This is a curious incident of civilian vigilantism trying to correct alleged failures of the criminal justice system themselves. Prosecution for the case had to be handed over from Jefferson County to the attorney general of Ohio, because initial chief prosecutor Jane Hanlin was the mother of a suspected perpetrator in the case. Local Leaks alleges that she had tried to discourage the victim from filing a complaint and has shown an interest in protecting members of Big Red previously. In response to Knight Sec’s disclosure of sensitive information, Sheriff Abdalla made a public vow to come after those responsible for the leaks. Anonymous tweeted in response: “If Abdella (sic) was as concerned about finding rapists as #Anonymous, he wouldn’t have to worry about us. #ExpectUs to do your job.” Named by Time as one of the most influential people of 2012, Anonymous is certainly a faction to watch out for when looking for corruption in criminal investigations. These little misogynistic football twats, self-dubbed “The Rape Crew” not only roofied this girl, but they also passed her unconscious body around from party to party so she could get raped and pissed on, so Anonymous has all my sympathy right now. tuesday - jan 15 - 2013

Vic Toews: “Either you’re against pizza parties for inmates, or you’re for crime” Not incredibly surprising that Vic Toews is engaging in public assholery after his failed attempt to push through the privacy-infringing Internet monitoring bill under the guise of trying to catch pedophiles, but nevertheless, I’ve had enough of this guy and his bellyaching bullshit. Toews is experiencing some backlash for initiating new prohibitions on inmates for being able to order pizza and KFC from time to time. Predictably, like the hard-nosed Conservative he is, saying something along the lines, “Why should we spend our hard-earned tax dollars on criminals?... Huh? What fighter jets? Oh, those F-35s. $45.8 billion is nothing compared to all that money these convicted child rapists are spending on pizza!” Or something to that effect. When faced with criticism revealing that the inmates in question actually bought the food with their own money for the purpose of charity fundraisers for local school projects, human societies and local fire departments, Toews wrote a ridiculous response to The Globe and Mail, pontificating on how allowing inmates to eat pizza and fried chicken from time to time might start other criminals thinking that prison is a fine and dandy place to go, and thus no longer serve the kind of deterrence the criminal justice system needs. I’ll just leave the audience to think about that one. More corrupt cops get slaps on the wrists

convicted of obstructing justice and committing perjury, get a whopping 45 days of house arrest. The incident that precipitated this investigation was an illegal search of a Scarborough apartment suspected of belonging to a drug dealer by ex-officers John Schertzer, who led the squad, Steven Correia, Ned Maodus, Joseph Miched and Raymond Pollard. Justice Pardu rationalized this light sentence due to the absence of “evidence of a pattern of criminal misconduct extending to matters [outside of the case],” and there being “no history of findings of misconduct under the Police Act.” Toronto Star Rosie DiManno reports differently, however, finding three past criminal investigation of the charged officers, 16 civilian complaints lodged against the drug squad, three misconduct charges laid on officers over an illegal strip-search, an officer charged with forgery, theft, and breach of trust for misuse of the cash reserve for paying informants, along with a report that found 82% of the squad’s investigations ended in a stay or a withdrawal of charges. Justice Pardu states that “noble cause corruption” played a role in mitigating police misconduct depending on the severity of vice police were engaged in combating. Why am I not surprised? Oh yeah, because this kind of judicial protection prioritizing the boys in blue over civil rights happens all the time. Does anyone even know what became of the police disciplinary hearings following the condemning report on Charter rights violations during the G20 summit in Toronto? Yeah, me neither. Want to submit to this column? Email nadiaguo@osgoode.yorku.ca.

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Refuting Some Claims about Israel CAMERON SMITH Contributor Having read with interest the piece on the most recent reincarnation of the Arab-Israeli conflict in Gaza within the last edition of Obiter Dicta, I wanted to refute the claims made that Israel is a state where basic liberty is protected, religious freedom is fundamental, and the rule of law is paramount. The claims I make do not arise out of any moral judgement, nor do I rely upon archaic senses of historical or theological entitlement. They are drawn purely from an interpretation of international law which states that the Occupied Palestinian Territories (OPTs), have been, for many decades, under an illegal occupation. The 2004 Advisory Opinion supplied by the International Court of Justice – the highest authority upon customary international law – held that Israel cannot legally justify its continued occupation of the Palestinian territories and is obliged therefore to instigate an immediate withdrawal. This stance has been affirmed in respect of authoritative interpretations of the Fourth Geneva Conventions. Equally numerous Security Council Resolutions and both the United Nations General Assembly and ICRC study on customary international humanitarian law have all reached similar conclusions. Despite this compelling evidence, the Israeli government continues to claim the nonapplicability of international law in relation to the OPTs. The continued promulgation of this repetitious contradictory rhetoric achieves nothing other than suggesting that Israel does not recognise Conventions that form the cornerstone of most other civilised societies’ foreign policy.

Convention and the Rome Statute define apartheid as being constituted in the following ways. First, there needs to be two racial groups involved in a conflict. While neither Jews nor Palestinians can be accurately described as separate races, in today’s world we have moved away from defining race based on the colour of one’s skin. Rather, race can be categorised as people who maintain separate religious and national identities ensuring their entitlement to be considered as a distinct entity. Second, it is a requirement that inhuman acts need to have been committed against one group by the other. In this regard Israel has perpetrated, in the years of its occupation, numerous violations of customary international law that would bring their acts under this definition.

Eight years on, it remains the case that not only is Israel still initiating flagrant breaches and violations of international law; it has taken tangible actions to repress Palestinians and instigate measures to establish its presence on a permanent basis. Whilst the Jewish settlers have benefited from luxury apartment blocks, urban infrastructure and exclusive access to religious sites revered by Muslims and Jews alike, there have been no such benefits to the Palestinians.

The forcible division of the territory and its population into separate enclaves and the denial of the right to freely occupy and move around within the OPTs can be characterised as such an act. In addition, Palestinians are denied the right to nationality within their own territory. For the many thousands of Arabs who fled the region during the 1967 war, the absence of an Arab state has ensured that they remain stateless with no realistic right of return. This has created a situation where the vast majority of the refugees and successive generations have to suffer in refugee camps in surrounding Arab states.

Furthermore, non-Jewish inhabitants categorically are not bestowed with the full range of basic civil and political rights afforded to Jewish settlers. There can be no other reason for such a policy other to achieve the domination of the Palestinian inhabitants in the OPTs. Unfortunately, and this assertion is not made whimsically, the resultant situation in the OPTs dredges up memories of the worst days of Apartheid South Africa. The Apartheid

Israel’s domineering presence within the OPTs infringes all aspects of daily life and limits economic, social and political opportunities. Furthermore, there is no tangible system that allows Palestinians the opportunities to speak out about their predicament. Imposed are rules endorsed by the Supreme Court of Israel that place onerous requirements upon newspapers and other forms of mass media to obtain licences and require they undergo stringent censorship

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before they can be authorized for publication. Since the Occupation began in 1967, thousands of Palestinians have been and continue to be killed in the OPTs by Israeli military forces, many for speaking out and demonstrating against the illegal occupation. As was the case in South Africa, a prominent method by which this number has been constituted is the excessive use of force against civilian protestors in the OPTs. Israel has also made frequent use of extrajudicial killing, torture and other forms of inhuman and degrading treatment in order to repress the Palestinian right of protest in a supposedly democratic region. This brief list of violations is not intended to be exhaustive; there is a multitude of Israeli practices that come under the definition of inhuman acts. Clearly however it can be seen that the domination of the Palestinians constitutes a breach of the prohibition of apartheid. On this basis there can be no other explanation than declaring that they pursue a policy that seeks racial repression – exactly the goal that was achieved in the recent history of South Africa. This has major implications for any resolution to the conflict that has lasted, in its current embodiment, for almost a century. While Hamas are an obstacle to the creation of a meaningful peace in the Middle East, they are not the “main obstacle.” First prize in this competition goes to Israel and its obtuse insistence in the continued violation and ignorance of international law. While Canada may be characterised as a state where basic liberty is protected, religious freedom is fundamental, and the rule of law is paramount, the same cannot be attributed to Israel. In this regard most Canadians would refute any analogies being drawn with the state of Israel. If it were indeed true, I think most would pack their bags and leave. Unfortunately for Palestinians such an option is not available, much less the chance to come back if they change their mind. tuesday - jan 15 - 2013


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Disability Law: Theoretically Re-thinking OLAP and Osgoode’s Audio Recording Policy in Terms of Anti-Discrimination Law and Moore v BC (Education) SCC HARJOT ATWAL Staff Writer In light of our most recent exam period being another reminder of the ways in which pressure at law school can increase anxiety and stress levels, I thought I would just take a moment and reflect on some “Mental Health” issues. Now, it must first be remembered there is a difference between “Mental Health” and “Mental Illness”. The latter term connotes a diagnosed condition, which if left untreated and unchecked, could lead to “Mental Illness”. On the other hand, “Mental Health” overall has to do with anxiety and stress levels; thus, I doubt any of us can say we have been at our most “mentally healthy” during exam periods in law school. Instead, I suggest we should consider mental health to be a spectrum where moving too far in one direction will inevitably create difficulties for your ability to function properly and lead a productive life. Thus, you can have a diagnosed condition, but still be classified as “mentally healthy”. Nonetheless, I don’t think that lawyers in general or even law students think of it as a spectrum in the same manner as I do, where you’re allowed to wrongly slip in one direction for a moment so as long you eventually “course-correct” after

feeling the consequences. Instead, the following quote is of useful guidance: “Suffering is part of the human condition. This may seem painfully trite to say, but in the legal community, we too often view having human vulnerabilities as a failing…My experience confirms for me that lawyers, despite protests to the contrary, are, in fact, human and that those who are able to accept their humanness live much more balanced lives. Whatever life throws at you, allowing yourself to feel and process the feelings that accompany those hardships helps you cope with and ultimately get past them. Resisting human frailties, on the other hand, leads to selfloathing and anxiety.” (http://lawtimesnews. com/201211269479/Commentary/Speakers-Corner-Why-do-lawyers-insist-upon-torturing-themselves) However, we, as lawyers, remain very concerned with disclosure issues, such as where OLAP is characterizing the Law Society’s complaint as concerning whether a chill effect would be created amongst recovering lawyers if a different third-party provider would replace them in providing this service. Furthermore, on the issue of Osgoode’s Audio Recording Policy (the

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L AW Y E R S

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“Policy”), we lawyers continue to have difficulty deciding what the “duty to accommodate up to undue hardship” means in the context of stigmatized disabilities when dealing with our peers, professors, and other members of the legal profession. Both of these “case studies” can be informed through analysis from the Moore v BC (Education) framework approach to where human rights legislation interacts with Anti-Discrimination and Disability Law, which has provided greater certainty in the law; this is important given the fact that both OLAP and Osgoode are businesses on some level, but the BCE and Peoples decisions left corporate law highly amorphous and malleable in terms of rendering traditional notions of fiduciary duties, oppression, and the business judgment rule highly uncertain. Theoretically, what’s in the “best interests of the corporation” could involve considering the “stake of recovering and mentally ill or unwell lawyers.” First, let’s talk about the “after you’re done law school, and you’re out there in the real world” issues. With respect to the Law Society’s decision to replace OLAP with Homewood Human Solutions, I agree with the decision at first glance from an Administrative Law perspective. I think the fact that Homewood Human Solutions would provide a more cost-efficient, and yet a potentially broader service are important considerations. I recognize OLAP’s concern that without a third-party provider, a potential chill could be created amongst recovering lawyers out of concerns of disclosure issues with the regulator. However, the Law Society has noted it intends to keep AON Hewitt as its current and continuing buffer between itself and Homewood. Furthermore, this eliminates OLAP’s purported need to increase funding, which initially caused the rift between itself and the Law Society in the first place. Moreover, OLAP refused to disclose any management information when asked questions about “rapidly escalating costs...and characterized the law society’s request as inappropriate.” This appears to me as poor conduct on OLAP’s part as I don’t think they’ve respected the duty to give reasons, and on some level could be hiding behind this characterization to cloak problems with their own management structure. From a business law perspective, OLAP’s conduct seems questionable and the Law Society’s conduct may require deference in observance of the Business Judgment rule. Yet, the premise of OLAP’s argument is based » continued on next page the OBITERdicta


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opinions ders can pull it together in academic programs as challenging as law or engineering. Thus, we come back to the question of why the “stigma” around mental health issues is problematically exacerbated in the legal profession, and why we stereotypically view mental health issues as debilitating frailties that we need to hide from our peers, professors, and the regulator. One answer could be: it starts in law school. So, let’s look at issues surrounding cases like: “I’m still in law school and have a disability; how am I protected?” Well, to that end, you look at the Policy and see that Audio Recordings can be made available to students on medical, compassionate, and equitable grounds. With specific regard to disabilities (according to the September 2012 Policy): “With the express consent of the instructor, recordings of lectures may be approved where such recordings have been accepted by the Programs and Records Office to be the only reasonable accommodation for a student with a disability. Where this determination has been made, the consent of the instructor shall not be unreasonably withheld.” [emphasis in original]

» continued from last page on Anti-Discrimination and Disability Law, and is something like “only lawyers know the specific problems in the profession, and thus are the only ones suitable to help”. This is a problematic assertion at best, IMHO. Looking to Moore (and assuming other elements of the test are met), in the context of Disability Law, the holding turned on “[m]ore significantly, the Tribunal found that the District undertook no assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed.” Thus, we see a reasonableness standard required of looking to alternative options, during times of financial crisis or limited budgetary resources, and the Law Society’s decision looks perfectly justifiable to choose the cheaper and potentially more widely available service. This is supported by notions that, in the “vicinity of insolvency”, business directors owe their primary duty to the “best interests of the corporation” rather than to any one individual stakeholder. But, Administrative Law reminds us of the focus on relevant expertise. So, I took a look at Homewood’s track record. They’re very reputable and have “33 years of experience in providing assistance to professionals”, which could be a potentially more valuable asset to the legal profession instead of a specialized “for lawyers” typeorganization like OLAP. Thus, while I think it’s certainly valuable to do things like appoint an the OBITERdicta

Academic and Wellness Counsellor who has both a “JD/Masters in Counselling Psychology” and graduated from Osgoode, I think it is unrealistically costly to hope for such a specialized professional standard to be applied across the board with something like OLAP which is meant to be province-wide. Indeed, I think Osgoode was very lucky to get Melanie Banka Goela, and was initially skeptical of whether Osgoode could get a licensed counsellor with a JD and five years experience in counselling at a salary of $58-66K a year. Further to discussion of Homewood’s expertise, here is some multimedia that Homewood has released on its website which I find particularly compelling; it references a Youtube video made by a student named Jennifer who was diagnosed with bi-polar disorder, OCD, and panic disorder while studying civil and environmental engineering at Western. Key comments from her video: “My situation proves that with proper medical treatment AND with academic accommodation, students can successfully graduate University in even a rigorous program such as engineering... [Another] major thing I learned is that treatment wasn’t always in a pill, but in a combination of therapies...I think what I want students to know who are listening to this video is that early intervention makes all the difference...even though I have a diagnosed mental illness, I’m actually very mentally healthy.” So, even someone with three concurrent disor-

While this specific section has been deleted from the January 2013 policy, it appears to nonetheless indicate something like “possession is still 9/10’s of the law”, right? Essentially, the notion that “consent of the instructor shall not be unreasonably withheld” is conflated with the Policy’s stated governing principle that “a lecture is the intellectual property of the instructor”. A reasonableness standard implies deference based on the assessment of alternative options. In this case, if a professor refuses to consent, a student will be paired with a Dean’s Scribe. Now, I have no problems with the Dean’s Scribe program, and I think it’s great; students are lucky they can count on their fellow students to share notes, if they are not able to attend classes themselves or have some other learning disability. Indeed, I believe Gayle Dyke does a great job as Student Services Coordinator, in both collecting notes from Dean’s Scribes and distributing those notes to students with disabilities in a timely fashion. However, I take issue with some assumptions seemingly underlying the policy on lecture recordings, the insistence on consent of the instructor, the claim “technology issues” were the real reason many lectures went unrecorded this year (such as during OCIs), and the professional standard we are holding our instructors to in terms of using the technology. I’ve listened to lecture recordings for a number of different classes. While the recording is the intellectual property of the lecturer and there are privacy concerns for the student who asks questions while recorded, what sinister advantage do » continued on next page tuesday - jan 15 - 2013


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Disability Law Continued » continued from last page you really think I’m going to try and derive from listening to your lecture? Do you think that I will try to retain a permanent recording, quote you “out of context”, and attempt to defame you or otherwise injure your reputation? Do you think I will try to sell it to make a profit? Or do you think I will just stop showing up to class, even if I’m healthy enough to do so, because I can hide behind the veil of “Mental Illness”? I find such questions somewhat insulting; yet, as judges famously have drawn on hypothetical scenarios to infer challenges and consequences in the Charter context (like in R v Oakes), I can imagine the situation arising where some student motivated by profiteering desires decides to take advantage of the situation. However, I should mention that you can’t actually download the lectures permanently from “MyOsgoode” and “possess” them in this sense; instead, you have to login to listen and they disappear when the course ends. Furthermore, it should be taken into consideration that studies show an overwhelming number of students believe recorded lectures, when used in environments where traditional face-to-face learning is practiced, are not used as a replacement or substitute. Students believed the notes taken during class could not be replaced with a recorded lecture, but rather the recorded lecture was used for areas of the lecture that needed reiteration. For example, “according to data from Temple University outside Philadelphia, virtual offerings actually increase student attendance”. (http://campustechnology. com/articles/2007/02/classroom-capture-lecture-recording-system-draws-devotees-at-temple.aspx) Thus, from a common-sense approach, I question the governing principle’s reliance upon “the consent of the instructor” within the Policy; furthermore, I’ve taken at least two courses where instructors freely distributed recordings to everyone in the class, and attendance didn’t drop severely all the time (which it is bound to do during OCIs or near exams). Also worthy of note, these two instructors were better adept at using the actual equipment, their voices could be heard more loudly and clearly in the digital file, and it was less likely they would forget to record or have the whole thing end up not “coming through” and just sounding like static, white noise. Thus, thinking again from the business law perspective, do we put greater value on the employees and their wishes, or do we put value on the product created and its effect on the consumers/students? Going back to the approach from Moore; in tuesday - jan 15 - 2013

that case, it was specifically determined that the object of the legislation was not to provide “special education” and engage in a self-defeating comparator group analysis of differential treatment. Instead, it was to provide “general education”, as well as guarantee the equality of outcome to increase “their individual potential” and ability to contribute to society regardless of disability. As the SCC makes clear: “special education is not the service, it is the means by which those students get meaningful access to the general education services available to all of British Columbia’s students [emphasis in original]”. Thus, we see that they have adopted the “The Meiorin/Grismer approach [which] imposed a unified remedial theory with two aspects: the removal of arbitrary barriers to participation by a group, and the requirement to take positive steps to remedy the adverse impact of neutral practices.” Thus, I believe it is questionable whether the instructor’s consent is an arbitrary barrier; however, I confess not knowing a lot about Intellectual Property or Copyright Law. But, thinking about this from an Anti-Discrimination and Disability Law perspective, we see a “requirement to take positive steps”. Surely, such a requirement means more than relying on other students for Dean’s Scribe Notes with varying quality, especially in cases where the professors do not actually exercise their power to opt-out and refuse consent for audio recordings. Instead, if they say they’re going to do it and reliance on this comment creates a reasonable expectation in the mind of the student, professors should be taking reasonable steps to make those recordings available and of good

quality. The idea of hiding behind technological deficits and attributing blame to York’s “Instructional Technology Centre (ICT)” doesn’t appear to meet this standard to either “take positive steps” in instances of adverse effects discrimination, or “[w]here this determination has been made [that someone has a disability], the consent of the instructor shall not be unreasonably withheld”. That’s just my two cents on the issue since the new locus classicus decision of Moore has been released, and I thought it would be interesting to apply the case in these 2 contexts. However, overall, I think Osgoode does a great job in giving the people who are trying to get well the opportunity to study remotely with 65-75% of total audio recordings or Dean’s Scribe notes. While certain professors record a much lower percentage of lectures due to increased human error, I’m not sure that other law schools meet this level of accommodation in terms of the overall percentage. Additionally, students with disabilities are given the option the record the lectures with their own equipment; however, this also does not create the same “equality of outcome” for people who are unable to attend class in the first place or do not know anyone who could record the lectures for them. This school really is a pioneer in terms of how it uses technology, but that doesn’t mean I’m going to be completely happy with a printing press because you can’t figure out how Windows 7 works.

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features Resolutions are akin to any life development goal. People find strength in starting new projects at the beginning: in the morning, on Mondays, on the first of the month, and of course, on the first of the year. The mark of a new year represents a fresh start for many; however, whether life is any different on December 31st or January 1st is a matter of personal perspective, preference, and position. I recognize that there are many well-intentioned people with good intentions. These people make resolutions such as “lose weight,” “be nice,” and “work harder.” While these are laudable and logical goals, they lack substance, content, and clarity. Let me clarify: I do not believe that these resolutions will solve anything.

Happiness Project: To A Happier New Year CASS DA RE Features Editor Coming back to school after a luxurious and lackadaisical break can be both dreadful and desirable. While one dreads the return of stress and overbearing schedules, one may also welcome the reintroduction of student camaraderie and company. A common question upon one’s return is “What are your new year’s resolutions?” A common response is: “I don’t believe in resolutions.” It is an answer that always strikes me as odd. How can one not believe in resolutions? Dear non-believer, I ask you, do you not believe in resolutions on philosophical or existentialist grounds? Do you not believe in being resolute, in making firm decisions, or solving problems through decided terms of action? Or do you not believe in change and people’s ability to do so? If any of the above, I must resolve to disagree. the OBITERdicta

A resolution is the product of a solution-oriented analysis. It is not an imagined notion plucked from the pine tree and cranberryscented air of the holiday season. A resolution requires forethought, introspective examination, and firm intention and resolve. It is not a haphazard and willy-nilly idea born of too much bubbly and Bellinis. A resolution is a noun, a thing, and a result. It does not beg the question of belief, but begs for action. It is something to be followed, carried out, abided by, or enacted. In conclusion, my response to the non-believer is that one ought to move away from liberally throwing around convictions of belief, and move down into the grounds of action in this new year. Maybe, by resolving to act, and in fact believing in one’s ability to do so, you will find yourself a believer in resolutions, and as a result, a little happier.

Like any kind of goal setting, resolutions must be specific, clear, attainable, and be supported by a timeline or plan. Abstract and lofty resolutions are almost impossible to follow through on. Instead, set actionable and concrete goals that are measurable. For example, instead of “be nice,” resolve to open the door for at least one person everyday. Unless you are a hermit, in which case you don’t have door-related or any other type of contact with people. Nevertheless, develop a resolution that fits your existing lifestyle and is achievable through small modifications. Resolutions, like goals, take work and dedication. Dedicating a miniscule amount of time to a task every day will make a big difference, a difference that is long lasting and sustainable. Next, write your goal down. Write it in your agenda, on a post-it, in a journal, on your desktop notes, in the sand of your zen garden, or through any other record keeping system. Not only will the act of writing help you remember your goal, it will also create a visible reminder to keep you accountable. In the same line, constantly revisit and review your resolution. In doing so, be honest and keep yourself accountable. Sharing a resolution with a friend, significant other, or a group will also aid in ensuring you follow through on your promises. It is difficult to accept change; it is even more difficult to create change. But change is a necessary and healthy part of human growth and development. Moreover, it is vital to increasing one’s happiness. Take advantage of the new year to fix, amend, resolve, better, ameliorate, or initiate some aspect of your life. It’s still early and there is still time to make clear, specific, and measurable resolutions for a happier you and a happier new year.

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On New Year’s Resolutions CITLALLY MACIEL Staff Writer A new year has arrived and with it feelings of renewal, inspiration and hope. This is resolutions time: learn another language, get in shape, lose weight, eat better, read more, drink less, go back to school, finish school, take a trip, or get a [good/better/exciting] job. It is time to make commitments to be kinder, more patient, more understanding, more driven; to be less lazy, less grumpy, or in general, to be happier. The reality, however, is that 87.5% (statistic I totally made up) of New Year’s resolutions fail. After a few weeks, attendance to the gym declines, vegetables are replaced by potato chips, those books piled up on the bedside table start to collect dust; and in general, all promises begin to be forgotten. Indeed, New Year’s resolutions are bittersweet experiences. People love to make resolutions probably because resolutions bring so much promise. However, when things get rough and people quit their pledges, a deep feeling of disappointment follows. Yet, there are ways to make resolutions work. Often, people make resolutions that are too hard to accomplish or that involve drastic changes. Accordingly, when making resolutions, it is important to make smaller and more realistic goals. In other words, it is better to take baby steps rather than Godzilla steps. Every January, gyms everywhere are packed with people determined to get in shape and lose weight; but by March, the gyms are half empty again. The reason for this is that people burn out themselves. They start their goal by doing too much. They go to the gym five times a day and by the end of January, their body is aching and cannot take the challenge anymore. For that reason, the change must be gradual and upwards, not full on only to go downwards and end in failure. In addition to baby steps, experts also recommend people to stay focused and strong. Making changes is always difficult and there will be many obstacles down the road. In order to succeed, people must reflect on their mistakes and failures, learn from them, and move on. Obstacles are very common, especially among dieters. Certainly, it is hard to stick to a diet in today’s world where busy schedules, social gatherings, and convenience get in the way. The key to succeed is to accept that sometimes things are out of one’s control; learn from the experience, and move on. Planning ahead may be required next time, or making a bigger effort to control one’s emotions may be required. Whatever, it is, the important thing is stay away from making the same mistakes. I stopped making New Year’s resolutions a while ago. Yet, I still make resolutions. Last time I made one was back in the summer of last year. It all started when I went to my general doctor tuesday - jan 15 - 2013

for a routine general check-up and it was then that she suggested I stopped eating wheat. My first reaction was shock. I have been a vegetarian all my life (by default, not by choice) and as such, my diet has mainly consisted of wheat and whole grain products (a.k.a. bagels, muffins, etc.). Going wheat free would require me to basically cut my food sources by 70%. Since I was a child, I have despised beef, and chicken, hence my vegetarianism by default. Dinner time at my house would be a long and painful occasion when these products, especially steak, were served. In any event, my doctor wrote down on her prescription notepad the name of a book that would explain why I should stop consuming wheat: Wheat Belly, by cardiologist William Davis. She said that after reading this book, and following Davis’ advice, she was feeling much better and much more energized. This last remark intrigued me as lack of energy has always been a bit of a problem for me (probably the lack of protein has something to do with this). I had heard about gluten-free diets for a while now because many celebrities swear by this kind of regime. Although I have tried to stay away from crazy diets as much as possible, I decided to give this regime a try, since it was recommended by my own doctor (on whom I have a lot of trust). I bought the book and soon after commenced my wheat-free diet. Despite my skepticism on my own ability to follow this regime through, the book managed to convince me to quit wheat products given the many good points it made (and which, for better or worse, were later endorsed by Dr. Oz). It has been five months since my resolution and, I must say, it was easier than I thought. After a few weeks, I felt the difference in terms of energy levels, and as a bonus, I started losing weight (although that could just be the result of the stress of being a 1L student). Granted, the regime was not challenge-free. One problem I had at the beginning was finding wheat-free restaurants (especially since my favorite food is Italian). Similarly, the choices at school are very limited, making it sometimes a frustrating and futile task to find something to eat around campus. I then realized that going wheat-free a hundred percent was going to be impossible. I certainly did not want to impose my diet on

friends when going out with them for dinner. Also, when hunger struck at school, I had no choice but to consume whatever is available. However, I have not regarded these situations as failures and I am content with following a wheatfree diet 90% of the time. While I appreciate the difference this regime has made on my general well-being, I do not intent to make a torment out of it. Rather, I am making an effort, wherever I have control over the situation, while remaining flexible, whenever I do not have control. Besides, let’s face it, food is an important part of our lives. Beyond nutrition, food represents comfort, celebration and so on. It is impossible to scape a birthday cake or the stuffing of turkey on Thanksgiving. Indeed, during the Christmas break, I basically had a two-week fest of comfort food, which I enjoyed guilt-free. I am now back to my old routine and will break it whenever it may be absolutely necessary or when I decide is appropriate to indulge. Certainly, I do not pretend to be an expert nor do I assert that my strategy is a universal one. Rather, I wanted to share my experience because, as an all-or-nothing kind of person, I have learned that sometimes it is not possible to see life in “black and white” terms. As it has famously been said, one needs to accept the things that one cannot change; courage to change the things that one can; and wisdom to know the difference. In any case, for all of you with New Year’s resolutions, I wish you all the success. Bon courage!

last issue`s crossword

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The Unreasonable Man Knows What’s Going to Happen This Year more reliable, I will confine myself to less out- The third reason that the movement will be TRAVIS WEAGANT Editor-in-Chief This morning, I entered Obiter Dicta’s secret archive of back issues (it’s in our porn folder). I re-read my own predictions for 2012, and was surprised to discover just how wrong I was about most things, and how marginally right I was about some things. First, let’s deal with the obvious: the world did not end. Last time I trust a poll. Mahmoud Ahmadinejad is also still alive. I am not entirely surprised, since he usually tones down the rhetoric every time the Arab-Israeli conflict escalates, as it did near the end of 2012. I am forced to conclude that he was simply waiting out the armed hostilities to see which side appeared more murderous after the dust settled. While I have no opinion on the matter, rest assured that everyone’s favourite Iranian does, and that he will express himself accordingly. Incidental to my 2012 prediction that Prince Charles would become progressively more childish and impatient while waiting for his turn to be King, I mentioned that the Queen was likely encouraging his then-newlywed progeny to supply some heirs of his own. Well, as it turns out, whether the Queen encouraged it or not, the Duchess of Cambridge’s recent tendency to throw up at sun up belied that the Unreasonable Man was partially right. I’ll take what I can get. I also implicitly predicted some sort of second uproar in Egypt and Libya following their respective transitional governments’ reluctance to relinquish power. Wrong again. There was an election in Egypt. It remains uncertain how fair the election was, whether its result was desirable, or whether it was any different from the myriad “elections” that kept President Mubarak in power for so long, but it was an election nonetheless. Libya also held an election, and is in the process of selecting a new Cabinet. I wouldn’t go so far as to say that I’m optimistic about the process in either country, but I will say that both places would be much worse off in the short term if I had been right. Finally, I predicted that the Toronto Maple Leafs would finish 9th in the East last year, thereby simultaneously avoiding the playoffs and the best draft picks. They finished 13th. I still despise them. Mercifully, I have been spared the horror of watching them play or hearing such horrors recounted this season. However, I’m told that this unfortunate grind is about to begin anew following the recent end to the NHL lockout. With that bit of news, I hereby kick off my 2013 spoilers by predicting that by December 31, 2013, the average hockey fan will still not understand that the lockout was about money, and not Gary Bettman’s personal Canadaphobic tendencies. This year, in an effort to make my predictions

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landish prophecies. For example, my second prediction for 2013 is that the Duchess of Cambridge will, in fact, give birth this year. In fact, if her recent condition set on two months into her pregnancy (which is late for hyperemesis, according to emedicine.com), it is not entirely unlikely that Canada and its future King or Queen may share a birthday.

Third, I predict that I’ll be allowed to return for a third year at Osgoode Hall Law School. I’ll never understand it. Fourth, and more seriously, the Idle No More movement will be largely unsuccessful, for wholly unfortunate reasons. I am not referring to the effectiveness of a hunger strike per se, though threatening to kill oneself when the rest of the population confines itself to casting votes and lobbying strikes me as unfair to the ostensible target of the striker’s demands, though, of course, it is her prerogative to do so anyway. No, Idle No More is concerned with far more than the hunger strike of a single Chief and the problems of a single reserve, acute as they are. The movement is an articulation of a general sense among Aboriginal and non-Aboriginal Canadians alike that something is very wrong about First Nations’ place in our society. Unfortunately, the first reason why the movement will be unsuccessful is precisely because the sense of wrongness is so general. Government responds to specific solutions. It likes speeches with Fourteen Points and Five-Year Plans. When I lived in Ottawa, my parents used to come to visit me, and we would often drive past the frequent protests on Parliament Hill. My father used to ask me what the particular group was seeking. I was never able to respond clearly; I could only manage to say that they must be “demanding action,” or asking that the government “do more.” For all I know, there were brilliant souls among the upset that had comprehensive fiveyear plans to rectify the injustices against which they protested, but, if they did, they were unfailingly bad at telling anyone about them. Idle No More is no different. The second reason that the movement will be unsuccessful is that it is so closely tied to Chief Spence’s hunger action. On January 7, author and National Post comment editor Jonathan Kay drew attention to an old CBC report on a private audit of the Attawapiskat First Nation’s government. The audit, conducted by Deloitte and Touche, revealed serious management problems (for example, nearly 80% of financial transactions reviewed by Deloitte were undocumented). Mr. Kay’s analysis of the audit is decidedly more political than mine, but the evidence he presents is unquestionably important. Chief Spence’s financial administration of the Attawapiskat reserve has been dismal, to say the least, and, to the layperson, may even appear suspicious. This mismanagement undermines Idle No More’s unofficial spokeswoman’s credibility, and could bring down the entire enterprise.

unsuccessful is connected to this mismanagement problem. Mismanagement at Attawapiskat is indicative of a wider management problem on many Canadian reserves. I do not broadly suggest that First Nations governments are corrupt. Sometimes, like many other Canadians including myself, Chiefs are simply, and very innocently, in over their heads or not very good at their jobs. Indeed, mismanagement often does not denote intentionally wrongful activity, but rather a lack of expertise. Too few Aboriginal Canadians are trained accountants, lawyers, architects, and settlement planners. The expertise required to operate a reserve with over 1 500 inhabitants in James Bay’s unforgiving and harsh environment is staggering. To be a sustainable community, Attawapiskat requires knowledge. For a moment, step into the Prime Minister’s shoes. Conservatives are not traditionally seen as friends to Canada’s First Nations. Perhaps they are not, but Obiter Dicta abhors such generalized prejudice, especially when founded solely on membership in a political party. Such prejudice might blind one to the fact that the 2012 Budget invests $100 million over three years to help First Nations schools develop relationships with provincial school systems so that students wishing to pursue postsecondary education are prepared to do so. The Budget also commits to the enactment of a First Nations Education Act by 2014. This strategy, while it may not show results immediately (since the students fully benefiting from these initiatives will not enter postsecondary education for as long as 15 years), addresses one of the root causes of the deplorable conditions on many reserves: the inaccessibility of education. This is not the first Budget to include these initiatives; they have been a priority for the government since before the recession. The Education Partnerships Program’s preliminary results after just two years showed astonishing improvements in early childhood literacy among First Nations children in New Brunswick, all thanks to an expertise-sharing agreement with the provincial government. But these things take time. To put the Prime Minister on notice that he has but a few weeks to remedy the myriad problems facing Canada’s First Nations will be confusing to him, especially following the slow but steady work of his government over the last six years, which gives anyone reason for guarded optimism about the future of First Nations education. By refusing to acknowledge the federal government’s successes and the long-term nature of the solutions Idle No More seeks, the movement only alienates those whose help it requires. Along with Chief Spence’s apparent mismanagement of the Attawapiskat reserve, and the unfocused nature of the movement, this will doom Idle No More by the end of the year, if not the end of the month. Also, the Toronto Maple Leafs are going to finish 9th in the East. The Unreasonable Man has spoken.

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sports Puck Predictions » continued from cover and Ryan Nugent-Hopkins continue to improve, the Oilers have the potential to be among the most dangerous offensive teams in the conference. Defence and goaltending remain question marks, however. The addition of vaunted free agent defenceman Justin Schultz should go a long way towards shoring up the blueline. The Oilers season may come down to the play of Devan Dubnyk. Taking a leap of faith, however, I expect the addition of 2012 first-overall pick Nail Yakupov to put the Oilers over the top and allow them to capture not only a playoff spot, but the Northwest Division championship. Last year’s finish: 15th in the West This year’s finish: 3rd in the West Montreal Canadiens The Canadiens were a massive disappointment last year, finishing dead last in the Eastern Conference. The team did little to improve in the offseason, and after trading away topforward Mike Cammalleri late last season, the Canadiens appear to be in full-blown rebuilding mode. The team will rely on the chemistry developed between forwards Max Pacioretty, David Desharnais, and Erik Cole continuing into this year in order to generate offense. Defensively, the team welcomes back Andrei Markov and must get P.K. Subban under contract to start the season. Realistically, however, this team will depend on All-Star goalie Carey Price to steal games in order to have success. While the team has nowhere to go but up, it is difficult to imagine Montreal making the playoffs with their current roster. Last year’s finish: 15th in the East This year’s finish: 12th in the East Ottawa Senators The Senators experienced surprising success last season, finishing with the 8th seed in the Eastern Conference. Led by the play of Norris Trophy-winning defenceman Erik Karlsson, the team surprised many opponents. The team will need another stellar season out of Karlsson, as well as their ageless winger and captain Daniel Alfredsson and slick center Jason Spezza if they are going to repeat that success. The Senators have a surprising amount of talent on their roster, and may welcome some prospects onto the team as well, including talented forwards Mika Zibanejad and Mark Stone. The Senators’ roster appears at least as potent as last year’s team, and while they won’t be sneaking up on anyone this year, they should be able to slide into another playoff spot. Last year’s finish: 8th in the East tuesday - jan 15 - 2013

This year’s finish: 8th in the East Toronto Maple Leafs The team with the longest standing playoff drought in the NHL is a puzzling bunch. They stormed out of the gates last year to be firmly entrenched in playoff position by midseason. However, a late-season collapse saw the team on the outside looking in for the 7th year in a row. The team boasts some talented forwards, including wingers Phil Kessel and Joffrey Lupul, as well as new addition James van Riemsdyk. In addition, they have a strong corps of defenders, including captain Dion Phaneuf. The reason for much of the Leafs’ failure last year, however, was sub-par goaltending. Perhaps a healthy season from incumbent James Reimer will allow him to return to form, or new General Manager Dave Nonis may deal for a new goaltender. Either way, unless the Leafs’ goaltending improves, their league-leading playoff drought is likely to continue. Last year’s finish: 13th in the East This year’s finish: 11th in the East Vancouver Canucks Despite winning the team’s second consecutive President’s Trophy as regular season champion, the Vancouver Canucks’ 2011-12 season is largely regarded as a failure. Unlike most Canadian teams, the Vancouver Canucks’ success cannot be determined by what occurred in the regular season. A first-round exit at the hands of the eventual Stanley Cup champion Los Angeles Kings tainted an otherwise successful season for the Canucks. Vancouver will again set its sights this season, not only on

a playoff berth, but on the Stanley Cup. Led by the ultra-talented Sedin twins up front, the Canucks also boast excellent defence and strong goaltending. In fact, the team features a surplus of starting quality goaltenders and may end up dealing incumbent Roberto Luongo in favour of starting the younger Cory Schneider going into 2013. The Canucks will almost certainly make the playoffs in 2013, and will likely battle for the Northeast Division crown. However, it is not until the playoffs begin that this team will truly be measured. Last year’s finish: 1st in the West This year’s finish: 5th in the West Winnipeg Jets While most Jets fans were happy just to have a team last year, the team will be looking to improve on last season’s inaugural performance. The team will look for improvements out of emerging superstar Evander Kane and budding winger Blake Wheeler, as well as sustained contributions from Andrew Ladd and Brian Little. Offseason addition Olli Jokinen gives the team another option for a top line center and should contribute to the team offensively. On defense, the team will look for offensive contributions from Dustin Byfuglien and Tobias Enstrom. Solid defensive zone play and excellent goaltending from Ondrej Pavelec are a must, however, for the Jets to be successful. With a solid young core and key offseason additions, the Jets are likely to challenge for a playoff spot this year. Last year’s finish: 11th in the East This year’s finish: 6th in the East the OBITERdicta


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arts & culture

FILM REVIEW: The Long Life of LES MISERABLES MAXIMILIAN PATERSON Arts & Culture Editor In order to escape boring family commitments this holiday season, The Obiter Arts & Culture department sent out a team of writers to cover the most exciting cinematic release of the past few weeks, Les Miserables. Hopefully this review can provide some guidance for people interested in seeing a good movie or for people looking to push their second week readings until week five. The first thing to say about this movie is that there is a lot of singing. Everyone sings about everything. It even gets to the point where the actors seem like they are sick of singing so they start doing a form of ‘tonal talking’. This means that the actors speak their lines to the tone of randomly chosen notes. It sounds really weird. Aside from the constant barrage of song, the movie itself is stunningly shot and well acted. Hugh Jackman [Jean Valjean] does a great job of accurately portraying Valjean at various points of his life. Anne Hathaway [Fantine] eerily conveys the pain and struggle of turning to a life of disease and prostitution to support her daughter. However, Samantha Barks [Eponine] steals the film vocally, making it very clear that in addition to acting, her biggest threat is her voice. The only downside to the casting was placing Russell Crowe as Javert, the hard-lined antagonist of the film. I know Crowe has a history of singing (see 30 Odd Foot of Grunts)

the OBITERdicta

but his gravelly rough singing style does not lend itself well to show tunes. Its like watching Rob Ford do ballet, sure he danced well during Caribana (look for the GIF online), but that doesn’t mean he’d be good in the Nutcracker. Aesthetically, Les Miserables was stunning. The sets were well constructed, the extras were well dressed, and the entire mise en scene transported me to revolutionary Paris. In terms of costuming, the biggest test for a well-crafted period film is the way the actors’ teeth look. There is nothing that turns me off a film than seeing actors portraying characters in squalor and turmoil while their teeth are gleaming white.

This film has teeth that match the characters, they are scary, gritty and beautifully stained. Overall, this film is perfect for people who are fans of the original musical and who don’t mind sitting in a theater for 3 hours. The only word of warning is that you have to be prepared to hum the more popular tunes for at least a week after viewing [“Castle on a Cloud”, “I Dreamed a Dream”, “Master of the House”, “Red/Black”]. This movie gets 4 of 5 Baguettes.

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arts & culture

A Little Sheep Told Me: Happy Skin, Happy Year ANGIE SHEEP Staff Writer Happy New Year Ozzies! It’s always nice to see how well the holidays update a student’s wardrobe. I am particularly pleased to see that the unique and classy style of 2012 was not lost in the blur of the snowy season. The fabulous back to school outfits have been expertly accessorized with accounts of sun vacations, ski getaways, and serious lounging around. But, no matter what we ended up doing individually this holiday break, we must all admit to neglecting our bodies and skincare in some way – for one, the back-to-back-to-back-etc. post-exam celebrations. Unfortunately, this usually takes the greatest toll on our skin. During this time of the year, I often schedule appointments with my dermatologist to gain some insight into protection against the harsh Toronto winters. There are countless videos, blogs, Q&As about this topic, but I find you and your skin will be left drowning in all that information. As a counter and expert point, a professional is by far the preferred fountain and foundation of wisdom. Also, a dermatologist can offer a quick and simple route to get to the bottom of things – just like lawyers (well, sometimes). I will therefore share some of the Dos and Don’ts that I’ve heard repeated over the years and hopefully, with their advice and some great home remedies, our skin will retain that vacation glow. tuesday - jan 15 - 2013

DO sun protection, every day! I know you’ve heard this numerous times, but are you actually following it? If you’ve ever returned from a day on the slopes with a goggle tan line, you are well aware that the snow reflects harmful rays, just like sitting poolside. Creams and lotions with a high SPF give the longest protection, but they are often thick which makes them difficult to apply. These products may feel too heavy for daily wear. Instead, try a sunscreen below SPF 50 and reapplication. Note, sunscreen requires longer to dry. It is advisable to apply sunscreen on dry, clean skin and then let it set. Go do one of the many other required things that make up any law student’s busy morning before applying makeup, if any. This prevents the makeup from clumping. DO cleanse: One of the worst skin culprits is laziness. Law students are busy and tired, and the last thing they want to do is add another task to their evening. However, washing your face everyday AND every night is non-negotiable. This prevents the pollution and grime of everyday living, as well as makeup, products, etc. from sinking into your pores and fine lines, resulting in unsightly pimples and wrinkles. DO cut down on caffeine and alcohol: Caffeine exacerbates under eye circles, making you look perpetually tired. Alcohol leaves skin puffy and discoloured. Instead, nourish your

body with foods that energize and cleanse, such as apples and nuts. DON’T only drink water to hydrate the skin: Perhaps one of the greatest myths of all time, simply consuming water does not hydrate your skin. Your diet affects complexion much more extensively, so select foods high in vitamins and oils, like avocado and salmon. Drink when you’re thirsty and moisturize! Note that moisturizers are most effective within three minutes after a shower. TRY the ultimate at-home mask: You need 1 egg white, 2 tsp. of lemon juice, and ½ tbsp. of honey. Mix all ingredients until smooth and apply to a freshly cleansed face. Allow the mask to dry and wash off. The egg, full of protein, tightens pores and firms the skin. The lemon juice reduces discoloration and makes your complexion glow. Finally, honey provides antibacterial power and moisturizes. I’ve personally tried this remedy and find it preferable to the store-bought alternatives that generally contain confusing chemicals. There you have it Ozzies: some wise words and wisdom from years of dermatological appointments. These few simple steps are lowmaintenance, effective, and will better your skin management this winter.

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horoscopes Aries March 21 - April 19 You will feel doubt in the next two weeks, but don’t fret, this is merely a formality for epiphany. Coming your way, like the changing seasons, is warm weather and firm embraces. Refrain from wearing spring colours for as long as possible, it will deter oncoming lovers and invite ghosts. Taurus April 20 - May 20 Vegetables have never been a good friend of yours, but look forward to changing this soon. You will find a need to ‘cleanse’ in the next two weeks, and your spirits will soar to an annual high. Focus on improving circulation, as this will facilitate a more neutral personality. Gemini May 21 - June 20 I looked in the tealeaves this morning and had a startling find for all Geminis! There will be a sports star in your life very soon. This athletic genius will pick you up in a midsized sedan that will either be silver or dark green. You will go for a meal together and this person will declare to you that they are going to go through with the chest augmentation surgery. Cancer June 21 - July 22 You need to buy new shoes. If you keep wearing those old rags around you are going to end up with a foot fungus problem and no more friends. So smarten up and treat your feet right. As well, I see that a tall stranger will enlighten you with muscular news.

Leo July 23 - August 22 No one has told you recently, but you’re beautiful. I don’t mean beautiful like a flower or a sunset, but beautiful like an old couple holding hands. It is important for you to remind yourself of this at least once a month. Get yourself some frozen yoghurt this week, but do not add any toppings. Toppings will send you down a dark path. Virgo August 23 - September 22 When was the last time you were at a concert, Virgo? When is the last time you cried in front of a painting? When was the last time you lost a fingernail at an amusement park? Virgo, use the next two weeks to really think about your movements. Libra September 23 - October 22 Libra, focus on oral health for the next 10 days. Get some flossing in, brush a little more and finally get a mouth guard to stop all the teeth grinding at night. For you it’s never too early to start thinking about what you’re doing for Valentine’s Day. The tarot cards suggest you focus more on new beginnings rather than old . Scorpio October 23 - November 21 Even though we can’t change the regrets of our past, we can erase them electronically. Spend some time meditating on your online personality and approach some friends to join you in your meditation. Advocacy may be in your future, but it depends on what time you fall asleep.

Sagittarius November 22 - December 21 You have never truly learned to live in the moment, Sagittarius. You have never gone swimming at a friend’s birthday party and thoroughly enjoyed yourself. Start by making some eggs at least one time this week. This will springboard you into a new world of awakening. Also, try and avoid gambling. The odds are not in your favour. Capricorn December 22 - January 19 Your horn of plenty has run dry, Capricorn, it’s time to buckle down and look at the realities of each decision you make. So far the laws have worked in your favour; however, I have had a vision that puts you at the end of a very long hallway. Look to hearty meals to turn the muses in your favour. Avoid updating your Facebook status, nothing good can be gained. Aquarius January 20 - February 18 You are too focused on love, Aquarius. This has been the case ever since Conrad Black was released from prison. This month focus on loving yourself, and that will lead to positive vibration, which will entice others to bask in your aura. Thinking of loneliness is different than being alone. Remember that. Pisces February 19 - March 20 Lay low this month and recover from recent successes. It’s not too late to start that hobby or make that online dance video you’ve always wanted to. Keep in mind that a strut starts with one step and a lot of attitude, so keep it contained until you have perfected your craft. Good news will come via telegraph.

Announcing the 16th Annual Conference of the JD/MBA Students’ Association

INDUSTRIOUS

ELEMENTS

AT THE INTERSECTION OF LAW, BUSINESS, & MINING OPENING ADDRESS BY The Hon.

JOE OLIVER

P.C., M.P.

Minister of Natural Resources

KEYNOTE ADDRESS BY

IAN W. DELANEY

Chairman, Sherritt International

FEATURING SPEAKERS ON Corporate Finance Aboriginal Issues Environmental Regulation Mining Law Practice International Issues Sustainable Development

Register at www.jdmbaconference.com | Students $20 the OBITERdicta

Friday, February 8, 2013 Courtyard Marriott, 475 Yonge Street

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crossword BY: EMILY GRAY

Across 1. “Help!”, for short 4. Gratuity 5. ___ Brute? 9. Not well 10. Betty ___ 11. Good guy Transformers 13. One of Christopher Robin’s friends 19. Rot 20. Look over quickly 23. Soup base 24. Release from bonds 25. Catches some “Zs” 29. Mud bath locale 31. Location on a ship 34. Devices for recording TV 35. What a debtor does 36. Where one’s name is in lights 37. National Park 41. “What ___ you talking about?” 42. Compete 43. Notice 44. Before, for poets of old 45. Sorority letters, maybe 46. More unusual

Down 1. Herpes, for example 2. Commodity for 2/ Down 3. A wet sound

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5. Recede 6. Additionally 7. Young child 8. Fedex nemesis 12. “I’m ___ ___” (I’ll take care of it) 13. Web feed for a newspaper, for example 14. Appropriate 15. Ghostly greating 16. Pen brand 17. Kind 18. Type of lace 20. “The Last ___” 21. A dishonest person

22. Rapper Elliot 25. Necessary element of a white Christmas 26. The opposite of highs 27 AKA Exxon Mobile 28. A horse, ridden by a knight, for example 31. Accumulate or gather 32. Bus fees 33. Some people can’t see the forest for them 38. “We are never ___ getting back together” (Taylor Swift song) 39. To read, in Paris 40. Creepy glance

the OBITERdicta

Issue 8 - January 14, 2013  

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