2008 Student Blawger of the Year

By: Law is Cool · March 30, 2008 · Filed Under Administrative, Law School · 6 Comments 

We’re pleased to announce the 2008 Student Blawger of the Year.

The LawIsCool team selects an individual who has made a unique contribution for the past academic year worthy of recognition.

This year’s award goes to Daniel Simard, for his courage and fortitude in addressing some very controversial and topical issues.

A short biography of Daniel Simard is included in the end of this post.

Major Issue of the Year

One issue that garnered considerable attention was that of the human rights complaint against Maclean’s.

Some continue on their hateful diatribe. Steyn says in the Feb. 25, 2008 issue,

I don’t ascribe to the concepts of “homophobia” and “Islamophobia.” They’re lame rhetoric sleight to end the argument by denying it’s an argument at all: you don’t have a political disagreement with me over gay marriage or sharia, you have a mental illness.

Although the case is still pending, we can already see some fruitful results out of the complaint.

Now Singing a Different Tune

The editors must have realized that the comprehensive review of 19 straight articles over a two year period, all one-sided, cannot cast the publication in a favourable light to the public, who have now looked at the magazine with greater scrutiny.

And regardless of what people might think about Human Rights Commissions, in this case they appear to be effective.

In the same Feb. 25 issue, they interviewed former Vice-Chairman of the National Intelligence Council at the CIA, Graham E. Fuller, with the headline ‘Even if Islam had never existed, there would still be huge areas of potential conflict between East and West.’

Fuller made stirs in the political community with a substantial article in the Jan/Feb issue of Foreign Policy called, A World Without Islam.

He effectively dismisses the notion that current global conflicts are fully grounded in theological differences, and instead cites cultural backgrounds, geopolitics, colonial legacies, and socioeconomic conditions that would result in a very similar situation had the world religion not even existed.

VandalsFuller’s theory appears to be substantiated by history. Major areas of the near East were predominantly Christian, and remained so, for the first 400 years of Islam.

But North African Christians were also monophysites, considered a heresy by the Europeans that ruled over them previously, and persecuted as a result.

North African Berbers also had ample grounds and motive to seek retribution against the Vandals, who raided and pillaged Berber lands from their base in Spain.

But even the Greek Orthodox Church that dominated the Near East had their differences with Western Europe that would create similar dichotomies in the modern world, or so Fuller argues.

Those that attempt to pin violence on specific religious doctrines find arguments of convenience alone. They ignore that substantial portions of the Arab population are still Christian today. Even more interestingly, prominent Arab Church officials have repeatedly called for violent Crusades, in support of factions you might not initially expect. Some have even blessed and encouraged the use of suicide bombing as a tactical approach.

Regional ideologies are used, regardless of what they are, by political entities and social revolutions for their own selfish ambitions. And no specific ideology has increased the risk, or created a unique situation, that would otherwise not exist.

The Biggest Terrorists are Actually Elves

Earth Liberation FrontSimilarly, in the Mar. 24, 2008 issue of Maclean’s, Andrew Potter cites the contemporary issue of Foreign Policy (again).

This time they quote former CIA case officer Marc Sageman, who proposes that homegrown terrorists have little structural or ideological ties with international organizations, and instead are “alienated young men ‘seeking thrills and a sense of significance and belonging in their lives.’”

Potter likens such misguided youth to the Earth Liberation Front (ELF or Elves), “the most successful terrorist organization in North America;” modern vandals that engage in eco-terrorism and are considered the number one domestic threat.

And Potter is also correct when he states that, “What often fuels the fire of domestic terrorism is not ideology, but alienation.” But such feelings of alienation in Canada are primarily felt from media like Maclean’s, who have repeatedly distorted and vilified religious minorities in an unjust manner for the sake of selling copies.

People rise to expectations. Or sink to them.

Yeah, you’re probably scratching your head because you never heard of criminal Elves before. But that’s probably also why they haven’t been more successful than they have been.

The solution cited from Sagemen in Maclean’s, instead of fear-mongering and exaggerating threats, is to treat them like common criminals and deny them sensational coverage.

Those that do inadvertently glorify them, even if through some rather distorted narrations, are probably more directly responsible for inspiring violent ideology than any organization or movement overseas.

The Experts Disagree – Unanimously

It’s almost as if the editorial staff at Maclean’s said,

Hey, if everyone who actually knows anything about this subject are proposing significantly different explanations and solutions for the most complex situation in the world today, maybe we should at least consider their perspectives.

It’s justice that binds us together. Those that say nothing against injustice are the most frightening of all.

When Maclean’s does go before the Human Rights Tribunals, at least now be able to demonstrate some balance, even if it is a tad late. At the very least, regardless of the outcome of these specific complaints, the process has demonstrated some limited success.

We’re pleased to present the award to Daniel Simard due to his advocacy on this subject in the face of adversity, and expect great outcomes from his legal career.

Daniel SimardDaniel Simard is currently enrolled in York University’s joint Bachelor of Laws and Masters of Environmental Studies program. He is in his second year of the program and his first year of law at Osgoode Hall Law School.

York University has been Mr. Simard’s post-secondary institution of choice, where he holds a specialized honours undergraduate degree in psychology, graduating magna cum laude. During this time, he was a long standing member of Professor Kerry Kawakami’s social cognition lab, where his research focused on stereotyping, implicit biases, self orientation and group assimilation. His work in this area contributed to two peer reviewed manuscript submissions to reputable psychological journals.

In addition to academics, Mr. Simard was involved in various academic and non-academic extra-curricular activities during his undergraduate tenure. At York he was involved in many organizations, which include the Undergraduate Psychology Students Association, York Debating Society, and Student Ombuds Services. Outside of the university he was an integral part of Baycrest Centre’s Youth Volunteer Program for a number of years, and helped tutor youth through Junior Undiscovered Math Prodigies (JUMP) tutoring program.

He accepted an offer to York’s Faculty of Environment Studies as a graduate student immediately after the completion of his Bachelor of Arts degree. He received a Graduate Entrance Scholarship and was offered a position as graduate assistant, where he held a position with Wild Garden Media Centre in which he helped organize the 13th annual Eco-Art and Media Festival. For his research proposal examining the impact of the media and Canadian legislation on Canada’s Muslim Diaspora he was awarded a prestigious Ontario Graduate Scholarship.

Through his work with the Muslim community he became highly involved in a controversial human rights complaint against Maclean’s magazine for the publication of several articles in which he perceived to be inflammatory and discriminatory in content. His advocacy efforts in this area produced many newspaper articles co-authored with past and present colleagues at Osgoode Hall. He has received varied criticism for his position on this issue which has sparked national debate.

Mr. Simard enjoys travel, and during extended breaks he makes frequent flights to Europe and the United States. In his daily leisure time he prefers to spend it with a few good friends and family, that is if he is not at the gym maintaining a healthy lifestyle. He has contributed periodically to Osgoode Hall’s student run newspaper, the Obiter Dicta, and has been known to add the occasional post on the blogosphere.

He currently resides in Toronto, Canada, where he has lived for over 25 years. He has one sister who is in her final year at Osgoode Hall.

Lord of the Rings as Property Law

By: Jacob Kaufman · March 29, 2008 · Filed Under Humour, Pop Culture, Property · 97 Comments 

by Omar Ha-Redeye and Jacob Kaufman
(from the March Issue of Nexus, Western Law’s Student Newspaper)

Lord of the RingsThe novel The Lord of the Rings was a phenomenon. The movie trilogy based upon it has grossed over a billion dollars and won a slew of Oscars.

But what’s really interesting about the work is that it is about property law.

Seems Like a Property Exam

Consider the following facts which seem ripped from a first year property law exam:

  1. Sauron holds ownership in the Ring through accession, by working one thing (base metals) into a new thing (a ring of power)
  2. He is dispossessed by Isildur, who now holds possession in the Ring.
  3. Isildur loses the Ring (he has a manifest intent to exclude others but no physical control) when it slips off his finger as he was swimming in the Anduin river to escape from Orcs.
  4. Déagol finds the Ring.
  5. He is dispossessed by Sméagol (a.k.a. Gollum).
  6. Gollum loses the Ring and it is finally found by Bilbo.
  7. Bilbo gifts the Ring to Frodo. Later, Aragorn (the heir of Isildur) tells Frodo to carry the ring to Mordor, making Frodo his bailee.
  8. Sam, assuming that Frodo is dead, takes the Ring according to instructions to help Frodo with the Ring in grave circumstances. Sam is acting here as a (fictional) bailee and he returns possession to Frodo after finding him still alive.
  9. At the end of the book, Gollum restores his possession of the ring. Seconds later, he and the Ring are both destroyed. At this point all property held in the Ring disappears.

Hierarchy of Ownership and Possession
The Lord of the Rings story is that of a property hierarchy with one owner and a series of possessors.

Bilbo states,

[The Ring] is mine isn’t it? I found it.

He seems to be laying a claim of ownership through finding. But finding only lets a finder hold possession in a thing. It does not extinguish the rights of those higher up on the hierarchy.

In Anderson v. Gouldberg it was found that “possession is good title against all the world except those having better title.” It does not matter that several of the possessors of the Ring like Isildur and Sméagol obtained possession by violently dispossessing others. That circumstance does not change the dispossessor’s rights vis-à-vis a third party.

The fact that all parties subsequent to Sauron hold only possession in the ring is acknowledged in the text. When Gandalf forces Bilbo to give up the Ring, he tells him to,

[s]top possessing [the Ring].

After discovering that Aragorn is the heir of Isildur Frodo exclaims that the Ring really belongs to Aragorn. Aragon corrects him:

It does not belong to either of us, but it has been ordained that you should hold it for a while.

Frodo later elaborates that the Ring,

does not belong to any mortal – though if any could claim it, it would be Aragorn.

Here he demonstrates his understanding of the property hierarchy – with Sauron at the apex as owner and Aragorn as next highest as a descendent of the first possessor after Sauron.

Aragorn’s Claim

What claims can Aragorn make that he is the rightful owner?

Isildur claimed the Ring as weregild for the death of his relatives at Sauron’s hand.

As Professor Gwen Seabourne notes this is,

compensation for the kin of the slain in respect of a (wrongful) killing.

If a claim in weregild is upheld then Aragorn would hold ownership of the Ring. The Ring, however, is shown to have Animus Revertendi as it seeks to return itself to Sauron.

Would this cut against a transfer in weregild? Canadian Courts have, so far, not ruled on how the intrinsic characteristics of magical items demonstrate who holds what property in them.

Another claim that Aragorn could make is that Sauron’s ownership of the ring elapsed due to abandonment.

Simpson v. Gowers defines abandonment as a “giving up, a total desertion, and absolute relinquishment.” Sauron did believe that the Ring was gone forever, which would support the idea that an abandonment occurred.

Asessing a Claim of Abanonment

Stewart v. Gustafson sets out four factors to further help determine if property has been abandoned:

  1. Passage of Time: As the years go by, the likelihood of abandonment increases. In this case 3000 years passed, which is a not insignificant lapse of time.
  2. Nature of Transaction: Certain transactions lend themselves more to assuming abandonment, having objects cut off your hand does not appear to be one of them.
  3. Property Holder’s Conduct: Abandonment can be inferred if a property holder does not try to require possession a reasonable time after receiving notice. After finding that the Ring was still attainable, not only is Sauron trying to retake possession but he is described as “seeking it, seeking it, and all his thoughts [are] bent on it.”
  4. Nature of the Thing: As the value of a chattel increases, the likelihood of inferring abandonment decreases. The extreme value of the Ring (it could be used to conquer all Middle Earth) cuts against an abandonment. The specific nature of the Ring also cuts against abandonment. Gandalf specifically states that “[the Ring's] keeper never abandons it”.

It appears to be that the evidence points to no abandonment having occurred.

However, it seems likely that 3,000 years well exceeded the limitations period.

Therefore, Sauron has lost his right to legal recourse.

As far as Canadian law goes however he would still have a self-help remedy, which he apparently exercised by sending the Nazgûl to seize the ring.


In addition to the primary property dispute over the ownership of the Ring, there are several other conflicts over property in the Lord of the Rings, such as the claim of Rohan’s neighbors that the Riders wrongfully disposessed them of their land, the conflicting claims to ownership of Moria as between the Dwarves and the Balrog, and Aragorn’s claims to inherit the lands and other property of his ancestor Isildur. The chapter on “The Scouring of the Shire” with its scathing portrayal of Saruman’s “Gatherers and Sharers” and Saruman’s nationalization of industry is a thinly veiled attack on socialism. None of this is to say that Tolkien was some kind of libertarian. He hated modern industry and capitalism. But he did have a conservative traditionalist’s attachment to private property, and it comes through in the book at many points.

Adam Parachin This is a reformatted article from a previous post. Acknowledgement is provided to Prof. Adam Parachin, who teaches first-year Property at the University of Western Ontario for the initial inspiration of these posts.

Rape by Wombat a Frivolous Complaint

By: Jacob Kaufman · March 29, 2008 · Filed Under Humour · Comments Off 

More animal stories in the law.

WombatA New Zealand man who claimed he was raped by a wombat and that the experience left him speaking with an Australian accent has been found guilty of wasting police time.

Arthur Cradock, 48, from the South Island town of Motueka, called police last month to tell them he was being raped by the marsupial at his home and needed urgent assistance.

He may give new meaning to the term beer goggles, as “alcohol played a large role in Cradock’s life.”

The victim withdrew the complaint because his bum didn’t hurt after the incident (thank goodness).


The Lawyers Weekly has a recent article on the spread of animal law in Canada (no joke),

Animal law is a fascinating academic field with courses cropping up at law schools across Canada. But will students in these classes be able to put into practice what they learn when they graduate? Will animal law, like environmental law did in the past, move from a niche area for impecunious idealists to a burgeoning area for enterprising specialists?

Michel-Adrien Sheppard adds some more resources on Slaw.

Let Political Leadership Come From You

By: Law is Cool · March 28, 2008 · Filed Under Health Law, International Law, Politics · Comments Off 

Stephen Lewis at Dalhousie University

The talk was given at Dalhousie University last year where he said,

When one part of the human family is under siege, the privileged part of the family responds…

There’s a possibility of changing the way this world works. Or if you can’t change the world, at least altering the human condition for small groups of people whose lives would otherwise be lives of torment…

If the political leadership isn’t there, then let it come from you.

Does Canada Even Want You?

By: Law is Cool · March 27, 2008 · Filed Under Civil Rights, Humour, Immigration Law, Labour & Employment Law · 2 Comments 

Steve Sailer, a Conservative American journalist, found out the hard way that we don’t.

He completed the Citizenship and Immigration Canada Self-Assessment Worksheet in 2001 and scored 61 points. The passing mark for consideration of an interview is 60.

(The current passing mark is 67) >>> Take the test

Sailer still wasn’t eligible for immigration, because at the time because he was only a full-time journalist for eight months, and the minimum requirement was a year.

But journalists are still highly favoured by our immigration system. Sailer says,

How much formal education or training does your occupation require? To be frank, I’ve never noticed that journalism requires any. As irascible basketball coach Bobby Knight likes to point out to reporters, “Everybody learns to write by the second grade, but then most of us move on to other things.”

Yet, somebody has apparently hoodwinked the trusting Canadian authorities into awarding journalists 15 out of 18 points, the same as they give computer systems analysts and tree-service technicians.

Part of the reason for valuing education in our current immigration system is the perception that they will contribute to Canadian society. Our immigration target rate (often not met) of one percent of the Canadian population is three times higher than that of the U.S.

And although we do take on many seeking political asylum or refugees from war-torn areas, we do try to attract the best and the brightest.

Sailer claims,

Choosing immigrants wisely can make a big difference in the quality of life of current citizens. Support for the Canadian approach was uncovered by a National Academy of Sciences study of immigrants to America. It found that immigrants with below a high school education cost the country $90,000 net over their lifetimes, while those with the equivalent of a high school education cost the United States $30,000, but immigrants with a college education or more brought a net benefit to the nation of $100,000.

One of the interesting ancillary findings was that existing minority groups such as African-Americans are not adversely affected by high immigration rates, unless they live in areas of high immigration.

But a bigger challenge that we have in Canada is recognizing the credentials of those that do come here. A 2004 study by Ana Ferrer and W. Craig Riddell in the UBC Department of Economics found that the education and work experience of immigrants is valued far less than native-born citizens.

The Conference Board of Canada estimated in 2001 that this untapped human potential costs the Canadian economy a whopping $3.2 billion a year. The Conference Board also estimates a labour deficit of 1 million jobs within the next 20 years, positions for which immigrations could be invaluable.

Statistics Canada also did a study in 2003 called Longitudinal Survey of Immigrants to Canada: Process, progress and prospect that found that the recognition of foreign credentials and relevant Canadian work experience were the two major hurdles that immigrants faced when coming to Canada. The majority of immigrants to Canada do not end up working in their field of vocation and training in their previous country.

There are a number of governmental programs that seek to address these specific issues. Mike Colle, [Former] Minister of Immigration and Citizenship in Ontario, said in 2006,

‘Let’s make it possible for these people to work in their fields and then we’ll have a gain for the foreign-trained individuals but also for all the communities that need engineers, doctors, nurses.’

But there is also a need for private industry to take a more assertive role in recognizing the valuable skills these people have, and do more to integrate immigrants into their work force.

This realization will likely only occur when employers acknowledge and accept the competitive advantage that diversifying their workforce offers them.


A proposal before the House that would allow the Immigration Minister to circumvent the point system is being opposed by civil rights groups that could be used in discriminatory ways.

George Abraham picks on on this in Al-Jazeera.

More Resources

The Labour Market Experience of Immigrants, Timothy Owen, Director of World Education Services

Making a Visible Difference – The Contribution of Visible Minorities to Canadian Economic Growth. The Conference Board of Canada.

Policy Memo: Canada’s immigration and integration policies: A multi-national evaluation of labour market integration of skilled immigrants. Oliver Schmidtke, Mirko Kovacev and Beatrice Marry. University of Victoria.

Writing for the Media

By: Law is Cool · March 26, 2008 · Filed Under Marketing/PR in Law · 1 Comment 

Communications staff in firms often scratch their heads on how to get coverage. Well, some people are willing to make it a little easier for you.

Jordan Furlong, editor-in-chief at the CBA’s National magazine, gives some tips for writing for the media:

1. Read my publication before contacting me.
2. Pay attention to what country I work in.
3. Build a relationship with me.
3a. Don’t address me by my first name if you don’t know me.
4. Not everything merits a press release.
5. Make your pitch upfront, as quickly as possible.
6. Write a story, not a “press release.”

Jordan (I think we can use his first name) also wrote an article for JD Supra that included these tips:

1. Think like a reporter.
2. [Ask:] Mainstream or legal media?
3. Identify your objective.
4. Get your client onboard.
5. Choose a great title.
6. Write a great lead.
7. Don’t write like a lawyer.
8. Include contact information.

Connie Crosby suggests using The Scoop feature of JD Supra for news related items.


The Online Publicity Journal picks up on Jordan’s story and adds some comments.

From Blog to Blawg

By: Law is Cool · March 26, 2008 · Filed Under Marketing/PR in Law · Comments Off 

The Legal Underground provides 14 tips for developing your legal blog (blawg):

1. Pick a Topic.
2. Keep it Interesting.
3. Brand Your Blawg.
4. Be Prepared to Learn.
5. Link Early, Link Often.
6. Build a Blogroll.
7. Use Typepad. [or similar software like WordPress]
8. Find Out Who is Linking to You.
9. Speak with Your own Voice.
10. Offer a Free (But Valuable) Service
11. Remember, It’s Only a Blawg.
12. But Please Remember, it’s Your Blawg.
13. Establish Your Street Credibility.
14. Finally, Don’t Ask, Don’t Tell.

Read the entire post here.

Health & Health Care: Time to Get real

By: Law is Cool · March 25, 2008 · Filed Under Health Law, Politics · Comments Off 

By Brian Heal

We often teach our systems planners and policymakers the mantra that an ounce of prevention is worth a pound of cure.

It is easier to provide affordable housing options for those in need rather than respond to a crises of homelessness when it arrives.

Provinces that create new jobs to support an aging population will be more productive than those who are left scrambling when large numbers of baby boomers retire or need assistance with various forms of dementia.

And so it goes.

Practice What You Preach

When thinking about our populations’ health, however – we have, until recently, done a rather poor job of adhering to the messages that we preach.

Wait times for MRI’s or hip replacements, access to state of the art surgical equipment, physician and nurse shortages, exploding pharmaceutical costs – All important issues, but so consumed are we with notions of “care,” or the options available once people are already sick, that we forget how powerful a force improving our general overall health status’ can be in keeping all these other issues in check.

While healthcare demands at least 50% of some provincial budgets and there are no shortage of reports on how overburdened and inefficient our system is at risk of becoming – rarely (with the exception of education) has the “determinants of health” earned agressive post-election action from a new government in my (not that) young life.

A “determinant” in this context is a broad societal issue that has been shown to be a strong predictor of a population’s health status.

Examples would include:

Improvements in these areas are highly correlated with better health outcomes, improved worker productivity, and reductions in healthcare usage/wait times/costs.

Need for Political Will
So what have we been waiting for?

Well, political will as is usually the case with proactive solutions, has often been the limiting factor.

As one of their more successful efforts, the WHO has a commission on the social determinants of health made up of influential international figures who have been quite effective at leaning on several governments to get real about these things.

And it couldn’t come at a better time.

In response to the release of a major study on the impact of neighbourhood & living conditions on Type 2 Diabetes, for example, a prominent Ontario health official (in 2007) publicly commented along the lines of being too consumed with caring for people already with Diabetes that it is limited how much investment we can make to strategically prevent new cases.

Type 2 Diabetes costs the Canadian economy over $13 Billion annually, and he is right to be concerned with preventing the costlier problems, which occur when a poorly managed case of diabetes results in complications such as stroke, kidney failure, amputations, blindness, etc.

What is missing, however, is that many of the behavioural and lifestyle changes required to prevent these complications are the very same one’s which would help prevent people from acquiring the disease in the first place.

This is an area where a holistic upstream approach can help prevent both the disease in some and the complications in others, resulting in a tremendous potential for downstream savings in both lives and money.

It was unfortunate to hear someone in his position appearing so short sighted on this issue.
Hope Remains

But as I have indicated, there remains hope on multiple fronts.

Strong public education became the defining issue of the 2007 provincial election in Ontario.

Outside of unpopular wars, the environment has skyrocketed to the top of the agenda in most developed nations.

With the notable exception of some marginalized populations, most pregnant woman can access quality reproductive health care, and most parents can access effective early child development training and support.

Gender equity is an interesting issue – where Canada had a solid run of progress, rates of improvement in this area have somewhat stalled.

I once had a conversation with a former cabinet minister under Trudeau who mentioned that a prerequisite for an issue to be taken up at cabinet during those years, was that it had to include a statement on what impact said legislation/policy/program option would have on gender.

This rule applied to all cabinet ministers and it forced the highest levels of government to think about gender when developing ideas both large and small.

Now one might question whether Harper & Co have implemented a similar prerequisite, but the idea is simple enough that it could realistically be adopted by a wide range of decision making bodies.

Improving Poverty Burden Makes Everything Else Better

Of all the determinants, however, action to reduce the poverty burden is arguably the most exciting area for Ontario.

An important election promise with a strong commitment from Premier McGuinty, Child & Youth Minister Deb Matthews has been put in charge of the powerful new Poverty Committee.

With broad membership across most ministries, this committee has been tasked with setting clear poverty reduction targets and working through a plan to achieve serious action.

This level of inter-governmental cooperation is well over due, as effective action on most of the determinants requires a concerted effort from all of the non-MOHLTC ministries.

After all, one might argue that the key to controlling escalating costs and an overburdened health ministry, is to do everything else better.

Bryan Heal is a Public Health Consultant who serves on the municipal Local Health Committee for Downtown Toronto & East York.

Reproduced with the author’s permission.

Nursing Union Wins Battle for Healthcare

By: Law is Cool · March 24, 2008 · Filed Under Health Law, Labour & Employment Law, Politics · 3 Comments 

In a Supreme Court of B.C. ruling released this weekend, British Columbia Nurses’ Union v. Attorney General of British Columbia, nurses have won the latest fight against two-tier healthcare.

The British Columbia Nursing Union (BCNU) filed a suit against the provincial attorney general and Medical Services Commission for allowing the expansion of private clinics that they claim violate the Medicare Protection Act,

The British Columbia Nurses’ Union (the “petitioner” or the “Union”) has brought this petition in which it seeks orders by way of mandamus and declarations with respect to the Medical Services Commission. Its complaint is that the Commission has not been carrying out its statutory duty to enforce the Medicare Protection Act, R.S.B.C. 1996, c. 286 (the “Act“). This includes the duty under s. 5 of the Act to act in a manner consistent with the Canada Health Act, R.S. 1985, c. C-6.

The union explained their claim on their website,

The union contends that by turning a blind eye to so-called facility fees charged by private clinics, the government is neglecting its legal responsibility to protect patients from user fees and extra billing for medicare-insured services.

However, the respondents claimed that,

1. the Union is not a legal entity and lacks the capacity to bring this petition;
2. the Union lacks standing to pursue its claim or if it is a matter of this court’s discretion, should be denied standing; and
3. in any event, the petition does not articulate a reasonable claim.

The court responded by saying that they do have standing and are a legal entity,

[13] Section 154 of the Labour Relations Code, R.S.B.C. 1996, c. 244 provides:

154. Every trade union…is a legal entity for the purposes of this Code.

They established that the union had personal standing as a serious issue was raised and it affected the union in direct and indirect ways, but could not advance the case on behalf of patients or the public interest.

BCNU President Debra McPherson said,

He has substantially broadened the rights of unions to bring actions before the courts on matters of broad public interest and turned aside the government’s attempt to restrict us to narrow labour relations matters…

The Supreme Court has confirmed that the government does not have the right to violate the principles of medicare or make up new ones for political or financial expediency as they go along.

The political and financial expediency McPherson cited was BC Premier Gordon Campbell‘s Conversation on Health, which has been accused as a secret agenda to privatize health in the province.

But some reporters point out that Campbell’s conversation is one-sided, and ignores some important facts,

not-for-profit hospitalsThere is no shortage of research in peer-reviewed medical journals highlighting the drawbacks of for-profit health care. In 2004, the Canadian Medical Association Journal published a study noting that for-profit U.S. hospitals have 19-percent higher charges than nonprofit facilities.

The study’s research team, headed by McMaster University health-policy expert P. J. Devereaux, had previously concluded that investor-owned hospitals had death rates two-percent higher than nonprofit hospitals. In an accompanying editorial, Harvard Medical School researchers Steffie Woolhandler and David Himmelstein cited several reasons for-profit hospitals are so much more expensive, including “princely” compensation packages for executives; higher administrative costs; and employing strategies to bolster profitability, among them overbilling Medicare.

The same year, McMaster health-policy researcher Stephen Birch ridiculed those who claim that publicly funded health care is not sustainable. Writing in the Canadian Medical Association Journal, Birch claimed that “in an age of evidence-based health policy, these claims stand out as a beacon of political hypocrisy and intellectual dishonesty, disregarding both the theoretical reasons and empirical evidence” supporting a single-payer (i.e., Medicare) system as the most efficient use of health-care resources.

Lakehead Likely To Get New Law School

By: Alex Dimson · March 23, 2008 · Filed Under Law School · 3 Comments 

by Alex Dimson (from the March Issue of Nexus, Western Law’s Student Newspaper)

A plan to create a new law school at Lakehead University is likely to be approved after significant political pressure was placed on the Law Society of Upper Canada.

Sources tell Nexus that Lakehead’s plan has been fast-tracked and is likely to be approved in the near future, due in part to significant political pressure being placed on the Law Society of Upper Canada (LSUC) to approve the plan. Ontario’s McGuinty government has placed an emphasis on education and skills training in Northern Ontario and local politicians and community organizations have been vocal about the need for a law school in Thunder Bay.

The provincial government plays a significant role in the approval of new law schools, although responsibility is shared between several different bodies. The Ministry of Training, Colleges and Universities must approve any new faculty in Ontario while the LSUC sets the educational standards for students who wish to enter the provincial licensing process. Furthermore, the Federation of Law Societies of Canada is in the process of developing accreditation guidelines that the LSUC intends to rely upon.

It is unclear when a decision on the Lakehead proposal will be made. In early 2007, the LSUC created a new task force to look at the requirements for new law schools in Ontario and the LSUC had told other universities that proposals for new law schools would only be considered after the task force review was complete, expected to be no earlier than the fall 2008. Lakehead’s bid was submitted prior to the task force’s creation and as a result a decision may be made before the task force’s final report.

Lakehead President Fred Gilbert told Nexus that the proposal is likely to be voted on by an LSUC committee in April. Their committee recommendation will be taken up sometime shortly after that by Convocation, the LSUC’s governing body, well in advance of the final task force report. Although there is no guarantee that the 50 Convocation Benchers will vote in favour of the plan, Lakehead President Fred Gilbert told Nexus that he is confident it will be approved.

“All I can say is that we feel that we have addressed all of the issues they indicated were important,” he said. Gilbert also acknowledged that his plan has strong political support “I believe the Law Society understands the breadth and depth of that support and I won’t go into any details but it is consistent with expectations that we would be doing something that is needed and is different.”

The LSUC declined to comment for this article. Kevin Dove, a spokesperson for the Ministry of Training, Colleges and Universities, told Nexus that the Ministry was still intending to wait until the LSUC task force had completed its work.

Lakehead originally submitted their bid in October 2006 and Gilbert said he has been very surprised by how long the approval process has taken. He called the argument that the proposal should only be decided upon after the review of accreditation standards a “red herring.”

“If there are changes to the curricular requirements, all law schools will have to address them,” he said.

Lakehead’s proposal had previously been subject to significant criticism by the LSUC. In early 2007 Convocation, the LSUC’s governing body, voted to defer a decision on the Lakehead proposal and expressed significant concerns about Lakehead’s ability to create a modern law school and its lack of consultation with other law schools. The LSUC also questioned how great the demand was for additional lawyers in Northern Ontario. Lakehead has since revised its proposal.

Western Law Dean Ian Holloway told Nexus that he still had some concerns about the Lakehead plan.

“There are, I think, 150 lawyers in Northern Ontario… Lakehead’s model involves taking in 50 students a year. In three graduating classes they would double the size of the bar in Northern Ontario. Frankly the bar doesn’t need to be doubled,” he said, stating that he believed many of the students would end up competing for jobs with students from other law schools in Southern Ontario.

Gilbert downplayed these concerns. “The University of Western Ontario produces more law school graduates than the local area needs as well,” he noted. “We are understanding of the concerns about overproduction of graduates but our graduates will have a very distinct flavour. They will have a bit of a cachet that other law school graduates will not have, with the emphasis that we will have on natural resources and aboriginal law.”

If many of the 50 Lakehead students end up competing for the same articling positions as those in other law schools, it could make the challenge of finding an articling position even more difficult. The LSUC task force has noted that the 1476 students who sought to become lawyers in Ontario last year exceeded the estimated 1300 articling positions available in a stable economy. By 2009, the number of students seeking to be licensed in Ontario is expected to rise to 1730, not including students from any new law school.

Holloway said that Ontario’s law deans are generally in support of the plan but pointed out that funding issues for the new law school have also not been resolved.

“The law Deans… agreed in principle with the creation of a new law school but we wanted to make sure any new law school is properly resourced. In the context of Lakehead we wanted to make sure that northerners and aboriginal people aren’t shunted off to a second-rate, poorly resourced law school. That is hardly going to advance social justice in the community, he said. “Where will the money for the Lakehead law school come from?”

While Lakehead had initially planned to admit their first class of students in September 2009, Gilbert said that he now expects it to be open no earlier than September 2010. If the Lakehead bid is approved it would be the first time in nearly fourty years that a new law school was created in Ontario. The last law school in Canada to be approved was the University of Calgary in 1979.


Jordan Furlong adds his commentary at Law21.

Laurier Law School Bid Remains Uncertain

By: Alex Dimson · March 23, 2008 · Filed Under Law School · 2 Comments 

by Alex Dimson (from the March Issue of Nexus, Western Law’s Student Newspaper)

Even as Lakehead University’s application to open a new law school seems likely to be approved, a similar bid by Wilfred Laurier University remains in limbo.

Laurier’s plan, which was submitted in June 2007, has been officially placed on hold while the Law Society of Upper Canada (LSUC) and its national counterpart, the Federation of Law Societies of Canada, reforms the accreditation criteria for law schools.

The existing criteria was developed in 1959 and revised in 1969 and does not reflect modern day requirements for legal education. For instance, under the current criteria a law school need only have three professors, including the Dean.

Laurier’s proposal is to open a new law school with a class size of 75 students and would have a focus on developing practical legal skills. It would also have the first co-op program for law students in Ontario.

Laurier’s bid is not as far along as Lakehead’s and the university has not yet submitted detailed curriculum information to the LSUC. Still, the plan has already drawn the support of significant heavyweights in the Waterloo region, including Research In Motion (RIM) founder Jim Balsille, who has suggested that the law school be integrated into his new centre for international governance.

Despite this, it remains highly uncertain whether the bid will ever be approved. It is also unknown whether Laurier will be able to meet the LSUC’s new accreditation requirements but the possibility of several new law schools in Ontario has touched off a serious debate among lawyers at a time when an increasing numbers of students are seeking articling positions.

Western Law Dean Ian Holloway told Nexus that he believes there is significant concern among lawyers about the creation of more law schools.

“We can’t forget as well that there is a sizable portion of the membership of the law society that, rather than starting new law schools, would like to shut one down. There are many lawyers that think we are churning out too many graduates. So I’m not sure that the rank-and-file would be in favour of any new law schools,” he said.

Still, Laurier President Max Blouw told Nexus that he feels that his school will fill a niche in the legal market.

“There is a need for lawyers in the Kitchener-Waterloo area and beyond… I don’t think the demographic for lawyers is different than the demographic of any other group in the country. There are huge numbers going to be at retirement age and are going to be dropping out of the system,” he said.

The likelihood that a new law school at Lakehead will be approved, bringing an additional 50 lawyers into Ontario annually, casts further doubt that the Laurier plan will be approved by the LSUC’s governing body.

On the other hand, the increasing demand among universities for law schools, and the high tuition that they bring, could also cause the LSUC to throw up its hands and abandon efforts to ensure that there are sufficient articling positions for law graduates and permit several new law schools to open.

If that happens law school could change from a place where nearly every student secures an articling position to a place more akin to a general undergraduate program, where the awarding of a law degree does not mean that a graduate will ever get a law job.

The current LSUC task force is considering the possibility of removing articling, though it has indicated that it currently favours maintaining it in some form.


Jordan Furlong adds his commentary at Law21.

Holocaust Humour Seems Insensitive, to Say the Least

By: Law is Cool · March 23, 2008 · Filed Under Constitutional Law, Criminal Law, Ethics, Marketing/PR in Law, Politics · Comments Off 


Tasteless Tattoos

A recent online prank among bloggers has raised the issue of poking fun around sensitive issues such as the Holocaust.

Racial and ethnic humour abounds among comedians, though most prefer to poke fun only at the group(s) they identify with and belong to, as to do otherwise appears degenerating. But members of the in-group arguably also better understand where the limits are, and can put things in context.

Funny Swatztikas

Sam Gross, an American cartoonist, is releasing a new book entitled We Have Ways of Making You Laugh: 120 Funny Swastika Cartoons.

Although the swastika preceded the Nazis by thousands of years, in the modern era it is closely associated with them and their sympathizers.

But Gross responds to critics by saying,

I’m not trivializing the Holocaust. I’m trivializing the swastika. The swastika is not the Holocaust. The swastika is a symbol.

But Gus Khouri doesn’t necessarily agree,

I love my free speech and the free market blah blah blah but it always disappoints me that people can, and do, make money by simply being really rude or insensitive to others. What’s the remedy here?

Context Dependant?

Some have suggested that the context is what determines the appropriateness of racial humour. But the Holocaust, given the horrendous atrocities surround it, appears to be a more sensitive issue than most.

Does this mean that certain groups are immune from being poked fun at? Not necessarily. But heightened sensitivities are appropriate when there is a history of stereotypes and discrimination.

Unfortunately, we have also seen some of these same minority groups poke fun or degrade other minorities under the auspices of free speech. But these instances were not humorous or entertaining, nor were they intended to be so.

Gary Wise said,

As he put it, he did it because he wanted to. Because he can. To make a point. And because he accepts no law to the contrary.

Can Racist Humour Make Racism Worse?

That’s what the experts would suggest.

Henry Louis Gates, Jr. of Harvard University said in journal Critical Inquiry,

…racist statements, certainly, which can have rather little to do with aggression or contempt in intent, even if the effect is contemptible (but often “well-intentioned”). It is the penchant to generalize based upon essences perceived as biologxal which defines “racism.”

…The racist’s error is one of thought, not merely, or only, one of behaviour.

This is not to say that racism is a thought crime; rather, that racist thinking usually leads to much larger and substantial issues in society. And an immense distinction still exists between racial humour and hate speech laws.

Nor is racial humour necessarily racist per se by itself, as Lawrence Blum suggests there are many shades and categories in which such discourse can fall into, including racial insensitivity, racial ignorance, racial injustice, racial discomfort, and racial exclusion.

But isn’t all in good fun? Maybe. But casual humour centered around racist discourse can have larger deliterious effects, even outside those involved in the private setting. Bernard Guerin said,

…conversations in which racist statements function to maintain groups and relationships rather than seriously promote racism. Despite their casualness, such statements are still pernicious…

Hugh LaFollette and Niall Shanks explain in Belief and the Basis of Humor,

Certain types of racist humor have been widely used to reinforce racial, sexual, and national stereotypes. The initial tellings of the “jokes” develop stereotypic descriptions of the minorities, while the institution of the telling of such jokes sustains those stereotypes…

Each serves to keep the minorities “in their place” and thus to perpetuate, with varying degrees of subtlety, various forms of oppression. Consequently, to be a laissez faire liberal about humor and to assume all jokes are created equal is to adopt a non-neutral political stance. This stance can lead us to tolerate certain forms of humor by presupposing an equality which does not exist in our culture. Women and minorities understandably see such humor as perpetuating their inferior treatment and therefore think such humor should be rejected.

It’s no surprise then that racial humour is used most proliferatively among self-identifying racist groups. Despite participants suggesting that a joke is just a joke, Michael Billig said,

…It is shown that the extreme racist humour of the KKK is not just a joke, even in terms of its own meta-discourse of presentation. The meta-discourse also suggests that the extreme language of racist hatred is indicated a matter for enjoyment. The sites portray the imagining of extreme racist violence as a matter of humour and the ambivalence of their disclaimers is discussed. As such, it is suggested that there are integral links between extreme hatred and dehumanizing, violent humour.

But in Canada, We Love Everyone. Don’t We?

Nor is Canada immune from such linkages.

The same individual that played the prank described above claimed today that the Holocaust was not caused by the Nazis, but by the Germans. The distinction is arbitrary and erroneous, as it was the ideology that fuelled the state in that direction.

In this case at least, a pattern of racially insensitive humour has later revealed some troublesome ideas underneath.

The Leger Marketing Survey on racial tolerance last year held some surprising findings. Self-admitted racism was proliferative in Canada, nearly half the population.

Leger Marketing SurveyBut two-thirds admit to telling a racial joke.

The most surprising finding for some was that the historically discriminated communities of Jews and Blacks had now been surpassed by another group – racial hatred for Arabs (or those percieved to be Arab).

Protecting the Marginalized

The distinction between humour and hate is usually contextualized by issues of discrimination in society.

Whereas humour towards dominant groups such as White Christian males are not considered as offensive, other marginalized communities may be.

LaFollette and Shanks said,

Such humor will likely seen especially offensive when told by white males. You must recall that the teller is part of the humor’s context. If the teller is a member of the oppre ssing group, the humor will more likely be seen as a form of oppression. However, the same joke told by a member of an oppressed minority to other members of that minority might well elicit a humorous response.

It is true that even when the minority makes fun of its own group, the potential exists to reinforce the same stereotypes. But the distinction is that this act is one of ignorance, and not of malice or degeneration.

Although this may prima facie appear inequitable, it is based on power differentials, and the likelihood that such humour will result in greater marginalization and discrimination.

A recent letter in the Toronto Star addressed this issue,

Anna Morgan appears to either fail to recognize the power of hate speech to dehumanize society and set the stage for mass atrocities against an identifiable group, or she is trying to put a different spin on it.

Perhaps a reminder is in order. It was due to Canada’s experience of the horrific events of World War II, and our continuing commitment to the UN’s Universal Declaration of Human Rights, that we enacted our hate-speech laws. Genocides in Bosnia and Rwanda have served as painful reminders of the ramifications of hate speech and the need for effective laws to address it.

Furthermore, our hate-speech laws exist to protect the marginalized and multicultural communities of Canada, reflecting our commitment to Section 27 of the Charter of Rights, which states: “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.” It was this provision that the Supreme Court of Canada cited in upholding the constitutionality of our hate-speech laws when they were challenged by Jim Keegstra, a schoolteacher charged for indoctrinating students with Jewish conspiracy theories.

While courtrooms are not the only places to address the harm inflicted on our multicultural society by hate-mongers, they are essential in asserting our commitment to pursuing justice and affirming the values we hold dear. On the international stage, it was this commitment that led to the Nuremberg trials after World War II, the post-apartheid Truth and Reconciliation Commission in South Africa and the prosecution of perpetrators of the Bosnian genocide at the International Criminal Court.

As citizens, we ought to be committed to Canada’s Charter of Rights, and we must continue our resistance against all attempts to undermine the hate-speech protections that exist for all Canadians.

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