Moot Point: SOPA

SOPA: Same Overreaching “Piracy” Argument
Adam Norget (2L)

The Stop Online Piracy Act, commonly known as “SOPA”, is a bill that was introduced in the United States House of Representatives on October 26, 2011. The preamble states that it is “a bill to promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes”.
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Moot Point: The Right to Die

Do Not Kill Me
Kerry Croft (2L)

Many people in Holland, where Physician Assisted Suicide (PAS) is legal, are carrying wallet cards with “Do not kill me” on them so they will not be assisted in dying if they get in a serious vehicle accident.
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Moot Point: The Occupy Movement

Why I Agree with the Occupy Movement, Even in Edmonton
Jay White (3L)

The main reason I support the Occupy Movement is because I think that it finally has people talking about issues that affect pretty much every Canadian, as well as issues that affect most people globally. The worst thing that the opponents of the Occupy Movement are doing is stereotyping the participants and supporters. Many journalists have dubbed the occupiers as no more than ‘crackpots’ or ‘hippies’, claiming that they are pretty much all unemployed. This is simply not true, as there are many different people from many different walks of life joining in on these protests.
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Moot Point: New Recruitment Rules

Brendan Sawatsky (2L)

Why Wait?

In the past, the recruitment rules for law students were different for Calgary and Edmonton. The new rules have remedied this so that firms in both cities are on level playing fields. However, the rules have created a disparity between first and second year students. Unlike in previous years, first year law students will not receive offers of employment at the same time as second year law students. Instead, they will have to wait until the end of February, nearly 4 months later. Many 1L’s are stress cases without having to wait an extra 4 months to find out if they will have a summer job. Students start looking for summer employment in January and if they are still waiting to find out if they have a summer job at a law firm this puts them in a difficult position.
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Moot Point: R v. J.A

The Vulnerability of Sleeping Beauty
Andrea Lynn Mackowetzky (2L)

As a first year student, I longed for the Supreme Court’s decision on R v J.A. to be released an hour before the moot. I imagined myself bursting through the doors with a McLachlin ex machina gloriously supporting my case and enchanting the panel.
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No means no…unless you’re wearing a tube top

Tatum Woywitka, 1L

There is a lot about this case that isn’t controversial: Kenneth Rhodes was convicted of sexual assault. Judge Dewar of the Manitoba Court of Queen’s bench rejected any defence of implied consent, perfectly and correctly in line with the Canadian Supreme Court decision in R v Ewanchuck – the famous “no means no” case that definitively found a defence of implied consent to sexual assault has no place in Canadian law.

But then came the (apparently) tricky bit. How to punish a convicted sex offender? In Crim 420, professors tell us the punishment must fit the crime and judges have some discretion in this area. So if you, like Judge Dewar, view certain sexual assaults as mere cases of “inconsiderate behaviour” based on “misunderstood signals”, you probably agree his discretion for a two year conditional sentence is fair and just.

But let’s be realistic. Kenneth got lucky. In 2007, Parliament amended the Criminal Code to remove the discretion for conditional sentencing for serious injury crimes, including sexual assault. He committed his crime in 2006. So while this sentence wouldn’t even be possible for the same crime committed today, Judge Dewar thumbed his nose at such a restricting system and went back to the old ways. Today, a typical punishment for a first time offender is three years jail.

For me, a bigger concern than the fairness of the sentence is the implication of his reasoning. While Judge Dewar made sure to say he wasn’t blaming the victim, he then proceeded to blame the victim by highlighting the various ways her behaviour and attire were responsible by creating “inviting circumstances.” Whether he intended to send a message or not, we got it. It’s good to know where we stand. Somewhere around 1983.

To show that he wasn’t completely backwards, Judge Dewar made sure to draw attention to the “special circumstances” of the case. I could be wrong but isn’t this a pretty typical example of how sexual assault works? Complainant says no, accused says yes? In assessing the particular facts for sentencing, he took into consideration such mitigating factors as make up, high heels and “sex in the air” (whatever that means). He then decided we shouldn’t be so hard on our “clumsy Don Juan.” Oh, I get it. Implied consent can’t be used to acquit sexual assault but in sentencing it can ensure the next best thing. That’s a neat trick. If make up, heels and a party are the standards, I’m lucky to have survived Carbolic without any “misunderstandings”.

An email from a (non law) friend summed it up better than I could. “If this is how it’s going to be, I guess I should stop wearing make up, dressing up, flirting, and partying. I wouldn’t want to accidentally invite anything. Maybe I should stop talking to men just in case. You never know.”

Playing Devil’s Advocate

Greg Wool, 3L

I’d like to thank my Editor John Chandler for giving me this article to write with the explanation of, “Nobody wants to write this because they are acutely aware that it is a suicide mission of no apparent value. Enjoy!”

In a case that drew on shades of R. v. Ewanchuk, the recent decision out of Manitoba that has garnered such attention has left me somewhat troubled. Yes, bad, terrible, horrible, sexist, whatever, but the real difficulty here is that the reasoning overall seems to have troubling implications. The judge found the accused to be guilty, but then tempered the sentence because he had some doubts about if the accused reasonably believed that she was consenting. This flies in the face of the standard of beyond a reasonable doubt for the Crown to make out to secure a conviction. If the judge felt that there was a reasonable doubt as to the guilt of the accused, they should have acquitted, not reduced the severity of the sentence.

I also wonder if there isn’t a developing internal inconsistency in the criminal law that the Supreme Court will need to address if the legendary and hallowed reputation of the administration of justice is to be preserved. While we are all quick to say that blaming the victim in sexual assault is abhorrent, we have no problem accepting provocation as a partial defence to killing somebody. We even accept provoking another side into fisticuffs, as long as the resulting harm is not substantial, as a complete defence to assault. In other words, we are more than willing to partially absolve the accused for their conduct when the victim is dead or beaten, but not for sexual assault. My point here is that if we are going to allow the law to mitigate the sentence for victim conduct in regards to provocation, then it is inconsistent to suddenly remove that principle when the assault is sexual in nature. In the recent case, this appears to have been what was done. The judge was unconvinced, BRD, that consent was not present, yet he gave a guilty sentence anyway.

We can’t have a functional criminal justice system in regards to homicide and assault without accepting provocation as a defence. If you commit acts that are designed to elicit a response, then suddenly being held unaccountable when you get them is unrealistic. This leaves us with the recognized need for a similar form of defence to operate in sexual assault. I’m not advocating that we allow a “She was asking for it” defence, but a mitigation of blame where the victim willingly acted in such a manner that created the circumstances in which they found themselves. In other words, if you consent to a sexual encounter, you may reasonably expect certain events to transpire. You should have the right to stop events once in motion, but you can’t ‘take back’ that which you have already consented to, and another has acted upon.

Big Ideas About Big Love: Support for Decriminalization of Polgamy

Lindsey Jo Ehrman, 3L

With shows like “Big Love” and “Sister Wives” splashing across our television screens and impacting our thoughts and feelings about polygamy, many of us only view the issue of plural marriage through the lens of fanatical religious belief. Criminalization of polygamy is taking the heat off its bed-fellows: sexual abuse, statutory rape and discrimination against women. Though we often defend the prohibition on these grounds, in reality the criminalization of polygamy was spurned by distaste for fundamental Mormonism and was introduced to discourage their immigration into Canada. Additionally, this law minimizes the support options available to Mormon woman, causing their societies to operate in isolation and under a veil of secrecy. Before we get caught up in our ideals, we must ask ourselves: what is being regulated here? In RJR-Macdonald Inc. v. the Attorney General of Canada, Justice Major held that the legitimate use of the criminal law power was limited to prohibiting activities that “pose a significant, grave and serious risk of harm to public health, morality, safety or security” ([1995] 3 S.C.R. 199).

So how can we defend this law? Perhaps as a moral statement against non-monogamy? If so, then we should also be throwing adulterers in jail. Their behaviour is less moral, more reprehensible, and more harmful to the emotional health of their children than the idea of multiple consenting adults spending their life as a conjugal unit. Or perhaps we could argue that the existence of multiple parents would cause psychological harm to their children? However, with a national divorce rate of 38%, children are living lives governed by 3 or even 4 parents on a regular basis. Besides, any of these arguments would fail the Oakes test because arguing that criminalization of polygamy is needed for the protection of woman and children would constitute the type of shifting purpose already found invalid under R. v. Big M Drug Mart Ltd. ([1985] S.C.J. No. 17).

Criminalization, with a penalty of five years, and arguments supporting freedom of religion and the right to equality will also cause the law to fail the Oakes test under the arm of minimal impairment. We already have a provision against the legalization of polygamy under the Civil Marriage Act, S.C. 2005, c. 33, s. 2, and the decriminalization of polygamy has been recommended by the Law Reform Commission of Canada since 1985! And at this point it would heed reminding that not all polygamous relationships subordinate woman, and that criminalization of this lifestyle choice is entirely disrespectful of some people for whom Canada’s multiculturalism policy was designed. In short: the support for criminalization of polygamy doesn’t have a leg to stand on. Let us be guided by the now famous words of our 15th Prime Minister of Canada, “The state has no business in the bedrooms of the nation.” The crimes that may accompany polygamy are serious, but separate, and it is an affront to our own intelligence if we do not treat them as such.

Leave Polygamy Laws in Place

Gnu Oymij, 3L

Like most Canadians, I don’t spend much time thinking about polygamy. When I am asked to think about polygamy (thank you, Canons publishers), I find the topic occupies the same place in my mind as marijuana and prostitution. These are all things that are not good for society, but we probably need not fret about an imminent collapse of civilization.

In my view, it was a mistake for the British Columbia government to ask its Supreme Court to render a constitutional opinion on the Criminal Code prohibition of polygamy. The issue ought not have been brought into the light of day. Rather, it should have remained a criminal offence which is rarely or never prosecuted.

I will assume that if you are reading this inconsequential little column you are a law student and thus have encountered the constitutional arguments for and against criminalizing polygamy. I really don’t feel like parsing the Charter and Supreme Court of Canada judgments. And, even if I did, there isn’t the space on this page to launch into a constitutional analysis. So let’s just think about what Canadians want for once instead of the law school tendency to think about what the courts can force on Canadians.

And, let’s be clear what we are talking about when we talk about polygamy in Canada. Polygamy is almost never polyandry. Polygamy is not a polyamourous household of liberated hipsters who share a bed. Polygamy is a regressive patriarchal system that treats women as progeny-breeding chattels.

Liberty is a great thing. I would never suggest that the government should dictate which varieties of sexual relationships are acceptable for Canadians to live in. If a girl and five gays want to live together in a life partnership, I say go for it. If they want to call that marriage, it’s none of my business. Likewise if a rotund and middle aged farmer wants to collect “wives” over the age of 18, I say leave them be. It is unfortunate that there are pockets of backward, hillbilly ignorance here and there in Canada, but forcing enlightenment on people is fraught with difficulties, not least of which is the question of liberty.

Turning a blind eye to polygamous communities is one thing. We can do that. In fact, we have been doing it for a long time. But why should the government be forced to solemnize polygamous relationships and grant them the same rights and recognition as monogamous marriage, the bedrock of our society? Why must Canadians be compelled to grant legitimacy to a regressive lifestyle?

Many will howl that it is my western colonial mindset that causes me to make unjustified value judgments on other ways of living. Nonsense! There are many objective reasons why polygamy is inherently flawed. I have space left to raise only one. Consider places in Africa and the Middle East where many young men are unable to find wives because the older and wealthier men have multiple wives. The result is a generation of single and aimless men, a recipe for crime and violence. It may be hard for some “progressive” western academics to accept, but marriage and family life is the foundation of a peaceful and productive society.

Make Me a Sandwich!

Anonymisogynist

It is not a good economic decision by firms to have large and generous maternity benefits. Not only are the plans very expensive to pay for, but good maternity programs will encourage female employees to have babies which leads to maternity leave. Also, when they finish their exceedingly long maternity leaves, then they have children. Children make employees unreliable because suddenly parents have different priorities, like the health and well-being of their children. In the long run, parents take off much more time for sick children, their children’s social and extra-curricular commitments, and getting their children to and from school.
That is not to say that equality in the workplace should not be a priority. Maternity policy must be a focus for employers, but only to the extent that it does not have a negative impact on business operations or employee morale. It can be difficult for women who choose not to have children and men who do not go on paternity leave to watch their colleagues take one or multiple year-long breaks. Employers should respect an employee’s decision to have children so that there is a next generation of employees, but they should not have to decide between operating a successful business and having a good maternity policy.
Some have suggested that a more flexible work schedule for parents would alleviate many of the issues relating to maternity. The difficulty with this notion is that our clients do not have flexible expectations. If a contract needs to be done tomorrow, it needs to be done tomorrow; your child’s runny nose is not an acceptable reason to not fulfill clients’ needs. Flexibility leads to our clients going to the competition.
Part time is simply not an option in some fields. In law, our clients like to have relationships with the lawyers they deal with. These relationships contribute greatly to our clients’ loyalty to the firm. Parents that choose to work part time don’t have the ability to maintain these essential relationships because they cannot be relied upon to be available when a client needs them. Ultimately, having children is a choice. If you make the choice to have children, your employer should not be financially punished. All choices have consequences. A person who chooses to go on extended vacations every year may face dismissal or demotion. Parents cannot expect their choices to be respected more than a person who chooses not to have children.
People do not choose to go into law because they want to work part time or they want to have time off to go to parent-teacher interviews. People choose law knowing that it is a pressure-filled, competitive field that will demand time. If maintaining a work-life balance or having children is a priority for someone, law may not be the best option for a career. If you can’t handle the pressure, stay in the kitchen.

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