Université McGill,Faculté de DroitVolume 31, no. 6

17 novembre 2009

McGill University,Faculty of Law

Volume 31, no. 6November 17th, 2009

QQUUIIDD NNOOVVII

COURSE EVALUATIONS MAKE A DIFFERENCE!Let your voice be heard!

Why complete course evaluations?• To help instructors improve future course offerings. Instructors use evaluation results to improveareas of a course and will often request feedback about particular areas of a course. This feed-back is important to the Faculty and in many cases the sole opportunity for instructors to gain in-sightful and thoughtful assessment regarding the course materials.• To inform decision-makers for merit, promotion and tenure, and teaching awards.• To reach response thresholds required for dissemination of results to students

Easy to complete:Takes only 5-10 minutes (Instructors have been asked to provide the first 15 minutes in classto allow students to complete the questionnaire.) The system is open 24/7 Available from November 9 – December 2, 2009.

Access:1. Log in to your Minerva account (https://banweb.mcgill.ca/mcgp/twbkwbis.P_WWWLogin)2. A pop-up window will appear to direct you to the course evaluations3. If no pop-up window appears, an alternate way to access the course evaluations is by:

a. Selecting Student Menub. Clicking on Mercury Online Course Evaluation Menuc. Then on Submit your course evaluationsd. Then clicking on the Course link

Questions/comments: contact Minerva Help Line:http://www.mcgill.ca/minerva-students/help/

Thank you for participating in this important process!

IN THIS ISSUE...

3. A closer look at judicial...

4. APLAM, Recently Very Active...

6. Droit à l’image

8. Your LSACouncil...

9. Finals and Follies...

10. Reflection: Hameed Talk

11. Si, se puede.

13. Reflections on a Trip to theSupreme Court of Canada

The Quid Novi is published weekly by the students of the Faculty of Law at McGill University. Production is made possible through the direct support of students.

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Les opinions exprimées sont propres aux auteurs et ne réflètent pas nécessairement celles de l’équipe du Quid Novi.

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Envoyez vos commentaires ou articles avant jeudi 5pm à l’adresse: quid.law@mcgill.ca

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Contributions should preferably be submitted as a .doc attachment (and not, for instance, a “.docx.”).Contributions should also include the student year of the contributor.

QUIDNOVI

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Éditorial/EditorialMonday Morning

Laughsby Chanel Sterie (LAW II)

Over the past few weeks, my fellow 2Lshave been busy preparing presentationsfor our Legal Methodology class. Now,the task wasn’t exactly easy. We wereset up in groups of approximately 17people and expected to produce a skitthat would both inform and entertainour classmates on Monday mornings.

The presentations focused on variousaspects of professional responsibility,such as conflicts of interest, intimate re-lations with clients and ethics in negoti-ations.

They were all very entertaining andbrought to light the amazing creativeskills and hidden talents of our class.Not one presentation failed to amuse.

Creativeness came in many forms. Nodetail was overlooked, from creation ofcostumes to editing of videos. The re-sult was a multitude of remarkablevideos, amusing characters, and at leastone riotous host.

continued on p.14

NOVEMBER 17TH, 2009

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Professor Macdonald’s November 10tharticle, “Time to stop exaggeratingabout patronage,” brought a healthydose of common sense to the recentcontroversy surrounding the currentGovernment’s judicial appointments.The article is right to conclude that pastdonations to political parties should notdisqualify leading candidates from ob-taining appointments. The controversysurrounding an appointee who has do-nated $300 to a party is but a tempestin a teapot. Indeed, to cry foul oversuch minor past political engagementonly unfairly heightens the current mis-erable climate of cynicism towards bothParliament and the judiciary.

Judicial appointments can, in fact, offerrare glimpses into the kind of cross-party consensus and civility that issorely lacking in our current Parliament.Justice Marshall Rothstein was, for ex-ample, originally nominated by a LiberalGovernment and subsequently con-firmed by the Tories.

That said, while Professor Macdonaldrightfully qualified his arguments bynoting that improvements to the federalappointment process do need to bemade, his piece did not discuss what Iperceive to be a very real threat to ju-dicial independence posed by theHarper Government’s recent changes tothe bodies that appoint members to thebench.

I am referring to the Government’s es-tablishment of significant changes tothe composition and functioning of ju-dicial advisory committees (JACs) –committees of experts mandated to rec-ommend candidates for federal judicialnominations. The Tories have increasedthe size of the committees to include amember of the law enforcement com-munity; disenfranchised the federaljudge on committees; and removed the“highly recommended” designation infavour of two broader categories of“recommended” candidates and thosewho they are “unable to recommend.” The long-term fallout from these seem-

ingly minor changes to the structure ofobscure administrative bodies may bedramatic. By appointing a police officerto the JACs, the Government is giving adisproportionate voice in appointmentsto a player in the criminal legal process,despite the fact that the overwhelmingmajority of cases that will come beforefederally appointed judges will havenothing to do with criminal law.

More troubling, by relegating the judgeon JACs to a non-voting position, theGovernment is disenfranchising the onecommittee member who is - by virtueof having served on the bench - bestpositioned to identify the criteria of agood candidate.

Finally, by eliminating the “highly rec-ommended” designation of candidates,the Government is preventing JACsfrom identifying the cream of the cropof potential judges. This invites thegovernment to favour a mediocre can-didate – who may have strong partisancredentials – over more suitable alter-natives.

McGill Law Professor (on leave) andFormer Minister of Justice, Irwin Cotler,has argued that the combined effect ofthese reforms threaten to “bring aboutboth a political and ideological politi-cization of the appointment process,which would lead to the politicization ofthe judiciary itself” (The Law Times,February 20, 2007).

Cotler is not known for taking partisanpot shots; his concerns are sincere, rea-sonable and shared by the Canadian Ju-dicial Council, the Canadian BarAssociation and leading constitutionalscholars, most notably Professor PeterRussell.

Thus, while Professor Macdonald isright to point to the overall quality of re-cently nominated judges, we mustnonetheless remain mindful of the po-tentially adverse effects of an evolvingjudicial appointment process, whichmay be setting us on the path towardsa judiciary composed of unqualified ide-ological appointees, even if such a situ-ation today seems inconceivable.

A closer look at judicial appointmentsby Jonathan Katz (LAW II)

APLAM, Recently Very Active:A Quick Recapby Yuheng Zhang (LAW III)

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APLAM (Asia Pacific Law Association atMcGill) seeks to promote student in-terest in the law of Asia Pacific coun-tries and their practice in both Canadaand abroad. We also encourage cul-tural dialogue and learning throughcommunity involvement and activitiesthat highlight the Asia Pacific region’srichness and diversity. Thanks to allthose who have supported our recentactivities; if you weren’t able to at-tend, there are more to come! Here’sa quick snapshot of what we’ve beenup to.

FACL Conference: “Strength in Di-versity”

On Saturday, November 7th, eight(yes, 8!) APLAM members were inToronto to attend the third annualFederation of Asian Canadian Lawyers(FACL) conference. FACL is a Toronto-based group seeking to promote eq-uity, justice and opportunity for AsianCanadians in both the legal professionand the wider community. This year’s conference on “Strength inDiversity” took place at the Universityof Toronto Law Faculty. One highlightwas the keynote lecture given by theHonourable Frank Iacobucci. In addi-tion to sharing his experience workingas the lead representative for the fed-

eral government in the residentialschools settlement, Justice Iacobuccidescribed growing up as part of theItalian minority in East Vancouver. Wewere delighted to have ProfessorShauna Van Praagh introduce us toJustice Iaccobucci (we even got aquick “fan” photo in!).

Other highlights include apanel of Ontario judges and a discus-sion of diversity initiatives on BayStreet. Justices Juriansz, Nakatsuru,and Pawagi spoke on the need to notstereotype judges and lawyers basedon race. Each judge will be influencedby his or her own unique set of per-sonal experiences, including culturalbackground. Later, the diversity panelof judges projected a feeling that BayStreet firms are becoming genuinely

committed to bringing diversity to theworkplace and changing the all-white,straight male culture.

APLAM’s presence marked thefirst APLAM-FACL experience and alsothe first time FACL has reached out-side Ontario. Amongst the 200-somelawyers and students, McGill was defi-nitely very well represented. This wascertainly a trip worth taking, and welook forward to bringing some civilianthought to future FACL events.

Next up: the National Asia Pa-cific American Bar Association (NA-PABA) conference in Boston, Nov.18-22!

MARK YOUR CALENDARS! Who: You, APLAM What: Brown Bag LunchWhen: 11h30-12h30 Tuesday November 24th, 2009Where: First floor of Thomson HouseWhy: We’ve been busy this semester, and would like to share the ex-periences we’ve had with people who weren’t able to attend. We’llhave a quick update on our exchanges portfolio. Then we’d like tohear what you’ve liked/disliked about our activities to date and chatabout what you can get out of the Speakers Series as well as the con-ferences we’ve attended.

Bring or buy your lunch for this casual conversation. All are welcome,au plaisir!

APLAM members pose with the Honourable Frank Iacobucci during the lunch break

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Fasken Panel Discussion on doingBusiness in Asia

On Tuesday, November 3rd,Fasken Martineau held a panel discus-sion on building healthy business rela-tionships in Asia. The panel,consisting of four lawyers, a CIO, andRaymond Chrétien, former Canadianambassador to France, the UnitedStates, Belgium, Mexico and theCongo, highlighted the importance oftrust and patience when dealing withclients in Asia and India. Severallawyers shared their first-hand experi-ences in these different business cul-tures. In attendance were a greatnumber of McGill students as well asseveral fellow law students fromUdeM. This was an exciting new lookat an area of the world that previouslyheld many unknowns and misconcep-tions.

APLAM’s attendees at FACL (from right to left): Jeff Li, Prof. Van Praagh, Henry Ngan, Cindy Kou, Yuheng Zhang, Christina Nguyen,Christopher Nguyen, Leo Wang

The Panel from Fasken Martineau (from left to right): Irwin Kyer, Hsiao-Chen Lin, SylvainCharpentier, Verna Cuthbert, Mark Stinson, Raymond Chrétien

QUID NOVI

DROIT À L’IMAGE Charlie Feldman (LAW II)LEGALMETHII PRESENTATIONREVIEW: TheLoyal Lawyer

Michael Bookman leads this skit, a sales pitch for theLoyal lawyer™. These lawyers will never violate theirduty of loyalty, even when faced with the toughestsituations. Video segments highlight the problems ofconflicting loyalty.

La séquence préférée du Quid est l’histoire d’Anna &Louise (Amélie Gouin, Sarah Marsolais-Ricard) qui

nous parlent dela représenta-tion simultanée.Elles le font àl'unisson touten faisant lesmêmes expres-sions et mouve-ments avecprécision. Cevidéo a été

suivi par un représentation de « Dr. Laskin » parCatherine Rousseau-Saine portant, essentiellement,un costume de graisse. Le Quid a bien aimé cette par-tie de la présentation.Bravo vous trois!

The Quid feels it’s nowtime to express whathas been the unwrittenrule of these legal methpresentations. Simplyput, your presentationmust either make a joke about legal meth or include asequence about hockey. Really, this should be in thecriteria Me. Lamed establishes for next year.

The Quid brings this up now because this presenta-tion did both. First, Kerwin Myler plays a disgruntledLeafs fan whose new Loyal Lawyer™ provides himwith sagacious advice – become a Habs fan. This wasfollowed by a parody of ‘The Office’ in whichRoger(Francisco Torres)’s new boss, Wayne (JonnyAsselstine) has dirt on a client from his work at a pre-vious firm; when confronted with this, Torres remarks‘You can’t tell me this – didn’t you pay attention inLegal Meth?!’. The Office parody wins points for beingdone in proper mockumentary style.

The presenta-tion concludeswith a song – afirst for thelegal meth pre-sentations sofar. All 17 groupmembers sanga song aboutthe ‘duty of loy-alty’ to the tune of ‘Stand by Me’. The Quid querieswhy this is not available for download on iTunes. As ifit was not enough on its own, dance moves (includingthe can-can and the happy hands) complemented thesong.

Best acting: Amélie Gouin, Sarah-Marsolais-Ri-card, Catherine Rousseau-Saine. Best parody:Fransisco Torres, Jonny Asselstine, KerwinMyler for ‘The Office’. Best song: all 17 groupmembers. Best product: the Loyal Lawyer (for12 easy payments of $199.99, or $2399.88).Most likely to be an infomercial host: MichaelBookman.

LEGALMETHII PRESENTATIONREVIEW: Con-fidentiality

This presentation, a Law & Order parody, presents anumber of situations in which confidentiality issuesmay arise.

First, client Christopher Maughan has record of of-fenses mostly along the lines of disturbing the peacefor actions such as singing outside, and indecent ex-posure (‘It was hot that day!’). When his attorney,played by Amine Kettani refers him to a counselor,Maughn reveals his plan to pie the Queen when shecomes to down, an action that would violate s. 49 of

the Criminal Code. No, seriously, it’s a crime to ‘alarmHer Majesty’.

Anywho, the matter goes to the Courtroom of JusticeMcHick, who, despite a southern accent, straw hatand being repeatedly being called ‘Your Honor’ pro-vides Canadian legal advice with assiduous aplombthroughout all the court scenes.

The second such Court scene involves Crown Counsel(Joanna Baron) presenting a request for a previouslawyer-client conversation to become public. The caseat bar involves the theft of parachute pants and thesuspected involvement of one Mr. Hammer. Points

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DROIT À L’IMAGE Charlie Feldman (LAW II)here go for the playing of the ‘U Can’t Touch This’music video.

The third and finalscenario bringsback ChrisMaughan as a mangoing through a di-vorce. When hetells his lawyer thathe’s gay, the lawyerthen tells his wife in an effort to sleep with her. Thelawyer here is played by Amine Kettani (here por-

trayed as a pimp). The skit wins points for pictures ofAmine and the wife (Joanna Baron) on display docu-menting their relationship (or, their excellent use ofPhotoBooth on a Mac).

Best Acting: Chris Maughan, Amine Kettani(tie). Most likely to have reprise their roles asadvocates in the real world: Joanna Baron andAndreea Vasiliu. Best use of technology in askit: Maroussia Lévesque calling Amine Kettani,but, literally, calling his phone during the skit.Best crime: (tie) alarming the Queen and steal-ing parachute pants.

Reviews not printed: Advanced Com-mon Law Obligations (Prof. Gold)

This week marked the final week of presen-tations in Advanced Common Law Obliga-tions with Prof. Gold. It would indeed seemthat 2L is the time to channel the artsy sideof things, and the Quid thoroughly enjoyedseeing the variety of ideas people had. Therewere plenty of ‘by the book’ presentations,lots of fun videos, at least one interpretivedance number, and more than one gameshow parody. Great job, everyone!

COMING SOON: LEGAL METH II AWARDS!!!!You’ve seen the skits… you’ve read the reviews…you may haveeven watched a clip or two on Facebook. Given that (when youread this) we will have finished legal meth presentations, lookin this section for a ballot to vote for your favourite actors and

skits next week (along with a review of the final legal methpresentations). Obviously, reviews have been one-sided (fromyours truly) but at the end of the day, the power to determinegreatness is in your hands! So, start thinking about what youenjoyed the most, and don’t forget to vote next week! Resultswill be announced in the final Quid of the year, printed Dec 1st

...Disons... (Overheard at thefac)3L: I’m not going to that class any-more. I’m done. Give me the billcause I am checking OUT!

3L: KEEP YOUR SWINE FLU ATHOME!!!

2L: Nobody ever tells pretty peoplethat they’re bad at things...

2L: If you were an obligation, Iwould NEVER subrogate!

2L: Movember is for people whoare single.... And plan to stay thatway for the rest of the month!

1L: I don’t get why that guy at theSAO is wearing the glove… I mean,Michael Jackson died severalmonths ago, the tribute can endsoon...

1L: You want to quote me in theQuid? People actually read that?

“It has two specialized divisions –tax court and military court - youcouldn’t go through LIFE withoutknowing that!” – Prof. Jukier

"It's very hard not to ever comeinto contact or relationships withother human beings, to isolateyourself completely from everyone.Believe me, I've tried” - Prof. Adams

“You wake up and find you've gotpeople sticking to you" – Prof.Adams

Well, droit à l’image sat in theatrium for a few hours andrecorded quotables that, well,without context, make our facultyseem… a little… uhh.. dirty. So,from the mouths of 2Ls….. “People

enjoy being touched – I know Ido” (re the need for human con-tact, lacking in modern western so-ciety). “The evidence was in mymouth” (re having chewed some-thing). “They have their coke or-gies” (speculation as to the sociallives of LLM students). “I just wantto fist you” (re someone going foran unrequited dap).

...and in the accidental meannesssection...2L: I’ve got more [clown] nosesthan you!Quid: Yeah, and you’ve also gotmore chins.- The Quid apologizes, but didthink it was a good one-liner at thetime.

Submissions:quid.charlie@gmail.com. We re-serve the right to edit, modify, trans-late, embellish or ignore completely.

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NOVEMBER 17TH, 2009

Your LSA Council has finally met!by Alexandre Shee (LAW III) LSA President

Certain interesting and pertinent ques-tions were raised in an article written byCharlie Feldman last week, which Iagree with in great part. However, somethings were left unclear and some ques-tions unanswered. I would like to takethe time to clarify the issues and out-line what the LSA Executive has alreadyenvisioned to remedy this problem.

The ContextIn a bid to increase communication,transparency, and accountability, myexecutive and I have been writing toyou on a regular basis in the Quid, haveheld a Special Budget Townhall and reg-ular office hours. I have personally meton different occasions with all classpresidents, both together and individu-ally, all members of newly appointedcommittees, and Faculty Councillors inorder to gauge their opinions and un-derstand their points of view. Membersof the executive have been meeting ona weekly basis, discussing issues andraising concerns. As volunteer students,my executive and I hold ourselves to anincredibly high standard and act in goodfaith, trying to accomplish a common vi-sion for the LSA while creating viableand sustainable initiatives that will lastbeyond our year.

The LSA Council, the Board of Directorsof your student association, is not theLSA, nor is it its legislative branch. Youhave the power to decided in a GeneralAssembly or Special General Assembly,as well as elections and referenda, thefate of your student government. TheLSA Council acts in an advisory role toinsure coherence with LSA policies andaccountability outside of the executive.Until elections are held for faculty coun-cil, the executive assumes that role inorder to ensure the smooth transitionduring the summer months and begin-ning of the year.

The LSA Council was unable to meetbecause all of its members were notvoted in by the 15th of October. Never-theless, councillors' voices were listened

to and student concerns were heard.Furthermore, I wholeheartedly agreethat the constitution should be revisitedand am thrilled that Charlie’s article willget the ball rolling.

A New Constitution?I strongly think that the constitutionneeds a revamp. The LSA Executive hasdecided to take a step in the right di-rection by initiating a process of reform,which will culminate in a referendumperiod next semester. It will be up toyou to decide how the LSA moves for-ward and in which direction.

The LSA Executive and Green Commis-sion are proposing a new section of by-laws dealing with sustainability andethical purchases and practices. This isbeing brought up in the first meeting ofLSA Council and has been in the workssince the beginning of the semester. Inthese new by-laws, the constitutionwould reflect the LSA Executive’s will-ingness to make the LSA better both forour community and for our world. Cli-mate change and social issues need tobe dealt with in the scope where we canaffect change.

From events to transportation, recycling

to ethical purchasing, these new by-laws would reflect the growing sustain-able consciousness of our faculty. Theywill be a first step forward in this year’sconstitutional reforms.

In order to make the process as equi-table and open as possible, I wouldstrongly encourage you to send yoursuggestions for future changes to me,any member of the executive or yourclass presidents. We have to work as acommunity on bettering the LSA.In the future, other possible reforms willcenter around the role of LSA Council,the mandates of the LSA Executive, ourrelationship with other student gover-nance bodies, as well as the timetableand obligations of the Association.

These are all within the vision of bet-tering the LSA and increasing its con-nectedness with student concerns.

Your ideas and suggestions are alwayswelcome! And I am happy that Charliehas raised this issue into the LSA col-lective consciousness. Pass by our of-fice, send us an e-mail or stop by LSACouncil to make your voice heard andyour ideas listened to.

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QUID NOVI

Finals and Follies: A 1L’s Takeby Chase Barlet (LAW I)

It is November; exams commence inone month. I now find myself suscepti-ble not only to H1N1, but also to spon-taneous self-implosion. Daily I amreassured by my very knowing upper-year colleagues who, with evident glee,seek to expound upon their sagesse toinform me of the perilous fight theywaged and won during their first examseason. Truly their wisdom must knowno bounds, and I humbly absorb everyword, unable to contemplate thatsomeday I too will possess such intel-lectual clairvoyance. I imagine the viewin retrospect will someday strike me ascomical; at present, however, I find noentertainment in the vacuum of uncer-tainty in which I find myself suspended.The law remains a wondrous mistressthat I continue to fear will never give into my seduction. Despite that, however,I do have some thoughts that I havemanaged to untangle from the web ofjumbled words and ideas now lodged inmy head, no longer stuck on my mentallist of “backordered thoughts to beprocessed.”

In this article I would humbly like toshare but a few of these thoughts. I doso for the empathy of my first-yearpeers, the pleasure of upper-years, theprofessors’ and administration’s goodjudgment, and, of course, my own san-ity.

Before I begin, I propose that the mostsimple and effective remedy is to doaway with exams. “That is not reason-able,” you’re probably thinking. Admit-ted; thus I ask a question that has nodoubt been considered before, andtherefore I ask it rhetorically and askyou to humour my curiosity. To savetime, I have also rationalized and de-cided on my own answer. Why can ourprogramme not be pass/fail? Harvard,Yale and Stanford have all abandonedtheir grades. Whether they did so outof ego or common sense, I find theirdecision alluring. With the sheer num-ber of B’s given (I found and read thegrade-breakdown sheet on the wall), I

fail to see why moving to such a systemwould be difficult. Answer? Perhaps it isjust a rite of passage that I may oneday I may look back upon with fond-ness and warmth. One day. McGill Lawgrasps tightly to its traditions while stillcharging forward as a progressive, for-ward-looking institution. After all, this is“that school in Canada that broke tradi-tion to try something called the‘transsystemic programme.’” I, for one(and I imagine many of my peers wouldwhole-heartedly agree) would welcomea break from tradition in this particularinstance so as to generate a more au-thentic and genuine learning environ-ment. There is much to be said aboutlearning for the sake of learning versuscramming a summary tailored to anexam.

Still, I realistically understand that myfirst proposal may be daft and is quiteliable to objection. I doubt it would bemet by many in charge with little morethan a polite nod of acknowledgement.Therefore, although I am but a wee firstyear, I now move on to a more light-hearted list of suggestions for studyingfor my fellow that I have personallyfound pertinent these past few weeks.

First, I ignore dreams. I recommendyou do the same. It started about amonth ago. At 3:00 AM one Saturdaymorning, I awoke up in a fit of terrifiedpanic. Professor Saumier had distrib-uted a test in the middle of the semes-ter without warning. Unthinkable! Ishould have known it was a nightmare;Prof. Saumier would never refer to ourclass as “torts” in real life. Yet that Sat-urday morning, I imagined the sheerhorror of having an exam placed infront of me next to an unopenedcourse-pack I did not even know ex-isted. (If Prof. Saumier stumbles uponthis, I assure you that I do in fact read.)About two weeks ago, the seconddream hit. This time, I arrived to mycontracts exam and was stopped at thedoor by Professor Dedek who insistedmy summary be translated into German

if it were to be used on his exam. I donot speak German. Again, I should haveknown it was an implausible nightmare– the ever-stylish Prof. Dedek had beensporting a sweatshirt in my dream. Still,I freaked out. Freak-outs and exams al-ready go hand in hand; no need to baitthe line further. An aside, however: day-dreams appear safely acceptable. I re-cently imagined Professor Lamettiinforming us that he would be can-celling the exam this semester in favourof a field-trip to the Gaspé to relive hissummer vacation. (Which, Professor,you are still very, very welcome to do.)

Next, I suggest that study location is in-credibly important. To each his own, butpersonally I consider the library to bethe last place in which I’d desire to tuckmyself away. Perhaps I am merely ex-ceptionally susceptible, but in the li-brary, stress transmits more virulentlythan the swine flu. By December, I feara full-blown panic pandemic will takesiege. With no vaccination against thatcontagion, I instead prefer and dulyrecommend that you cordon yourselfoff somewhere clean where bacterialand stress germs cannot threaten you,wherever that may be. In my case, it’smy bathroom. Thanks to OCD, my tol-erance of germs, particularly in thebathroom, has turned my tile andporcelain into a testing ground for Lysoldisinfectant products. Bathrooms are al-ready impressively dull, and I havefound that by quarantining myselfthere, constitutional law becomes in-stantly more interesting without the dis-tractions of television, my computer,soft furniture, and the kitchen. Addingsome environmental guilt also goes along way as a study aid. Filling up thebathtub and then confining myself thereallows me to sweat out my stress whilerendering me stuck and focused onreading at least long enough to justifyusing that much hot water at once.

Third, the number of people presentwhen you study is also important. I ad-mittedly have the attention span of a

17 NOVEMBRE 2009

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gnat. I am both easily distracted andeasily amused. This often makes mypresence around others dangerous tothe potential success of everyone in-volved. I do, however, respond well toclear and obvious glares of conde-scending judgment. Acquiring one can-did comrade who is willing to patronize,and dragging him or her along with me(whether by force or guile) has solicitedremarkably productive results. In myenthusiasm to please, we both accom-plish quite a lot.

Finally, I balance my life; not to do sowould result in my wreaking a guaran-teed whirlwind of havoc. I prepare formy exams. I also take care of myself,work out, clean and keep my apartmentpresentable, eat well, and get enoughsleep. Until proven wrong, I will con-tinue to swear by this approach. In-deed, there are times when it is ratherfashionable to complain about being inlaw school. But life is too short and thefuture too bright to spend each momentcaught in the updrafts of stress and

worry. I’m grateful for the opportunity Ihave to be here. It is a stimulating, ex-citing, and wonderful time for all of usworth celebrating in the moment. I sup-pose, then, that in some strange way, Ishould somehow be grateful for theseexams. Eliciting that gratitude may stillrequire some real effort, and to avoid it,I instead retire to my favourite cornerto study another challenge: more law.

Reflection: Hameed Talkby Christopher Maughan (LAW II)

Considering all the recent abuses ofpower it has perpetrated in the name ofnational security, it’s sad to think thatthe U.S. can teach Canada a lessonwhen it comes to protecting the rightsof citizens.

But it’s true. Consider the followingstatute:

“Whenever it is made known to thePresident that any citizen of the UnitedStates has been unjustly deprived of hisliberty by or under the authority of anyforeign government, it shall be the dutyof the President forthwith to demand ofthat government the reasons of suchimprisonment.

“If it appears to be wrongful and in vi-olation of the rights of American citi-zenship, the President shall forthwithdemand the release of such citizen, andif the release so demanded is unrea-sonably delayed or refused, the Presi-dent shall use such means […] as hemay think necessary and proper to ob-tain or effectuate the release.”

That was Title 22, Chapter 23, Section1732 of the U.S. Code, a collection ofAmerican federal laws. How sad it isthat there doesn’t seem to be a Cana-dian equivalent.

On Wednesday night, Yavar Hameed,counsel for Abousfian Abdelrazik, re-minded students at the Faculty why we

might need one. He was at McGill tospeak out against Canada’s complicityin the unlawful detention of his client ina Sudanese prison and the govern-ment’s refusal to allow him to returnhome. Mr. Hameed’s talk was an intro-duction to the Symposium on Counter-terrorism and Civil Liberties, which willbe taking place at McGill next semester.

His client, Mr. Abdelrazik, was detainedin Sudan – without ever facing a crimi-nal charge – for the better part of sixyears. While in detention, he was re-peatedly tortured. The CSIS agents whoquestioned him even told him, “Sudanwould be his Guantanamo.”

When he was released in 2006, thegovernment opposed his repatriation atevery turn until Mr. Hameed and hislegal team convinced Federal Courtjudge Russel Zinn to order his return. Ina stinging indictment of Canadian andinternational security policy, Justice Zinncompared Mr. Abdelrazik’s ordeal to ascene from Franz Kafka’s The Trial.

“It’s an apt analogy because once youare branded, once you fall under thisnet of suspicion [of terrorism], it’s up toyou as an individual to prove to thegeneral public that you are not deserv-ing of that title,” Mr. Hameed told stu-dents last Wednesday.

Mr. Abdelrazik is a recent addition to agrowing list of Canadians who have

been, in one way or another, aban-doned by their government overseas.This list includes Maher Arar, AhmadAbou El-Maati, Omar Khadr, and SuaadHagi Mohamud, among others.

“There is deliberate political maneuver-ing to deny rights to Canadian citizens,and to be clear, these are Canadians ofa different background, a different reli-gion, and a different colour. And I don’tthink it’s inappropriate or mistaken tosay that this is the enforcement of asecond tier of citizenship,” said Mr.Hameed.

Those are strong accusations. But giventhe government’s persistent refusals torepatriate Mr. Abdelrazik, even after hewas cleared of any wrongdoing, as wellas the irresponsible statements fromthe director of CSIS accusing him ofbeing a media opportunist, it’s clearthat Canada’s national security policy isindeed highly politicized.

The solutions to this problem are multi-faceted, complex, and often very con-tentious. But Mr. Hameed made a fewsuggestions that are – at the very least– hard to disagree with.

One of them was that Canada shouldcreate a national security oversightbody with the power to make bindingorders. The Security and IntelligenceReview Committee oversees CSIS, butit has no teeth – Mr. Hameed explained

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“NOTIONS OF CITIZENSHIP” ColumnAn Initiative of the Black Law Students’ Association at McGill

This year the Black Law Students’ Association at McGill (BLSAM) has chosen to focus on the theme “Notions of Citizen-ship”. One of our goals this year is to generate discussion amongst law students about what it means to be a citizen. Tofurther this objective, we decided to start a Quid column. This is an inclusive column, designed to illuminate important,yet often overlooked issues. We look forward to a rich and diverse selection of articles!

Si vous avez un article ou une définition intéressante sur la notion de citoyenneté à soumettre, veuillez nous envoyer uncourriel à blsa.law@mail.mcgill.ca. (Les articles soumis directement au Quid n'apparaîtront pas dans la rubrique deBLSAM). De plus, l’article publié dans le Quid sera disponible sur notre site-web: www.blsam.mcgill.ca. Ce projet dépendde votre participation!

BLSAM Executive 2009 -2010

that as the law stands today, CSIS isunder no obligation to follow the Re-view Committee’s recommendations.This has to change.

Mr. Hameed also called for greateropenness during Review Committeehearings. As it stands now, CSIS agentsbeing cross-examined can request toanswer questions in camera wheneverthey see fit. Mr. Hameed said that achange to that rule might lead togreater accountability.

Finally, he took the view that Canadian

courts must be prepared to recognizeCharter application overseas, even de-spite the recent decisions in R. v. Hapeand He took the view that those deci-sions could be distinguished on theirfacts from an Omar Khadr-type situa-tion.

“When you have a Canadian citizen in aforeign territory being questioned byCanadian state agents, and he is clearlysubject to an interrogation which is inthe full power of Canadians to direct… ifthat interrogation is in and of itselffound to be coercive interrogation or

torture, it would be absurd not to allowthe application of the Charter in thatcontext,” he said.

Last week, some of Canada’s top con-stitutional lawyers were at the SupremeCourt, arguing that the Charter de-mands Omar Khadr’s repatriation. Let’shope the Court shares Mr. Hameed’sperspective.

Si, se puede.by Mina Chamsi (LAW II)

“Pourquoi le droit? Pourquoi pas l’édu-cation?” m’avait-on demandé lors demon entrevue en droit. J’avais déjà uneidée de la réponse : mon expérience auChili me l’a confirmée.

Somehow overwhelmed by my first yearof law school and exhausted by thewhirlwind of finals, that particular ques-tion asked during my interview wasconstantly on my mind. I was startingto question my career choice. However,there was one thing I was sure of: Iwanted to spend my summer outside ofthe law field. So, I packed my bags andwent to the South Hemisphere, as avolunteer teacher for the Chilean Min-istry of Education. At the time, I wasonly conscious of my desire for evasion;and the good deed I was about to ac-complish: what is more gratifying thanhelping others, especially young kids?

The irony of it all? I came back with an

increased interest for the promotion ofeducation, but an even greater respectfor Law and a renowned enthusiasm forwhat I hope will be my future profes-sion: lawyer. The uncertainty waswashed away. I went to Chile to teach,but it was I who learned the greatestlesson. This is the story of my summerjourney.

In Santiago, it was shocking to noticethe difference between the neighbour-hood where my school was and thecentre of the city. The MINEDUC (Min-isterio de Educacion de Chile) hadplaced me in what they call the mostdangerous and the poorest area of thecapital, La Pintana. The very first day Iwent to my host family’s house, my pre-occupied Chilean mom tried to figureout a safe way for me to get to myschool and sought the neighbour’s help.Even though we lived in the area rightnext to it, nobody knew which bus to

take to get to La Pintana.

So far, I was already frightened by thedangerous reputation of the area beforeeven putting my feet on its soil. Thefirst thing I was told when I got to myschool was their reassurance that I wassafe as long as I was inside the prop-erty. The principal was already gratefulfor a work I hadn’t done yet, telling meit was a great gift I was courageouslygiving to her students, who were all“amorcitos”.

Amorcitos they were. They were willingto give the little they had. They ac-knowledged and valued the smallestthings. They wouldn’t communicatetheir fears and problems, but would lis-ten to a foreigner’s moral lessons.

Por que? Ils ne comprenaient pas la rai-son pour laquelle on était là. La pre-mière fois que je fus présentée à ma

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première classe, la réaction des adoles-cents me fit penser à celle d’un étudi-ant de Georges-Vanier alors qu’onexpliquait notre visite dans le cadre duprogramme de High School Outreach. «Ouais, c’est parce que le monde de GVfont ben dur et vont pas loin dans lavie! » À l’autre bout du continent, ils medemandaient à quoi servait d’apprendrel’anglais alors qu’ils n’avaient même pasles moyens d’aller à l’université, et sedemandaient pourquoi ils envoyaientdes bénévoles à leur école, au lieu d’in-vestir de l’argent dans leur quartier.

Humildad. Humilité. Ces étudiants quiécrivaient des cartes pour me remercierd’avoir pris une simple photo avec eux.Qui avaient organisé une fête pour nousremercier de notre présence. Qui es-sayaient d’exprimer leur reconnaissanceen anglais. Qui arrivaient à temps auxcours, même après avoir travaillé toutela nuit. Qui revenaient la tête hautemais les pieds sur terre après avoir rem-porté des concours régionaux. Quichantaient des chansons folkloriques etles dansaient pour partager leur culture.Qui accueillaient à bras ouverts des je-unes Canadiens de leur âge (qui avaientle privilège d’explorer le Chile, un paysdont la majorité d’entre eux n’avaientpas l’opportunité de visiter plus loin queSantiago) en leur expliquant le conflitdes gangs dans leur quartier et l’éven-tualité qu’ils en fassent partie.

Gracias por venir hasta el fin delmundo. Ils m’exprimaient leur gratitudetous les jours. Ils ignoraient à quel pointj’étais reconnaissante. Que j’avais ap-pris d’eux beaucoup plus que ce quej’essayais d’enseigner. Que j’étais in-spirée par leur dévouement et leursincérité dans la lutte silencieuse qu’ilsmenaient contre l’étiquette qui leur étaitapposée, contre la pauvreté à laquelleleurs parents étaient acculés, contre lesdangers qui guettaient leurs meilleursamis, contre la menace que constitu-aient la drogue et l’alcoolisme. Et jevoulais m’engager dans leur lutte paci-fique contre les préjugés auxquels ilsfaisaient face. Auprès de ma voisinedont les deux fils bénéficiaient d’uneéducation dans un des meilleurs étab-lissements de la ville et de coursd’anglais privés, et qui pourtant pas-saient le plus clair de leur temps à «

Facebokar ». Auprès de ma sœur d’ac-cueil à laquelle je racontais les exploitsde mes étudiants et les concours qu’ilsavaient gagnés. Auprès d’un avocat quivoulait me montrer les quartiers « lesplus européens » de sa ville. Auprès desconducteurs de collectivo et des pas-sagers d’autobus à qui je parlais demon école et de ses étudiants et expli-quais comment s’y rendre.

Asi es la vida. J’apprenais tous les joursdu combat quotidien qu’ils mènent con-tre les circonstances dans lesquelles ilsont grandi. L’hiver, le soleil se couchevers 17h30 à Santiago. Heure avantlaquelle tous les étudiants de l’écoledoivent être entrés à la maison. Excep-tion pour ceux qui doivent travaillerjusqu’à 10h du soir pour payer leur lo-gement. Juste avant les vacancesd’hiver, il y a une tradition qui veut queles étudiants aient un « carrete » où nese dansent que le reggeaton et lacumba, une fête aux allures de dis-cothèque. À la Pintana, elle doit se fairedans la cafétéria, car il n’y a pas degymnase, et en plein après-midi, car onne veut pas se faire agresser ou tuer ensortant la nuit. Les vitres couvertes pardu papier pour donner un semblant del’ambiance désirée et les tables àmanger tassées d’un côté pour donnerplus d’espace, on dansait. Un « carrete» qui n’avait rien à voir au party de finde session de l’école de ma sœur d’ac-cueil, fête à laquelle j’étais conviée,dans un gymnase avec des colonnes demarbre, deux DJs et deux groupes dedanseurs qui offraient un spectacle hauten couleurs et en lumières, jusqu’ auplein milieu de la nuit. Pourtant, elleavait le même âge et la même passionpour le reggeaton que mes élèves.

Ten cuidado. Be careful. One day afterschool, I went against my Chileanmom’s advice and decided to visit LaPintana with one of my students, to seemore of her neighbourhood. We onlywalked to the mall and the empty park.She told me she didn’t want me “to seethe ugly Santiago.” And, yet, it was oneof the most beautiful sights I had seenin Santiago. The deep eyes throughwhich so many stories could be told, aschool principal fondly hugging her stu-dents, and gorgeous snow tippedmountains that weren’t hidden by any

building. In fact, when I was askedwhat was the image I had of Santiago,I would spontaneously say “La Pintana.”

Que imagen se va a llevar de mi pais?C'était le meilleur ami de ma mère chili-enne qui m’avait demandé l’image quej’avais de son pays lorsqu’il était venupartager un repas avec nous. Élégam-ment vêtu, il parlait fièrement de l’em-ploi qu’il occupait dans sa jeunesse etdes cours de salsa qu’il donnait aupar-avant. Avant de quitter Santiago, je lerevis. Cette fois-ci, il vint avec son uni-forme de travail, une mine épuisée et latête couverte par une tuque en laine. «Je suis désolé que tu me voies dans untel état », me dit-il tristement en metendant les livres qu’il m’avait offerts. «Que tu te souviennes de moi à traversla littérature de mon pays, qui racontel’histoire que mon peuple a connue etle courage qu’il eu pour se relever. Rap-pelle-toi toujours de mes paroles devieux : La vida es una lucha. »

Effectivement, la vie est une lutte. Pourmoi-même et pour les autres.

The law student’s struggle against sleepwhen papers need to be written anddeadline met; or even something as in-significant as the struggle against thetemptation to log on Facebook during alecture.But I’ve also learned there arethose struggles one also has to lead forothers: for the child who died behindhis house by street gangs gunshots, forthe pregnant teenage girl who wantedto finish school and be a teacher, for theyoung man who wants to hold hisboyfriend’s hand on the street withoutfear, for the jobless single mom whoonly has 20 dollars a month to feed herchildren, for the 52 year old Peruvianjanitor who works 6 days a week butfaces discrimination 24/7, for the Ma-puche (indigenous) grandfather whohas to sell his belongings on the streetto survive. Quand je pense à ces luttesqui restent à mener, je me rappelle desmots de Paula, une étudiante de La Pin-tana, quand elle pratiquait son discourssur Stephen Hawkins pour le concoursd’anglais : « Si, se puede. »

And when I think of my interview, andone of the only questions I can recall, Iremember what my Chilean friend told

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me before leaving the country: “You’veseen a lot as a teacher. Next time, comeback as a lawyer, you’ll have morepower to fight against the injusticesyou’ve seen.” Si, se puede, diraientPaula et les autres enfants de la Pin-tana.

I might never go back to Chile as alawyer, but if this summer taught meanything is that l didn’t make a mistakeby choosing law over any other profes-sion. Life as a law student is never easy,codes and jurisprudence are sometimeshard to decipher, papers don’t writethemselves and coursepacks are heavy,but I believe the reward will be worthall the trouble. As future lawyers, weget the best tool to fight for our convic-tions: knowledge of the law and the ap-titude to work towards its improvement,be it in education or any other field ofour society. My work in Chile helped merealize that education lies in the heartof the law, that the principles and themechanisms of law make it possible foreducation to be fair and accessible toeveryone. That law doesn’t only rest inthe coursepacks I had been reading andsummarizing, but in the interaction be-tween different actors who seek tomeet the goal of justice and fairness.

À la fin de mon séjour, j’avais une plusgrande soif d’apprendre, et de saisirl’opportunité que j’avais de m’impliquerdavantage, privilégiée de l’éducation ju-ridique que m’offrait la Faculté. J’avaisl’intention de m’évader du droit. Mais,aussi loin que ce voyage m’ait menée, ilm’a ramenée à la raison même pourlaquelle j’avais choisi ce domaine.

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Reflections on a trip to theSupreme Court of Canada

by Marya Sawaf (LAW II)

This article has three purposes: 1) Tobriefly update you on the Khadr pro-ceedings at the Supreme Court ofCanada; 2) to encourage you to attenda hearing of particular interest to you(regardless of how many classes youhave that day!); and 3) to reflect on ahuman instinct towards moral justicethat comprises a logic which the Courtstruggled to translate into legal terms.

On Friday, November 13th, theSupreme Court of Canada heard PrimeMinister of Canada v. Khadr. The issuebefore the Court was whether theCrown had a legal duty to request therepatriation of Omar Khadr, a Canadiancitizen detained by the American gov-ernment in Guantanamo. This duty wasrecognized at trial and affirmed by theFederal Court of Appeal. The SupremeCourt hearing lasted five hours, wherecounsels for the Crown, Khadr and nu-merous prominent interveners includingAmnesty International and the B.C. CivilLiberties, passionately presented theirmost compelling arguments for therecognition/denial of the government’spositive duty to request repatriation.

The Muslim Law Student Association(MLSA) organized a trip to attend thehearing in Ottawa. For many of us, itwas the first time in a courtroom. Forall of us, the Khadr case was of deeppersonal interest. There is much to sayabout this amazing experience that Iwill not address here. As I write this, Iam still awed by the powerfulness ofthe law and its impact on issues I careabout most. To think I was presentamongst Canada’s most brilliant minds(judges, academics and lawyers alike)engaging with an issue that has beendebated for many years, is both hum-bling and inspiring. I strongly urge eachand every one of you to find an issuethat interests you the most and attenda related hearing at the Supreme Court.You will not be disappointed.

Now moving to my last point: I will

mention an aspect of the case thatmost of you have likely not put muchthought into. Essentially, there weretwo arguments for imposing a duty torequest Khadr’s repatriation that in-volved a s.7 Charter breach. The firstbreach required that there exist a posi-tive duty on the government to make adiplomatic request, thus impeding itsability to deal with foreign countries. Weall know how courts feel about imposingpositive duties, especially on the gov-ernment (which would otherwise find it-self drowning in lawsuits). Thisreluctance is also exacerbated by thefact that the positive duty would be im-posed in an area where the executivehas traditionally had a great amount ofdiscretion—foreign affairs. There isprecedent for imposing positive dutiesin Canada, but it is certainly a difficultcase to make.

The second argument framed thebreach in a way the law is more com-fortable with: reparation of harm. In2003 and 2004, the Canadian SecurityIntelligence Service (CSIS) and the De-partment of Foreign Affairs and Inter-national Trade (DFAIT) interviewedKhadr at the prison at Guantánamo Bay.Thus, the argument went, the Canadiangovernment was complicit to tactics ofsleep-deprivation used against the vic-tim, and interfered with Khadr’s s.7right to personal security. The remedygranted by the trial judge and upheldby the Federal Court of Appeal based ons.24(1) Charter ordered the govern-ment to request repatriation.

On appeal, the link between the partic-ular breach and the remedy madeposed a serious issue for the SupremeCourt judges. Although a discretionaryremedy, judges granting remediesunder s.24(1) must still consider gen-eral principles of law and respect theauthority of the executive branch. Thefirst two courts justified the impositionof a duty by the “particular” and “un-usual” circumstances of the case. This

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is just another way of saying that thegovernment’s actions were so repre-hensible that the unusual remedy,which for all practical purposes wouldimpose a positive duty to repatriate,was justified.

However, a strict application of the prin-ciple of compensation, which underliesthe conception of remedies, would ar-rive to a different result. How would re-questing repatriation really correct thetorture that was done over four yearsago? Also, the U.S. retains the right torefuse Canada’s request, so is this rem-edy truly effective in addressing theharm done? Despite these real concernsabout connection and effectiveness, ourinstincts scream, “yes”. This questionwould never have even occurred tomost of us because socially, we operatewith a different logic. You borrow mylaptop charger, and take me out for cof-

fee to show your gratitude. I share myclass notes with you, you bake mecookies. Your boyfriend buys you a shirtlabeled a size larger than the rest ofyour wardrobe (it fits you perfectly),and apologizes to you over dinner at afancy restaurant (where you order atriple chocolate cheesecake).

So it makes sense, right? Maybe. Andmaybe that is why s.24(1) is couched insuch discretionary terms. And maybethat is why the Supreme Court ofCanada will uphold the prior judgments.But maybe it won’t, and maybe it willrefuse to impose a positive duty torepatriate. Our human instincts wouldjustify almost any court order in favorof a Canadian citizen who was torturedabroad as a child (and I realize thiswording casts all of those who don’tsympathize with Mr. Khadr outside ofthe circle of humanity… you heartless

hadeans). After all, the least the gov-ernment can do is simply ask for repa-triation, right? The government hasbehaved so wrongfully by taking part inthose interviews, that it should repay inwhatever unrelated form. It is easy toget worked up by the particularly sym-pathetic cause of Mr. Khadr and losesight of the fact that moral outragedoes not necessarily make good legalargument. The instinctive logic whichwe are so familiar with in our social in-teractions is not easily translated intolegal terms. The law requires a muchmore precise and direct relationship be-tween harm and remedy. It’s Mr. Pre-dictability and Mr. Fairness battling it outagain, this time, however, it is outsideof Foundations and inside the SupremeCourt of Canada.

Editorial continued from p.2

It is really unfortunate that there aren’tmore occasions in which we get to dis-cover the hidden talents of our class-mates. Sure we have SkitNite and LawSchool of Rock, but making an aca-demic presentation enjoyable raisesLegal Meth attendance and allows morestudents to showcase their talent, es-pecially those who might not exhibittheir talents otherwise.

On that note, I thank my fellow class-mates for the laughs and giggles, andwish them the best of luck on their as-signment!

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