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1 McGILL UNIVERSITY FACULTY OF LAW January 31, 1-4-~------....,.. Vol. XII, No.~ _________u_ N_I_V_E_R_S_I_T_E_M_c_G_IL_L_F_A_c_u_L_T_E_D_E_D_R_O_I_T_ _Ie_ 3_1_j_an_v_i_e +-o:~~ u· iVERSiTY OVIDE MERCREDI: OU L' ART DE CREUSE 6 1992 SA PROPRE TOMBE LA. LIB 1 ... I Par Martin-Pierre Boulianne, BCL I calme et la tolerance car, en definitive, les Le probleme de telles declarations, c' est Amerindiens meritaient sans doute qu, elles contribuent a elargir le fosse Cette semaine de la Saint-Valentin 1992 reparation pour toutes les injustices dont entre Amerindiens et Blancs et qu' elles n' aura certain eme n t pas ete marquee par ils furent viclimes au fil des epoques. risquent de conduire, non pas a une la reconciliation entre Blancs et simple impasse, mais bien au ne veritable a Amerindiens; elle aura plutot contribue Toutefois, la demiere frasque du chef des guerre raciale entre deux minorites: les plonger ces deux solitudes dans un cui Premieres nations, Ovide Mercredi, a Amerindiens et les Quebecois. de-sac de plus en plus profond, les rap rompu J'equilibre. Les propos qu'il a D'ailleurs, dans un recent editorial, prochant davantage du divorce. tenus lors de la conference constitution Claude Masson ( «Blancs et Indiens: at nelle de Toronto et lors de la commission tention al a guerre raciale» La Presse [de a Les crises amerindiennes de Kanesatake parlementaire ft Quebec ont mis le feu Montreal] (13 fevrier 1992) Cahier B la et de Kahnawake n'ont certes pas con aux poudrcs. De maniere insultante et p.2) resumait de fa~on eloquente tribue ar edorer 1, image des Amerindiens outranciere, il a ni plus ni moins refuse I' opinion que le Quebecois moyen est en aupres des Quebecois. Cet ete de 1990 a aux Quebecois ce droit a train de se forger: laisse a ces demiers un gout tres amer, I· aulOdetermination et cette surtout si on y ajoute 1' echec de 1' accord caractt~ristique de peuple que lui-meme «A bien y penser, les Blancs devraient du lac Meech provoque en partie par le reclame au nom des nations accepter de ceder le territoire quebecois depute autochtone Elijial1 Harper. On amerindiennes. aux Indiens pour occuper ensuite leurs a persista, malgre tout, faire appel au reserves. Suite a la page 3 NOTE-WRITING: THE FORGOTTEN ART By some Law-Journal People 1l1e McGill Law Journal and t11e Facully DANS CE NUMERO (Jean-Paul Poitras, Matt Taylor & of Law are looking for a team of 5 stu IN THIS ISSUE Sivan Fox) dents to research and write a «Note» to be submitted to t11e Law Journal for publica tion in t11e fourth issue of Volume 38. Annonces ... p. 2 Are you interested in doing an independ Modelled on the student-written «Notes» ent research project but still searching for published in the Harvard Law Review, Editorial Note ... page 2 a compelling topic? Are you tempted by t11e Note will be an in-dept11 study of a the team-oriented work of the McGill single topic presented in an article of 75- Law Journal but deterred by the two-year 150 Journal-size pages. ll1is will be (Ul Importance of Footnotes ... p. 4 commitment or the strictly editorial na intensive project and students will need ture of the work? If so, we have a project to work as a tecun in planning, organizing Canada's Refugee System ... p. 5 for the 1992-93 year which may interest and developing the paper while, at U1e you. same time, researching a portion of the A Comment on Torts ... page 6 paper on U1eir own. Cont'd on p.3 -- -- ,- - . - --- - -- - . I 2 I I ANNOUNCEMENTS-ANNONCES ".,' - CTI and fill out an application fonn at U1e Position of Assistant to the Director, U"> ID Student Affairs Office. These fonns First-Year Legal Methodology Pro ',<_T C-TI should be returned to tl1e SAO no later gramme-Students who are interested in 0 0 tl1an Friday, March 13. Students who applying for the position of Assistant to (") wish to obtain furtl1er infonnatio nabout the Director of the First Year Legal tl1e tutorial programme and the credits Methodology Programme for the 1992- awarded are asked to see Prof. Patrick 93 academic year are requested to submit Healy, tl1e current Director of tl1e Legal an applicatio nletter along wi tb a curricu MeU10dology Programme, or J ulia E. lum vitae to Prof. Patrick Healy no later Fa111991 -92 Term Papers and Essays Hanigsberg, tl1e current Assistant to the Umn Friday, March 13. Students who -S.A.O. still has a lot of unclaimed tenn Director (1st-year programme). wish to obtain further information about papers and essays from the Fall. To save the position should contact Prof. Healyor us the trouble of archiving them, please Position of Assistant to the Director, J ulia E. Hanigsberg, who currently holds pick yours up before the end of this week. Second-Year Methodology Pro t11e position. They will NOT be mailed out. This gramme-Students who are interested in notice does not apply to those hapless applying for tl1e position of Assistant to Legal Theory Workshop - On Friday souls who wrote papers for Prof. Cotler tl1e Director, Second-Year Legal Metll March 6th at 12h00 in room 202, Prof. (Civil Liberties), Prof. Janda (Business odology Programme for the academic Richard Winfield (Georgia) will give a Associations), Prof. Malaurie, Prof. year 1992-93 are requested to submit an talk on the topic of: «The Rule of Law, Johnson or Prof. H.P. Glenn. application letter along witl1 a curriculum Political Theory». vitae to Prof. Patrick Healy no later than Position of Tutorial Leader, Legal Fri<k1y, March 13. Students who wish to Methodology Programme - Students obtain furU1er infonnatio nabout the who are interested in applying for a posi position should contact Prof. Patrick tion of tutorial leader with the Legal Hea.ly or Marvin Shahin, who currently Methodology Programme for the 1992- holds U1e position. 93 academic year are requested to pick up EDITORIAL NOTE contracts and torts and maybe not about property. What it really comes ll1e Valentine issue of the Quid down to is tl1e unashamed pursuit of raises some serious questions about sex, titilation and cheap relation the nature of law school education, ships. Who would have thought that which must be addressed ....N OW! Obligations I is really a cut rate dat It is apparent, given tl1e 18 pages of ing service? What does lien de droit lust in that issue- U1e largest issue really mean? And what about seizin ever- U1atlaw school and sex are and servitudes? These questions more closely related tl1an is now must be answered. Please send your generally t110ught by most legal phi U10ughts to U1e Editorial Board, with losophers. Law school is not about a brief description of yourself and a colour photo. 3 Ovide Mercredi. .. Note-Writing. .. This is a topic that raises important theo suite de la page 1 Cont'd from page 1 retical and practical questions in many different areas of the law. Students with Ainsi, les Blancs beneticieraient d'un ll1is is an ambitious project. If the team interests in criminal, family, constitu boni de 300 $ d'Hydro-Qu~bec; ils au is to have the article published in the tional, and administrative law will find raient droit a des programmes de soutien Journal, they must produce an article of tl1is topic particularly interesting. Of financier tres g~n~reux dans 1' ensemble academic quality. Thus, while two pro course, an essential aspect of participat du r~seau de 1' Education; ils pourraient fessors will be supervising the project, ing in this project will be helping to boire et fumer a peu de frais; ils pour tl1e responsibility for its outcome will fall define its scope and direction. Ulti raient pecher et chasser librement; ils squarely on the students. The exciting mately, the bounds of the project will be recevraient de g~n~reuses subventions part of tl1is project is the idea tl1at a group defined by the imaginations of those pour contester les proj ets et d~isions des of McGill students can work togetl1er to involved. gouvemements conune Grande-Baleine; produce a piece of work that none could ,I leur pleine s~urit~ serait assur~e aux accomplish alone. The challenge will be Particulars: 0\ entrres et aux sorties des r~serves par les to pull it off. barricades erigees; isl n'auraient plus This year, the project will be supervised besoin de travailler et se laisseraient Are you interested? by professors Healy and Harvison vivre par toutes sortes de programmes y oung. Besides serving an advisory role, d'assurance-chomage et de bien-etre This project is geared towards students professors Healy and Harvison-Young I • social. La belle vie, quoi!» who are interested in research and pos will grade the work of each student. sess effective writing skills. Students ,:ot,, Il est clair qu' un serieux malaise est en must have tl1e initiative to engage in We are looking for 3 students to complete train des' enraciner tres profondement au independent research and tl10ught and, at tl1e 5-person research team. Officially, sein de nos mentalites. Ceci montre done tl1e same time, have the flexibility and this project will be for the Fall and Winter l'urgence d'en arriver a un dialogue ci willingness to participate in group dis terms of 1992-93, but students will be vilise et la necessite, pour les cussions. Much of the project will re expected to begin independent research Arnerindiens, de cesser l' utilisation de la quire group organization, re-orientation on tl1e topic over the summer. This proj menace pour arriver aleurs fins. Il ne fa ut of research, and coordination of written ect will count as «term essay» credits for pas se leurrer: ce n 'est pas par des actions submissions. Perhaps most importantly, the Fall and Winter terms and will entitle similaires a celles d'Ovide Mercredi que we are looking for students who are tl1e student to six (6) credits (3 credits per nous trouverons une solution au committed to tl1e idea of tl1is project and term) as well as satisfying the faculty probleme car cela contribue a isoler willing to go tl1e extra mile to get it done. writing requirement. davantage le peuple autochtne de ses While participation in the project will alli~s. De plus, ceci tend a diviser les entitle each student to 6 credits and sat During the year, group meetings will be Arnerindiens entre eux puisque des isfy th~ Faculty writing requirement, held weekly or bi-weekly and students groupes, cornrne celui des Inuits, com tl1ere are definitely easier ways to obtain will be expected to participate mencent deja a se dissocier des propos 6 credits. ll1e real reward flowing from extensively in the research and writing of d'Ovide Mercredi. Chaque nouveau tl1is project will be tl1e satisfaction of tl1e paper. geste provocateur est un clou producing an article of publishable qual supplementaire enfonce dans le cercueil ity. For more information: d'une possible entente. Topic for 1992-93: An information session concerning the En tant que collectivite, nous devons etre detc'l.ils of the project will be held on prets a admettre les erreurs passees et ll1e topic that has been chosen for tl1e March 9 at 12:00 in Room 203. During presentes de nos gouvemements en ce upcoming year is an analysis of tl1e tl1is meeting tl1e application process and qui concerne les droits des Arnerindiens. Young Offenders Act. ll1e Young Of requirements will be discussed. Should Toutefois, les leaders autochtones fenders Act came into force in 1984 you have any questions about the project, doivent egalement troquer leur attitude (replacing tl1e Juvenile Delinquent Act) please feel free to contact the authors of guerriere et provocatrice pour une autre and has subsequently been tl1e subject of tl1is article at the Law Journal Office. plus civilisee et responsable pennettant much criticism, commentary and reform. la discussion, car ce n 'est que de cette fa~on que nous pourrons enfin fumer le calumet de paix. • .. 4 ONTHEIMPORTANCEOFFOOTNOTES ( choose to look at as you please (Right There are other problems with footnotes. by By Paul Brown, LLB I about now U1e water metaphor is looking TI1e abstract nature of t11e thoughts that for a nice dry, warm and quiet place to go make it into footnotes creates donfusion 1 Do yourself a favour. Stop for a to sleep). for future readers who attempt to deci moment and consider footnotes (Yes, I pher the meaning of musings that are am serious and yes, there is a point to this Forget about the references. TI1ink once devoid of context. Those people that do and no, you will not be chastised for more about footnotes (you do have to be dare put their secondary processes to being politically incorrect. This is explicit wit11 some linear readers). As I paper are also often t110se who do not merely an exercise in creative procrasti said, footnotes arc actually for U10se mind being misunderstood, labelled as nation). If you were distracted by the pcsky side issues (which seem to be «bizarre» or «psychotic» and do not mind parenthesis and didn't stop to t11ink about closer to U1e centre U1an U1e side in my getting free room and board in rooms that footnotes, good-now t11ink about foot case). It was eit11er Freud or Jung (I WAS have a slightly rubberish smell (which is notes. If you weren't, you aren't helping a psychology major - emphasis on U1e all right because you don't really smell it my argument at all, but please continue tense) who described U1e secondary proc after a while.) I have been known to thinking about footnotes. ess (I think it was Jung actually) which is booby trap term papers with my secon A. the subconscious U10ughts and often dary processes (which is acceptable in 00 Have you ever t110ught about t11e pur (always in my case) makes it difficult to the psychology faculties if they are edited pose of footnotes? (Have you ever concentrate. To illustrate: you are in for taste and are short, and do not actually B: cared?) I'll bet that t11ere is a significru1t properly class trying to concentrate on have to be to the point) as a way of percentage of readers (two out of U1e ten U1e substance of t11e lecture (just imagine releasing stress and getting revenge on who have bothered reading t11is far) who U1at...) and questions about what you are professors. Among some gifted authors would be making t11eirelementary school going to have for dinner keep intruding like Douglas Adams or Terry Pratchett., teachers proud by t11inking about refer inlo your mind after having made a brief foomotes become art forms which are the ences to other people's works to avoid stop for a conference wiU1 your stomach. funniest parts of t11eir books. plagiarizing (Good try pal...give yourself a zero for a boring answer). Those are U1e U10ughts U1at are custom Why am I writing about this? Ilamentt11e made for footnotes. You are in class fact U1at footnotes are not put in the Quid Footnotes are designed to keep a writ taking notes about U1e rule against perpe Novi. I am not complaining because I ten discussion flowing wiU1 a minimum tuities and a grocery list just starts evolv understand the frustration t11atcomputers of interference from pesky side issues ing on U1e bottom of your page (not a cause typesetters. Faced with this impos t11at continually seem to wru1t to work particularly wise U1ing to do is (a) you sibility, writers must resort to parenthe their way into its mainstream. The prob don't leave yourself much time to study ses to accomplich t11eir task. What a sad lem is that t11e sheer number of U1e for exwns <Uld just commit your class alternative. thoughts, which on special occasions notes to memory in their entirety wit11out might actually be very important, tend to processing U1eir content for relevance or Parentheses are to footnotes what a preg dam up the stream wit11 U1eir accumu (b) you intend to use U1is list at U1e gro nant pause is to maternity leave. Paren lated mass. As references also have U1is cery store and must sort Uuough ten theses are confusing (come to that con constipatory quality, convention has it pages of exrunples of U1e rule in t11e store clusion yet?) intrusive (see above com that they are exiled to t11e footnote back before you find U1e one U1at tells you to ment) and mess up t11e sentences (ditto). waters. This way, U1e writing's stream of buy U1ree boxes of Kraft Dinner [sorry Wit11 footnotes a writer can be self consciousness is not impeded by cita Pat]). indulgent and t.:'lke t11e time to get every tions which you might (or might not) tiling down, yet be discreet about it. Cont'd on page 6 Quid Nm•i is published weekly by students at red action et do it incliquer l'autcw-ou son otig Claude Rigaud Redacteurs/Editors: the Faculty of Law of McGill University. in c. Maaike de Bie, Arnold Bomstein, Alexandra 3644 Peel Street, Montreal, H3A 1W 9. Rcdactcur-cn-chef/Editor-in-chicf: Jean Gillespie. Nancy Girard, Francis Harvey, Production is made possible by support of the Philippe Gervais Dircctcur artistiquc/Ar Gregory Hood, Paul Moen, Greg Moore, Dean's office and by direct funding from the tistk Director: Michael Klcinman Di Alain Olivier, Pierre Soulard Gerants de students. Les opinions exprimees sont recteur de !'information/News Director: production/Production Managers: Paul propres a l'auteur. Toute cont1ibution n'est Michael Wilhelmson Dircctricc adminis Moen, Deni Guenette. Caroline Thomassin, ubliee u'a la discretion du comite de trative/Administrative Director: Marie- Phili Collard 5 CANADA'S REFUGEE SYSTEM: INTO THE WASTEBASKET? by Hanson Hosein, LLB Ill ants' testimonies. Notes written by daughter were claiming refugee status on members of t11e Board containing t11ese the basis of U1eir political opinions. They Incident #1: comments were found by lawyers in the lived in a part of the country where the wastebaskets in t11e hearing rooms after Shinin Path, a Maoist terrorist group, had A young refugee claimant, who had al t11e hearing. In addition to the passing of a tight grip on the population. In an effort legedly had one testicle removed and was t11ese notes by t11ese members, there was to indoctrinate the young, the Shining beaten while being held upside down and also alleged giggling when details of PaU1 forced children to attend special being burned with cigarettes, recounts torture were revealed, as well as evident classes. Failure to attend would result in his story of having hot boiled eggs placed lack of auention and sensitivity. t11reats, torture and ultimately death. under his arms during his torture. These consequences would be directed Having worked for credit for a very ca against the members of the child's fam Two inquisitors discuss the claimant's pable immigration lawyer t11is year under ily. NeiU1er the police nor the govern story. t11e Faculty's legal clinic program, I have ment was able to stop the Shining Path's had t11e opportunity to be exposed to tl1e activities. A: «Boiled eggs under arms. Hard or soft Canadian irrunigration and refugee proc boiled?>> ess. And it has become painfully obvi To avoid such persecution, the woman ous, t11at similar to any other court sys and her daughter escaped to Canada. B: «It must be the truth, no one could temn, there is a great deal of arbitrariness, Before a two-member panel, the woman make up hard-boiled eggs. Soft conjures bias and incompetence present. testified t11rough a Spanish interpreter. a worse picture to me- can you just feel One member of the panel was attentive, the oozing yolk?» ll is clear t11at such behaviour is inexcus and asked several questions. The other able. Permanent members of t11e Immi merely leafed through the evidence, Incident #2: gration <md Refugee Board are appointed looked stem and asked one not-too-bril by the federal cabinet and are paid full liant question. The testimony was con A Romanian refugee claimant testifies time salaries of between approximately sistent with prior attestations, and the that her husband was hit by a truck on a $71 000 to $84 000. It is true that some claimant was eloquent, succinct and construction site in an incident «Orches participants in the immigration process honest in her answers to questions. In the trated by the security forces to punish him eventually suffer from «COmpassion fa end, it was held t11at the claimant's fear of for his participation in activities against tigue» after hearing countless cases persecution was well-founded. The the regime»_ (approximately 30 000 last year) of dis woman's sister who had come to Canada crimination, torture and other hardships. years ago and was in attendance at the Two inquisitors discuss the claimant's It is also true t11at in an effort to take hearing broke into tears of relief at the story. advantage of Canada's social welfare outcome. My own feeling overwhelmed system, some refugee claimcmts lie about me as I shared in the family's joy. The A: «[Former Romanian dictator] Ceaus t11eir situation. However, it is one tl1ing to woman and her daughter had in effect, escu is not dead actually, be is driving a suffer from «COmpassion fatigue» and to been given the chance to start a new life. truck on a construction site.» make jokes in t11e privacy of your own They could put the years of misery and office. It is anotJ1er tJ1ing to show com terror behind them. I felt grateful that we B: «Surely one can enjoy a little fantasy plete disrespect for a potentially legiti had such a generous system. Then I read while listening to this crap.» mate claimant, who may have suffered at about the two aforementionned inci t11e hands of ot11ers or has a fear of perse dents. A: «Of course she has such a sweet cution because of his/her race, religion, smile.» nationality, membership in a social group The source of the problem may lie in the or political opinions. stucture of Canadian immigration law. A Does this sound like another case for recent occurrence illustrates this point. Amnesty International of an authoritar Such behaviour is in direct contrast to In U1at case, two brothers, both refugee ian regime's barbarianism? Unfortu some of the positive experiences tJ1at I claimants in identical situations, testified nately not. Both of these incidents re have had wiU1 t11e refugee process. In one separately. One panel ruled that one of cently occurred before separate hearings case U1at had reached t11e final level of the brothers' fear of persecution was of the Immigration and Refugee Board in appeal before being possibly taken to t11e Toronto while listening to refugee claim- Federal Court, a Peruviru1 woman and her Cont'd on page 6 -=-=-- t---~·~:::=:-:..= ---~=======;;;;~~----------------iiiiiiiiiii- 6 A COMMENT ON TORTS By Daniele MacKinnon, BCL 11 course requires more individual work Professor Somerville. and preparation. Given that we are no I enjoy taking Torts I with Professor longer in highschool.and that our 8. As a professor, Margaret Somerville Somerville. What I enjoy less is sitting exams are open book, is this really so is an empowering image for women in through lectures the aUnosphere of much to ask? the legal profession. Unlike some other which is both hostile and disrespectful. women professors, she has not adopted I am surprised and often embarrassed 4. When answering questions and a «traditional male persona» to by the reaction of students to a person responding to comments she is positive enhance her authority. Nor does she we are privileged to have as a profes and encouraging - she never makes seek to diminish her intellectual sor. Because a lot of criticism is flying anyone feel stupid. abilities (and appear less «threatening») about, I'd like to list the reasons for by resorting to coyness or flirtation. which I appreciate Professor Somer 5. She quickly identifies the analytical She is comfortable both with her ville. flaws which underly questions, femininity and her exceptional talents. pointing out where we have gone 1. She is a world-renowned expert in wrong, or that we are (m is-) applying I guess the bottom line is that whether the field of medical negligence law. civil law concepts. or not you agree with me as to Marga Negligence is the bulk of tort law. You 6. She is enthusiastic, lively and witty. ret Somerville's abilities as a professor, have to know your stuff to be an expert, nothing warrants disrespectful and and she does. 7. I personally am not unduly dis hostile behaviour. It makes the class tressed Uutt she is not correcting our unpleasant both for the professor and 2. She brings us an outside perspective exams. I have often found U1at my for other students. and shows us the practical implications exam results are not particularly of what we are learning, through the representative of my understanding of It's bad enough having to come to class example of medical negligence law. U1e course. In any case, if we are really at 8:30 in the morning - with less than surprised and unhappy wiU1 our results, half the classes remaining, could we 3. She doesn't spoonfeed us. Yes, her we ret.c'l.in U1e option of consulting wiU1 please try a little respect. Footnotes ... Cont'd from page 4 bumble bee. They attenuate the extremes will not be the topic of the writing. With Footnotes can do more. Self reference is and remove them from U1e forefront in tl1is warning unleashed, all the world is no longer a chore but is now a reflex. much U1e same way a conductor hides U1e fair game for the writer (yes yes, all is fair Ever tried footnoting a footnote? Try would-be virtuoso tuba player to U1e back in love, war and when footnotes are pres doing that with parentheses for a day. row after his song is over. The power to ent), and the readers have no right to With every footnote attached to a sepa segragate (not a dirty word in U1is con complain about lucidity and the lack rate number, it is U1e abstract U1inker' s text) is profound as U1e footnote enables thereof in tl1e writing. dream. Instant organization (now if I U1e writer to maintain his/her rhyU1m in a could ever get around to writing that case cacophony of U10ughts. Until the powers that be are able (if ever) comment). to put footnotes into the Quid I guess I'll I suppose U1at U1e biggest benefit of such just resort to tl1e lowly parenthesis to Think of footnotes as a sort of damage fooUlotes is U1at U1ey implicitly warn provide a modicum of organization to my control for writers whose U10ught paterns savvy readers U1at U1e writer's U10ughts babblings. For your sake. Not mine. (I fly much the same course as the infamous are slightly chaotic and U1at organization understand myself just fine). Refugee ... Cont'd from page 5 Tl1e issue may also be more localized. Given my limited experience in this field • reasonable, and he was consequently al The appointment procedure of U1e mem thus far, I do not feel capable of offering lowed to stay. The other panel came to bers of U1e Board may be flawed, in U1at any further analysis or solutions. How the opposite conclusion. This inconsis U1ey are all political appointees. Conse ever, irrespective of what I know, based tency strikes a blow to the reliability of quently, U1ere may be some sort of pa on what I have seen and heard, I do the system where the final decision tronage involved. More damaging how believe that Canada cannot affort to al seems to rely on the mercy of the panel ever, is U1e potential for lack of compe low such disgraceful incidents to occur. members' discretion, and not on estab tence, knowledge, and legal training U1at To deny refugee claimants an unbiased, lished systemic standards and U1resholds. is required for such a position. respectful and tl10rough audition is to ' promote a great injustice. And they de serve better.