a law school publication – vol. 3, no. 1

celebration of aboriginals in the law environmentally recalling the past – discussing the future speaking on page 6

In speaking about his personal journey — from life Justice LaForme’s keynote address was Aboriginal person to be appointed to a Superior on the reservation, to his law school experience, the highlight of Windsor Law’s Celebration Court in in 1994 and, in 2004, he became his activism in the Aboriginal rights movement, of Aboriginals in the Law held on March 15, the first Aboriginal person to be appointed to and, finally, his appointment to the Court of 2007. This event showcased the evolution of any Court of Appeal in Canada. Justice LaForme Appeal for Ontario, one theme remained constant Aboriginal lawyering in Canada and, also, featured is quite likely the first Aboriginal person to be for Justice Harry S. LaForme – always be true to presentations by Beverley Jacobs ’94, President of appointed to any appellate level court in any yourself and your ancestry. In his words: the Native Women’s Association of Canada, Jason nation in the Commonwealth. To celebrate his “…. it is vitally important for Aboriginal Maddon, the Métis National Council, and Marisha many professional successes, Windsor Law has to recall their past. We must never forget what Roman, Aboriginal Initiatives Counsel, Law created the Justice Harry S. LaForme Entrance we endured so that we can talk about the future, Society of Upper Canada. Bursary for Aboriginal Law Students which will so that we can continue with our healing, so Justice LaForme was an obvious choice to be awarded to all Aboriginal students entering that we can continue the re-evaluation deliver the keynote address. He was the first Law I upon the successful completion of the of ourselves, so that we can celebrate our Native Law Program at the University being and know who we are.” of Saskatchewan.

Continued on the back cover.

Marisha Roman Aboriginal Initiatives Counsel

Justice Harry S. LaForme Ontario Court of Appeal Beverley Jacobs ’94 inside this issue: Native Women’s Association of Canada

guest speakers lauded – p2 ..... chief justice visits windsor law – p3 ..... windsor law in collaboration – p4 new zealand tour – p4 ..... faculty focus: marcia valiante – p6 ..... access to justice a guiding principle – p8 faculty opinion: richard moon – p10 2 3 chief justice mclachlin captivates audience

something to talk about On any given day, the foyer of the law school It is not every year that Windsor Law can pride no shortage of guest speakers at windsor law is usually peppered with law students entering itself in hosting the Chief Justice of the Supreme and exiting class rooms or on their way to check Court of Canada. For many students, coming to grades posted up on the cork boards. However, at hear the Chief Justice speak was an opportunity Windsor Law was the destination of choice for Most Influential People in the World, received around 4:30 p.m. on Wednesday, January 10, 2007, of a lifetime. After the conclusion of her lecture, nearly twenty guest speakers this past academic an honourary Doctor of Laws degree from the the foyer of the Ron W. Ianni Law Building was Chief Justice McLachlin took questions from the year. The Speakers Committee of the Students’ University of Windsor in 1997. filled with over 350 law students eagerly awaiting audience, ranging from inquiries about her early , with the support of Dean Bruce Students were also treated to lectures delivered the arrival of one very special guest – the Right experiences as a member of the Bar and the British Elman, achieved unprecedented success in by the likes of Justice Konrad von Finckenstein Honourable , Beverley Columbia judiciary to questions regarding the organizing lectures and panel discussions on a of the of Canada, Howard Wetston, McLachlin, P.C. challenges she faced and continues to face as the wide variety of issues important to law students. Chair of the Ontario Energy Board, and the By invitation from the Speakers Committee of first female Chief Justice of Canada. In addition to a visit by the Chief Justice Treasurer of the Law Society of Upper Canada, the Students’ Law Society, the Chief Justice made Chief Justice Beverley McLachlin is the 17th of Canada, Beverley Gavin MacKenzie. her visit to Windsor Law to speak about “The Chief Justice of the and McLachlin, P.C., Windsor law students had plenty Windsor Law alumni played a major role in Importance of the Independence of the Bar in the is the first woman in Canadian history to sit as of opportunity to get up close and personal with the success of the Speakers Committee, as the Canadian Justice System.” Her lecture revolved Chief Justice. She hails from Pincher Creek, . some familiar names. Windsor Law Alumni Fund for the Enhancement around the need for an impartial bar, free from She obtained her law degree from the University of The Honourable , former of Student Life was a valuable source of funding outside economic, social, or political influence. Alberta. Chief Justice McLachlin went on to pursue Members of the Speakers Committee pose with former Justice of the Supreme Court of Canada, shared for the Committee. Further, returning to their alma The Chief Justice’s talk about the potential for a legal career in , first in private Justice Frank Iacobucci, from left to right: his thoughts on the recent settlement by the mater to speak to students were Windsor Mayor corruption and violence, as seen and documented practice and later, as a professor at the University with respect to Indian Eddie Francis ’02, Lorne Abony ’94, C.E.O. of Fun Rahim Punjani – Law 3 in other countries, fell on a captive audience, of British Columbia. She served on every level of Residential Schools. Justice Iacobucci was the Technologies, incoming Ontario Bar Association Zahra Binbrek – Law 2 Chief Justice Beverley McLachlin, P.C., with Students’ many, if not all, of whom had been privy to similar court before her appointment as Chief Justice and government’s representative in this settlement, President Gregory Goulin and Cynthia Heinz, of Tessie Kalogeras – Law 3 Law Society executives Matt Napier, left, and Graham discussions in their respective first year Access to is considered by some to be the “Wayne Gretzky” which was recently given court approval. Fasken Martineau DuMoulin LLP in . The Honourable Frank Iacobucci MacLeod, right. Justice classes. of the legal profession in Canada. Richard W. Pound, Chairman of the World Anti- This impressive lineup of speakers provided Ian Matthews (Chair) – Law 3 Doping Agency and a member of the International stimulating and thoughtful analysis of a number Jenine Mak – Law 3 Olympic Committee, made remarks about his of important issues. The members of the Speakers Eddie Lynde – Law 3 extensive involvement in both bodies. Mr. Pound, Committee should be congratulated for their hard Daniel Coutts – Law 2 herb gray distinguished lecture: mclellan on post 9/11 borders recently named one of Time Magazine’s 100 work and dedication. Well done! Absent – Brian Pipe – Law 1 The Faculty of Law was pleased to host this year’s In her lecture, entitled “The Border After 9/11: becoming more of a barrier. She pointed out that

FACULTY OF LAW - UNIVERSITY OF WINDSOR Herb Gray Distinguished Lecture which was How Big a Barrier to Trade?” Professor McLellan American measures such as identification cards for delivered by the Honourable A. Anne McLellan, advocated greater integration among Canada, individuals entering the United States, user fees for P.C., Distinguished Scholar in Residence at the United States, and Mexico in order to lessen Canadian air travellers, and commercial shipping the Institute for United States Policy Studies, border difficulties. fees were helping create an impression that the . Professor McLellan served “We have to start thinking about what it means border was a barrier for people who live both in Recent speakers: Chief Justice Beverley McLachlin, as the Deputy Prime Minister and the first Minister to be part of North America,” she suggested. Canada and the United States. She noted that the Justice Konrad von Finckenstein, Richard Pound, Mayor Eddie Francis ’02 and Lorne Abony ’94. of Public Safety and Emergency Preparedness from She went on to note that recent initiatives goal was to “enhance security while facilitating 01 s 02 s 03 s 04 s 05 s the December 2003 to January 2006. were creating a perception that the border was trade” and that these measures would not assist in attaining that goal. This lecture was the 3rd in the Herb Gray Distinguished Lecture Series. The lectures This year’s Bernard Cohn Memorial Lecture the book Counsel for the Defence: the Bernard Cohn focus on Canada’s place in the world and on beresh delivers cohn was delivered by Brian Beresh, Q.C. of Beresh Memorial Lectures in Criminal Law (Irwin Law those issues which define “being Canadian”. The memorial lecture Cunningham Aloneissi O’Neill Hurley Barristers 2005), edited by Edward Greenspan. series marks the university’s recognition to Mr. of , Alberta. Mr. Beresh spoke about Mr. Beresh is a well known barrister in Western Gray’s contributions to the City of Windsor, his defence in the case of The Queen v. Sheridan. Canada having appeared as counsel on the Province of Ontario, and Canada. Previous Gray In this case, Mr. Beresh was presented with the Milgaard Reference before the Supreme Court Lecturers were Dr. Lloyd Axworthy (2004) and opportunity of advancing multiple defences to of Canada in 1994 and as counsel in the Nerland Ambassador Allan Rock Q.C. (2005). murder. This would, on first blush, appear to be Inquiry in Prince Albert, Saskatchewan. The Right Honourable Herb Gray, P.C., C.C., a Defence Counsel’s dream, but, in fact, it could Mr. Beresh is an instructor at the University Q.C., LL.D. was in attendance and expressed be their worst nightmare. of Alberta, Faculty of Law, teaching courses in his pleasure at Professor McLellan’s agreeing to The Bernard Cohn Memorial Lecture is an Criminal Trial Procedure and Advocacy and deliver the 2006 lecture. Mr. Gray was born in annual event at the Faculty of Law and features an Defending the Mentally Ill. He is a Bencher of Windsor in 1931. He was elected 13 consecutive analysis by a prominent criminal defence of the . times to the House of Commons and served for one of his or her most memorable and important Mr. Beresh’s lecture was preceded by a short almost 40 years. He was appointed a Minister of cases. From the analysis, general principles of description of the life of Bernard Cohn by his the Crown in 1969 and became the first Canadian criminal law and criminal advocacy are exposed friend and colleague Justice Saul Nosanchuk. The Jew to serve in a Federal Cabinet. Mr. Gray is and examined. The Lecture Series is named after lecture is made possible by an endowment funded currently the full-time Chair of the Canadian the legendary Windsor lawyer Bernard Cohn, by the trustees: Edward Greenspan, Q.C., Harvey section of the International Joint Commission – Brian Beresh, Q.C. addresses Windsor Law on his Q. C. whose remarkable legal career spanned 52 Strosberg, Q.C., the Honourable Saul Nosanchuk, an autonomous international organization dealing most recent murder defence case. years. All of the previous lectures are captured in the Honourable Carl Zalev, and David Cohn. The Honourable A. Anne McLellan, P.C., lectures on border integration and facilitating trade post 9/11. with transborder issues of water and air.

windsor law now ­– spring 2007 windsor law now ­– spring 2007 4 5

windsor law in collaboration [ ] highlighting windsor law’s co-operative ventures

new exchange with brandeis school of law videoconferencing – the best of both worlds

Dean Bruce Elman recently inaugurated a new, While at Louisville, Dean Elman had discussions Law students at the University of Windsor and Society. MacLeod, who was on a waiting list for although as yet informal, Exchange Program with with Dean Jim Chen and Professors Russell the are getting a taste of the course, said the Faculty of Law is fortunate the Louis D. Brandeis School of Law at the Weaver and Tony Arnold regarding formalizing each other’s professoriate through an innovative to have an effective technical group to support University of Louisville. and extending the Exchange Program. curriculum-sharing program, which uses the program. “And we’re very fortunate to have During his visit to the Brandeis School of Law, “We are beginning with short-term, one week videoconferencing technology to bridge the 900- Dean Elman delivered both a public lecture and a professorial exchanges, but I would like to see kilometre distance between the two schools. faculty seminar on “Hate Speech: The Canadian us extend the program to include jointly offered Windsor law students take a course in Approach”. In his public lecture, Dean Elman courses that would bring the students of our two communication law via videoconferencing, and in “I find it very invigorating discussed the general state of the law on freedom schools together electronically and in person, as exchange, Ottawa students learn about class action and challenging to teach of expression in Canada. He utilized the example well as through individual student exchanges,” lawsuits from Windsor’s renowned litigator and this way.” of hate speech to provide an illustration of how Dean Elman stated. adjunct professor, Harvey Strosberg DCL ’03. the Canadian law on freedom of expression had Professor John Cross of the Louisville faculty “I find it very invigorating and challenging Harvey Strosberg DCL ’03 developed. Dean Elman’s faculty seminar was will pay a reciprocal visit to Windsor in October. that we’re doing it this way,” said Strosberg. “In more directly focused on hate speech. Professor Cross specializes in Intellectual Property specialized areas, it’s very useful and very efficient.” “I was very pleased with the discussion. There and Native American Law. While Strosberg or his teaching partner were a number of First Amendment scholars “We are very happy that Professor Cross will David Robins ’97 lecture in the University of present and they were very open to thinking be visiting with us in the Fall semester,” said Windsor’s Ron W. Ianni Faculty of Law building, Professors Strosberg and Robins.” from the University of Windsor in 2003. David about the Canadian approach to hate speech as Dean Elman. the session is recorded and beamed in real-time Strosberg is best known for his involvement in Robins also practices law at Sutts, Strosberg. an alternative to the more absolutist view of free LtoR: Professor John Cross and Professor Russell via broadband private network Internet connection the 1999 $1.5 billion class action lawsuit against Bruce Elman, Dean of Law, is an enthusiastic speech which they have in the United States,” Weaver from the University of Louisville meet with to students in a classroom at the University the federal and provincial governments in the supporter of the program and said it enables Dean Elman noted. Dean Bruce Elman. of Ottawa. Students in Ottawa can participate wake of the Canadian Red Cross tainted blood law students to broaden their educational in real-time discussion and ask questions, and scandal, in which some 60,000 people were horizons. “Obviously it provides students with a lecturers have the ability to deliver multimedia infected with Hepatitis C. He is a senior partner at wider curriculum, but it also makes for a cross- presentations, such as PowerPoint slide shows or Sutts, Strosberg, LLP and has extensive trial and fertilization of ideas among students that wouldn’t new zealand symposium and tour movies in DVD format. appellate experience in the areas of negligence, normally be possible,” he added. “The great benefit “I’ve been very impressed by it all,” said Graham personal injury, product liability, insurance law, of this arrangement is that students can learn from How many times have you said to yourself that matching grants from the Law Foundation of MacLeod, a third-year law student and president commercial disputes and class action. Strosberg professors who are truly experts in their area.” one day you would love to visit New Zealand? Ontario and the New Zealand Law Foundation. of the University of Windsor’s Students’ Law received an Honorary Doctor of Civil Laws Now Windsor Law has teamed together with the Another first, following the symposium, is a University of Auckland and Pacesetter Travel to fourteen day alumni tour of New Zealand. Dean make that dream come true. Read on! Bruce Elman and his wife Nancy, and former wayne/windsor forum revived On November 16, 2007 over twenty world- dean Jeff Berryman and his wife Carol, will lead renown experts in the area of the law of remedies a tour through the splendid scenery of clean and A number of years ago the law schools at Windsor strongest bilateral relationships in the world Locally: Protecting the Environment by Managing will gather in Auckland, New Zealand to engage green New Zealand. Designed around a November and Wayne State University established an annual and a history of co-operation and diplomacy on Sprawl.” It addressed how sprawl, that is, in a lively symposium on remedies issues in 12th departure, returning fourteen days later, the lecture series known as the Wayne/Windsor environmental matters, there has been a number of development at the edge of cities that outpaces the main Common Law jurisdictions of the tour will take in the highlights of New Zealand Forum. Each year, two professors, one from each recent failures to resolve U.S./Canadian pollution population growth, is an environmental issue that, Commonwealth. The conference is designed to in a leisurely and semi-independent pace giving institution, were asked to examine a given topic disputes. As a result, environmental advocates among other things, affects water quality in the find the common bonds in domestic law among ample opportunity to experience the country. We from a Canadian and American perspective. After have had to look to domestic litigation in the U.S. Great Lakes. The presentation also addressed Canada, Australia, New Zealand, the United have negotiated a very competitive cost for all a hiatus of many years, the forum was reinstituted courts to vindicate their rights. some of the ways governments, particularly Kingdom, and the United States. The symposium travel and accommodation, including some meals. during the Winter semester of 2007. The focus Windsor Law Professor Marcia Valiante Ontario, are trying to contain these problems. should appeal to lawyers, judges, academics and If a chance to enjoy remarkable wines and of this year’s forum was, most appropriately, on delivered the companion lecture at the Wayne Choosing an environmental law topic to other policy makers, who wish to delve more gourmet food, play golf, hike, bungee jump, swim environmental law issues. State University Law School. Professor Valiante revitalize the Wayne/Windsor Forum was deeply into how remedial issues shape rights, and in natural thermal pools, or other recreational Professor Noah Hall, of Wayne State specializes in environmental law and conducts particularly appropriate since Professors Hall to those desiring to understand what issues will pursuits, thrown together with good company, and University, whose research concentrates on issues research in the areas of Canadian environmental and Valiante worked together to create a course shape future developments in the law of remedies an educational and cultural experience appeals, of environmental governance, federalism and law and policy, water rights, the Great Lakes on Canada/U.S. Environmental Law. Students across the globe. then make sure to visit: transboundary pollution, delivered a public lecture and planning issues. Professor Valiante is active from both law schools met together for every The one-day conference is the first ever joint www.uwindsor.ca/law/remedies at Windsor Law, entitled, “Bilateral Breakdown: in the community on the clean-up of the Detroit class, about half the time in Windsor and half in undertaking between the faculties of law at and check out details for the first ever University Going to Court over U.S./Canadian Pollution River and is a member of the International Joint Detroit, to study comparative environmental law the University of Windsor and the University of Windsor Alumni and Friends Tour. Disputes.” Professor Hall noted that, even though Commissions Great Lakes Science Advisory in addition to some binational concerns such as of Auckland, and is being sponsored through Canada and the United States have one of the Board. Her presentation was entitled, “Acting the Great Lakes.

windsor law now ­– spring 2007 windsor law now ­– spring 2007 6 7 These days, the environment couldn’t be a I wanted to work in a field where I thought I clues. It’s only when our child develops asthma more intensely discussed topic: news reports, could contribute something. or a certain allergy, for example, that we might documentaries, and political rhetoric mix wonder about the pesticides we’re putting on our with scientific declarations to form what has What in your opinion should be the top lawn. Our reaction, in turn, spills out in to the eansor & lafrenière awarded grant created the dawning of a new era of social environmental priorities of Canada’s government media and gets some attention from politicians. discourse and global awareness on these oft- at this point? So it can be cyclical. But the pace of change is seemingly daunting issues. So how do we Well, right at the moment, climate change, water definitely slow: Canada promised to stabilize its digest all that is going on around us on this quality, and smog. But, you know, it’s not simply emissions in 1992. And yet now, with respect Q&A topic of truly epic proportions? And can we those things; it should also be urban planning to the Kyoto Protocol and other initiatives, the faculty focus: actually make a difference, individually? and consumer culture. These are two of the Government and others are saying that we can’t Unlike many of us, Marcia Valiante did not fundamental things, for example, which create the move so quickly—but it’s been fifteen years and we marcia valiante simply wake up to the problems involving our underlying structures that cause our environmental have yet to do anything. environment recently; she has been interested problems. As far as planning is concerned, urban a perennial force for in them all her life and has had a vibrant career, sprawl and a lack of good, widespread public You’ve been very involved with various environmental change championing the causes that many are just now transportation contribute heavily to the fact that environmental decision-making bodies; what have taking note of. so many of us have to get in our cars to get where you learnt from a pragmatic perspective about the According to her, the impacts that we have we need to go. The government can have an best way to make progress on these issues? both individually and collectively can all start impact on our habits by designing things in such Making decisions at the local level is very with a lone blade of grass or a single decision a manner that our lifestyles will become more important. One of the biggest examples of about those not-so-little things we do every day. environmentally friendly. this is urbanization, which is a huge piece of Michellyne Mancini sat down with Professor the environmental puzzle. The way that a city Valiante recently to examine the environmental What should the government be doing to solve develops significantly impacts the environment. law expert’s take on today’s environmental issues. these problems? Lot by lot, city by city—if you add up all those There are a variety of solutions that can help decisions, they make a huge difference. At what point in your life did you become solve the problems we face. Financial incentives interested in the environment? can be a very good way of helping to nudge the How do you think Ontario is doing in that regard? I became interested in the environment as a habits of both the public and of large corporations. We do well when we implement the good plans teenager, really. As an undergrad I worked for an The incentives in place in our society to make we’ve devised. We have some very good plans in environmental organization while undertaking a money and to live a convenient lifestyle can’t be some of our cities. The GTA has implemented science degree, and then I decided to go to law completely at odds with the incentives to protect a green belt of agricultural land that cannot be school in order to pursue a career in environment. the environment. If the financial and environmental developed on. They have implemented a growth So law, for me, was a means through which to incentives were pointing in the same directions— management strategy to contain sprawl, so have an environmental career. which they can be—then we would probably have these are good things, but not all cities actually more progress. Tax shifting, for example, can be a implement the plans they have. It’s also very At that time, the environment wasn’t nearly as well good method for aligning our priorities. important to have a thriving downtown; if the understood an issue in our society as it became in downtown is thriving, people will want to live and the late 1980’s or as it is today. What made you Do you ever get discouraged about the slow pace shop there and there will be less commuting to the become so interested? of change, or have there been moments in your suburbs. But for smaller towns, this can be difficult: You know, it was just really important to me. I career where you’ve thought, ‘wow, things are if a big box store comes and offers you revenue to Professor Eansor, left, and Professor Lafrenière. was very concerned about these issues; they really getting better’? open up a store on the outskirts of the town, what resonated with me. I loved the outdoors, and I We have made progress on some issues in our are you going to do? Turning down that revenue is wanted to pursue something that mattered to me. society. We’ve taken the lead out of our gasoline, very difficult for a small municipality. It is only the Professor Donna Marie Eansor (Faculty at work and at home. The legal profession I didn’t want to just work for the sake of working; for example. In Ontario, we’ve changed practically very large municipalities that can afford to be more every law related to water in the years since the demanding with that kind of an investor, telling of Law) and Professor Kathryn Lafrenière might be a culture that generates higher risks Walkerton tragedy of 2000. We have done some them where they can and cannot put a store. So (Department of Psychology) have been and increased vulnerabilities to mental health things which have worked well, but in many cases that is what I mean when I say that our financial awarded a grant from the Canadian Bar problems for women. we have not addressed the fundamental causes of and environmental incentives have to be pointing Law for the Future Fund (LFFF) for a This issue will be explored through a education: Garrone, eds., (2007) Responsibility and project entitled The Mental Health of Women survey administered to a large, stratified, Environmental Governance (Edward Elgar). the problems. Furthermore, we do not always allot in the same directions. BA & BSc, the resources needed to execute our strategies. in the Legal Profession: Incidence, Causes and random sample of women lawyers including University of New Hampshire “The Role of Local Governments in Great Consequences. LFFF was established in 1984. women in community settings and academic Lakes Environmental Governance: A For example, we have top drawer environmental What do you think is the key to making our LLB, Osgoode Hall Law School, Its goal is to provide financial assistance faculties. The survey is based on existing Canadian Perspective,” (2007) 40:4 laws in Ontario, but we are missing a great deal society one that lives in a more environmentally University of Michigan for objective, independent and thoughtful psychometrically sound measures of LLM, Queen’s University when it comes to implementation. This can be friendly way? Journal of Law Reform. largely attributed to the fact that Environment Information. When people are more informed Canadian research projects that are of workplace characteristics and mental health teaching (2007-2008): “Interdependence and Coordination in the Canada and Natural Resources Canada have had about the available alternatives, they make better national interest or of benefit to the outcomes. The sample aims to include women Canadian Environmental Policy Process,” Environmental Law their budgets slashed over the years. Leadership in decisions. People need to be aware so that they general public. from diverse backgrounds, and participants in Albert Breton, Giorgio Brosio, Silvana The purpose of the project is to examine will include women lawyers in the Western, International Environmental Law Dalmazzone and Giovanna Garrone, eds., government is missing on this issue. can make the necessary connections: for example, Land Use Planning Law (2007) Environmental Governance and the chemicals someone may use on a lawn or the features of the working lives of women Central, and Eastern Provinces. Municipal Law Decentralisation (Edward Elgar). Why do you think the pace of change is so slow? asphalt on a driveway—all of these things create in the legal profession, and to assess their A report will be prepared for the LFFF “Controlling the Impacts of Urbanization impact on indicators of mental health. and the data will be available on the websites publications: Well, the pace of change is slow because it is run-off into the water we drink. But there are on Water Resources: Laws, Policies and often only once people start to see evidence of excellent, viable, convenient alternatives to these Women are exposed to different and more of both Professor Eansor and Professor “Privatization and Environmental Institutions in Ontario”, (2005) prepared environmental stressors than men both Lafrenière. Congratulations! Governance,” in Albert Breton, Giorgio for the International Joint Commission, a problem in their own lives that they start to choices. People need to be aware of the impact of Brosio, Silvana Dalmazzone and Giovanna Workgroup on Parties’ Implementation react. Many people in our society recognize the their individual decisions because countless such importance of environmental issues inherently; decisions are made every day, and they add up to others among us tend to require more blatant create the environment we live in.

windsor law now ­– spring 2007 windsor law now ­– spring 2007 8 9 access to justice course breathes life conklin & etherington into law school theme receive recognition awards What does the ideal of “Access to Justice” mean? during the course of our graduates’ diverse careers. making from the perspective of Access to Justice. and public education), that have contributed to debate. At the same time, though, the course in What are the implications of a commitment to that The course has been invaluably enriched by the Courts have long played an important role in the realizing such ideals as equality, social justice, and Access to Justice urges that these questions be faced. ideal regarding the law in contemporary Canada? generous participation of leading members of the legal organization and regulation of Canadian good public goods. At the same time, however, The course is team taught. It is delivered through These are among the questions that have animated Canadian legal community. In recent years we have society. The course takes a step back and seeks to sexism, racism, poverty, and many other forms of a series of large group lectures which includes the Access to Justice as an institutional theme of the been fortunate to have distinguished individuals understand and assess the general decision-making discrimination and disadvantage persist in Canada entire class. There are also small group meetings faculty for over twenty-five years. In 2002, the deliver lectures in the course. (See sidebar below.) process of courts and the methodology of judicial and, consequently, our societal ideals remain only which include about twenty-five students each Law School decided that Access to Justice should Members of the teaching team, in various years, reasoning. In so doing, it seeks to identify the partially realized. and are led by a member of the teaching team. be highlighted in the curriculum by becoming a have included: Professors Reem Bahdi, Bill Bogart, ways in which that process and methodology can The course is open-ended and has at its core a The small groups provide an opportunity for mandatory first year course. Amanda Burgess, Aaron Dhir, Donna Eansor, advance or hinder realization of access to justice. series of questions. The course does not purport to in-depth discussion and for undertaking a variety of The course explores various issues using the ideal Mark Hecht, Jasminka Kalajdzic, Ruth Kuras, Paul In the winter semester, the course moves to give “answers” to the many issues that are raised assignments and presentations, including a major of Access to Justice as the principal reference point. Ocheje, Gemma Smyth, John Weir, and David Part III, “Legislatures, Administrative Bodies throughout the year. It introduces concepts that project involving an Access to Justice audit of recent It discusses the relationship between Access to Wiseman, who was responsible for much of the and Access to Justice”. Legislatures are a are addressed further in other courses and by our legislation. The audit project allows the student to Justice and other ideas of central importance in law, course’s foundational work. Administrative support fundamentally important source of law, and as graduates throughout their careers. Students are further explore various parts of the course. including the rule of law, equality, human rights, is provided by Mary Mitchell. such the processes and values of statute-making exposed to various conditions in Canadian society The faculty is very grateful for the generous and institutional arrangements. It critically analyzes The course is divided into three main parts. Part are analyzed. Administrative bodies, including that implicate Access to Justice. They are then support of the Law Foundation of Ontario the substance and process of law in the modern I, “Foundations”, invites overarching discussion of government departments and arm’s-length asked questions about the law’s role in promoting and the Windsor Law Alumni Fund for the Canadian administrative state. It also examines Access to Justice and its ramifications. It provides regulatory agencies, are creatures of legislation. Access to Justice in Canadian society. Answers Enhancement of Student Life in underwriting the Professor Brian Etherington the extent to which the legal profession has both critical analysis on “What is Access to Justice?”, The modern administrative state represents a can be difficult, complicated, and subject to much Access to Justice course. promoted and hindered Access to Justice in various the rule of law and the impact of law in achieving defining characteristic of contemporary Canadian Acting Vice President, Research, Dr. Nihar legal contexts. The ultimate objective is to provide a justice are also discussed. society. Over time, the administrative state has Biswas presented 2006 Faculty Recognition foundation for understanding and applying the ideal Part II, “Courts and Access to Justice”, considers put in place an impressive array of institutions and Awards to Dr. Bill Conklin and Professor Brian of Access to Justice throughout the curriculum and the process and methodology of judicial decision- programs, (such as medicare, social assistance, Etherington at the Celebration of Research and Scholarship Excellence. Dr. William Conklin, an internationally recognized legal theorist, is being recognized for his editorship of the Windsor Yearbook of Access to Justice. The Yearbook was recognized as one of distinguished guest lecturers in the the top 10 human rights law reviews in North America, together with the Columbia Human Rights access to justice course Professor Reem Bahdi, Professor Bill Bogart, and Gemma Smyth, Director of Mediation Services Law Review, the Harvard Human Rights Journal, have all played key roles in the success of the Access to Justice course. and the Yale Human Rights and Development Law Journal. The Windsor Yearbook is the only non- Justice Douglas Campbell Chief Justice Allan Lutfy David Tanovich and Rose Voyvodic American law review to appear in ExpressO’s 2006 “Social Context and Judging” “Discretion, Human Rights, and National Security” “Self-Regulation, Lawyers, and Role Morality” ranking of 85 top law reviews, divided into nine Justice Campbell, of the Federal Court, is After a distinguished practice as a litigator, Both faculty members, Professors Tanovich and subject-specific categories. ExpressO is a service of recognized internationally as a leader in judicial including serving as counsel before the McDonald Voyvodic lectured on the legal implications of Berkeley Electronic Press. According to ExpressO’s education and as someone with deep dedication Commission and the Dubin Commission, Allan Lutfy Professor Tanovich’s prize-winning essay, Manager Chris Laughrun, “the Windsor Yearbook and experience regarding equality and the law. now serves as Chief Justice of the Federal Court “Law’s Ambition and the Reconstruction of Role of Access to Justice enjoys high standing among our of Canada. Morality in Canada”. community of thousands of legal scholars”. Dr. Julie Macfarlane Professor Brian Etherington, one of Canada’s “ADR and Courts” Cynthia Peterson Jean Teillet leading scholars on Labour Law and Labour Professor Macfarlane is a faculty member, one “Self-Regulation, the LSUC, and Equity/Equality” “Litigation and Social Change” Arbitration, co-authored Labour Arbitration in of Canada’s leading ADR academics, and a prize A distinguished human rights lawyer, partner in Renowned Aboriginal lawyer and advocate for Canada, with Mort Mitchnick, a prominent labour winning public policy consultant. Sack, Goldblatt, Mitchell, and counsel in a number Métis rights, Ms. Teillet appeared as counsel relations lawyer and former arbitrator. The of groundbreaking Charter cases, Ms. Peterson before the Supreme Court of Canada in material is drawn from the authors’ popular Phyllis Gordon also acts as the Discrimination and Harassment R.v. Powley, a groundbreaking decision for Métis service, Leading Cases in Labour Arbitration. The “Disabilities and Human Rights” Counsel for the Law Society of Upper Canada. rights, and has been the recipient of many awards book is an authoritative resource for all labour Ms. Gordon has held several positions as a public and distinctions. relations practitioners and features Canada-wide Allan Rock interest lawyer and is the Executive Director of coverage of more than 150 topics. “International Human Rights and the Faisal Kutty ARCH, Disability Law Centre. Professor Jeffrey Berryman was also recognized Administrative State” “Discretion, Human Rights, and National Security” as the University of Windsor Leadership Chair Diane Labelle After an extraordinary career as a litigator and as Mr. Kutty, partner in Kutty, Syed & Mohamed, is in Law. The University of Windsor spotlights “The Administrative State and Smart Regulation” Treasurer, Law Society of Upper Canada, Allan a board member of several organizations including accomplishments and achievements of faculty at A former Assistant Clerk of the Privy Council and Rock was a cabinet minister (Minister of Justice the Canadian Council on American Islamic Faisal Kutty, bottom, and Chief Justice Allan Lutfy, far right, enage Windsor Law students and faculty in an annual event held to pay tribute to those who prize winning civil servant, Ms. Labelle is Senior and several other portfolios) and then Canadian Relations and serves as General Counsel for the debate. These personal interactions and one-on-one conversations are one of the key principles in the have received significant awards and honours for Counsel with Health Canada Legal Services. Ambassador to the United Nations. Canadian-Muslim Civil Liberties Association. structure of the Access to Justice course. their research or creative activity. The recipients of the awards are presented with a plaque at the Celebration of Research and Scholarship Excellence event. Congratulations!

windsor law now ­– spring 2007 windsor law now ­– spring 2007 10 11

faculty opinion: richard moon Windsor Alumni and Friends then and now – the charter at 25 Tour New Zealand

express themselves – with the distribution of s.15 is written, the ‘enumerated’ grounds of communicative resources. If we are committed to discrimination are not exhaustive. Section We are proud to announce the first ever Law Alumni and Friends tour to immediately follow equality, then perhaps we should be concerned 15 is a general ban on discrimination; the the Second International Remedies Symposium in New Zealand on November 16th, 2007. about economic inequality in our society. But for court must decide if there are other forms of Former dean Jeff Berryman hails from New Zealand and will lead the tour, together with his wife both structural and political reasons, the courts differential treatment that breach s.15. Indeed, Carol McDermott ’84, Dean Bruce Elman and his wife Nancy. Leaving Toronto on November 12th, are not well-positioned to engage in significant if the courts were to treat the enumerated the tour will last fourteen days. The tour blends a number of elements: economic redistribution. grounds in s.15 as exhaustive, they might be Richard Moon, B.A., LL.B., B.C.L. Today, the most vocal criticism comes from accused of ignoring the text of the Charter. • Recreational – Golf on some of New • Gastronomical – Taste some of the finest (Oxon), conducts research in the socially conservative academics and politicians, , before re-entering politics Zealand’s most picturesque courses. There and freshest produce before it gets exported. areas of freedom of expression, including our current Prime Minister, and is a few years ago, headed a conservative lobby will be plenty of opportunities to do walking • Oenological – Yes, oenophiles will weep freedom of conscience and religion, directed at the courts rather than the Charter. The group, the National Citizens Coalition. In that hikes through idyllic scenery. when they taste what New Zealand’s and the structural aspects of courts are accused of being activist. This claim can capacity, he challenged federal statutory limits constitutional rights protection. • Cultural – Discover what it means to be boutique wineries have to offer. be understood in several ways. First, a court may on election spending by third parties (groups in the largest Polynesian city in the world His current research project, “The • Economical – We have secured a great rate Secularization of Religious Freedom”, be described as activist when it strikes down laws or individuals who were not themselves and experience the unique customs of New enacted by a democratically elected government. running for elected office). This restriction was on Air New Zealand, and have chosen hotels is funded by a general grant from Zealand’s indigenous people, Te Maori. for their comfort, character, and proximity to the Social Sciences and Humanities Indeed, supporters and critics of the Supreme part of the larger scheme of spending limits on • Educational – In addition to the Second the most scenic sites of New Zealand. Research Council of Canada. Court have often argued the ‘activism’ issue by parties and candidates during a federal election International Remedies Symposium we counting the cases in which the court has struck campaign. Mr Harper, in a case that carries • Semi-independent – The last thing most have created a number of evening after- down or upheld a law. his name, argued that the spending limits people want on a vacation is to be constantly dinner lectures to discuss some legal The Canadian Charter of Rights and Freedoms politicians and academics. In their view, unelected But the critics’ claim cannot simply be that – that breached s.2(b) of the Charter, the freedom of on the road travelling. We have taken the (Constitutionalization of health care), some recently turned 25. We asked constitutional law judges should not have been given the power to hassle out of planning a truly remarkable the court is improperly activist when it strikes down expression right. Yet s. 2(b) says nothing about political (proportional representation), and expert Richard Moon to comment briefly on past strike down democratically enacted laws. They experience in New Zealand. a law; for the courts have a clear mandate under the the spending of money or election campaigns. some general knowledge topics (the settling and recent debate about the Charter. worried that important political issues would 1982 Constitution to review legislation. Therefore, Mr. Harper was asking the courts, in the of the Pacific). be narrowly framed as legal matters – and as if the critics believe that it is wrong for the courts language of the critics of activism, to read that The Charter has two functions. First, it is a such would become the domain of lawyers and to strike down laws, then their criticism should be into s.2(b). The Supreme Court of Canada, symbolic statement of basic public values – judges, and they pointed out that access to the directed at the Charter rather than at the courts. But, quite reasonably, interpreted the right to For more details on this vacation of a lifetime, visit: the fundamental rights of citizens. The second courts was something that only the wealthy could of course, these critics are aware that the Charter freedom of expression as protecting the right www.uwindsor.ca/law/remedies or the Faculty of Law function, which is not entirely congruent with the afford. They noted also that the Charter focused has significant support among Canadians, and so to spend money during an election campaign homepage and click on Alumni Tour and Friends. first, is to provide a process for the protection of exclusively on government action: the government they may be reluctant to attack the Charter directly. – to buy advertising space or time. This those fundamental rights. was viewed as a threat to individual liberty, If their argument were that unelected officials interpretation of s.2(b), however, was no less The Charter gives the courts the power to without any recognition of its role in regulating should not be striking down laws, then it may activist, no more tied to the text of the Charter, review government actions, including federal and corporate or private power. Additionally, the have some merit. than the courts’ determination that s.15 provincial laws, to ensure they are consistent with critics believed judges and lawyers to be generally Formally the complaint about activism is not prohibited discrimination on the basis of sexual fundamental political rights. Important individual or conservative in their outlook, and they were about the Charter, but is instead about how the orientation. In the end, the Supreme Court minority rights and interests are sometimes ignored concerned that the courts would strike down courts have interpreted or applied its rights. It is held that this statutory limit on expression was or overridden in the give-and-take of majoritarian, progressive legislation. complained that the courts have gone beyond the justified under s.1 of the Charter. preference based politics. Charter review offers The inclusion of s.33, the “notwithstanding words of the Charter and ‘read in’ certain things Perhaps the complaint of Mr. Harper and recourse to those who believe their rights have clause”, was a response to these concerns. As that are not in the text, that they have stuck down others is with the Charter itself. For a variety of been compromised by government action. most readers will know, s.33 allows a government, laws on the basis of the judges’ own preferences or reasons they don’t want to discard the Charter This second function is controversial. Unelected provincial or federal, to declare that a law will values, or that, as our Prime Minster has said, they entirely; instead, they argue that the courts judges have the power to strike down laws enacted apply notwithstanding certain key provisions of have pursued their own social agenda. should be restrained – that the courts should by democratic institutions. And while we may the Charter. Certainly the inclusion of s.33 blunted Specifically, the critics point to the inclusion define the scope of the rights narrowly and mark your calendar, ’77s & ’82s all agree that freedom of expression, for example, some of the concerns about judicial review. of sexual orientation as a prohibited ground of should be more deferential when assessing is an important right that should be protected, While the courts have not been particularly discrimination under s.15, the equality provision, limits under s.1. Exactly how restrained or Please join us for Reunion Weekend in Windsor celebrating the classes of 1977 and 1982. The events will we may have very different views about what it conservative in their judgments, the structure of when no such words appear in the section. The deferential the courts should be is not clear. take place from Friday, September 28 to Sunday, September 30, 2007. For more information contact: means in practice, about the kinds of activities it constitutional adjudication has meant that the weakness of this criticism is obvious. The rights in Or perhaps, more cynically, their complaint protects and the proper limits to its exercise. The rights and freedoms in the Charter have been the Charter are stated in abstract terms; the court is simply with particular decisions – decisions CLASS OF 1977 REUNION: CLASS OF 1982 REUNION: interpretation or application of abstract moral/ interpreted narrowly and negatively as limits on has to elaborate on their meaning or content. with which they disagree – and which, on that political rights, and the evaluation of limits on government action. If expression is a valuable There is no value-neutral way to interpret basis, they label activist. Peter Lillico ’77 at 705-743-3577 ext. 201, Peter Hrastovec ’82 at 519-966-1300 these rights, will inevitably engage the decision- activity, then perhaps the right to freedom of these rights. It is true that s.15 says nothing about or [email protected] or or [email protected] makers’ values. expression should be concerned not only with discrimination on the basis of sexual orientation. It online: www.windsorreunion77.ca When the Charter was being debated in the direct acts of government censorship but also lists several grounds of discrimination, and sexual Peter Kryworuk ’82 at 519-640-6317 early 1980s, its most vocal critics were left-leaning with the real opportunities individuals have to orientation is not on the list. But the way in which or [email protected]

Kevin Ross ’82 at 519-640-6315 or [email protected]

windsor law now ­– spring 2007 windsor law now ­– spring 2007 12 celebration cont’d

Beverley Jacobs spoke passionately about the Demonstrating the commitment of the Law to have despair and to feel no hope. Remember role of women in the Aboriginal rights movement Society of Upper Canada, Marisha Roman how deafening the forced silence by another can and the need for a greater understanding of issues outlined her role in assisting Aboriginal law be. Be a voice for your people and all people unique to Aboriginal women. As President of students seeking entry into the profession. who hold justice in their hearts. Give a voice to the Native Women’s Association of Canada, she As Aboriginal Initiatives Counsel, Ms. Roman the voiceless; hear the words of the quiet; and works tirelessly to advance the cause of Aboriginal works with Aboriginal law students and lawyers never allow another human being to be nothing women nationally. She recalled the time she had to ensure their full integration into the profession. more than background noise.” recently spent in at the opening of the This is accomplished through mentoring This event was one of three events relating to Pickton trial assisting the families of murdered programs, career development assistance and by Aboriginal laws and lawyering in Canada hosted women, many of whom were Aboriginal. incorporating and celebrating Aboriginal heritage. by the Faculty of Law this academic year. On Ms. Jacobs called on those present to use The chair for the event was Professor Len February 12, 2007, Justice Murray Sinclair, the their voice, to get involved, to seek out an Rotman, an internationally recognized scholar in Associate Chief Justice of the Provincial Court of understanding of the issues facing native women, Aboriginal law. Manitoba spoke on “Aboriginal Legal Issues the and to be part of the advancement of the rights Justice LaForme, in his closing remarks, Courts are Going to Have to Decide Someday” of native women nationally. challenged the audience: and on March 19, 2007, the Honourable Frank Jason Maddon, on behalf of the Métis National “I ask also that, as you go forward, you take Iacobucci (formerly of the Supreme Court of Council, spoke of the great strides being made your life’s experiences, your traditions, beliefs Canada) spoke on “Indian Residential Schools”. in Métis law and predicted that 2007 would be a and values with you because they matter greatly seminal year as courts across the country interpret and they are always worth celebrating. the principles outlined in the Powley case relating And, always be mindful of how it feels to be to the rights of Métis people. marginalized and ignored. Remember how it felt

“Never allow another human being to be nothing more than background noise.” Justice Harry S. LaForme

Law students gather for the event.

Justice LaForme delivers his keynote address.

windsor law now is published semi-annually by the office of the dean, faculty of law, in co-operation with public affairs and communications, university advancement, university of windsor ..... support for windsor law now is provided by windsor law alumni and friends ..... for more information or to submit story suggestions, e-mail [email protected] or call 519-253-3000, x2930 editor: bruce elman ..... contributors: access to justice teaching team, jeff berryman, francine herlehy, tessie kalogeras, michellyne mancini, ian matthews, richard moon, marcia valiante photographers: trevor booth photography, tyler brownbridge, tory james, kevin kavanaugh, jason kryk, rjm photography ..... designer: rob aitkens ..... website: www.uwindsor.ca/law

PAC 3409 - Produced by Public Affairs and Communications, University Advancement, University of Windsor 2007