AVANT GARDE - VOL. 2, ISSUE 1 - NOVEMBER 2021
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LINCOLN ALEXANDER SCHOOL OF LAW
IN THIS ISSUE:
INAUGURAL YEAR VS. THIS YEAR
BY MIRA SETIA, 2L
Last year, the 2023 inaugural class was put through the challenge of starting their law school journey in a worldwide pandemic. Although it came with many difficulties, confusions, and mental hardship, each one of us showed courage and resilience when making history at Lincoln Law. Many students, with the support of our faculty, put a lot of time, effort, and energy into establishing clubs, organizations, and initiatives that represent Lincoln Law’s values of Diversity, Inclusion, Innovation and Access to Justice. Through Zoom, we held Lawyer Panels, participated in legal clinical PODS, established a Mooting society, held virtual socials, and performed a law school production. Here is where Avant Garde was established, with the aim of creating a community within Lincoln Law, shedding light on legal and social issues within the legal field, and highlighting the law school’s accomplishments. We set the stage for the incoming students; and the class of 2024 is engaged and ready to further the successes of the school.
This year, with vaccines and precautions being taken on by the faculty and students, the law school was able to offer in-person classes and events— allowing us to connect with our education and classmates in a more personal way. Deborah Lim, VP Social and External of Lincoln Alexander Law Students Society (LALSS), says, “I am very happy about the in-person events, such as CLSS' recent social "Margaritas and Mentors" and initiatives like "The School Bag Project" which collected donations for Afghan refugees, that have already happened this year. But I also want to encourage everyone to think about how we can continue to run events and initiatives that serve both our in-person and remote students.” The hard work and dedication Lincoln Alexander Students invested into the new law school last year has created a vibrant student culture for many years to come. Lim continues to say that, “this year, LALSS is looking at how we can build tradition and culture at Lincoln Alexander. I am looking forward to working with the Associations and Clubs to partner on some of our events, like our upcoming Spooky Fall Festival. There is also a subgroup of the Social & Finance Committee that is specifically dedicated to planning a Law Ball, so I am looking forward to supporting them and seeing what they do.”
Moreover, the seeds that we planted last year are coming into fruition—especially with organizations like Pro Bono Students Canada (PBSC). Katrina Grogan-Kalnuk established the PBSC chapter at Lincoln Law and is now the Student Coordinator with an aim of “[bringing] what makes [Lincoln Law] students and approach to legal education different to organizations and geographic areas that have previously been underserved… while seeking out those in need of legal support outside of the immediate area surrounding the school”, as Grogan-Kalnuk states. PBSC is a mission to provide free legal support to communities facing barriers to justice, and its chapter at Lincoln Alexander has an extensive 2021-2022 project list that covers a variety of legal issues and areas of law. Grogan-Kalnuk explained that:
“PBSC at Lincoln Alexander was established in April 2021 and officially launched in September 2021. Over the summer, 11 new projects were developed and together with 25 Partner Organizations, they have placed Lincoln Alexander students on a total of 34 projects with the support of 40 Lawyer Supervisors donating their time to oversee student work. PBSC at Lincoln Alexander leads 17 projects and has placed students on 13 additional projects in collaboration with Osgoode Hall and the University of Toronto Faculty of Law PBSC Chapters, and 4 special projects led by the PBSC National Office. They received 120 applications for student volunteers and were able to place 57 Lincoln Alexander students on PBSC projects.”
More PBSC project highlights include the FMTA Tenant Rights Project and a partnership with WomenatthecentrE, focused on eradicating gender-based violence against women, gender queer, two-spirited, and trans people. Katrina’s dedication to this organization is a prime example of the heart and spirit Lincoln Alexander’s students have towards legal education and access to justice. The PBSC team can be reached at @PBSCAlexander on Instagram, Facebook, and Twitter.
So, not only is our Law School making history, but it is joining a legal world that is advancing daily in technology, diversity, and social justice. Here is where Avant Garde’s team of editors will try to shed light onto current issues within law today and examine the current state of justice in society. As our Lincoln Law family grows, our ambitions to be drivers of change and history makers become grander. As Co-Editor-In-Chief of Avant Garde, I am very excited to see the further successes and accomplishments of our students and law School within this changing legal field. The Newspaper’s editorial team cannot wait to write about them.
SCARE DECISIS – HALLOWEEN LAWS!
BY DENA PAPAIOANNOU, 2L
Last year, the pandemic introduced restrictions into our day-to-day activities. During the holidays, these constraints were heightened. While often met with complaints, the common narrative was that if we could just make it through this year, we would soon be able to return to our restriction-free, pre-pandemic gatherings. However, the idea of placing extra restrictions on holidays is not new. This year, while many of us may be celebrating on October 31st in a carefree fashion, there are many places around the world which will still face prohibitions on certain actions in relation to Halloween. In case you happen to find yourself zooming your way through law school during spooky season in any of the following locations, take a moment to brief yourself on these surprisingly stringent Halloween related laws.
Bathurst, New Brunswick, Canada
In 2017, the city of Bathurst in New Brunswick revised a by-law which resulted in the banning of youth over the age of 16 from participating in trick-or-treating. Additionally, a curfew of 8 p.m. on Halloween night was instated, prohibiting trick-or-treaters from going door-to-door past that time. This by-law was a result of a loosening of the original rules taken up in 2005 which restricted youth over the age of 14 from participating in the candy collecting tradition past 7 p.m. These measures were adopted following repeat occurrences of older children stealing candy from younger children on Halloween night. Those found violating the by-law, by being out past curfew and wearing a facial disguise in public are at risk of facing a fine of up to $200.
Hollywood, California, USA
The Los Angeles City Council passed a law banning Silly String from being possessed, sold, used, or distributed in public areas in and around the main Hollywood area between 12 a.m. on October 31st and 12 p.m. on November 1st. As Hollywood can get quite busy with the many spook-tacular festivities taking place on Halloween day, large Silly String messes were often left behind. Following complaints from city employees who were working hard to clean the streets and break up brawls provoked by Silly String incidents, the City Council finally took the step to prohibit the aerosol string in 2004. To disincentivize the public from possessing Silly String, signs are posted along Hollywood Boulevard around Halloween. These signs boldly state that anyone who is found to be in possession of aerosol string is subject to a $1000 fine or up to six-months in jail.
In 2013, a law was passed which proclaimed that witches flying on broomsticks 150 metres from the ground would be subjected to a colossal fine and arrest. It is unclear from the laws whether witches flying their broomsticks below 150 metres would face any penalties. This law is the result of an incident where a private investigator was caught flying a toy helicopter with a video camera attached to it while gathering surveillance information. The statute also prohibits the flying of kites and toy helicopters into the country’s airspace. Witchcraft continues to be taken seriously in Swaziland where there is widely held beliefs in the occult and black magic.
On October 28th, 2014, the mayor of Vendargues, France issued a decree which banned anyone over the age of 13 from dressing up as a clown. This ban is in effect starting on October 31st and continues for a full 30 days. The punishment for dressing as a clown includes arrest and prosecution. The decree was a result of the rising popularity of a clown prank trend on social media which saw an increase in teenagers in French towns being arrested for dressing as armed clowns.
THE IMPACT OF LANGUAGE: RESOLUTION IN BRITISH COLUMBIA TO OPEN DEBATE ON THE USE OF GENDER PRONOUNS IN COURT
BY BRYN COPP, 2L
Giving individuals the opportunity to introduce their name and their preferred pronouns is, most simply, a basic human courtesy. When considering pronoun use within the legal system, a disregard for this basic human courtesy should raise concerns on equal access to justice. For most individuals, there is a basic understanding and expectation that they will be referred to by their name and preferred gender pronoun (he/him, she/her, they/their). However, for nonbinary, gender fluid and genderqueer folk, assumptions are often made that can lead to the experience of being misgendered. Misgendering can cause confusion and embarrassment, which may be personally distracting and triggering when trying to advocate and perform to the best of one’s abilities. Given that pronouns are a fundamental element of identity, refusing to provide individuals with the opportunity to introduce their preferred pronouns can create a barrier to access in the Canadian legal system.
Last December, the British Columbia Provincial and Supreme Court took steps towards improving the legal system for gender-diverse folk by introducing the Notice to the Profession 24 and Practice Direction 59. The direction notice was issued after a conversation with judges, registry staff and the Sexual Orientation and Gender Identity Community (SOGIC) of the Canadian Bar Association - British Columbia Branch. The direction asks lawyers and others involved in Court proceedings to introduce themselves and provide the pronouns they would like the Court to use. Following the December 2020 announcement, the Canadian Bar Association released a “Definitions and Pronunciation FAQ” and a “Counsel Introduction Script” to clarify what is expected of Counsel and the Parties while in Court. This directive is no different from other formal routines lawyers participate in when in Court proceedings. The directions are not law; rather, they are expectations of proper conduct.
The practice directive has gained much attention in British Columbia and in the broader Canadian legal community. Despite the directive’s seemingly routine and uncontroversial nature, many lawyers are speaking out against the concept. Opponents have formally expressed and requested an open debate on the existing practices of the directive. Informally, opponents of the directive have expressed concern about a lack of discussion and randomness of the decision, invasive nature of pronoun use, concern for compelled speech, breach of privacy rights and damaging the perception of judicial impartiality. Lawyer Adrienne Smith expressed to CityNews, “what’s clear from the discussion that has unfolded is that the proponents are not concerned about the practice directive so much as they are not particularly supportive of transgender rights.” Smith explains that the individuals who are against the directive appeal to free speech and resist ‘compelled speech’ as it pertains to pronouns, however, they ignore how the directive is no different than others that request lawyers to adhere to Court formal proceedings.
On October 7th, the motion to debate the gender pronoun directive was voted down by the B.C. Law Society by a slim margin with 42.08% in favour and 57.92% against.
PROSECUTORIAL IMMUNITY WITHSTANDS POLICE MISFEASANCE CLAIMS
BY KATRINA GROGAN-KALNUK, 2L
Ontario (Attorney General) v Clark, 2021 SCC 18 presented the Supreme Court of Canada (SCC) with its first opportunity to consider prosecutorial immunity in the context of misfeasance claims by police officers against Crown prosecutors. In an 8-1 majority, the SCC decided that police officers cannot sue Crown prosecutors for the decisions they make in criminal cases. The main justification is to uphold the rights of accused persons to fair trials; but it is important to note that prosecutorial independence is a cornerstone of a fair justice system as a whole. Allowing police officers to pierce prosecutorial immunity would erode the public confidence in the justice system and pose serious risks to vulnerable accused persons involved in criminal proceedings.
In June 2009, three Toronto police officers arrested two individuals who eventually brought applications to stay the proceedings against them, claiming they were assaulted by the officers during their arrest. The Assistant Crown Attorney assigned to the case of one of the accused, Mr. Singh, did not call the officers to give evidence at the hearing. The judge described the officers’ conduct as police brutality, and reduced Mr. Singh’s sentence.
Mr. Singh’s appeal to the Ontario Court of Appeal (ONCA) was allowed and a stay of proceedings was entered. In their reasons, the ONCA were critical of the officers’ conduct and noted that the Crown did not contest the evidence of the assaults. Following this, the officers sued the Attorney General (AG) for negligence and misfeasance committed by the prosecutors involved in the trial and appeal hearings, seeking damages for the irreparable harm they claimed to have suffered as a result of the prosecutors’ decisions.
The misfeasance claim was allowed to proceed. The officers claimed that the prosecutors ignored and deliberately withheld facts that could have exculpated them. The AG moved to strike the claim arguing that it was barred by prosecutorial immunity. The motions judge found that the application of prosecutorial immunity was not obvious in the context of misfeasance claims brought by police officers. The ONCA found that prosecutors are not immune from civil liability for misfeasance in public office and the AG appealed to the SCC.
Questions of prosecutorial immunity from liability involve a balance of safeguarding the rights of accused persons with the policy considerations associated with exposing prosecutors to liability. On one hand, it is important to protect the vulnerability of accused persons that may be subject to the misuse of prosecutorial power; but this must remain balanced with the public interest duties of prosecutors to freely make independent and discretionary decisions without judicial or political influence. The cornerstone of the jurisprudence on prosecutorial immunity is supporting the prosecutor’s ability to make objective and fair decisions without exposure to civil liability.