We’ll be posting soon!

Greetings Fans of LegalEase!

It has been a long time. We’ve been around, just not posting. Now it is time to give you a taste of what we have been working on.

You have been busy combing through our archives. Thanks! It’s good to see our material is not going to waste. But there are new battles to add to the old; we must continue the fight for justice.

Keep tuned for some new content.

In Solidarity –

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Great Law Event in Toronto, Canada! LOOKING FORWARD, LOOKING BACK: 40 YEARS OF RESISTANCE

LAW UNION

Join us on Saturday, March 16, 2013, for the Law Union of Ontario’s Annual Conference! 2013 marks the 40th anniversary of the Law Union, and this year’s conference will bring progressive legal and activist communities together to discuss an exciting and challenging series of issues. To register for a day of inspiring and provocative panels, workshops, and discussion click here: REGISTER

The conference will be held at Victoria College, on the University of Toronto campus. The address is 91 Charles Street, with the building just south of Charles. This facility is wheelchair accessible. Follow this link for a map of the exact location of the conference: http://map.utoronto.ca/building/501

Scroll down for the full schedule of panels and speakers.

CPD hours pending.

FRIDAY, MARCH 15TH: ANNIVERSARY CELEBRATION AT THE TRANZAC

In honour of the Law Union’s 40th anniversary, join other conference-goers on the evening of Friday, March 15th, for a celebration with live music, drinks, reflections, and awards. This event will be held at the Tranzac, 292 Brunswick Avenue, Toronto, from 7:30 pm onwards. All are welcome!

CONFERENCE PROGRAM: MARCH 16TH
Victoria College

REGISTRATION: 8 AM

PANELS: 9 – 10:30 am

Envisioning the New Law Practice Program
Renatta Austin, Articling Student, City of Toronto
Elena Iosef, Osgoode Hall Legal and Literary Society
Janet Minor, Ministry of the Attorney General, Law Society Bencher

Deconstructing the Doctrine of Discovery
Tannis Nielsen, Artist and Educator

Mental Health and Justice: Three Unique Voices
Sarah Shartal
TBA

Working on the Margins: Perspectives on Migrant Work in Canada
Fay Faraday, Osgoode Hall Law School, Faraday Law
Kelly Botengan, Magkaisa Centre, Phillipine Women’s Centre
Evelyn Encalada, Justice for Migrant Workers

MORNING PLENARY: 10:45 am – 12:15 pm

Panels full of Women: 40 Years Later, Has Anything Changed?
Beth Symes, Symes Street & Millard LLP, Law Society Bencher
Janet Minor, Ministry of the Attorney General, Law Society Bencher
Jessica Wolfe, Legal Aid Ontario
Sharon Walker, Dykeman Dewirst O’Brien, LLP

PANELS: 1:30 – 3:00 pm

Resonance: Police Racial Profiling and Intelligence Gathering
Vickie McPhee, Rights Watch Network
TBA

Decolonizing Relationships: Treaties and Beyond
Diane Kelly, Former Ogichidaakwe (Grand Chief), Treaty #3
Crystal Sinclair, B.S.W., Activist and Organizer, Idle No More Toronto
Lorraine Land, Olthuis Kleer Townshend

Advocacy out of the Courtroom: Skills without Gowns
Asha James, Falconer Charney LLP
Janina Fogels, Human Rights Legal Support Centre
Diana Zlomistic, Toronto Star

Resisting Neoliberal Reductions in Access to Justice
TBA

PANELS: 3:15 – 4:45 pm

Solidarity City Now: Legal and Community Organizing for Immigrant Justice
Rathika Vasavithasan, Parkdale Community Legal Services
Faria Kamal, Health for All
Sarah Mikhaiel, Sanctuary Network
Liza Draman, Caregivers Action Network

The End of the Employee: A Critical Discussion on the Rise of Contract Work, Internships and Underemployment
Claire Seaborn, Canadian Intern Association
Jenny Ahn, CAW, Director for Membership, Mobilization and Political Action
TBA

Aboriginal Youth and Child Welfare
Rina Okimawinew, Attawapiskat First Nation
Billie-Jean McBride, George Brown College
Judith Rae, Olthuis Kleer Townshend

Prison Litigation as Harm Reduction
TBA

AFTERNOON KEYNOTE: 5 – 5:30 pm

Delia Opekokew is a lawyer and a deputy Chief Adjudicator for the Independent Assessment Process. From the Canoe Lake First Nation in Saskatchewan, she was the first First Nations lawyer ever admitted to the bar association in Ontario and in Saskatchewan, as well as the first woman ever to run for the leadership of the Assembly of First Nations.

Childcare will be provided – please email us in advance at lawunionofontario@gmail.com with the number and ages of the children who will be attending.

If you would like to donate to the conference, you may do so through
the Jur-Ed Foundation at Canada Helps

Questions? Email us at lawunionofontario@gmail.com, and include “conference” in the subject heading.

Episode 40 (Dec 2012) – Race, Gender, and Social Context

Welcome et bienvenue to LegalEase: a monthly Montreal-based and produced radio show on 90.3 FM CKUT – a broadcast about law, cast broadly. Le collectif LegalEase est un groupe d’étudiants et étudiantes en droit de la communauté montréalaise.This month the program is entitled, “Race, Gender, and Social Context.”

Listen to the Episode Here

Host Garrett Zehr chairs an array of reflections on the subject of discrimination in Canada, specifically looking at race and gender. First, contributor Alyssa Clutterbuck presents a segment on the nature of discrimination. Sonia Lawrence, Professor at Osgoode law school, discusses the subject – “Is all discrimination alike?” Lawrence is the Director at the Institute for Feminist Legal Studies at Osgoode. Twitter – @osgoodeifls. This pithy presentation is worth listening to several times over.

Second, LegalEase remembers R v. RDS at 15 years – a seminal decision on race and and the judicial system. R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 SCR 484, In the case, the Supreme Court of Canada ruminates over the decision of Nova Scotia judge Sparks to take judicial notice of the systemic racism within the justice system. A finding of reasonable apprehension of bias against Sparks was overturned at the Supreme Court. Contributor Alyssa Clutterbuck sets up the piece, explaining why the case remains a chilling representation of the manner in which the Canadian legal system discusses race. Next, Legalease contributor Lillian Boctor interviews Dr. Esmeralda Thornhill James Robinson Chair at Dalhousie University and visiting scholar at McGill.

Finally, LegalEase revisits an earlier story presenting a study by Natai Shelson on the gendered experience of law school. You can find part of Shelson’s study at p 4 of the this edition of the Quid Novi, February 2011.

LegalEase on 90.3 FM is a radio program broadcast every second Friday of the month at 11am EST from Montreal, Quebec. Originally founded by the McGill Legal Information Clinic in 1989, LegalEase is now run by a collective of progressive of law students from McGill University. Our weekly radio show deals with legal topics of interest to the community, with the intention of making the law both accessible and engaging. Tune into our show, follow us on Twitter @LegalEaseCkut, email legalease[at]ckut.ca or check our podcast library for past programming.

Copyright Law – Look What They’ve Done To My Song, Ma

Check out the Saturday, February  9, 2013, edition of the CBC Program “Under the Influence”. Great analysis of Court cases regarding the use of songs in commercials and for commercial purposes. Very fun episode.

Read on here:

http://www.cbc.ca/undertheinfluence/season-2/2013/02/09/look-what-theyve-done-to-my-song-ma/

Listen here:

http://www.cbc.ca/undertheinfluence/popupaudio.html?clipIds=2333357564

(In) Famous Cases: The Trial of Sholom Schwartzbard

Sholom

France. 1927. Murder. Genocide. Justice. The Trial of Sholom Schwartzbard. A radical yiddish anarchist is a lonely parisian. Years earlier his entire family had been murdered by Ukrainian nationalists during pogroms, along with thousands of other Ukrainian Jews. In Schwartzbard’s mind, blame rested on the shoulders of the movement’s leader, Simon Petlura. So Schwartzbard killed Petlura on the streets of Paris, using a pistol. Here is Time magazine’s rendering of the trial from 1927.

 
 
Monday, Nov. 07, 1927

FRANCE: Petlura Trial

Court. In the dim court of Assizes, in Paris, during the past fortnight, more  than 400 spectators saw the beginning and the end of one of the most  gruesome, bloodcurdling, impassioned trials ever to be held in that  vaulted hall of justice. Quivering flappers sat to gasp with  astonishment beside white & black bearded Jews who exchanged shocked  glances with flat-faced Slavic Ukrainians under the noses of red &  black-robed judges. Within and without the courtroom was a triple guard  of gendarmes to prevent disorder.

 

Culprit. The accused man, who not only admitted committing the crime but  even boasted of it, was a young Jewish Ukrainian, now a naturalized  Frenchman, Sholem (Samuel) Schwartzbard, a watchmaker by profession.  Short, ugly, he yet commanded the attention of the whole court, for he  told his story, not as do many prisoners, shamefaced and haltingly,  forced to reveal their crimes and motives by harassing lawyers—no,  Watchmaker Schwartzbard openly confessed with gleaming eyes and  hysterical mien, his body trembling with passion, how he slew  “General” Simon Petlura to avenge the deaths of thousands of Jews slain  in pogroms, which he charged “General” Petlura instigated.

 

Victim. Simon Petlura, in the opinion of many, was an adventurer. The  son of a Russian cabman, he is said to have been active in plotting  against the Tsar. In 1918 he entered Kiev, capital of the Ukraine, with  the Austrian and German armies, under whose auspices he took the lead  in trying to separate that province from the rest of Russia. He not  only promoted himself a general but also declared himself ruler of  the Ukraine. He failed and was obliged to flee. Two years later he  reappeared, this time under the Poles, becoming president of a  short-lived Ukrainian republic. He played off the Poles against the  Bolsheviki and the Bolsheviki against the Poles and, eventually, again  fell from power, this time to flee to France, where he lived in Paris  until slain there by M. Schwartzbard. Under his regime, it is  charged, more than 50,000 Jews were killed.

 

Lawyers. Henri Torres, chief counsel for the defense, florid, bloated,  dynamic, put his histrionic abilities to the test when, leaping past  his colleagues into the middle of the courtroom, he brandished a  revolver, produced from under his voluminous black gown. Shrieks of  terror mingled with gasps met this display. Flappers sat with blanched  faces; bewhiskered Hebrews rocked back and forth with supressed  excitement; Ukrainians, more pallid than ever, glanced nervously through  their narrow eyes. Maitre Torres, aiming at a chair, pulled the  trigger—there was a dull click, followed by sighs of relief. He was  attempting to prove that M. Schwartzbard could not have shot Simon  Petlura as he lay , prone on the ground.

 

Cesare Campinchi, flaccid, verbose, excitable, chief prosecution  lawyer representing the Petlura family, particularly Widow Petlura, who  was in court, proved himself the equal of Maitre Torres in oratorical  and theatrical ability. Accused of suppressing evidence by M. Torres,  he roared: “Don’t accuse me of suppressing evidence, Torres!”*  “Don’t  force me to place in evidence your personal pedigree!” yelled Torres.  And thus they continued.

Crime. Simon Petlura was shot at the corner of the Rue Racine, and the  Boulevard St. Michel, on May 25, 1926. As M. Schwartzbard described the  murder to the court:

“Here’s my chance, I thought. ‘Are you Petlura?’ I asked him. He did not  answer, simply lifting his heavy cane. I knew it was he.

“I shot him five times. I shot him like a soldier who knows how to  shoot, and I shot straight so as not to hit any innocent passerby. At  the fifth shot he fell. He didn’t say a word. There were only cries and  convulsions.

 

“When I saw him fall I knew he had received five bullets. Then I emptied  my revolver. The crowd had scattered. A policeman came up quietly and  said: ‘Is that enough?’ I answered: ‘Yes.’ He said: ‘Then give me your  revolver.’ I gave him the revolver, saying: ‘I have killed a great  assassin.’

 

“When the policeman told me Petlura was dead I could not hide my Joy. I  leaped forward and threw my arms about his neck.”

“Then you admit premeditation?” asked the judge.

“Yes, yes!” replied M. Schwartzbard, his face lit with fanatical  exultation.

 

Trial. The case opened with M. Schwartzbard telling the court in a high  pitched voice and halting French, his beady eyes gleaming, his face  suffused with joy, how he had tracked Petlura down. With a photograph  of his intended victim in his pocket and a loaded pistol in another, he  was wont to roam the street peering into the faces of passers-by to see  if they were Petlura. All this, he said, he did to avenge the  assassinations of his coreligionists. Finally, he found and killed  him.

 

One Reginald Smith, an Englishman, a reputed eye-witness of the crime,  was called to describe the crime. Quoting Shakespeare, he ended his  testimony by referring to Schwartzbard’s expression as Petlura fell:  “He wore an expression of ‘exaltation mixed with anguish.’ “

 

Many witnesses called by the prosecution declared that Petlura was not  an enemy of the Jews, but Maitre Torres insisted that “Petlura’s  proclamations expressing indignation over the pogroms were mere  blinds. While murdering Jewish men, women & children, he had to  maintain a straight face before the opinion of the world. He also  wanted money from Jewish bankers.”

 

“No,” said a massive Slav, “Petlura was not antiSemitic. He was a  humanitarian—a friend of the Jews.”

 

“No, no, no, he lies!” chorused a dozen people in the court in as many  languages.

 

“They cut them down with naked blades,” screamed M. Schwartzbard.

 

“I accuse that man of being an agent of Moscow. I swear it a thousand  times!” roared another witness for the prosecution, pointing an  accusatory forefinger at M. Schwartzbard.

 

“You—! You—!” yelled Schwartzbard, jumping to his, feet,  incoherent with rage, his shoulders quivering in spasmodic jerks.  Recovering his powder of speech, he continued:

“Do you remember the terrible days of 1910 and 1911 at Kiev? Do you  remember the accusations that Jews were using Christian blood for  Easter ceremonies? You hate me because I am a Jew!”

“No,” screamed the other in a high falsetto, “because you are a  Bolshevik!”

“Prove it! Prove it, then!” flung back the defiant Schwartzbard,  dropping limp, into his seat.

 

A squat Slav, called by the prosecution, who described himself as an  “historian, a man of letters and at present an assistant to a stone-mason,” gave evidence in Petlura’s philo-Semiticism, denying with a  grief-contorted face that the “General” had ever killed Jews or  caused them to be massacred.

 

“Yes! Yes! He massacred them!” shouted Schwartzbard, unnerved.

 

The most notable witness called, however, was Mile. Haia Greenberg,  29, a curly bobbed-haired nurse. In a soft, low voice, she told of the  carnage and rapine ordered by Simon Petlura and of the blood-bathed  home of her grandparents. Murmured she:

“I shall never forget the reddened snowsleds, filled with the hacked  bodies, going to the cemetery to desposit their sad burden, in a common  pit. They brought the wounded to the hospital— armless and legless  men, mutilated babies and young women whose screams became faint as  their wounds overcame them.”

 

Then breaking down and sobbing convulsively she screamed: “Oh, no, no!  I cannot go on! They are before my eyes!”

 

“Petlura was responsible. Even Ukrainian officers said so. His soldiers  killed our people, shouting his name. One regiment had a band and it  played while knives fell on the heads of innocent babies. Petlura could  have stopped it, but he wouldn’t listen to our pleas.”

 

Verdict. Amid tense excitement, after an absence of 35 minutes, the jury  returned a verdict for the young, pale faced Jew’s acquittal. Frenzied  cheering greeted the decision. M. Schwartzbard, calm, kissed his  lawyer, Maitre Henri Torres. “Vive la France!” shouted somebody. “Vive  la France!” echoed some 500 voices.

 

In addition to setting M. Schwartzbard free, the verdict ordered the  Petlura family, represented by Maitre Caesare Campinchi, to pay the  costs of the trial, but awarded damages of one franc each to Mme.  Petlura, widow of the slain “General,” and to M. Petlura, his brother.

 

The outcome of the trial, which gripped all Europe, was regarded by the  Jews as establishing proof of the horrors perpetrated against their  co-religionists in the Ukraine under the dictatorship of Simon Petlura;  radical opinion rejoiced, but the conservatives saw justice flouted and  the decorum of the French courts immeasurably impaired.

 

Schwartzbard, free, went into hiding, fearing assassination at the hands  of anti-Semites.

 

*It is customary in French courts to employ the title  “maitre,” a term of respect.

Discrimination Against Roma in Hungary: European Court

The European Court of Human Rights (constituted under the Council of Europe) released a decision on January 29, 2013 concerning discrimination against Roma citizens in Hungary. The case is HORVÁTH AND KISS v. HUNGARY 11146/11 . The two complainants had been been improperly placed in special education schools designed for mentally disabled / special needs students on the basis of their ethnic origin. The European Roma Rights Centre were active in representing the complainants.

Pre-emptive Deportations, Thanks Canada!

The ruling falls at a time when Canada is putting up major barriers to Roma migration. Despite voluminous indications of differential treatment and xenophobia, the Canadian Government, and in particular, Minister of Immigration et al, Jason Kenney has been making strides in depicting Hungary as a safe democratic country. In particular, and in a bizarre move, Kenney has been setting up billboards in Hungary, telling Roma people that if they come to Canada, they will be deported. Here is the sign below. We hope that Canada will take note of the recent Human Rights decision from Europe. The recent demonization of the Roma community has come on the heels of xenophobic remarks made by long-time Conservative Party activist Ezra Levant on Sun TV.

Family Status Discrimination: The Federal Court takes a stand on Childcare Issues for Workers

Canada’s Federal Court has recently issued two decisions finding a lack of consideration towards workers’ childare issues discrimination on the basis of ‘family status’. Both decisions were penned by The Honourable Leonard S. Mandamin.

First, on January 31, 2013, the Federal Court released  Canada (Attorney General) v. Johnstone, 2013 FC 113 (CanLII). Here, Ms. Fiona Johnstone complains of human rights discrimination at work due to family status. Johnstone argued that her employer, the Canadian Border Services Agency, “engaged in a discriminatory employment practice with respect to family status, specifically, in relation to her parental childcare obligations.”  Johnstone had been working rotating shifts and requested full-time, fixed day shifts  to accommodate childcare for her kids. The Employer’s policy prohibited fixed day shifts. Johnstone was therefore ineligible for benefits available to full-time employees.

The Court reasons, at paras 125-128:

[125]      Simply stated, any significant interference with a substantial parental obligation is serious. Parental obligations to the child may be met in a number of different ways. It is when an employment rule or condition interferes with an employee’s ability to meet a substantial parental obligation in any realistic way that the case for prima faciediscrimination based on family status is made out.

[126]      In Amselem the Supreme Court of Canada ruled that a person’s freedom of religion is interfered with where the person demonstrates that he or she has a sincere religious belief and a third party interfered, in a manner that is non-trivial or not insubstantial, with that person’s ability to act in accordance with the belief.

[127]      The phrase “a substantial parental duty or obligation”equates with and establishes the same threshold as a sincere religious belief. Amselem.

[128]      In my view, the serious interference test as proposed by the Applicant is not an appropriate test for discrimination on the ground of family status. It creates a higher threshold to establish a prima faciecase on the ground of family status as compared to other grounds. Rather, the question to be asked is whether the employment rule interferes with an employee’s ability to fulfill her substantial parental obligations in any realistic way.

This decision is cited and further bolstered by a second decision on the same topic, released February 1, 2013.  In Canadian National Railway v. Seeley, 2013 FC 117 (CanLII) , the Federal Court dismisses an appeal against finding of discrimination on the basis of family status.  Denise Seeley was employed by CN as a freight train conductor. She was on lay-off and was recalled to report to a temporary work assignment to cover a major shortage in Vancouver, British Columbia. She advised she could not report to Vancouver because of childcare issues, as Vancouver was far away from her home in Jasper, Alberta. CN gave Ms. Seeley additional time, however, she did not report for work; as a result, CN terminated her employment.

The Canadian Human Rights Tribunal reinstated her employment, amongst other remedies, and CN appealed the decision. An important component of the decision is at para 78 where Mandamin suggests the following test in assessing whether there is discrimination on the basis of family status:

[78]          In trying to distil the principles the above cases represent, I would venture to suggest there are underlying questions one or the other has either raised or  addressed:

a.         does the employee have a substantial obligation to provide childcare for the child or children; in this regard, is the parent the sole or primary care giver, is the obligation substantial and one that goes beyond personal choice;

b.         are there realistic alternatives available for the employee to provide for childcare: has the employee had the opportunity to explore and has explored available options; and is there a workplace arrangement, process, or collective agreement available to the employee that may accommodate an employee’s childcare obligations and workplace obligations;

c.         does the employer conduct, practice or rule put the employee in the difficult  position of choosing between her (or his) childcare duties or the workplace obligations?

The Federal Court dismissed the appeal, ruling that “the Tribunal’s finding that parental childcare obligations comes within the term “family status” in the Act.” Moreover, the finding  “was reasonable in keeping with the Supreme Court of Canada guidance in Dunsmuir,Khosa and Mowat.”