Osgoode Hall Law School at York University and its Library recently hosted the only Canadian showing of The Face of the Ghetto: Pictures by Jewish Photographers from the Lodz Ghetto, 1940-1944, an exhibition of photographs taken during the German occupation of Lodz, Poland, during the Second World War.

The remarkable exhibit did not depict the violence and suffering of ghetto life, but rather the defiance of a community determined to continue individual and community life. For example, one photo highlighted life in a school., another focused on care for the elderly; one photo documented Jewish policemen and firemen in the ghetto, while yet another featured a wedding. The ghetto was indeed a place of disease and tears but also of resilience and resistance.

But what do these images have to do with the law and legal education?

At the launch of the exhibit, Professor Jan. T. Gross, of Princeton University, author of several books, including Neighbors, spoke of the devastating experience of Jewish communities being victimized and plundered by their neighbours in Poland (and across Europe) with whom they had lived among for centuries. In many cases, trials followed only years later based on eye-witness testimony from those who could no longer remain silent. The legal process became in some places the only forum in which the truth could be told. These trials of individuals grew into trials of communities – as Gross wrote in his study, Golden Harvest, “One Jew killed by one perpetrator – but in a public manner, with the approval and encouragement of a crowd of onlookers – represents a collective deed, implicating all those present.”

Last month, Professor Devin Pendas, a Professor at Boston College and Fellow of the US Holocaust Museum, spoke to a packed house at the Law School about the possibilities and limits of law to address the irreparable loss and suffering of the Holocaust. In trials throughout Europe in the 1940s and 1950s, courts grappled with how to treat concentration camp guards who made life and death decisions on a whim, Nazi bureaucrats who never saw Jewish communities but were responsible for countless thousands of deaths and collaborators in occupied territories who were sometimes themselves victims of Nazi atrocities.

Professor Pendas noted how courts tended to focus on individual acts of torture and murder but had no basis in their legal culture to come to terms with genocide. For example, one camp guard received over one hundred life sentences as a perpetrator for individual murders which had been documented by witnesses and a further two year sentence for being an “accomplice” in the deaths of tens of thousands others. Later on the same day, a panel discussion at the Law School poignantly explored attempts to bring to justice those responsible for the massacres in Rwanda in the 1990s.

The story of law’s encounter with the Holocaust is not simply history, but rather an ongoing struggle to bring dignity to victims, and accountability to those responsible for war crimes and crimes against humanity. It is as relevant in 2013 as in 1945.

This Lodz Ghetto exhibit served as a catalyst for talks, workshops, films, and discussions throughout the hallways and student lounges of the Law School. One student mentioned to me the conversation he had with an elderly man with no connection to the University who had made his way to Osgoode to see the photos. The student and some of his friends directed the man to the Library. A short while later he returned, sat with the students and told stories of his father who had lived in the ghetto. The student described the encounter to me as a moving and unexpected element of his legal education. I am confident as law schools move in more creative and concerted ways to integrate art in legal education, such encounters will become the norm of legal education, rather than the exception.

Many members of the Osgoode community have personal connections to the Lodz Ghetto, as do I. My youngest daughter Leah is named for my Great-Grandmother who died with her husband, siblings and all but two of her children (who had emigrated to Toronto, the youngest of whom was my Grandmother Fay). As I looked at the pictures in the exhibit, it is possible I saw people who knew and lived alongside my family, and perhaps even unidentified cousins. Growing up, I learned of the Ghetto only as a place of deprivation and death. Seeing the photographs brought that community, and the spirit and courage of its residents, to life.

The exhibit also offered us an opportunity to reflect on the values and goals of legal education. Through art and culture, law is humanized. We focus not on abstract principles and constructs but on the stories of those touched by injustice.

As many in the Jewish community know, universities may sometimes be the venue for speakers and events that provoke, and even offend. Academic freedom, however, must be seen through the lens of our core values of respect and inclusion just as those values must be seen through the lens of academic freedom. While there may be issues which from time to time test the strength of the university’s relationship with our own community and our broader communities, the university must serve as a catalyst for dialogue and reflection.

The “Face of the Ghetto” exhibit represented an important landmark in that regard. It was amazing to see how extraordinary depictions of ordinary life 75 years ago and half a world away could have such a sustained impact on our community today.

When Ian Scott, Ontario’s irrepressible former Attorney General, passed away many of his friends and colleagues at what is now Gowlings came together to fund public interest internships in his name. The concept is as simple as it is enterprising. Students must seek out low or no pay summer employment with NGOs or public interest organizations to undertake law related projects. The student then applies for the funding with the endorsement of the employer. Fellowship recipients may end up working around the corner or around the world. Recipients must demonstrate consistent high academic achievement and financial need. The award is intended to provide financial support to a student working in social justice in the summer. Last year one fellowship recipient worked with a human rights organization in Uganda while another worked in rural BC to better implement the Gladue principles relating to sentencing aboriginal offenders.

In January of 2013, I had the pleasure of announcing the new McCarthy Tétrault Business Law Internships. The firm of McCarthy Tétrault is providing $150,000.00 to create the Internship program and this summer the inaugural group of 5 fellowship recipients will take up positions with public and private sector organizations. The program will be administered by the Jay & Barbara Hennick Centre, a joint initiative between Osgoode and York’s Schulich School of Business. For future lawyers, there can be no more valuable experience than looking at legal problems from the perspective of a client.

At around the same time, we entered into discussions with friends and former Osgoode classmates of John Plater. John Plater, who died in 2012, played a key role in obtaining compensation and justice for thousands of people infected or harmed during Canada’s tainted blood scandal. This group wanted to ensure a new generation of “Platers” will be equipped and motivated to take on the challenges of patients’ rights, developing the principles of health law, and advocacy on behalf of those mired in bewildering health care bureaucracies. The result is the Plater Health Law Summer Internship program, commencing this summer with a student whose internship will involve a project with  the HIV/AIDS Legal Clinic Ontario (HALCO).

The ways in which a summer internship can build professionalism, passion and community is virtually unlimited. In many cases, the idea for an internship itself is a product of student leadership. Consider the new Osgoode/Heenan City Building Internship. This idea emerged from an Osgoode student who was volunteering in the Malvern neighbourhood where he grew up. He and I discussed how to ensure more law students were exposed to community development initiatives in Toronto, just as Osgoode has been exploring how to be a City-Building Law School. The result was an idea to fund Osgoode students keen to work on education and mentorship in urban communities with high need. Heenan Blaikie enthusiastically agreed to partner with Osgoode to bring this idea to reality, and this summer the first recipient of this internship will be working on a promising Pelham Community Development Project.

Finally, the spark for summer internships often comes from our alumni, who are more aware than any other group of the value of problem solving experience. Osgoode will launch its first Environmental Justice summer internships (aimed at enhancing our joint JD/Masters of Environmental Studies program) due to the generous donation of one of visionary alumnus.

Each one of these summer internship initiatives provides Osgoode students with invaluable work experience, and the chance to be a part of seeing law as both a problem-solving discipline and a helping profession.

While we grow new funded internships, we also continue to celebrate internships which students themselves fund. For example, for the past decade, Osgoode’s International Legal Partnerships initiative has seen students travel to the Global South to work with human rights, environmental and social development organizations to improve the lives of vulnerable people. Students have shown leadership and creativity in funding these unparalleled opportunities, including this year’s “Framed Experience” initiative, which featured photo essays from last year’s Fellowship recipients exploring themes of resistance, enterprise and exploration.

We hope to have additional internships to announce in the coming months and years so that no matter what area of law students wish to pursue, there will be opportunities to roll up their sleeves in the summer to make positive contributions. With each new summer internship, transformative possibilities open up for the students involved, the organizations, their clients and the Osgoode community as a whole.

First, we need to be contributing to the public debate on environmental issues – Professor Dayna Scott’s research is a case in point – drawing attention to the implications for vulnerable communities of oil and gas pipelines – and poorly regulated chemical industries – in places like Sarnia, Ontario. I had the good fortune to be on hand when Professor Scott presented as part of the Faculty of Environmental Studies Research showcase and the event reflected the University’s commitment to interdisciplinary research, especially in areas of environmental justice.

Second, cutting-edge research needs also to be paired with reimagining the classroom. Environmental law used to be pretty much limited to specialized classes devoted to the topic – now, more so than ever, students will encounter principles of environmental law and justice in legal subjects ranging from legal process and administrative/regulatory law, corporate law and torts, tax and municipal law, health and aboriginal law, just to name a few. That said, we also look forward to the continued success of our J.D./M.E.S. curriculum and the opportunity to explore environmental justice in a more focused and sustained course of study. Further, at Osgoode, for those students and others, we look forward to the expansion of experiential options in environmental law (and more initiatives such as the Osgoode sponsored Willms & Shier Environmental Law Moot led by Professor Stepan Wood, and the Justice and Corporate Accountability Project focusing on legal assistance to communities affected by Canadian mining operations overseas led by Professor Shin Imai), with more clinical and intensive opportunities to come. We also anticipate the development of more interdisciplinary courses with our new partners in the just established Lassonde School of Engineering as well as innovations within our long-established partnerships and joint programs with Schulich (and, of course, Environmental Studies).

Third, environmental leadership requires putting our values into our own physical space. Beyond the LEED Silver rating which has been the target for the renovated Osgoode building, we need to be committed to enhance the sustainability of how we learn, study and work in our building. The building incorporates significantly enhanced systems for heating and cooling which both save energy and cost. On the other hand, even in the new building, more is left to do.  For example, the lights in the library burn all night long due to the requirement of sufficient lighting for custodial staff overnight and the failure to anticipate that lights should be on different switches throughout the library. This is a deficiency which can and needs to be fixed, and will be. Even after construction is finished, the building remains a work in progress.

Fourth and finally, environmental leadership needs to engage our community and be student, faculty, staff and alumni led. We are fortunate to have dedicated Osgoode staff and faculty leaders who are absolutely committed to these goals. We are fortunate to have students who are driving change. Every event, every course, every talk is an opportunity to express our values. Do we use recyclable or disposable material? Do we provide hard copies of documents which could be more effectively provided on-line? How can Osgoode become a carbon neutral or carbon positive setting for legal education? Environmental issues need to be everyone’s concern, not just the concern of one group or constituency within Osgoode, and each modest initiative (moving from single-side to double-side printing through the Faculty Administration this year, for example) can cumulatively make a significant and sustainable difference!

Osgoode’s Class of 2015 features 42% of students who identify as non-white. This Class is the most diverse in Osgoode’s history (and, we think, perhaps in the history of Canadian legal education, though the mix of comparative data from other schools makes these sorts of national assessments challenging).  Applications from indigenous students are up by over one-third while the number of black students in the class of 2015 has doubled from the class of 2014! Close to a quarter of the entering class of 2015 have graduate degrees while one law student out of 7 enters law school over the age of 30.  Perhaps most remarkable of all, a quarter of the Osgoode Class of 2015 was born outside Canada (from 36 different countries).

Debt remains a growing concern. The amount of financial aid provided through entrance scholarships is up 36% since 2005-2006 and it is still not nearly enough to ensure cost is not a barrier to an excellent legal education.

While these numbers reflect important values about how law school ought to reflect the broader community, and are a source of genuine pride, they also demonstrate that there is important work left to do to make the Law School truly inclusive. Law School is a community made up of people, not numbers and we know many law students from racialized communities too often feel like outsiders.  Women now make up a majority of the Law School class but that does not mean gender is no longer an issue in many law students’ experience.  A recent update from the newly created Equity Officer position within Osgoode’s student government revealed concerns which range from the need for more diverse faculty members  to high tuition.

We know that while these issues are vital to the quality of the law student experience, they are just as salient when our graduates seek to enter the profession.  The issue of accessible and inclusive pathways to licensing has been an animating feature of the articling debate (the subject of several previous posts) and the emergence of the new LPP model.

These concerns are only intensified for those who do join the profession. I met with the Equity Committee of the Law Society of Upper Canada which has been undertaking a Project on the Challenge Faced by Racialized Licensees (ie. Lawyers and Paralegals). The Working Group is considering a range of initiatives from enhancing mentorship opportunities to supporting firms and organizations that make diversity a priority in their hiring and in supports for their lawyers and paralegals.

Here as well, the first key challenge is data. While the Ornstein Report on Racialization and Gender of Lawyers in Ontario (2010) and the study on leaders in the legal community released by DiverseCity in 2011 paint a picture of who lawyers are and how they are changing, we still cannot track which firms, clinics or government agencies are leaders in inclusive hiring. While the National Association for Law Placement (NALP) tracks demographic hiring metrics which allow public interest goups to issue “report cards” on US firms and other legal organizations, we have no equivalent data in Canada nor a principled argument for why such information is not made available. Such information is particularly important for law schools – Yale, for example, uses such data to produce a “Top Ten Family Friendly Firm” list to inform student career choices.

I should add a similar informational challenge faces the judiciary. My colleague Sonia Lawrence and I called on the Government in an open letter to release relevant data about the demographic background of applicants for judicial positions and about those appointed. We have yet to receive a response.

Whether at the stage of admissions to University or Law School, at the stage of hiring or appointment to judicial or other offices, we need to view the diversity of background and experience as simply another component of merit. Who we are and where we have come from affects what we know just as much as any exam or aptitude test we write. This does not mean that the sum of our qualifications are determined by the colour of our skin, the language we speak, faith (or lack of it) we profess or other cultural and ethnic attachments. Rather, it argues for a holistic approach to allocating opportunity, one that takes seriously but is not limited by a range of relevant criteria – from grades and LSATs to  community leadership and overcoming adversity; from social, economic, racial, linguistic and cultural background to writing samples and character references.

So, I write at a time when there is much to celebrate. I believe Canadian law schools generally and Osgoode in particular have never embraced diversity as broadly and deeply as we are witnessing today. That said, I also write at a time when the need to demonstrate that we are inclusive communities that are responsive to the needs of a diverse student body (and broader public) has never been as urgent.  We expect leadership from students in that regard and they expect leadership from faculty, staff and alumni. And together we will turn to the legal profession and other legal institutions and leaders with similar expectations. And this is exactly as it should be.

I congratulate the ILP on choosing to focus on the freedom of expression for this special edition of Obiter Dicta.

In a recent paper (co-authored with Valerie Crystal), we explore the sub judice principle, under which journalists, politicians and others are restricted from reporting on pending and on-going litigation. The rationale for this rule, which dates back to the origins of the press, is to avoid prejudicing a jury by public discourse about a case and to preserve the integrity of the judicial process. While restrictions on the attempt to influence or undermine the impartiality of such a proceeding may be justified, in our analysis, the principle is often overstated. Reporting on litigation is now commonplace (not to mention live-tweeting of high-profile trials), and the increased public awareness of the judicial process is arguably is a greater good than the potential of tainting judges or juries. Where this is not the case, the option of a formal publication ban remains open to the parties to seek. And politicians should not be able to use this legal doctrine to skirt accountability through blanket excuses of “no comment.” As we conclude in the context of the sub judice principle, if the aspirations of our constitutional democracy are to be fulfilled, limits on the freedom of expression (and its companion, freedom of the press), must be both exceptional and minimal.

The freedom to express one’s views, especially unpopular or dissenting views, lies at the heart both of constitutional democracy and the rule of law. It is the first freedom to disappear in a dictatorship, because without it, it is far easier to take away all the other freedoms. By the same token, when the freedom of expression is safeguarded, other freedoms and civil liberties become inevitable.

The Pen International Caselist which chronicles the stories of writers in prison around the world is a sober reminder of how elusive this freedom can be. Consider this description of a typical entry:

Frank FUAMBA: managing editor of the Lubumbashi-based Mining News magazine. He was abducted on 6 June 2012 at about 6pm by a group of armed men in civilian dress who forced him into a jeep. Forced to wear a hood, the journalist was taken from place to place over the course of the night. These included a Katuba home where he was questioned at length about his personal relationships, the politicians he knows and the political news stories that appear in his magazine. They took all of his belongings and finally let him go near a school in the neighbouring town of Katuba at about 4am. That same night, Mining News journalist Sylvie Manda received a threatening phone call while seeking assistance for her abducted colleague. The caller promised to find her the next day.

Journalists for Human Rights (JHR) has launched a campaign focused on the Democratic Republic of the Congo entitled – “Put Human Rights into Headlines: Help End Impunity for Rights Abusers”.

The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression was first appointed in April 1993. This office’s mandate, just extended in 2011 until 2014, is to gather information on discrimination, threats or use of violence and harassment directed at individuals or professionals seeking to exercise or promote the right to freedom of opinion and expression. The Special Rapporteur reports to the UN on ways and means to promote and protect better the right to freedom of opinion and expression in all its manifestations. Just this month, the U.N. released a report on proposed legislation – a Bill on Mass Organizations – in Indonesia which threatens the rights to freedom of association, expression, and religion.  The U.N. Special Rapporteur, Mr. Frank William La Rue,  observed that, “The State must ensure that any restriction on the rights to freedom of association, expression, and religion is necessary in a democratic society, proportionate to the aim pursued, and does not harm the principles of pluralism, tolerance and broadmindedness,” The Bill on Mass Organizations imposes the requirement on the founding of associations not to be in contradiction with “Pancasila” – the official State philosophy in Indonesia that consecrates the belief ‘in the One and Only God’. It also stipulates that organizations have the duty to maintain religious values.

The U.N. also issued a warning about events unfolding in Iran, where security forces raided five newspaper offices and arrested at least 17 journalists, who now join at least 40 journalists already imprisoned in Iran. According to the U.N. Special Rapporteur, the 17 arrests carried out so far are part of a broader campaign to crack down on independent journalists and media outlets in Iran, under the accusation that they have collaborated with ‘anti-revolutionary’ foreign media outlets and human rights organisations. The arrests and detention appear to be designed to retaliate against the exercise of freedom of expression and, ahead of the upcoming elections in June 2013, will send a message which reinforces self-censorship.

Ironically, at a time when expression has never been easier around the world – a video uploaded to YouTube or a blog post are a click away for millions – free expression has never been more perilous.

Canada has a vital role to play on the global stage with respect to freedom of expression in at least two respects. First, Canada’s own protection and promotion of freedom of expression ought to serve as a beacon for how difference of identity and diversity and views can be mediated through expressive rights.  Second, Canada ought to serve as a haven for those fleeing persecution arising from the deprivation of their expressive rights. Canadians should rightly be proud but not complacent about our achievements in both contexts.

In Canada, thankfully, the threat is not to the lives and safety of journalists and writers. Rather, the concern is often about creating viable spaces in which critical or dissenting expression can find its voice. To give just one example, the Federal Government’s attempt to demonize and discredit environmentalists and indigenous groups protesting against the Northern Gateway and other pipelines reflects one kind of threat to free expression, not to mention the kind of attempt to influence or undermine a judicial process where the sub judice principle still has application.

As we have witnessed under section 2 of the Charter of Rights, protecting the freedom of expression is the easy part. Any attempt to curtail expressive freedoms, broadly understood, will almost always violate this section. Determining the reasonable limits on this protection – the section 1 analysis – is the challenging part. Whether regulating tobacco advertising or prosecuting hate speech crimes, there is clearly a role for the state but competing rights are never easy to reconcile. The balance between human rights protection, for example, and the freedom of expression when a religious tradition is mocked through a novel or cartoon reflects the kind of setting which most vexes our constitutional and democratic instincts.

And with respect to Canada as a safe haven for those fleeing persecution for the expression of belief and opinion abroad also may be eroding due to changes to immigration and refugee laws in 2012.

In both these senses, the protection of free expression remains a work in progress in Canada. This special edition of the Obiter and week of events and discussions led by ILP represents an ideal time for Osgoode students, staff, faculty and alumni to reflect both on the importance of the rights of free expression and the work needed to ensure they are broadened and deepened here and abroad.

In 2004, Japan adopted an “American” style system of legal education, featuring a second-entry J.D. degree followed by Bar Examinations – a transformation described by some as “tragic.” Japan used to have a system in which very few graduates of LL.B. programs passed the bar (often under 5%), but after 2004, the Bar Examination pass rate leaped to over 50% (it has since been brought down to approximately 25%).  In Japan, the Ministry of Justice both sets the Bar examination and imposes a quota on how many may pass.

New law school programs popped up around the country, even if too few faculty and students were present to sustain them (three have decided to close just this year). The new “American” model of legal education, combined with a stagnant economy, and a conservative profession, has turned out to be a challenging mix for legal education.

Both because of concerns about access, and concerns the J.D. programs are out of touch with the skills necessary for legal practice, in 2009, the Japanese Government instituted a second path of entry into the profession – a preliminary exam which, if passed, entitled the person to write the Bar Examination without having to complete a J.D. degree. This kind of alternative pathway is not unprecedented – California, for example, allows people to write the Bar exam without having attended law school if they apprentice with a law office for at least four years.

The number of students thus far who have by-passed a J.D. altogether in Japan is small, it is expected to grow. And why shouldn’t it. One does not need six or seven years of training (e.g. an undergraduate degree and J.D.) in order to pass a test. Unless the other attributes to which legal education strives are respected (problem-solving through analytic and contextual understandings/applications of law), professional legal education will face an uncertain future.

While law schools now struggle over rankings based purely on the percentage of their graduates who pass the Bar Exam, professional legal education itself may become obsolete for all but the most elite career paths.

Japan’s legal education policy is almost entirely driven by concerns over supply (and the widespread perception that “there are too many lawyers”). The motivation appears simply to restrict entry into the profession order to retain well-paying positions for those who make it, rather than any concern for the demand for legal services (or any empirical understanding of legal needs in Japanese society). High quality applicants for Japanese law schools are declining.

While there is no single cause of this “Tokyo Drift,” it is clear that it is made possible by a generation of leaders in the legal community who believe the legal education at law schools have little to contribute to legal practice and a generation of law professors who buy into the notion that “practical skills” and  “scholarship” are separate spheres, rather than mutually enforcing spheres of engagement.

There are a number of potential lessons for Canada in the current situation in Japan. Canada too is experiencing a sea change in legal education, with the introduction of a new accreditation model for common law degrees and a new alternative pathway to practice in Ontario to operate alongside articling. Canada too is experiencing a growth in new law programs, which has exacerbated the debate as to whether there are “too many lawyers.” In Canada, as in Japan, the question is whether law schools can be sufficiently innovative, and the profession sufficiently progressive, to evolve models of legal education which can serve the public interest.

Japan is a fascinating and enigmatic place. The law professors, lawyers and judges I met during this trip all are passionate about new roles for the legal profession (for example, the subject of my paper for the Symposium explores the accountability role of lawyers on third party committees appointed to investigate corporate misconduct) and the aspirations of legal education (I was impressed with the new clinical programs at Waseda and Nagoya’s program to provide legal development assistance to Mongolia, Laos, Vietnam and Cambodia).

I hope the “Tokyo Drift” is one of those disruptive moments of “creative destruction” out of which emerges a stronger legal community, and from which jurisdictions like Canada can see their own way forward.

An enduring puzzle for me is precisely this moment in the relationship between faculty and students. The class, in effect, is over at the time I feel most engaged with every student in the class – while some speak more than others in the class discussion or post more than others in a chat room, every student’s voice is contributing to the conversation that is the exam process.  Yet, it is too often dual monologues rather than a dialogue. Students write exams. Faculty grade them often writing detailed comments on each. But when students do not read the comments or faculty do not have the opportunity to elaborate on them in a follow up meeting, the process is left wanting. So, I very much share Cory’s call to action, and I share his sense that there is more we can do with relatively modest improvements.

I particularly endorse the proactive approach rather than the passive one. In other words, rather than waiting for students to pursue feedback from faculty individually, why not reserve a room in which any student could drop by and read the feedback on any exam as part of an “exam return week” along the lines of the Windsor approach (though, to be realistic, with close to sixty full time faculty and over one hundred adjuncts and the most diverse curriculum in the country, any initiative at Osgoode will have to tackle complexity and volume on a scale that is different from smaller law schools)? Why not schedule one meeting (optional attendance) of a class just after grades come out to provide an opportunity to understand the alignment or lack of it between the students’ performance and faculty expectations? Why not post “model” answers from the very best students (assuming they consent, etc)? Why not include a grading rubric or matrix so as to make the comparative assessments more transparent, or simply designate more classes that are “grade-free” and evaluated on a credit basis?

One idea I love is to have assessment include both a writing assignment, an opportunity to take up the assignment in class and then a further requirement that students write a brief critique of their own original paper – it is the critique that is actually then graded by the faculty member. A mix of assessment models, less reliance on 100% finals, more engagement following mid-terms or shorter assignments, etc, all mitigate the kinds of concerns Cory has raised. I know faculty pursuing each of these approaches (the one just mentioned was introduced to me by my colleague Bruce Ryder) – and several others – on an individual basis.

I wonder, though, if at the end of the day Cory is really calling for modest concrete reforms or a broader culture change. The culture change would move from one of widely varying practice to one of shared institutional commitment to proactive feedback and engagement. I believe and hope it is just such an evolution of our culture to which the concrete ideas proposed by Cory would give rise.

Thanks again to Cory for his initiative and his ideas – Imagine what might happen if we moved to “Dean for a Week”!

Dean for a Day Submission from Cory Rubin

My Dean for a Day idea is focused on improving the student learning experience. As many students can probably attest, many times after receiving a grade it is unclear as to how the mark was actually determined. My proposal is focused on improving the feedback process that currently exists when exams, essays and assignments are returned.

I believe that it would be beneficial to have an exam return week, much like at other law schools such as Windsor. This would entail a full week in which students can come in and review their exams at their convenience. In my experience it has not always been convenient meeting with professors as a result of both of our busy schedules. At times I have had to meet with professors outside of the school setting and I believe that this acts as a deterrent for many students to go in and review their exam. By offering students a full week to see their exams it creates an opportunity that many students would otherwise not have.

To ensure that this system is truly convenient, what would be required is quick access to every exam. Students would be required to come to a specific room with their exam number. They would provide an individual with their exam number and their courses. The person would then sort through the appropriate courses and exams and then provide the student with their exams. The students can then go to a desk and review their exam and make any notes they deem appropriate. Obviously desk space would be limited but due to classes it would be unlikely that everyone would come at once. Additionally, a full week allows every student ample opportunity to wait and review their exams.

As the students review their exams, they should also be provided with a general outline of what the professor was looking for in an answer. This will allow the students an opportunity to review their answers before deciding whether they should arrange a meeting with their professor. This will allow students time to actually process what they did wrong. At the same time, if a student believes an error has been made, it will provide them with an opportunity to go home and formulate a response to their teacher when it comes time to meet. This would also ensure that both the students and teachers’ time is best spent by ensuring the meetings have merit.

As for feedback, as it relates to exams, assignments and essays, there have been times in which I received very little, if any, comments when my work was returned. I believe that professors should be required to provide students detailed feedback wherein students can understand their mark, and more importantly they can understand where to improve. As an example, where possible, it would be preferable if essays and assignments were returned with a marking rubric that has comments relating to the specific work.

These ideas, although not radical, would greatly improve the academic experience at Osgoode.

On Friday, January 18, 2013, the federal Ethics Commissioner confirmed that Federal Finance Minister Jim Flaherty acted “improperly” and in so doing, breached the Conflict of Interest Act. The Minister had written a letter to the CRTC on behalf of a constituent who was seeking a radio license, which are decided upon by the Canadian Radio-Telecommunication Commission (CRTC).

The Ethics Commissioner directed Minister Flaherty to refrain from writing similar letters in the future without seeking approval from her office. While this slap on the wrist may resolve this relatively modest ethical infraction, it once again raises concerns about the Federal Government’s lack of respect for the independence and impartiality of the administrative and regulatory bodies which must act and be seen to act at arm’s length from Government. As I have written in other contexts, the independence and impartiality of these bodies depends not just on clear legal and ethical boundaries, but on political leadership.

The Minister indicated that he was writing the letter on behalf of Durham Radio Inc.’s bid to obtain a licence for an open spot at 88.1 FM on the Toronto dial (the license was awarded instead to Barrie’s Rock 95).  It is not uncommon for MPs to write reference letters or letters of support on behalf of people and businesses in their riding. The problem stems not from Mr. Flaherty writing as an MP on behalf of a constituent but rather in signing his name as the Minister of Finance. So, what is the distinction between these two kinds of signature?

An MP has an obligation to advocate on behalf of her or his riding and its constituents and has no power over those who are appointed to independent agencies, boards and commissions (or, ABCs, as they are sometimes called), but a Minister who sits in Cabinet does. Cabinet selects the people who become the decision-makers at the CRTC and other ABCs. For this reason, patronage has been an ongoing concern – that Cabinet Ministers will select their political friends to run these independent bodies and use those posts for partisan advantage.

As a protection against patronage, and to ensure the perception of independence and integrity of independent ABCs, ethical rules have been developed which make it improper for a Minister to attempt to influence these decision-makers. So, while the Minister of Finance plays no role and has no input into the deliberations or decisions of the CRTC, the improper influence stems from the perception that if someone responsible for your appointment or reappointment wants his constituent to get a radio license, this will directly or indirectly play a role in the decision-maker’s decision.

“It is improper for you, as Minister of Finance and Minister responsible for the Greater Toronto Area, to have written a letter of support on behalf of a constituent to an administrative tribunal in relation to its decision making,” the Ethics Commissioner wrote in her compliance order to the minister. Mr. Flaherty’s office issued a quick response, stating that the use of the minister’s title in the letter was a “regrettable” oversight. In a statement, the minister says he fully intended for the letter to be sent in his capacity as MP for Whitby-Oshawa.

This episode in once sense is an example of the system working as it should. In another sense, however, it highlights the vulnerability of the regulatory process to political influence and underscores this government’s poor track record in respecting the integrity of this process. As we have seen with the removal of Linda Keen as Chair of the Canadian Nuclear Safety Commission because of her decision order the Chalk River Nuclear Facility closed over safety concerns, with the resignation of Munir Sheikh from Statistics Canada over political comments made about the removal of the long-form census, and the current attempts by Minister Joe Oliver to influence the result of the National Energy Board hearings on the Northern Gateway Pipeline, the Government has viewed these independent bodies too often as instruments to implement its policies.

Flaherty’s misplaced ministerial signature is an opportunity to highlight the significance of independent adjudication and regulation and the dangers of Government leaders seeing every exercise of public authority through a partisan lens.

This op-ed, co-authored with Professor Adam Dodek of the University of Ottawa, was published in the Ottawa Gazette on January 21, 2013 – http://www.ottawacitizen.com/opinion/Outspoken+Onley+viceregal+model/7850156/story.html

Ontario’s lieutenant-governor explained in an extensive interview given to Martin Regg Cohn on January 13, 2013, why he agreed to Premier Dalton McGuinty’s controversial prorogation request and the sky has not fallen. In remarks earlier this month that so far have not attracted much attention outside of Toronto, Lt. Gov. David Onley justified his controversial decision in some detail. Our viceregal representative asserted that he defended the Constitution and its conventions by upholding the traditions of responsible government.

In speaking out about prorogation, the lieutenant-governor knew that he was breaking with recent tradition. We commend him for doing so.

The view that both a premier and a lieutenant-governor (or prime minister and governor general) should retain a Sphinx-like silence in the face of questions about the shuttering of the legislature (or Parliament) are both overblown and out of touch with the values of Canadian democracy.

Onley clearly recognized the latter when he said to Cohn that in today’s culture “the expectation of explanation is meeting up against the constitutional convention of the viceregal office.” Conventions are rooted both in principle and practice. They are designed to constrain when necessary and evolve when necessary. In this case, the evolution toward greater transparency is overdue.

After the controversial Harper-Jean prorogation of 2008, we challenged these twin practices of non-disclosure and non-explanation in the book Parliamentary Democracy in Crisis.

The existence of a practice of non-disclosure of what transpires between the first minister and the viceregal representative is at best a recent invention and at worst a tool of convenience. If we look at the evidence, the rule appears less notable than the exceptions. For example, in what remains the most controversial viceregal episode — the King-Byng Dissolution of 1926 — the government of Canada published the correspondence between prime minister Mackenzie King and governor general Julian Byng several years later.

Even in the more recent Harper-Jean prorogation of 2008, it is clear that some of the parties to the famous two-and-half hour tête-à-tête between Prime Minister Stephen Harper and governor general Michaëlle Jean spilled the beans to journalist Michael Valpy who produced a highly detailed account of their meeting within days of its occurrence.

In December 1979, prime minister Joe Clark’s government fell after losing a budget vote in the House of Commons. He went to visit governor general Edward Schreyer who reportedly kept the prime minister waiting for an hour while he sought counsel on what to do. Schreyer reportedly asked Clark if he had considered seeking a vote of confidence rather than seeking a dissolution (the last election had taken place just over six months earlier on May 22). Jeffrey Simpson revealed these events the next year in his award-winning book Discipline of Power.

And of course McGuinty was accused of “breaking with protocol” in revealing his discussions with Onley to Steve Paikin on The Agenda.

McGuinty was rightly scrutinized for his government’s prorogation request. He should be held to account for this request as for any other action of his government — or perhaps even more so, since the consequence of prorogation is to minimize the extent to which the government may be held to account for its record.

Justice Karakatsanis graduated from Osgoode in 1980. She recalls being one of just a handful of law students of Hellenic background – so it was particularly meaningful for her to be on hand to unveil a plaque containing the Oath of Themis donated by Osgoode’s Hellenic Law Students’ Association in 2006 – on hand to assist her with the unveiling  were Georgette Andreopoulos and Stephanie Voudouris, two Osgoode recipients of the Hellenic Canadian Lawyer’s Association (HCLA) scholarships which in 2011 were named in Justice Karakatsanis’ honour.

Another highlight of the day was an informal session Justice Karakatsanis held with Parkdale students, which allowed her to share some of the vivid memories of her time at Parkdale. She spoke of the eye-opening insights which followed her first encounter with families in crisis, and the importance of seeing law in context which has stayed with her ever since. Current Parkdale students asked wide-ranging questions from whether “women can have it all” to how judges pursue social justice.  Justice Karakatsanis’ answers were characteristically unpretentious and thoughtful.

In other sessions, Justice Karakatsanis’ shared her thoughts on current research on intervenors at the Supreme Court with Osgoode graduate students and faculty, and listened to the top of mind issues from Osgoode’s JD student leadership over lunch. She topped off a whirlwind day with a plenary address to the first year Ethical Lawyering in a Global Community class during which she wove together themes of professionalism and commitment to the rule of law with her own experience in the justice system.

Justice Karakatsanis’ career and commitments reflect so many of Osgoode’s values. We are enormously proud of her connections to the Law School, and look forward to return visits and strengthening her involvement in the Osgoode community in the years to come.