The Legal Eye - Faculty.law.ubc.ca - University of British Columbia

First years, first month, free pizza
by Priscilla Chong, Law II
On a Friday afternoon in late September,
I went scooting around the law school
to check out first years and find out what
they thought of law school so far. This is
what some of them had to say…
Andrew Lau
First year has been awesome. It’s probably
the best thing that happened to me.
It’s better than winning the lottery. When I
first got here, I thought everyone would be
really cold and vicious and stuff, but everyone
is really friendly. [Orientation Week]
had a lot of speeches. A lot of it was kind
of boring…speeches man…information
overload…I like the lockers, man. It’s just
like high school! We’ve got lockers! The
small group is pretty cool. You get a chance
to know people. It’s not like undergrad
where you have class with like 200 people,
and you don’t really get a chance to interact
that much. I expected more [of a
workload]…it’s manageable. Why did you
want to go to law school? ‘Cause I want to
bring honour to my family.
First years, first month 1
Commercial/Consumer Law 1, 8
Dean’s town hall meeting 2
UBC Law: a new look 2
Law School Briefs 2
Tribute to Stephan Salzberg 2
Curriculum review 3
Alumni Assoc. prez speaks 4
Mary Ellen Turpel Lafond 5
Marlee Kline Endowment 5
In this issue
The Legal Eye
keeping tabs on UBC Law and beyond
Vol. 2 No. 3 November 2004
Jeremy Shimkofsky
…So far I’m not disappointed. I’ve met
great people, interesting classes, and I’m
learning a lot. Are you going to the Wine
and Cheese? I’m going and can’t wait to
meet the lawyers.
Eric Yeung
It’s been a really positive experience
so far. The thing that I’m most impressed
about is the professors. They all, for the
most part, lecture really well. I like the
whole idea of a small group so I can have
class with the same people so it’s easier to
get to know them.
Vincent (Xiuwen) Ouyang
Free pizza, free bbq’s and free readings!
Too many readings…
Anna Karlen
The Orientation Week was really good,
and I find that the second and third years
The Space Law moot 6
A visit from the ICJ 7
Sam meets Jack 8
America on trial 9
Russia set to ratify Kyoto 10
Who is this person? 10
The Supertorts 10
Bulletin Board 11
Law & Business Society 12
The McLachlin Inn at UBC 12
are really helpful with finding CANS and
explaining how things are going. The professors
have been really helpful. I thought
we’d be instructed on exactly how to do
everything a little bit more, like how to
exactly make a brief, and stuff like that instead
of being thrown out there right into
the elements. But that’s a really small complaint,
and I’m really happy with everything
so far.
Jill
...It’s been really busy, but getting to
know everyone is really good. Orientation
Week can be a little less hectic!
Adam Wanke
…The first month of law school is a
little stressful but lots of fun as well, so it’s
kind of cool. It met my expectations of reading
overdose! The culture of the school is
very relaxing and very laid back so I’m kind
of happy about that. I’ve heard a lot of
messages that [I should] try not to be competitive
and try to make a lot of good social
connections, so I think that’s pretty
good.
William Haworth
It’s been a lot of fun, a lot of socializing,
good times, drinking, going out at
night. Law affects so many different parts
of life, so it’s a very useful degree and it’s
interesting. I expected it to be a lot more
stressful than it turned out to be. It’s not
stressful at all now. I’m looking forward to
having more fun.
all photos by Priscilla Chong
A diverse spectrum of
discussion & debate
by Lisa Kerr, Law III
The 34th Annual Workshop on Commercial
and Consumer Law was held at the
UBC Law School on the 22nd and 23rd of
October. The event is traditionally hosted
by Professor Jacob Ziegel of the University
of Toronto Law School, but it moved west
this year under the organization of Professors
Janis Sarra and Ron Davis.
Attendees included more than a 150
members of the judiciary and the legal and
academic community from across the US
and Canada. The topics of discussion
spanned a decidedly diverse spectrum of
commercial law topics, including the
softwood lumber dispute, the impact of
unions on a corporate restructuring, and
reactions to the new BC Business Corporations
Act from drafters Linda Parsons and
John Lundell, along with Blakes lawyer
Andrew McLeod. Professor Jay Westbrook,
who travelled from the University of Texas
Law School in Austin to be the speaker at
the Green College dinner reception, addressed
issues of director liability in the
context of insolvency.
The highlight of the conference was
the inclusion of both leading lawyers and
top members of industry, as indicated by
the panel addressing NAFTA and lumber
disputes. Contributors included Elaine
Feldman, the Associate Assistant Deputy
Minister at International Trade Canada,
along with John Allan, the President of the
BC Lumber Trade Council, and Richard
Paisley, Director of the Dr. Andrew R.
Thompson Natural Resources Law Program
at UBC. Keith Mitchell, the managing
partner of Farris, piped in to reveal his
vast experience traversing the complex
commercial and diplomatic landscape of
the softwood dispute. All were in agreement
on two issues: the US is a difficult
negotiating partner, and the lumber issue
requires both legal and political approaches.
see Conference page 8

Dean’s town hall
by Oscar Allueva, Law I
On October 19th, about 75 students
attended the “Town Hall Meeting” with
Dean Mary Anne Bobinski. The purpose
of this lunch time meeting was three-fold:
to update students on the goings-on at the
Law School over the past year, to discuss
current and future plans in a number of
areas, and to give students a chance to voice
their concerns and raise issues directly to
the Dean and other faculty in attendance.
While pizza and pop were being consumed,
Dean Bobinski reported on number
of good things that happened over the past
year: the school hired five new faculty,
worked with UBC to better allocate tuition
funds, made some physical improvements
to the building, and increased student financial
aid.
On this last point, Dean Bobinski reported
that she was recently pleased to learn
that the revised UBC policy regarding student
financial aid (Policy 72) will not reduce
available funding for financial aid to
law students. However, there have been
changes to the bursary system in general
as per the broader UBC Policy, which may
affect what individual students receive.
There is now one person at UBC Student
Financial Services dedicated to dealing
specifically with law student applications
for financial aid (Pam Davidson at Brock
Hall).
Dean Bobinski also raised the issue of
jobs. The Faculty is aware of the pressure
and competition that begins on day one of
law school for a limited number of articling
positions. Some figures were promising:
based on last year’s statistics, 90 percent
of students that wanted articling positions
received them. Dean Bobinski acknowledged
that this may be a reduction from
past years and there is work to be done in
this area. But there were other concerns
from students: that too many local articling
positions may be going to students from
out-of-province, and that UBC students
may not be as highly sought after. Dean
Bobinski acknowledged that these views
How many law students get to traipse
off to New York in the middle of the term?
Well, at least Julaine Eberhard (Law II)
had a good reason for doing so. She was
down in NYC on October 7th defending
her Ph.D. dissertation, entitled “Recognizing
Justice: a study of the connections between
human recognition, realization and
restorative justice.” The Legal Eye is happy
to report that Julaine was successful in her
defence and is now the proud owner of a
doctorate in social and political philosophy
from the New School for Social Research
(New School University). Well almost;
it’s not official until January.
Congrats Dr. J.
Law School Briefs
persist, but she suggested that they may be
more perception than fact given the reputation
of the school among firms, the wide
variety of courses offered, and the range
within faculty, which includes over 40 practitioners.
A number of comments were made
regarding the law school curriculum. The
Curriculum Review Committee that started
its review last year has made 15 overall
recommendations for change. The committee
will be moving ahead with the next
stage of the review, which involves a more
thorough analysis. This review has considered
broad questions regarding the role of
the law school and legal education in general,
and will undoubtedly lead to fundamental
changes. The goal of the committee
is to produce a complete package that
must be approved by the UBC Senate before
implementation. Students are represented
on this committee and the report of
the committee is available.
The building is another area of both
current attention and future development.
Improvements are being made as are necessary,
but the building needs to be replaced.
Dean Bobinski gave an update on
this: working with RPG consultants, a
number of meetings have been held to come
up with a building concept that reflects future
needs for the law school. The cost of a
new building is tentatively estimated at $30
million and the process is at a very early
stage.
Lastly, Dean Bobinski spoke on the
rising cost of tuition, saying that this is an
area of great concern for students and faculty.
The process of determining the level
of tuition next year includes consultation
meetings to be held in about three weeks.
There are various issues to be considered,
beyond the obvious level of tuition, such
as whether tuition rates should be
grandparented, and how far in advance tuition
should be set, et cetera. A final decision
needs to be presented to the Board of
Governors in January.
[BTW, we know there were other law
students in New York in early October for
just as “legitimate” reasons, but we’re still
going to give you a hard time.]
On a sad note, The Legal Eye wishes
to acknowledge Dagmar Bonkowski who
passed away September 29 after a short but
brave struggle with cancer. Dagmar was a
long time member of the UBC Library, joining
the 25 Year Club last year. Since 1981,
Dagmar was at the front lines of the Law
Library, working in the circulation department.
She also enjoyed reading travel biographies,
going for walks and painting.
The Legal Eye extends our thoughts to
Dagmar’s family, friends and colleagues.
Corrections
In our October issue, the mistakes began on page 1. In our piece on the SCC docket
this fall, we stated that the Provincial Judges Reference decision was in 1977. Of
course, any self-respecting UBC law student who made it through Legal Institutions
knows that the correct year is 19..... 97. (BTW, why didn’t any of you point out the
error in our ways?) Also in our last issue, we forgot to list the address for the Xwi7xwa
Library, the subject of Myrna McCallum’s page 4 article. Xwi7xwa is located in the
First Nations House of Learning, 1985 West Mall.
The UBC Faculty of Law is part-way through an overhaul of
the publications it uses to communicate with prospective applicants,
alumni and members of the profession. Gloria Casciano,
the Faculty’s communications/events coordinator, spent much of
the past three months working on this project with other faculty
and staff members. The first stage was completed in mid-October
with the release of new brochures for prospective students to
the LL.B. and graduate programs.
The brochures give applicants
a flavour of UBC Law.
The Faculty has also developed
two new “wordmarks:”
see above headline and on the
front page of the brochures.
The Faculty wishes to thank all
those involved for their assistance
as it moves forward with
plans to revitalize UBC Law’s
print and web publications.
: a new look
A lasting tribute to Stephan Salzberg
Pitman Potter shares fond memories of his colleague and friend
Professor Stephan Salzberg. The Japanese Maple tree behind
Prof. Potter was planted in honour of Prof. Salzberg.
photo by Agnes Huang
A crowd gathered in the Inner Courtyard at UBC Law on October 14th to pay respects
to Professor Stephan Salzberg, who passed away in July. Tributes were given by
Professors Keith Farquhar and Pitman Potter, Professor Emeritus Bob Reid, third year
law student Brandon Smith and Don Baker, Director of the Centre for Korean Research.
Joy Lin Salzberg also shared a statement about her husband, read by their son Jonas.
In Professor Salzberg’s honour, a Japanese Maple tree has been planted in the Inner
Courtyard with a dedication plaque. A framed photo, which truly expresses the spirit of
Stephan Salzberg, adorns the wall outside the Dean’s office and another plaque is hung
in the Centre for Asian Legal Studies. An endowment fund has been established to ensure
ongoing expansion of one of Prof. Salzberg’s many initiatives: the Asian legal studies
collection at UBC.
Page 2 The Legal Eye November 2004

It’s high time for some big changes
by Raj Sidhu, Law II
I am a second year transfer student to
UBC from the University of Alberta. There
are many things about this law school that
I believe could change for the better. While
I don’t disagree UBC has a lot of advantages
over other schools, there are some
major problems that need to be looked at
and this won’t happen until it is accepted
that in many ways, UBC Law is not up to
par. Coming from another institution, I feel
I have a unique perspective to offer since I
am able to do comparisons.
I just had the opportunity to attend the
town hall meeting on curriculum reform
and think it’s unfortunate that the changes
discussed will not come into effect until at
least 2006. After that meeting, if a prospective
law student asked me which school I
would recommend, I would have to say
Alberta over UBC. There was discussion
about the Legal Research and Writing program
and the many improvements that
needed to be made. The testimonials were
completely unlike anything I had encountered
as a first year student where cooperation
and teamwork were paramount.
Also, there was much discussion about
Perspectives. Although I haven’t taken this
course, the general consensus seemed to be
that it is a joke which students needn’t be
concerned about. This is disappointing,
because the premise behind it is so valuable
and it is extremely important that law
students understand this.
What happened in Alberta was that
first years had to take a one semester course
called Foundations to Law which explained
how law (as we know it in liberal-democratic
societies) came to be what it is.
Things like the Chancery, judicial independence,
law in society were all discussed.
We also talked about Critical Legal Studies,
Natural Law, Positivism, et cetera. It
was a bit of legal history and philosophy
as well as theory. It was no joke.
In addition to this, we had perspective
elements integrated into our “black letter
law” courses. For example, in our Property
and Constitutional classes, we often
discussed Aboriginal law issues. We also
had a speaker about poverty law and
watched a video on the experience of Blacks
in Canada. By integrating perspectives elements
into these other courses, students
better understand that law is not made up
of water-tight compartments but interconnected.
I understand this is the case at UBC
also, which is encouraging.
Lastly, the issue of assessment arose.
Personally, I was not impressed by the fact
that UBC ranks its students. I don’t think
I’m the only one who feels that creates a
competitive, poisoned, and cut-throat atmosphere.
The ranking system needs to be
tossed. Its positive value is questionable.
Who does it really help? Definitely not the
students. Consider medical school where
it is a pass/fail system and levels of student
stress are much lower. It seems that the
assessment system is geared to help law
November 2004 The Legal Eye
FCSC leads student curriculum review
As many of you have heard, the curriculum is currently under review and set to
undergo major reform. A new Faculty curriculum committee has been struck and the
FCSC is represented on that committee. The FCSC recently held a town hall forum
which generated numerous student concerns and constructive feedback. The FCSC
recognizes that students are frustrated. Many of the same curriculum concerns have
been raised in the past and left unaddressed. On numerous occasions the FCSC has
raised these issues with the Faculty and emphasized the need for reform.
Students want changes made in the area of research and writing. The current
research skills level of many law students is inadequate; students are not prepared for
what awaits them after law school. The biggest criticism is that changes haven’t been
made. Students also expressed concern with assessment and Perspectives. For many,
the 100% final is a stressful exercise that does not measure adequately one’s level of
intelligence. One solution is to have a paper option in each course. The fundamental
question raised at the town hall concerns the rationale behind the 100% final. If the
answer is “convenience,” this is not an adequate justification in the minds of many
students. In terms of Perspectives, there is no question that this aspect of the curriculum
will remain. But if Perspectives is critical to our legal education, then why is it
treated like a “second” class requirement? One suggestion is to merge the various
Perspectives sections into one coherent course, taught on a different day and time.
The FCSC welcomes student input. Please send your feedback to the FCSC curriculum
co-chairs, Sarah Batut (sab_dimples@hotmail.com) and Angela Rinaldis
(angela_rinaldis@yahoo.ca). And look out for more student forums next term.
- Angela Rinaldis, Law III
firms in making their hiring decisions.
Also, UBC is the only law school that
lists percentages on transcripts. Receiving
letter grades alone seems to work very well
everywhere else in the country and it didn’t
mean that you were obsessing for days
about getting a 75 percent when your classmate
got a 76 percent.
The UBC Law system is archaic and
needs a substantial overhaul. The point
arose in the town hall meeting that the curriculum
had not been reformed in 20 years!
Apparently it is expensive to change. I find
that unacceptable. If other law schools can
manage it, UBC needs to keep pace. It owes
that commitment to its students.
Page 3

The Legal Eye
Vol. 2 No. 3
November 2004
c/o 1822 East Mall
Vancouver, British Columbia
Canada V6T 1Z1
www.legaleye.ca
info@legaleye.ca
Printed by Horizon Publications
Press date: October 27, 2004
Press run: 1,000 copies
Alumni Association
New president speaks to the future
as told to the UBC Law Alumni Association
Communications Committee
The UBC Law Alumni Association held
its annual general meeting on October 1st.
Among those elected to the Board of Directors
[see sidebar] was Justice Jon
Sigurdson as the Association’s new President.
Justice Sigurdson graduated from
UBC Law in 1973. Before joining the BC
Supreme Court in 1994, he practiced law
at Bull Housser Tupper in Vancouver. Below,
Justice Sigurdson discusses his vision
for the coming year with the UBC Law
Alumni Association’s newly formed Communications
Committee.
Communications Committee: Justice
Sigurdson, what are your top priorities for
UBC Law alumni in 2004-05?
Justice Sigurdson: I’m delighted to
accept the position of President and to carry
on a tradition well established by our outgoing
leader, Peter Brown. Our purpose is
to facilitate support by alumni and friends
for the activities of the Faculty of Law and
the Association. I want to work with the
members of the Board of UBC Law Alumni
Association to connect students, alumni,
faculty and members of the profession with
each other and with the community at large.
One of our main goals this year is to expand
that outreach. We’ve got some important
upcoming benchmarks, such as
next year’s 60th anniversary of the UBC
Law School.
CC: Speaking of events, will the
Alumni Association continue to hosts its
well attended “Distinguished Breakfast
Lecture series?”
JS: Absolutely. We hear regularly from
established members of the Bar, young lawyers
and articling students that these breakfasts
are a great way to keep in touch with
classmates, hear exceptional speakers who
are often chosen because they are alumni
of UBC Law, and meet a wide range of
business and community leaders. I’d welcome
suggestions about who we should
invite and I encourage students here on
campus to watch for our notices about
upcoming speakers.
CC: Your comments about the future
often refer to your commitment of foster-
ing relationships. Tell us more about that.
JS: What I’d like to see happen – and
I know Dean Mary Anne Bobinski and well
regarded faculty members such as the Associate
Dean Robin Elliot concur – is for
this school to be world renowned. There’s
always more to do to support the vision of
our new Dean in expanding the reach of
our Law School, both in terms of attracting
the best scholars and in increasing the
availability of scholarships for students. We
want to ensure that UBC Law is the best in
the country.
CC: Tell us about the fall events the
Association has planned.
JS: I’d really like law students to know
about the dinner honouring the late Justice
Ken Lysyk on November 5th at Green College.
This dinner will be one of the highlights
of a symposium organized by Professor
Robin Elliot. Justice Lysyk was a
Dean of the Law School (1976-1982); he
also made a substantial contribution to
Canadian jurisprudence – as a scholar, an
advocate and, of course, as a jurist. And I
shouldn’t forget that on December 2nd,
there will be a retirement dinner for Dr.
Peter Burns, longtime professor and a
former Dean (1982-1991) of the Law
School. The dinner will be held at the Law
Courts Inn and is co-sponsored by the UBC
Law Alumni Association and the Faculty
of Law. Judy Pozsgay, co-coordinator of Career
Services and Alumni Relations, who
also sits on our board, will be handling the
invitations for the event.
[For more information about the dinners
in honour of Ken Lysyk and Peter
Burns, see Bulletin Board on page 11 or
visit the UBC Law website at
www.law.ubc.ca.]
CC: Sounds like the fall is already
quite busy! Any more thoughts on how law
students can “connect” with alumni?
JS: Yes! As you know this year we want
to focus on communicating regularly with
everyone in BC’s legal community, not just
through The Legal Eye, but also through
the Advocate and the publications of the
Canadian Bar Association – BC Region.
The Legal Eye is published monthly
by law students at the University of
British Columbia.
Editor: Agnes Huang
Image Editor: Terry Yue
Layout/Design: Agnes Huang
Write to us at letters@legaleye.ca
Logo Design: Holman Wang
The Legal Eye acknowledges the
peoples of the Musqueam Nation on
whose land we publish.
New Alumni Association President Justice Jon Sigurdson (right)
with Dean Emeritus George Curtis.
photo by Mary Anne Bobinski
We also plan to work with the newly expanded
Career Services and Alumni Relations
team here at UBC Law to enlarge our
database of contacts and highlight the work
of the Association on the Law School’s
website. I’d really encourage readers of The
Legal Eye to contact us either through Judy
Pozsgay (pozsgay@law.ubc.ca) or through
the Association’s Secretary, Anna Feglerska
(anna.feglerska@marsh.com). We are always
looking for ideas about how we can
better connect with our future alumni, what
sort of events they would like to see us organize
and how we can continue to represent
them.
The UBC Law Alumni Association has
offered to submit an article for publication
for each issue of The Legal Eye. The
Legal Eye accepted the offer and gave consideration
of two cases of Squirt soda. offer
+ acceptance + consideration = a contract.
[See Prof. Diebolt, not all has been
forgotten from first year Contracts.] We
thank the Alumni Association for their contribution
to The Legal Eye, and remind
other UBC Law alumni that your submissions
are also welcome.
Editorial Policies: “We’re irreverent
but not rude.” The Legal Eye reserves
the right not to publish materials we
deem to be sexist, racist, homophobic,
classist, ableist, or otherwise discriminatory
or defamatory in any way. We
also reserve the right to edit for length.
Advertising: Please contact us for
policies and rates.
Deadlines: Copy is due the 15th of the
month preceding publication.Email us
at submissions@legaleye.ca
UBC Law Alumni Association
Board of Directors
Justice Jon Sigurdson, 1973 (President)
Rod Urquhart, 1985 (Vice President)
Mark Fancourt-Smith, 2002 (Treasurer)
Anna Feglerska, 1997 (Secretary)
Peter Brown, 1963 (Past President)
Suzan Beattie, 1978
Professor Joost Blom, 1970
Dean Mary Anne Bobinski
Garret Chan, 1993
Ruby Chan, 2002
Jennifer Conkie, 1986
Professor Robin Elliot, 1973
Kerry Grieve, 1990
James Hickling, 2000
Craig Jones, 1998
Adam Kaminsky, Law III
Derek LaCroix, 1974
David Lunny, 1979
David Miles, 2003
Judy Pozsgay, 1993
Professor Emeritus Bob Reid, 1974
Justice James Williams, 1984
Friends of the Board
Renee Saklikar, 1990
Warren Smith, 2003
Contributors/Volunteers this issue:
Maureen Abraham, Oscar Allueva,
Shantela Blaeser, Gloria Casciano,
Priscilla Chong, Julaine Eberhard,
Anna Feglerska, Michael Fox, Caley
Howard, Samuel Hu, Agnes Huang,
Lisa Kerr, Adam Lawlor, Deborah
Ling, Joanne Lynch, Kathleen Marks,
Myrna McCallum, Jesse Nyman,
Angela Rinaldis, Kelly Samuels, Raj
Sidhu, Elin Sigurdson, Justice Jon
Sigurdson, Kristy Sim, Steve
Takahashi, Holman Wang, Steve
Wexler
Page 4 The Legal Eye November 2004

A visit with Judge Mary Ellen Turpel Lafond
The Honourable Judge Mary Ellen Turpel Lafond flew in from Saskatoon in mid-October for three days at UBC – three very packed days. Not only did she deliver the inaugural
Marlee Kline Lecture in Social Justice, Judge Turpel Lafond also met with faculty and students associated with the Centre for Feminist Legal Studies, spoke at a lunch time session
organized by the First Nations Legal Studies Program, and participated in a discussion with Native students, educators and community members at a forum at the First Nations
House of Learning organized by Myrna McCallum and the First Nations Law Students Association. On top of that, she also met privately with The Honourable Alfred Scow, a former
BC provincial court judge, and his wife, and with Dean Emeritus George Curtis. And she did all of this with her (adorable) six-month old son, Isaiah Denning Lafond, in tow.
Justice for all?
Not if you are an Aboriginal woman
by Samuel Hu, Law II
In delivering the inaugural Marlee
Kline Lecture in Social Justice, the Honourable
Judge Mary Ellen Turpel Lafond
turned our attention to the plight of Aboriginal
women and the struggles they face
when relating to the Canadian legal system.
Starting with an example of how the
legal profession must change in its attitude
towards mothers and those who are contemplating
motherhood, Judge Turpel
Lafond went on to relay her personal experiences,
first as a lawyer and now as a judge
in the provincial court in Saskatoon, in
assisting and dealing with legal issues common
to Aboriginal women.
One issue Judge Turpel Lafond said
that she faces far too often is the fact that
Aboriginal women who have been assaulted
either by their partner or a stranger
often do not continue with criminal proceedings.
Among the reasons cited by Judge
Turpel Lafond are the fear of re-victimization
in the witness box, fear of revenge at
the hands of their attacker, and a mistrust/
misunderstanding of the legal system.
Judge Turpel also talked about dealing
with the cases of youth affected by fetal
alcohol syndrome. These youths – many
of whom are young Aboriginal women –
are seen as easy targets for violence and
victimization. However, as a result of their
disability, they are often unable to provide
solid testimony in court.
Unfortunately, as Judge Turpel Lafond
pointed out, the issues facing Aboriginal
women are not isolated to criminal law
matters. One other glaring example of how
the law works against Aboriginal women
is that the Indian Act does not allow women
to have any interest in a matrimonial home
that is located on reserve, in the event of a
divorce. This has led to many successful
Aboriginal women deciding not to live on
reserves, which only serves to separate them
and their families from their culture.
So what can be done?
Judge Turpel Lafond suggests that
change must begin by eliminating the indifference
that those in the legal profession
show towards Aboriginal women. Only
then can we begin to bridge the gap between
the suffering and the justice that they
so desperately require.
Academics can play a vital role by focusing
their research on the specific needs
of aboriginal women and how those needs
can be accommodated by the law. Lawyers
and judges can invoke change by being conscious
of the unique situations Aboriginal
women come from when they are brought
in front of the justice system. But most importantly,
we must all ask ourselves what
we can do to bring hope and justice to a
precious but marginalized group in Canadian
society.
In her talk, Judge Turpel Lafond referenced
the recent Amnesty International
report entitled, “Stolen Sisters.” It provides
a look at the treatment of the indigenous
women of Canada and can be found at
http://web.amnesty.org/library/Index/
ENGAMR200012004.
Marlee Kline
Endowed Lectureship
in Social Justice
To commermorate the contributions of Professor Marlee Kline to legal scholarship,
teaching and social justice, the UBC Faculty of Law has established the Marlee Kline
Endowed Lectureship in Social Justice. Professor Kline joined the Faculty in 1989; her
research focused on child welfare law, restructuring of the welfare state and the structures
of sexism and racism within the law. In 2001, after a courageous battle with leukemia,
Professor Kline passed away.
The Faculty’s goal is to raise $250,000 in order to support annual guest lecturers to
UBC Law in perpetuity. The Marlee Kline Lectures will provide an invaluable opportunity
for UBC students, faculty, alumni, legal professionals and the general public to learn
about current issues in the area of social justice. To make a special gift to this endowment,
contact Janine Root, Development Coordinator, UBC Faculty of Law, 1822 East
Mall, Vancouver, BC, V6T 1Z1; tel: (604) 822-6266; email: jroot@law.ubc.ca.
November 2004 The Legal Eye
Judge Mary Ellen Turpel Lafond (centre) with her son Isaiah
and law professors June McCue and Michael Jackson.
photo by Agnes Huang
Balancing Cree law
with common law
by Myrna McCallum, Law III
On October 15th, the First Nations
Law Students Association hosted a discussion
forum between Judge Mary Ellen
Turpel Lafond and First Nations students
and professors from UBC, SFU and UVic
and various community members. The purpose
of this gathering at Sty’wet’tan Hall
in the First Nations House of Learning was
to provide an opportunity for Native students
to hear Judge Turpel Lafond share
some of her experiences, and for the students
to ask questions about various legal
issues affecting Native people.
Judge Turpel Lafond discussed diverse
subjects including traditional knowledge,
treaties, land claims, alternative sentencing
models and offenders with fetal alcohol
syndrome (FAS), as well as the path
that led her to Harvard and subsequently,
back to Saskatchewan. She stated that Cree
culture and language motivated her to return
to Saskatoon. “Some things can only
be learned at home,” she said. In addition,
raising her children with the determination
of having them understand the Cree
language is better achieved when they grow
up surrounded by fluent speakers.
As much as Judge Turpel Lafond enjoys
working within her own community
and with other Crees, she explained that
her job isn’t always satisfying. One of the
most disconcerting matters she encounters
in her courtroom is the alarming increase
in Native FAS defendants. According to
Judge Turpel-Lafond, many FAS offenders
end up in correctional centres when they
ought to be placed in facilities that specialize
in dealing with FAS-related problems.
The judicial treatment of FAS offenders,
as such, is disappointing since the
courts are not required to order testing to
diagnose FAS defendants. As such, a great
number of defendants become undiagnosed
FAS inmates. Judge Turpel Lafond realizes
that although a jail sentence isn’t appropriate
for these offenders, at this time unfortunately,
there are few alternatives available
for FAS offenders in the justice system.
Twice, I heard Judge Turpel Lafond
share that under Cree law, every child is
born perfect. As such, she finds it bothersome
to apply sentences prescribed by the
Criminal Code to FAS offenders, when she
knows that her own culture would advise
care and consideration over incarceration.
Nonetheless, Judge Turpel Lafond conveyed
that it is important for First Nations
people to understand the law and still continue
to practice their own traditional laws.
The accommodation and recognition of
Aboriginal law has allowed for an acceptance
of Cree values in the common law
system. This is evidenced in the relatively
recent emergence of Cree circuit courts in
northern Saskatchewan, the implementation
of healing circles as an alternative to
incarceration, and the introduction of Native
Elders and ceremonies in correctional
institutions.
The time spent listening to Judge
Turpel Lafond was not only inspiring but
equally thought provoking. For the last
three years, I have focused solely on learning
the common law but my real passion,
as I was reminded, is in practicing and protecting
Cree law in conjunction with
practicing common law. And from the stories
Mary Ellen shared, it sounds like balancing
both will be quite the challenge.
Good thing I am familiar with walking a
tightrope!
Page 5

The world and beyond ...
Torts in space: who is liable?
by Adam Lawlor, Law II
On October 4th, teams from the University
of Leiden and Georgetown University
faced off in the final round of the
Manfred Lachs Space Law Moot, held at
the UBC Law School. The moot was held
in conjunction with the 55th International
Astronautical Congress, which also took
place in Vancouver that week.
Attendees from national governments
and academia, as well as curious UBC law
students, looked on as the mooters made
impressive arguments before Judges
Vladlen Vereshchetin, Abdul Koroma, and
Francisco Rezek of the International Court
of Justice.
The moot problem involved an intriguing
international dispute arising aboard a
space station owned by the fictional nation
of Palladia. Lorena Basinska, a young
model and comedienne from the developing
nation of Zirconia, visits the space station
aboard a Palladian spacecraft. While
on board, the attractive Basinska is sexually
harassed by a frisky, middle-aged
crewmember, Jacques Toussaint.
After days of being subjected to harassment,
Basinska retaliates by assaulting
Toussaint, necessitating his return to Earth
and the cancellation of numerous experiments.
On the return flight, Basinska herself
is tragically disfigured by a piece of
loose equipment, thereby ending her career.
Following this incident, all Zirconian space
tourists are banned from visiting the
Palladian space station.
The mooters primarily discussed issues
relating to national responsibility for the
damages caused by Basinska and the
Palladian crew. The issue of discriminatory
access to space installations was also discussed.
Representatives of Palladia, from the
University of Leiden (Netherlands), argued
for a broad approach to the concept of national
responsibility in space, contending
that responsibility for the actions of persons
in space lies with the country of which
they are nationals. They also argued that a
host nation should be able to control which
countries’ citizens are allowed access to a
national space station.
Representatives of Zirconia, from
Georgetown University (Washington, DC),
Outer Space Treaty (1967)
• States that the exploration and use of outer space, including celestial bodies, shall be
carried out for the benefit and in the interest of all countries.
• Prevents national appropriation of outer space, including celestial bodies.
• Extends the application of international law to outer space.
• Outlaws the installation of nuclear weapons in space, and forbids military manoeuvres
on celestial bodies.
• Obliges participating states to provide assistance to astronauts of other nationalities.
• Appropriates national responsibility for activities in space.
• Allocates ownership and jurisdiction over objects launched into space.
• Allows participating nations to visit space installations of other participating nations
with reasonable notice.
Rescue Agreement (1968)
• Provides concrete provisions for the safe return of astronauts and space objects to
their launching nation
Liability Convention (1972)
• Allocates national liability for a variety of scenarios in which damage may be caused
by space objects.
• Allows for the establishment of a claims commission to resolve disputes.
Representing Palladia, from the University of Leiden: Anette
Cartier (coach), Taras Ploshchansky (coach), Ioana Cristoiu and
Nathaniel Horsley.
argued for a narrow approach to national
responsibility, contending that responsibility
for damages in space must lie with the
launching nation of a space flight, since
that is the nation which exerts effective
control over the flight. As well, they argued
that a national space station must allow
equal access to citizens of all countries.
Both teams were kept on their toes by
the judges, especially by the modest yet
knowledgeable Judge Vereshchetin. The
teams were quizzed on applicable international
law, including the Outer Space
Treaty (yes, there is an Outer Space Treaty)
Some Sources of Space Law (in case you were wondering)…
and the Convention on International Liability
for Damage Caused by Space Objects.
Both teams were very articulate and
made strong arguments, but in the end the
judges held in favour of Palladia, which
arguably had the tougher case to make. The
judges did not give reasons for their ruling
– perhaps because the issues at hand may
find themselves before their court one day.
If I were judging this case on its merits,
I think I would be forced to dissent on
the ruling – but then there’s a reason why
this second year law student hasn’t been
promoted to the bench.
Not so moot…
Space law is a burgeoning field, which
will arguably see growth with the dawn of
commercial space tourism. Richard
Branson of Virgin Group recently announced
that he hopes to be flying tourists
to space by 2007. His new company, Virgin
Galactic, will launch travelers into
space (just barely) at a cost of about $190
000 US per seat, which will include several
days of training. The first ship, to be
named “Enterprise,” will be based upon the
design of SpaceShipOne, which recently
won the Ansari X-Prize competition to
build and fly a reusable commercial spacecraft.
More about space lawyering…
It is clear from the arguments made in
the space moot that space lawyering has
the potential to be an exciting career. Many
treaties applying to space were negotiated
at the dawn of space flight, and did not
necessarily envision the type of space ac-
Registration Convention (1974)
• Obliges nations to maintain a register of all objects launched into outer space.
Moon Treaty (1979)
• Extends similar principles to those laid out in the Outer Space Treaty.
• Allows for the establishment of moon installations but prevents claims to ownership
on the moon, including ownership of natural resources.
• Contains provisions to prevent environmental contamination of the moon.
Some nations also have domestic laws governing space travel. For example,
Criminal Code of Canada, s. 7(2.31):
“Despite anything in this Act or any other Act, a crew member of a Partner State who
commits an act or omission outside Canada during a space flight on, or in relation to,
a flight element of the Space Station or on any means of transportation to and from
the Space Station that if committed in Canada would constitute an indictable offence
is deemed to have committed that act or omission in Canada if that act or omission
(a) threatens the life or security of a Canadian crew member; or
(b) is committed on or in relation to, or damages, a flight element provided by Canada.”
compiled by Adam Lawlor, Law II
Page 6 The Legal Eye November 2004

tivities that the future may see. Undoubtedly,
there will be exciting opportunities
to negotiate and interpret agreements and
laws relating to commercial ventures in
space, space pollution, and militarization
of space.
There are several opportunities to prepare
for a career in space law. The International
Space University in Strasbourg,
France offers interdisciplinary master’s
degrees in space studies and space management.
The university will also offer a
summer program for postgraduates and
young professionals this year in Vancouver.
As well, McGill University in Montreal
offers graduate programs in air and
space law.
Wanna be a space mooter?
Universities from across the globe
compete in the space law moot, which is
organized by the International Institute of
Space Law. Each year, regional competitions
are held in North America, Europe,
and Asia-Pacific. Of the three regional winners,
the two teams with lower-ranked
memorials compete in a semi-final round
to determine which team will compete
against the top team in the finals before
ICJ judges. The semi-finals and finals are
held in conjunction with the International
Astronautical Congress, which will be held
in Japan in 2005 and in Spain in 2006.
Canada did not have any representation
in this year’s moot, however Canadian
teams are welcome. The North American
competition is held each spring in Washington,
DC. If you’re interested in competing,
you can always lobby your favourite
international law professor to advise a
team. Teams are comprised of 2-3 students.
The registration deadline is in January, although
this year’s problem (which involves
an elevator into space) has already been
released. For more information, visit
www.spacemoot.org.
Representing Zirconia, from
Georgetown University: Melissa
Beiting and Matthew Getz.
Amanda Shafer (coach), not
pictured.
both photos by Agnes Huang
ICJ’s reach is expanding
by Kelly Samuels, Law III
On October 7th, UBC law students
were afforded the incredible opportunity
of receiving a special address from three
judges of the International Court of Justice
(ICJ) at The Hague. Vladlen
Vereshchetin of the Russian Federation,
Abdul Koroma of Sierra Leone and
Francisco Rezek of Brazil were visiting
the UBC Faculty of Law to judge the
International Space Law Moot.
His Excellency Vladlen
Vereshchetin began the address by expressing
his excitement to see so many
students in attendance and at meeting
George Curtis, who was one of the drafters
of the ICJ Statute. He then proceeded
to give the audience a brief introduction
to the ICJ.
The ICJ is the main judicial organ
of the United Nations (UN). It has a dual
role: it resolves legal disputes between
States and it provides advisory opinions
as requested by organs of the UN and
certain other international organizations.
It has universal or global jurisdiction
in that, unlike other international
courts, its jurisdiction is not determined
by geographic area or subject
matter.
However, there are certain limitations.
First, only states may appear before
the ICJ; individuals and private
entities may not. Second, ICJ jurisdiction
is consensual in nature. States cannot
be brought before the ICJ against
their will. They must accept the jurisdiction
of the ICJ by (1) mutual agreement
that the ICJ will resolve a given
dispute; (2) including a “jurisdictional
clause” in conventions and treaties
which stipulates disputes arising from
the convention or treaty will be resolved
by the ICJ; or (3) declaring acceptance
of compulsory ICJ jurisdiction under the
ICJ Statute to resolve disputes with other
States which have also made this declaration.
The court is composed of 15 judges
from 15 countries. The UN General Assembly
and Security Council elect the
judges for nine-year terms with an option
for re-election.
Judge Vereshchetin went on to discuss
the growing caseload of the ICJ.
In contrast to hearing relatively few
cases in the cold war years, there are
currently 21 cases pending before the
court. Judge Vereshchetin believes that
this increased caseload is a testament
to the growing importance of having an
international body to perform the adjudicative
and advisory tasks of the ICJ.
Generally, all 15 judges decide the cases.
If a State does not have a judge sitting
on the ICJ, that State may appoint a
person to sit as a judge ad hoc.
... descends on UBC Law
November 2004 The Legal Eye
ICJ Judges Vladlen Vereshchetin, Abdul Koroma and Francisco
Rezek address students at UBC Law.
photo by Agnes Huang
Next, His Excellency Abdul Koroma
from Sierra Leone provided an overview
of the current cases before the ICJ. He explained
that ICJ jurisprudence is built
largely on territorial/boundary and maritime
disputes and these kinds of disputes
continue to comprise the bulk of the court’s
caseload. However, since the collapse of the
cold war and particularly throughout the
1990s, the subject matter of cases has
greatly expanded. For example, cases involving
human rights, genocide, the environment
and even corporate disputes have
found their way to the ICJ. Judge Koroma
feels that this expanded jurisdiction is a
measure of the international community’s
confidence in the ICJ.
His Excellency Francisco Rezek concluded
the address by discussing some of
the challenges currently facing the ICJ. For
example, ambiguities in the ICJ Statute
have and will continue to bring challenge
to the court in interpreting its provisions.
This was illustrated in the recent case of
Legal Consequences of the Construction of
a Wall in the Occupied Palestinian Territory
(2003-2004), raising the issue of
whether the ICJ has the prerogative to avoid
replying to a request for advisory opinion
from the UN General Assembly when certain
circumstances, such as a contentious
political situation, are present.
Challenges relating to the administration
of the court and management of the
caseload also come up. It can be difficult
to establish a priority amongst cases. For
example, how does one determine priority
between a case of recent genocide and a
case of past genocide?
The paramount challenge facing the
ICJ does not have to with the court as an
isolated entity, but as an entity of the UN.
Judge Rezek questioned the fragile position
of the UN in the current global climate.
It has been passed over in recent glo-
bal decisions. It has not been able to develop
the resources to meet its goal of keeping
peace and security among nations.
Does this leave the UN in a state of
collapse? There is no question that it is a
time of humiliation for this global organization.
However, Judge Rezek concluded
by expressing his optimism that the UN will
emerge from what he considers a “period
of darkness”.
It was moving to hear such a candid
address from these esteemed guests. In particular,
Judge Rezek’s concluding remarks
resonated strongly with the audience. The
address closed with a standing ovation from
the floor.
Further information about the ICJ can
be found at http://www.icj-cij.org.
Current Members of the ICJ
President
Shi Jiuyong (China)
Vice-President
Raymond Ranjeva (Madagascar)
Judges
Gilbert Guillaume (France)
Abdul G. Koroma (Sierra Leone)
Vladlen S. Vereshchetin (Russian
Federation)
Rosalyn Higgins (United Kingdom)
Gonzalo Parra-Aranguren
(Venezuela)
Pieter H. Kooijmans (Netherlands)
Francisco Rezek (Brazil)
Awn Shawkat Al-Khasawneh
(Jordan)
Thomas Buergenthal (United
States of America)
Nabil Elaraby (Egypt)
Hisashi Owada (Japan)
Bruno Simma (Germany)
Peter Tomka (Slovakia)
Page 7

How Jack changed my life
by Samuel Hu, Law II
Jack has ocean front property near Lions
Bay. Although this makes the commute
to Vancouver painful at times, nothing
surpasses the joy of waking up to the
sights, smells and sounds of the Pacific
Ocean. Jack enjoys the solitude of his humble
abode and relishes the fact that he
doesn’t know where his closest neighbor
lives. For the past five winters Jack has
lived this surreal life on Crown Land. You
see, Jack is what people generally refer to
as a squatter. A few large boulders and a
thin sheet of tin keeps Jack dry and warm
in the most beautiful city in Canada.
Two weeks into what I have dubbed as
the most exciting time of my life and I am
ready to end it. “Law school will be an
amazing but rewarding challenge.” “You’ll
meet lots of people with similar goals and
aspirations.” “This is something that
you’ve always wanted to do so here’s your
chance.”
Bullshit – fed to me by friends, family
and myself. A fortnight into my foray at
achieving a law school education and I had
experienced about as much hostility, unfriendliness
and unhealthy competition that
I ever wanted. Sure it may be my depression
talking. I have suffered from clinical
depression since grade eleven and there are
times where everything seems to fall apart.
But this was different. (For an accurate
and painful view into living life with
depression, I recommend Elizabeth
Wurtzel’s Prozac Nation.) I didn’t have the
desire to find out if venous blood turned
from blue to dark red as it was exposed to
oxygen after I slit my wrist. Nor did trying
to take two weeks worth of Celexa seem
appealing to me. But things just weren’t
‘right.’ Besides school not being what I
expected it to be – an intellectual but nurturing
debate on what we need to do to
change the world – I was experiencing a
sense of failure on various fronts.
Motivating people at work (as a project
manager of an engineering company) was
from CONFERENCE page 1
A controversial panel discussion involved
the Christian Brothers litigation, in
which victims of sexual abuse at Newfoundland’s
Mount Cashel Orphanage were
successful in bringing various tort claims
against the Christian Brothers of Canada.
The Ontario Court of Appeal agreed with
the claimants that two Vancouver Schools
– St. Thomas More Collegiate and Vancouver
College – should be sold in order to
satisfy the judgment, instigating criticism
that the Court broke with traditional principles
regarding the exigibility of assets
held on trust for charitable purposes.
BC Attorney General Geoff Plant participated
in the panel in dramatic fashion,
revealing the Legislature’s response to
Christian Brothers in the recently passed
Charitable Purposes Preservation Act. Not
surprisingly, critiquing the new legislation
became a favourite new hobby at the many
health breaks throughout the conference.
Another topical panel addressed BC’s
Tobacco Legislation, which establishes a
cause of action for the government to recoup
proving to be difficult and fruitless. It also
became painfully clear that a woman I recently
met and not so secretly admired did
not reciprocate those feelings. It even
seemed like my cat had about as much of
me as she was willing to tolerate.
Saturday September 20th. After spending
the day in the office with glimmers of
hope but ultimately, with major failure, I
decided that a trip to anywhere but here
was in order. After some miraculous sense
of reason entered my withered brain and
convinced me that flying to Thailand was
not a good option, I googled “Hostels in
Squamish.”
“The Squamish International Hostel –
Where you can check out but never
leave”
“Hi, I was wondering if I could get a
room for tonight?”
“How many people will come coming.”
“Not sure right now, hopefully there
will be two or three of us”
“Sounds good, I have a few private
rooms available. There are three beds
in each with a private bathroom. Also
included at no charge is an amazing
view of the Chief.” (laugh)
“Perfect.”
“All I need is a credit card to hold the
reservation.”
“No problem, Visa 4500 …”
Now that step one was complete, I
needed to find the other people that would
occupy beds two and three.
“Hey have a got a deal for you – a night
in Squamish where rest and relaxation
will be plentiful.”
“Sorry – can’t make it tonight – maybe
another time?”
“How’s it going? Would you consider
coming up to Squamish with me for the
evening and day tomorrow?”
“Tempting but don’t think it’ll work
out.”
“Come one come all for an all expenses
paid vacation to Squamish, British Co-
health care costs caused by smoking. UBC
Professors Liz Edinger and Robin Elliot, who
were consulted by the BC government in the
case brought by cigarette manufacturers challenging
the validity of the legislation, discussed
the constitutional and conflicts problems
that arose. Also present was Daniel
Webster, QC, who acted as counsel for the
province at trial and in its successful appeal
at the BC Court of Appeal.
The 2004 Supreme Court of Canada
decision in Transport North American Express
v. New Solutions Financial was discussed
in an academic heavyweight panel
with Professor Stephen Waddams of the
University of Toronto along with Professor
Ziegel, joined by UBC’s Professor Ljiljana
Biukovic and chaired by former UBC Dean,
Madam Justice Lynn Smith. The case involved
a loan with onerous terms that
breached the criminal rate of interest set
out in s. 347 of the Criminal Code. In this
case, the deal struck between sophisticated
business parties did not warrant finding the
entire contract void ab initio. While agreeing
with the decision, Professor Ziegel continues
to call for the repeal of the trouble-
lumbia” (posted to a Internet dating
site.) No response.
Well, I guess I shouldn’t have been
surprised. Finding friends has never come
easy. People that spend significant time
with me and still grant me honor of calling
me ‘friend’ are far and few in between.
Nevertheless, I threw my books in the car,
a toothbrush, contact’s solution, a clean pair
of underwear and was on my way.
“Where’re you headed?”
“Just by Lion’s Bay.”
“No problem – I’m on my way up to
Squamish.”
And that’s how I met Jack. Picking up
hitchhikers is not something I recommend
for everyone but in my limited experiences,
I’ve come to appreciate each hitchhiker’s
story. From “Hallelujah – Jesus saves!” to
“Damn I need to make it to the city to sell
myself for some drug money.”
“So you just get off the ferry?” – I
picked up Jack around Horseshoe Bay.
“No, I worked today in the city – painting.
How ‘bout you?”
“No, I’m just going up for the night –
need to get away if you know what I
mean.”
“So this is a vacation for you?”
“Well, it’s just for the night.”
“Anytime you can get out of a city, you
should call it a vacation.”
Jack seems quite nice. A little rough
looking – not really the Lion’s Bay type
but friendly.
“So you live up in Lion’s Bay?”
“Sure do. I’ve got ocean front property.”
(laugh) If you’re not sure why
Jack laughed, you obviously didn’t read
the opening paragraph.
“So what do you do for work?”
“I guess you could say a general labourer.
Landscaping, painting, laying
carpet – it pays the few bills that I have
(laugh). It’s great when I get work up
in Lion’s Bay. Let’s me get into a part
of people’s lives.”
some criminal interest rate provision.
Corporate governance was a topic
coined by panel chair Fred Pletcher of
Borden Ladner Gervais as a concept which
“has joined both apple pie and motherhood
as something entirely good.” Professor
Sarra discussed the governance standards
revealed in her qualitative study of 23 Canadian
natural resource firms, noting the
shift towards board independence, financial
and environmental sustainability measures;
a continued lack of diversity in terms
of gender and race; and the increased power
and importance of institutional investors
in governance of corporations in global
capital markets.
Robert Yalden of the Montreal Osler,
Hoskin & Harcourt office discussed
changes in Canadian disclosure requirements
and in particular, critiqued the regulatory
process by which decisions are being
made. Professor Raymonde Crête of
Université Laval addressed the issue of
executive compensation. Professor Chris
Nicholls of Dalhousie Law responded to
these papers, noting first that he only spent
as much time reviewing them as the out-
“So are you excited about the Olympics?”
“I’m not sure what’s going to happen.
I try to talk and listen to people around
here. People up here are money people.
Primarily interested in the Dow
and US economy. They don’t have
much time for rhetoric and empty promises
that our local politicians make.”
Quite an interesting response I though
to myself. “So what’s a kid like you
doing taking a vacation?”
“I work – kind of stressful right. Also
just recently went back to school.”
“Oh yeah, to study what?”
“Law – or at least that what they tell
me I’m studying.”
“You don’t sound to keen – let me tell
you about Adam – the lawyer that
changed my life. When I was younger I
use to drink a lot. Before I knew it, I
could control my drinking. Oh shit!
That’s my stop – well, to make a long
story short, Adam kept my ass out of
jail a few times. I eventually realized
that I can’t drink and although I’ll
never to be able to repay, let alone find
Adam, I owe him a lot.”
“Interesting, I guess lawyers can do
some good.” (internal laugh)
“Yeah – are you planning on doing any
work pro bono? By the way, my name
is Jack.”
“Sam, pleasure to meet you. Have a
good night.”
Epilogue
Monday morning 9:30 am - Room 102.
“As we examine Harvela v. Royal Trust,
we see the distinction between fixed bid and
auction sales. Furthermore, we can use the
Contract A/B analysis as outlined in Ron
Engineering to determine if a contract did
indeed exist.”
Pro bono publico – for the public good
Over the next few years that we spend
together, I hope that everyone in this class
will get the chance to meet Jack.
side directors at Disney did on Michael
Ovitz’s severance package.
On another aspect of governance, Professor
Ron Davis examined the difficult
issue of successor status on bankruptcy of
the firm, with Mr. Justice Tysoe of the BC
Supreme Court chairing the panel. Another
panel debated whether or not Canada
should have a national regulatory system,
and the Law Faculty was honoured to have
the Chair of the BC Securities Commission
Doug Hyndman and senior counsel
Charlotte Morganti weigh in on this important
debate.
Before addressing her main points on
Ford v. OMERS, a case involving the valuation
of shares in a going-private transaction,
new UBC Law Professor Kim Brooks
thanked the student volunteers who appeared
to be working busily leading up to
the conference, noting that she wasn’t sure
what the volunteers got out of it, but instructed
those attending from law firms to
“please, give them jobs.” Indeed, the efforts
of the student volunteers at this event
were remarkable, and noted by almost every
speaker throughout the weekend.
Page 8 The Legal Eye November 2004

Dershowitz puts America on trial
by Jesse Nyman, Law III
Santayana’s famous line about those
who forget the past being destined to repeat
it is the recurring theme of Alan M.
Dershowitz’s new work on non-fiction,
America On Trial. From colonial America
right up to 2004, Dershowitz takes the
reader on chronological tour of “America’s
greatest trials.” Through the lens of these
selected cases Dershowitz illustrates how
many of the issues that shaped US history
continue to surface today. These issues include
persecution of minority groups, protection
of civil liberties, claims of governmental
secrecy, and the need to ensure that
procedural protections are adhered to for
those accused of crimes.
As well as being renowned as a litigator
– having acted as counsel for Claus Von
Bulow, O.J. Simpson and Mike Tyson –
Alan Dershowitz is the Felix Frankfurter
Professor of Law at Harvard University and
is the author of numerous books, including
Shouting Fire and Just Revenge.
In his latest literary contribution,
Dershowitz begins in colonial America
with the Salem Witchcraft trials and moves
through the defined periods of American
history. The Dred Scott case; the trial of
the Lincoln assassins; the Scopes trial; the
Rosenbergs; Brown v. Board of Education;
Roe v. Wade; Mike Tyson’s and O.J.
Simpson’s trials; and the Texas sodomy
trial are all examined in their historical
context. In each period Dershowitz has selected
cases that illustrate or arose out of
the definitive issues of the time.
In this regard, America On Trial is an
interesting study in US history, particularly
for those of us who only have a passing
knowledge of the subject. By the time I
completed the book I felt as though I had a
much greater appreciation for themes and
challenges that shaped America into the
country it is today.
The book is divided by time period and
each time period commences with an overview.
It is in the context of this overview
that Dershowitz introduces the selected
cases of the time and their location within,
and effect upon, that period. Dershowitz
then goes on to discuss each case separately
in more depth. His discussion relates to
what he perceives as the key issues in the
case and their specific impact upon the time
in which they were heard. In most instances
he discusses the long term effects of the case
or how the result, or the issues raised, relate
to current realities facing the US today.
Many of the case analyses contain excerpts
from the trial transcript or the deci-
November 2004 The Legal Eye
sion; however some do not. Fortunately,
even where excerpts are used, they are generally
kept to a paragraph or two. This is
an advantage in that it makes interpretation
fairly simple by keeping the focus on
the key points or aspects of each case. As a
result the vast majority of case analyses are
under 10 pages, usually less.
Think Creatively!
The disadvantage is that because the
analysis is reduced to Dershowitz essentially
telling the reader what the case stands
for it and why it is important, it is impossible
for the reader to draw their own conclusions.
This is a difficulty because many
of the issues and their resolution are contentious.
It is precisely this reason that the
majority of these cases are “the greatest trials
of their time.” That said if the reader
accepts that the book is really Dershowitz’s
view of importance of the selected cases
and lessons to be learned, the book is an
enjoyable and informative read.
At 568 pages the book is deceptively
short. The writing is clear and fast. Several
sections can be read within a few hours
without missing the point. Even where
Dershowitz falls into retrying cases he lost
– for example the Mike Tyson appeal – he
is at least compelling and thought provoking.
If you are looking something lighter
than the regular legal fare, this is a good
book to take on vacation or keep by your
night stand for evening reading.
America On Trial by Alan M.
Dershowitz is published by Warner Books
and can be purchased in hard-cover for
$45.00 plus GST.
What is Esoteric Magazine?
Esoteric is a magazine-style journal started by several UBC law students who saw the
need for a creative publication in the legal community and at the Faculty.
Why does the school need a creative publication?
A great lawyer has to be able to think both creatively and flexibly, in order to serve
the interests of clients and justice. Esoteric provides a place for members of the legal
community, including students, professors, practitioners, judges and others to publish
all forms of creative expression.
What kinds of submissions will be published?
We will consider poetry, short stories, drama, creative non-fiction, essays, opinions,
drawings, paintings, photography, and multi-media visual pieces.
Do submissions have to be related to the law?
No. Not at all. We have published a few law-related pieces in the last few editions, but
the content of the magazine is primarily non-law-related.
Who may contribute to the magazine?
We have so far published work from students of UBC Law, as well as students from
Faculties from Victoria to New Brunswick, and law professors and practitioners from
all over. We would love to receive work from anyone involved in the legal community
in any capacity.
What is the deadline for submissions?
We would like to receive all creative work by November 12th, but if you need a few
extra days, please e-mail us and let us know that your work is forthcoming. Please
also send us your work by email. If you prefer to submit work in hard-copy, we can
return your original photos to you, but not until approximately March 2005.
Where can I find a copy of Esoteric?
The 2004 edition is still available, and we will be pleased to hook you up with one if
you email us at esotericmagazine@hotmail.com. Our website is about to be launched
at http://faculty.law.ubc.ca/esoteric, and content from three editions of the magazine
will eventually be available there. If you are at the UBC Faculty of Law, there will
also be a few copies available in Candida’s.
How can I become involved?
If you would like to support Esoteric, the first thing you can do is come out to our
benefit on November 3rd at the Marine Club (see advertisement at left). If you are
interested in sponsoring the magazine by taking out an ad, please contact us by email.
And if you would like to participate by becoming a member of the editorial board,
please let us know.
Contact Esoteric Magazine at esotericmagazine@hotmail.com, or by mail:
Esoteric Magazine
c/o UBC Faculty of Law, 1822 East Mall
Vancouver BC, V6T 1Z1
Page 9

Russia set to ratify Kyoto Accord
by Michael Fox, Law III
Having spent the better part of his
nearly five years in office consolidating
power in his own hands, using fear of terrorism
as a justification for trampling on
civil liberties, and emaciating the few
checks and balances that the Duma (the
Russian Parliament) placed on his actions,
Russian President Vladimir Putin exercised
his unfettered discretion in a rather benevolent
way [October 12th], by stating his support
for the Kyoto Accord, and saying that
he would support Russia’s ratification of
the treaty. [On October 22nd, the lower
house of the Duma ratified the Accord.]
Russia’s ratification means that the
requisite 55 percent of global emissions has
now been accounted for by the treaty’s signatories,
paving the way for the treat to
enter into force. But will the treaty actually
make any difference?
In Russia itself, at least, Kyoto will not
require any reduction in emissions. This is
because Kyoto requires its signatories to
reduce emissions levels to what they were
in 1990, which was just prior to the collapse
of communism in Eastern Europe
(and along with it the collapse of bloated,
centrally-controlled Soviet industry). As
Russia’s inefficient economy collapsed, so
did its emissions. In fact, Russia actually
has a “surplus” of emissions credits, which
it can sell to other participating countries
(such as Canada) who can in turn use these
credits against their own emissions.
In theory, this will allow overall global
emissions levels to be reduced to their
No difference noticed yet at UBC Law
1990 levels, even if some countries individually
emit less and other countries individually
emit more. Of course, as the old
adage goes, in theory, there is no difference
between theory and practice; in practice,
there is.
In order for global emissions to be reduced,
the entire globe must participate.
While signatories such as Canada and
France may be successful in reducing their
emissions to 1990 levels, non-signatories
such as China and the US will not. As the
Beastie Boys so eloquently note, “We got a
President we didn’t elect/the Kyoto treaty,
he decided to neglect.”
The US, citing the non-participation
of countries such as China as a major flaw
in the treaty, decided to exacerbate that flaw
by themselves withdrawing from the treaty.
Their criticism, however, misses the point.
As with many environmental problems,
global greenhouse gas emissions are due
almost entirely to the developed world, and
only now are we beginning to be confronted
with the long-term consequences of our past
actions. Why, asks China, should they have
to bear the burden of a problem that they
had little or nothing to do with?
The short answer is that whether or
not China started it, China is now unquestionably
a part of global greenhouse gas
emissions, and cannot escape the consequences
of its own actions. And so yes, in
the humble opinion of this author, the fact
that China is not a participant is clearly a
flaw.
Who is this person?
© Steve Wexler
Kyoto Protocol: Timeline of Development
1992: United Nations Member Governments meet in Rio de Janeiro, Brazil and create
the United Nations Framework Convention on Climate Change (UNFCCC).
1997: Pursuant to the UNFCCC, UN Member Governments meet in Kyoto, Japan and
develop the Kyoto Protocol, which sets targets for reductions in greenhouse-gas emissions.
The treaty includes novel provisions, such as allowances for “emissions trading”
which will enable individual countries to buy and sell unused emissions “credits” on
international markets.
2001: Despite having pledged to ratify the Protocol, President George W. Bush announces
that the United States will withdraw from the treaty, claiming that Kyoto “would
cause serious harm to the US economy.” The US withdrawal throws the status of the
treaty into serious doubt, leaving Russia as the kingmaker in the treaty’s fate.
2004: As of October 5, 2004, 126 countries had either ratified, accepted, acceded or
approved Kyoto, responsible for 44.2% of global emissions. In order to enter into force,
signatories must account for 55% of global emissions.
Oct. 2004: Vladimir Putin announces his intention to ratify Kyoto; it is virtually certain
the Russian Parliament (the Duma) will follow Putin’s lead. Russia’s ratification
means that signatories will now account for 61.6% of global emissions, and the treaty
will come into force. Already, an international carbon exchange (based in Europe) has
sprung up, and along with it dozens of consulting firms, technology-start-ups and “carbon
accountants.” London is fast becoming the world’s “carbon finance capital,” and is
home to Climate Change Capital, the first merchant bank dedicated to carbon issues.
However, there is a method to Kyoto’s
madness. The point of binding only rich
countries is to encourage innovation and
the development of alternative energy
sources. Ideally, as rich countries begin to
develop alternative energy sources, the
technology can be transferred to developing
countries, who will then be able to reduce
their emissions, but without bearing
the cost of technological development.
But without the participation of the
US, the world’s prolific innovator, Kyoto
may be doomed to fail, and the past seven
years of negotiations may have all been for
naught. At this point, it seems that people
power is really the only way to avoid this.
To once more quote the Beastie Boys: “Hold
up wait up know we come correct/You
wanna change things up, well hey just get
set.”
This article was first published in Volume
1, Issue 2 of “Greenspace,” the newsletter
Environmental Law Group at UBC
Law. Michael Fox is the co-Chair of ELG
and the editor of “Greenspace. For more
info, email elg-law@interchange.ubc.ca.
Got an answer? Then, email us at contests@legaleye.ca. by Deborah Ling, Law II
Page 10 The Legal Eye November 2004

All events are at the Curtis
Law Building, 1822 East Mall
unless otherwise noted.
To submit a notice to Bulletin
Board, please email us at
events@legaleye.ca. The deadline
is the 15th of the month
preceding publication.
compiled by Caley Howard, Law II
David Yarrow
UBC Law & Society is hosting a seminar
by Dr. David Yarrow of Monash University
in Australia, Monday Nov 1st in the
Faculty Comference Room from 12:30-
2:00pm. Dr. Yarrow will give a seminar,
entitled “Copyright, Empire and the Legal
Independence of Canada.” For more info
contact Prof. Wes Pue at pue@law.ubc.ca.
Esoteric Magazine Benefit
Esoteric invites you to a night of musical
entertainment to support UBC’s creative
magazine. The benefit will take place on
Wednesday Nov 3rd at the world-famous
Marine Club, 573 Homer St. (at Dunsmuir).
Show starts at 9:00pm; cover is $7. For
more info see the ad on page 9 or email
esotericmagazine@hotmail.com.
Margaret Hall
The Centre for Feminist Legal Studies invites
you to a lecture by Margaret Hall on
Thursday Nov 4th from 12:30-1:30pm in
Room 157. Prof. Hall will be speaking
Bulletin Board
about Bonnie Mooney’s civil suit against
the police for not protecting her against her
abusive ex-partner. For more info contact
the CFLS at (604) 822-6523 or
cfls@law.ubc.ca.
LBS Billiards Night
The UBC Law & Business Society is hosting
a Billiards Night, Thursday Nov 4th,
6:00-8:30pm at Soho Billiards, 1144
Homer St. For more info email
ubclbs@yahoo.ca.
Night of a Thousand Dinners
The Night of a Thousand Dinners will be
held on Thursday, Nov 4th at the
Strathcona Community Centre, 601 Keefer
St. The event is a fundraiser for Landmines
Action Canada and other landmines NGOs.
Proceeds will go to education campaigns
in landmine and non-landmine affected areas,
de-mining projects, and artificial limb
construction and fitting. The dinner starts
at 7:30 pm; suggested donation is $10. For
more info visit www.1000dinners.com, or
email Johanna MacDonald (Law II) at
jojomacd@yahoo.com.
Lysyk Symposium
A symposium honouring Mr. Justice
Kenneth Lysyk, who served as Dean of
UBC Law from 1976–1982, will be held
November 5th-6th at the Law School. The
symposium is organized around themes to
which Ken Lysyk made special contributions:
Aboriginal law, federalism, conflict
of laws, and the 1981 Patriation Reference.
For more info, visit http://
faculty.law.ubc.ca/lysyk.
November 2004 The Legal Eye
Kim Pate
The Centre for Feminist Legal Studies is
hosting a talk by Kim Pate, the executive
director of the Canadian Association of
Elizabeth Fry Societies, on Monday Nov
8th from 12:30-1:00pm in Room 157. The
topic of Pate’s lecture is “Confessions of a
Recovering Lawyer: Why Prisons are the
Latest Answer to Poverty, Homelessness
and Mental Illness.” For more info contact
the CFLS at (604) 822-6523 or
cfls@law.ubc.ca.
Andreas Schloenhardt
The UBC Law & Society Seminar Series
presents a talk by Dr. Andreas
Schloenhardt, a professor at the University
of Adelaide Law School, on “Global Terrorism
and International Criminal Law.”
The talk will be held on Monday Nov 8th
from 12:30-1:30pm in the Small Dining
Room at Green College, 6201 Cecil Green
Park Rd, UBC. For more info contact Prof.
Wes Pue at pue@law.ubc.ca.
Phi Delta Phi Meeting
The McLachlin Inn, the UBC chapter of
Phi Delta Phi (a fraternity promoting ethics
in the legal profession) is having a meeting
on Wednesday Nov 10th at 12:30pm
in Candida’s. For more info about PDP,
visit http://faculty.law.ubc.ca/phideltaphi.
Charles Menzies
The Xwi7xwa Indigenous Scholars’ Series
is hosting a talk by Dr. Charles Menzies of
the UBC Department of Anthropology and
Sociology on Thursday Nov 25th from
12:00-1:30pm at The Longhouse, 1985
West Mall, UBC. The topic of Dr. Menzies’
talk is “Relations of Respect: Gitxaala Approaches
to Sustainability and Conservation.”
For more info visit
www.library.ubc.ca/xwi7xwa.
Peter Burns Dinner
The UBC Faculty of Law and the UBC Law
Alumni Association is hosting a retirement
dinner for Prof. Peter Burns Thursday Dec
2nd at the Law Courts Inn, 800 Smithe St.
Prof. Burns has been a member of the Faculty
for 36 years, and is a highly respected
teacher and scholar. Cocktails will be
served at 5:30pm; the dinner begins at
7:00pm. Tickets are $80 each. Please RSVP
to Judy Pozsgay at (604) 822-6350,
pozsgay@law.ubc.ca, or to Gloria Casciano
at 604-822-9165, casciano@law.ubc.ca.
Law Library Resources
The UBC law librarians remind students
that the Law Library website is full of useful
resources such as legal websites &
databases links, research guides, and indexes
to legal periodicals. Make the law
library website your homepage:
www.library.ubc.ca/law.
Law Library Blog
Want to know the current news & information
of interest to UBC law students and
faculty, or tips on legal research, or information
about various events and sessions
happening at the law library, then check
out the Law Library’s blog at http://
careo.elearning.ubc.ca/weblogs/lawlib.
Page 11

The interplay between business & law
by Shantela Blaeser, Law III
I am sure you have seen us parading
around in our bright blue shirts. I am also
equally confident that you enjoyed some
delectable gelato at our membership event
in September. Let me jog your
memory…does “Mario’s Gelato with
Fasken Martineau” ring a bell? Now, it is
my pleasure to introduce the UBC Law &
Business Society to you and preview some
of the events we have planned for this year.
First, a little about us. The Law &
Business Society (the “LBS”) is a UBC student
organization that is dedicated to promoting
discussion about business and business
law issues. We are interested in establishing
UBC Faculty of Law as a premier
business law education destination. This
organization was created to engage, inform
and advance UBC Law students interested
in fields where law and business interact,
and we have to say, we have been happily
received by the downtown business community.
Officially, we are not an “LSA” club
but are privately funded by several Vancouver
business law firms – law firms that are
interested in meeting and mingling with
students in a fun and informal atmosphere.
Face it, we have all been to the Wine &
Cheeses and “mingled” in a bit of a nervous
atmosphere that is full of expectations.
The LBS organizes fun, low key events that
offer great networking opportunities.
We want to clear up a misconception.
The LBS is not just a club for students with
business or commerce backgrounds. It is a
club open to all who want to learn about
the interplay between business and law. We
by Kathleen Marks, Law III
McLachlin Inn is the UBC chapter of
Phi Delta Phi, an international legal fraternity
dedicated to the promotion of ethics
in the profession.
What Are We Planning for This Year?
Some of you might remember the
speech on legal ethics we organized last
year by the Chief Justice of Canada,
Beverley McLachlin. After her speech, the
Chief Justice was initiated as a Phi Delta
Phi member.
We hope to have the Chief Justice here
at UBC to speak again this year, although
we do not yet have confirmation from her
office. We also plan to repeat the essay contest
we held last year on the topic of legal
ethics, with prizes of $500 and $250 to the
first and second-prize winners. These
events will be part of our annual Ethics
Week, which will take place sometime mid-
February to early March of next year. We
are still working on plans for other activities
for that week. McLachlin Inn is also
planning a beer-up for sometime this fall.
Watch for our posters.
Why Join Phi Delta Phi?
There are different reasons for joining.
We have idealistic reasons – we want to
establish ties with lawyers and fellow law
Back row, left to right: Ravina Sandhu, Tina Chun, Jenna Virk,
Vivian Tang & Michelle Chan
Front row, left to right: Shantela Blaeser & Olga Bochkaryova
want to introduce business concepts such
as finance, accounting, management systems
and marketing, and show how these
areas intersect with our studies in law. We
are always open to suggestions from our
members concerning topics of interests and
possible future events that will help us all
learn.
So, what can you expect from us this
year? We have several events planned and
are willing to plan more. This is what we
have so far:
students who believe in the promotion of
the highest standards of professional and
personal ethics.
Wa also have prosaic motivations. Phi
Delta Phi membership makes you eligible
for fraternity loans, scholarships, and other
awards. Furthermore, while membership
numbers are still small in Canada, Phi
Delta Phi is very well-respected in the
American legal community. Many Phi
Delta Phi chapters in the United States have
very high academic requirements for membership
(although our chapter doesn’t).
Anyone who is thinking of practicing in
the US should consider the impression that
Phi Delta Phi membership might make on
American recruiters.
Phi Delta Phi membership is lifelong,
and gives you the opportunity to network
with fellow members in North America and
Europe. Phi Delta Phi was founded in Ann
Arbor, Michigan in 1869. Since then, more
than 191,000 lawyers and law students
around the world have been initiated into
the fraternity. Prominent Canadian members
include Chief Justice Beverley
McLachlin and Justice Ian Binnie of the
Supreme Court of Canada, former Supreme
Court of Canada Justice Claire L’Heureux-
Dube, constitutional law scholar Peter
photo by Agnes Huang
Before Christmas break, plan to attend
one or both of our speaker series events
where we will bring in some downtown
lawyers to talk about issues such as sports
& media law, mergers & acquisitions, commercial
lending, or anything else you want
to suggest. Also, we will be staging a billiards
night on November 4th at Soho Billiards
in Yaletown. This annual billiards
night is a great time where you can hang
out, have a drink and play pool with many
of the downtown lawyers from our sponsor
McLachlin Inn: more ethics, new CANS
Hogg, former Ontario premier Bob Rae,
and former Prime Minister John Turner.
To be eligible for active PDP membership,
a law student must be of good moral
character and in good academic standing
at a law school in which a student Inn is
located. Each membership costs $75, but
that covers your membership for life. Plus,
you get a really impressive certificate that
looks great in a frame.
For more information, contact us at
pdp_ubc@yahoo.com, and/or come to our
next meeting at 12:30 pm on Wednesday,
November 10 in Candida’s. You can also
visit Phi Delta Phi’s main web page is at
www.phideltaphi.org, or the McLachlin
Inn’s web page at http://faculty.law.ubc.ca/
phideltaphi.
firms. One word of warning though, some
of the lawyers are pool sharks. Beware.
After the Christmas break, we will
begin the year full-throttle with our Casino
Night (during a Friday beer-up) where you
can gamble your life away. This Casino
Night (which in the past was known as the
“Carnival”) is a thank-you to all of our
sponsor firms and our student members.
Again, many lawyers come up to the school
to hang out with the students, gamble a little,
and donate some money to charity. Start
practicing your gaming techniques now.
After that, we will host a wine class
where you can learn all the key tastes and
terms to use at your next wine tasting. This
will definitely help you out at future functions.
See, we are all about “education” and
about helping you at least appear to be a
wine connoisseur. Finally, there will be several
Speaker Series events (with lunch provided)
and other events such as law firm
tours and other events.
If you are not a member, it is never too
late to join, and if you are a member, get
ready for fun-filled year. For more information
visit our website at http://
faculty.law.ubc.ca/lbs or contact us at
ubclbs@yahoo.ca so that we can add you
to our email list. We send out emails to our
members to keep you updated and we’ll be
monopolizing the centre of the bulletin
board space in the Interaction Area. Keep
an eye out for our posters.
The Law & Business Society is here
to put on events for you. And always remember,
just as our shirts say, “Business”
IS our middle name.
Phi Delta Phi McLachlin Inn
Magister Kathleen Marks
initiated Chief Justice
Beverley McLachlin into Phi
Delta Phi International Legal
Fraternity during last spring’s
Ethics Week at UBC Law.
photo by Tim Wheat
Phi Delta Phi resurrects CANS online
Many of you will be happy to hear
that Phi Delta Phi has successfully resurrected
the UBC Law CANS website.
UBC law students have not had access
to recent CANS (condensed annotated
notes) online since the turn of the century.
To check out the new CANS, visit
the McLachlin Inn webpage at http://
faculty.law.ubc.ca/phideltaphi, and click
on CANS at the top. This is a brand new
page, and we are stocking it with 21st
Century CANS. If you have a CAN to
share, please submit it to
pdp_ubc@yahoo.com. Come on, you
know there’s been at least one time when
a good CAN has saved your life. Return
the favour. It’s the ethical thing to do!
Page 12 The Legal Eye November 2004