the daily snivel
Blue skies, Barthy burgers, girls...
So went the mantra of You Can't Do That on Television, a Canadian sketch comedy show from the 1980s that included a very young Alanis back in the days before anger became her gig. Whenever one of the characters (normally a rogue named Alasdair Gillis) was faced with the prospect of release from the dungeons of an unnamed dictatorship that routinely imprisoned him on sketch after sketch, he'd dreamily think of those aforementioned blue skies, and "Barthy burgers" (Barth, played by the inimitable Les Lye, was the much-maligned greasy spoon chef character who never let on what was in the meat), and of course, girls.
Barth the greasy spoon chef
Having written the last of my exams on Thursday (family law), I am now facing the prospect of blissful freedom myself. It's actually hard to know what to do with all this free time -- I now have two entire weeks in which to do whatever I like before my summer job at the University of Ottawa Community Legal Clinic begins on May 3. I was intending to do nothing but sleep late on Friday, but as it turns out, I am finding it quite hard to shake the pathological need for diligent learning out of my mental state. So, instead, I cobbled together a group of like-minded nerds and we went to the Supreme Court of Canada bright and early that morning to watch a criminal appeal that was being heard. It was a very interesting case that we'd been discussing all term long in my advanced criminal procedure course.
The matter -- R. v. Tessling -- concerned the use of a "forward-looking infrared" device (or FLIR) to search for hot spots within a private home. The hot spots can correlate with the presence of high-intensity heat lamps used for indoor marijuana grow operations. Of course, they can also indicate a sauna, a fireplace, a shower, or a running car engine, or any number of other heat-creating activities within the home. The question of the case was whether a search warrant was required before using such a device to peer "into" a home by examinating the relative heat emanations escaping through the walls. The Crown was appealing a decision by the Ontario Court of Appeal establishing that a search warrant was required, and they argued the FLIR device was more useful for gathering the information needed to establish the reasonable and probable grounds required to get a warrant to search the house directly.
Anyway, it was a fascinating appeal. I'm personally inclined to think that people do have a reasonable expectation of privacy as regards the heat concentrations within their homes (and thus a search warrant should be required to examine the infrared signature of the house), so I'm eager to see how the Supreme Court deals with the question. An interesting analogy came up in the appeal regarding garbage. A search warrant is not required to search garbage that someone has left outside on the curb, for example, so the question arising from this is: why would you then need a warrant to look at heat escaping through the walls of a house? I'd thought about that question during a class in which one of the Crown prosecutors working on the appeal was discussing it with us, and my response was that garbage is something you consciously abandon to the curb, knowing that anything you put in the garbage is going to be handled by third parties. It's an active choice to dispose of things that way. Whether a cat or a raccoon paws through your garbage late some night, or a police officer does, there's a very good chance that it's going to be strewn about, so there's an understandably low privacy expectation regarding your trash. But there's no conscious abandonment of infrared radiation. It's simply impossible to keep it from escaping the house. It can't be discerned with the naked eye -- while unusually warm grow operations might melt the snow on a roof, the heat measured by a FLIR device is based on a relative reading compared to the baseline of absolute zero. It's heat that you couldn't measure by putting your hand on the wall. So, in my opinion, it commands a higher expectation of privacy.
Every bit as fascinating as the legal arguments was the sense of awe we had in sitting at the Supreme Court itself. It's a remarkable experience that I would recommend to anyone. With all the talk we hear about "activist judges" and griping about the court systems, how many people have actually sat through any court procedure and paid attention to the arguments and issues being raised, or read a judgment and grasped the actual reasoning behind judicial decisions? If all you know about the legal system comes from what you've seen on TV, then most of what you know is incorrect.
On the other hand, fundamental to the integrity of the legal system is the integrity of the professionals who work within it. No small part of the training of a lawyer is an understanding of the Rules of Professional Conduct, which govern our profession and set the minimum standard of professional and ethical obligations for a solicitor. Lawyers (and law students) who do not respect this code of conduct jeopardize the integrity of the profession as a whole.
I was extremely, extremely disappointed to hear this week that one of my colleagues has betrayed these standards.
To begin the story, let me tell you about my family law exam. Because of a conflict with my Constitutional Law II take-home exam and my family law exam on Wednesday, I had to defer one of them to the next day. I didn't realize my Constitutional Law exam was a six-hour take-home exam when I signed up for the course in July, and realized it would run into the regular three-hour family law exam held the same day. The Assistant Dean was very, very gracious and agreed to accommodate me, and so he allowed me to write my family law exam the next day. The condition: I would have to sign an affidavit affirming that I had not discussed the contents of the exam with anyone who had written it on Wednesday, nor would I discuss it with anyone who was going to write it after me. This was because I would be writing the same exam on Thursday that everyone wrote on Wednesday. If I talked to my friends, I might cheat by knowing what was on the exam before I wrote it. I took this very seriously, as did my friends. I didn't speak to a soul in the class on Wednesday or Thursday. Even my own sister didn't talk to me on Wednesday, because she was going out for beer with some of the people in my class after they'd written it, and she wanted to keep everything on the up-and-up.
I wrote the exam on Thursday, largely without a hitch (aside from the fact that the people at the Academic Affairs office didn't realize I was supposed to write it that day, and largely allowed me to do so on the basis of my honest face and the promise that we'd all sort it out with the Assistant Dean on Friday). I will say this about family law, though: you'd be amazed how much you need to rely on a calculator. It's a dense subject matter for a body of law that has largely only existed in Canada for about forty years: my "summary" (the compendius but condensed collection of case briefs and rules that we bring in to an exam based on a boiled down version of our class notes) was 112 pages and I had it bound just to make it manageable to flip through.
Anyway, I ran into a friend on Friday who was also in my family law class. She had written the exam on Wednesday, so we were in the clear to briefly vent our stresses about property equalization formulas and the many other woes of property and custody issues arising from separation. Then she dropped a bombshell: someone she knew, who was also in our family law class, had deferred the exam as well, to a date later in the exam period. Then that person called my friend and asked her what was going to be on the exam. And my friend caved in to the pressure and told him or her what was on the exam.
I understand why my friend did what she did. Sometimes you just can't say no to a friend, even when you don't respect their choices. Sometimes people sound so desperate or frightened that you want to help them. I honestly don't know what I would have done I were in her shoes and a friend of mine had asked me. I might have relented as well. I hope my friends would not put me in that position by ever asking. I won't get my friend into trouble by naming names. She did a foolish thing but an understandable thing.
But I cannot respect or forgive or understand the person who is now cheating. He or she is committing an academic offence and, worse, is engaging in behaviour that seriously undermines the professional integrity required of any future lawyer. It is academic suicide and an abandonment of personal ethics. It is, in a word, deplorable. It is as well that I do not know who it was because I would probably turn them in. It makes us all look bad, and I am all the more frustrated because this person will probably get away with it. I worked hard and helped a lot of my friends study for the family law exam. Law school grades are curved in order to keep grades within a range that is neither too low nor too high. Our grades won't mean anything if people can cheat and do even better. Our profession doesn't mean anything either.
Barth the greasy spoon chef
Having written the last of my exams on Thursday (family law), I am now facing the prospect of blissful freedom myself. It's actually hard to know what to do with all this free time -- I now have two entire weeks in which to do whatever I like before my summer job at the University of Ottawa Community Legal Clinic begins on May 3. I was intending to do nothing but sleep late on Friday, but as it turns out, I am finding it quite hard to shake the pathological need for diligent learning out of my mental state. So, instead, I cobbled together a group of like-minded nerds and we went to the Supreme Court of Canada bright and early that morning to watch a criminal appeal that was being heard. It was a very interesting case that we'd been discussing all term long in my advanced criminal procedure course.
The matter -- R. v. Tessling -- concerned the use of a "forward-looking infrared" device (or FLIR) to search for hot spots within a private home. The hot spots can correlate with the presence of high-intensity heat lamps used for indoor marijuana grow operations. Of course, they can also indicate a sauna, a fireplace, a shower, or a running car engine, or any number of other heat-creating activities within the home. The question of the case was whether a search warrant was required before using such a device to peer "into" a home by examinating the relative heat emanations escaping through the walls. The Crown was appealing a decision by the Ontario Court of Appeal establishing that a search warrant was required, and they argued the FLIR device was more useful for gathering the information needed to establish the reasonable and probable grounds required to get a warrant to search the house directly.
Anyway, it was a fascinating appeal. I'm personally inclined to think that people do have a reasonable expectation of privacy as regards the heat concentrations within their homes (and thus a search warrant should be required to examine the infrared signature of the house), so I'm eager to see how the Supreme Court deals with the question. An interesting analogy came up in the appeal regarding garbage. A search warrant is not required to search garbage that someone has left outside on the curb, for example, so the question arising from this is: why would you then need a warrant to look at heat escaping through the walls of a house? I'd thought about that question during a class in which one of the Crown prosecutors working on the appeal was discussing it with us, and my response was that garbage is something you consciously abandon to the curb, knowing that anything you put in the garbage is going to be handled by third parties. It's an active choice to dispose of things that way. Whether a cat or a raccoon paws through your garbage late some night, or a police officer does, there's a very good chance that it's going to be strewn about, so there's an understandably low privacy expectation regarding your trash. But there's no conscious abandonment of infrared radiation. It's simply impossible to keep it from escaping the house. It can't be discerned with the naked eye -- while unusually warm grow operations might melt the snow on a roof, the heat measured by a FLIR device is based on a relative reading compared to the baseline of absolute zero. It's heat that you couldn't measure by putting your hand on the wall. So, in my opinion, it commands a higher expectation of privacy.
Every bit as fascinating as the legal arguments was the sense of awe we had in sitting at the Supreme Court itself. It's a remarkable experience that I would recommend to anyone. With all the talk we hear about "activist judges" and griping about the court systems, how many people have actually sat through any court procedure and paid attention to the arguments and issues being raised, or read a judgment and grasped the actual reasoning behind judicial decisions? If all you know about the legal system comes from what you've seen on TV, then most of what you know is incorrect.
On the other hand, fundamental to the integrity of the legal system is the integrity of the professionals who work within it. No small part of the training of a lawyer is an understanding of the Rules of Professional Conduct, which govern our profession and set the minimum standard of professional and ethical obligations for a solicitor. Lawyers (and law students) who do not respect this code of conduct jeopardize the integrity of the profession as a whole.
I was extremely, extremely disappointed to hear this week that one of my colleagues has betrayed these standards.
To begin the story, let me tell you about my family law exam. Because of a conflict with my Constitutional Law II take-home exam and my family law exam on Wednesday, I had to defer one of them to the next day. I didn't realize my Constitutional Law exam was a six-hour take-home exam when I signed up for the course in July, and realized it would run into the regular three-hour family law exam held the same day. The Assistant Dean was very, very gracious and agreed to accommodate me, and so he allowed me to write my family law exam the next day. The condition: I would have to sign an affidavit affirming that I had not discussed the contents of the exam with anyone who had written it on Wednesday, nor would I discuss it with anyone who was going to write it after me. This was because I would be writing the same exam on Thursday that everyone wrote on Wednesday. If I talked to my friends, I might cheat by knowing what was on the exam before I wrote it. I took this very seriously, as did my friends. I didn't speak to a soul in the class on Wednesday or Thursday. Even my own sister didn't talk to me on Wednesday, because she was going out for beer with some of the people in my class after they'd written it, and she wanted to keep everything on the up-and-up.
I wrote the exam on Thursday, largely without a hitch (aside from the fact that the people at the Academic Affairs office didn't realize I was supposed to write it that day, and largely allowed me to do so on the basis of my honest face and the promise that we'd all sort it out with the Assistant Dean on Friday). I will say this about family law, though: you'd be amazed how much you need to rely on a calculator. It's a dense subject matter for a body of law that has largely only existed in Canada for about forty years: my "summary" (the compendius but condensed collection of case briefs and rules that we bring in to an exam based on a boiled down version of our class notes) was 112 pages and I had it bound just to make it manageable to flip through.
Anyway, I ran into a friend on Friday who was also in my family law class. She had written the exam on Wednesday, so we were in the clear to briefly vent our stresses about property equalization formulas and the many other woes of property and custody issues arising from separation. Then she dropped a bombshell: someone she knew, who was also in our family law class, had deferred the exam as well, to a date later in the exam period. Then that person called my friend and asked her what was going to be on the exam. And my friend caved in to the pressure and told him or her what was on the exam.
I understand why my friend did what she did. Sometimes you just can't say no to a friend, even when you don't respect their choices. Sometimes people sound so desperate or frightened that you want to help them. I honestly don't know what I would have done I were in her shoes and a friend of mine had asked me. I might have relented as well. I hope my friends would not put me in that position by ever asking. I won't get my friend into trouble by naming names. She did a foolish thing but an understandable thing.
But I cannot respect or forgive or understand the person who is now cheating. He or she is committing an academic offence and, worse, is engaging in behaviour that seriously undermines the professional integrity required of any future lawyer. It is academic suicide and an abandonment of personal ethics. It is, in a word, deplorable. It is as well that I do not know who it was because I would probably turn them in. It makes us all look bad, and I am all the more frustrated because this person will probably get away with it. I worked hard and helped a lot of my friends study for the family law exam. Law school grades are curved in order to keep grades within a range that is neither too low nor too high. Our grades won't mean anything if people can cheat and do even better. Our profession doesn't mean anything either.
