DATE: Monday, July 12, 1993 TIME: 9:00 a.m.
INSTRUCTIONS: THIS IS AN OPEN BOOK EXAM. ANSWER ALL QUESTIONS. ALL QUESTIONS ARE OF EQUAL VALUE.
QUESTION ONE
50% Victoria Valdez produces a magazine which specializes in "bondage and domination" which is sold mail order to customers. The pictures in the magazine display men being dominated and humiliated by women, and women being dominated and humiliated by men. The characters are photographed in nude and semi-nude states. The magazine is sold by subscription only to 3500 subscribers in Canada.
The Pornography Act of British Columbia provides as follows:
1. This Act may be cited as the Pornography Act.
Definitions
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3. Pornography: `pornography' means any graphic sexually explicit subordination of women and without limiting the generality of the foregoing, includes:
(a) women are presented dehumanized as sexual objects, things, or commodities; or
(b) women are presented as sexual objects who are being humiliated or hurt by others or by themselves, or who enjoy humiliation or pain inflicted by others or by themselves; or
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(e) women are presented in postures or positions of sexual submission, servility, or display; or
(f) women's body parts - including but not limited to vaginas, breasts, or buttocks - are exhibited such that women are reduced to those parts; or
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(i) women are presented in scenarios involving defecation, urination, ejaculation, or any expectorations;
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7. Trafficking in Pornography: it is sex discrimination to produce, sell, exhibit or distribute any pornography, and an action for damages or for an injunction may be brought against any person who so traffics, by any woman acting against the subordination of women or by any man, child, or transsexual who alleges injury by pornography in the way women are injured by it.
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17. Civil Jurisdiction: any person who has a cause of action under this statute may apply to a court of competent jurisdiction for a remedy.
Victoria Valdez is sued by X for trafficking in pornography. X seeks damages and an injunction preventing Victoria Valdez from producing, selling, exhibiting or distributing any pornography. Advise Victoria Valdez as to the relevance of the Charter of Rights and Freedoms to this suit.
QUESTION TWO
50% Joe Bon Joe is an Arts student at the University of Northern Ontario. He is a member of the Branch Davidians, a religious sect that take some of the Bible's teachings literally.
In Philosophy 101, Professor Jill Bon Jill initiates a discussion about discrimination against homosexuals on February 24, 1993. Joe Bon Joe raises his hand and is called upon by Professor Jill. Joe Bon Joe says:
I mean, are you saying that anything goes? Any coupling is the moral equivalent of the family?
Joe then quotes from the Bible to support his view of the family.
Professor Jill Bon Jill does not answer Joe Bon Joe's question. She goes on to another topic. Five minutes later Joe Bon Joe raises his hand. Professor Jill Bon Jill calls upon him. Joe Bon Joe says:
Look, I means I asked a question. Okay? You can answer it or not, but if you are not going to answer it at least do me the courtesy of saying so. I means don't just ignore me. Okay?
Professor Jill replies angrily:
Look. This is a University. A private corporation. Get it? You can't speak here on private property whenever you like. I'm responsible for this class.
The class continues and terminates in the ordinary course.
Three days later, on February 27, 1993, Joe Bon Joe receives this notice:
A formal complaint has been made against you that you attempted to assert power over another person in order to obtain your own objectives and thereby detrimentally affected the classroom environment in such a way as is likely to lead to adverse psychological consequences for persons of various sexual orientation in your classes. The complaint relates to your behaviour in Philosophy 101, on February 24, 1993. The complainant has requested to remain anonymous. You must appear before an arbitration panel on March 13, 1993 in order to answer the charge of harassment. If you do not appear, the arbitration panel may proceed against you in your
absence, and may recommend to the Dean that he or she require you to apologize to your class and that if you refuse to apologize, that you be suspended from the University until you do apologize.
The University of Northern Ontario Act provides as follows:
1. The University of Northern Ontario is hereby established.
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4. The objects and purposes of the University are
(a) to promote the advancement of learning and the dissemination of knowledge;
(b) to further bilingualism and multi-culturalism in Ontario;
(c) to further the intellectual, spiritual, moral, physical and social development of, as well as a community spirit among, its undergraduates, graduates and teaching staff, and to promote the betterment of society.
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18. Every faculty established by the University shall be governed by a Council, which shall consist of the Dean, the Vice Dean, the Secretary, and such other members as may be determined by the Senate.
19. The Councils of the faculties may make regulations for the good and efficient management of the affairs of the Faculty, including regulations specifying norms of conduct for students, and every such regulation made by the Councils of the Faculties shall have such force and like effect as if enacted in this Act.
The Faculty Council of the Faculty of Arts of the University of Northern Ontario made the following regulation in 1991:
1. Harassment is unwelcome behaviour which attempts to assert power over another person in order to obtain one's own objectives. Harassment can either be psychological or physical. Harassment negatively and detrimentally affects the classroom in such a way that it is likely to lead to adverse consequences for the individual and/or group harassed. Intention is not a relevant consideration in determining if harassment has occurred.
2. Students may address complaints about harassment to the Community Relations Co-ordinator. The confidentiality of such complaints shall be assured.
3. The Community Relations Co-ordinator will notify all relevant parties once a formal complaint has been initiated. Drafted in consultation with the individuals concerned, this complaint shall be in writing and shall detail the nature of the complaint.
4. The procedure will be confidential. The parties will be discouraged from disseminating the complaint.
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8. Complaints which cannot be mediated will be referred to a three person Equity Arbitration Committee.
9. The Equity Arbitration Committee may make the following recommendation to the individuals concerned.
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(c) that the person complained of apologize to the individual or individuals raising the concern or to the class involved;
(d) any other recommendations that are deemed just and reasonable ...
21. Where the Equity Arbitration Committee so recommends, the Dean may require any student complained of to apologize to the individual or individuals complaining or to a class. If a student refuses to apologize when required to do so by the Dean, the Dean may suspend the student from the University for such period as he or she deems appropriate.
Joe Bon Joe consults you with respect to the notice received. Advise Joe Bon Joe with respect to Charter of Rights issues.