Date: Monday, 22 April 1996
Time: 9:30 a.m.
Length: Two hours
1. This is an open book exam.
2. You have 2 hours to write the examination.
3. Answer both questions. Note the mark value for each and allocate your time accordingly.
4. Each question is of equal value.
Kathleen Kennedy was a student at the University of Windsor Law School in the early 1990s. She quarrelled with the law school administration on several occasions. When Lord Kunkle of Kent, a British Law Lord and formerly U.K. Minister of Defence, spoke at the Law School, Kathleen Kennedy attended and confronted him.
"I believe that your views are irremediably coloured by your xenophobia hatred of the Irish, and I maintain that..."
"Just one moment young Lady..."
"Murderer! Murderer! Free Ireland! Free Ireland!"
Kathleen yelled until restrained and removed by the University security.
When the University Library decided to remove the writings of Ernst Zundel from the University Library, Kathleen Kennedy organized a free speech rally in the Agora on University Property. When the University administration canceled the speaking engagement of Professor Patrick Herlihy to the English Department because of Professor Herlihy's advocacy for the terrorist activities of the I.R.A., Kathleen Kennedy wrote a scathing op-ed piece in the Windsor Star Leader critical of the University for its "Stalinist tendencies". Her major paper, Courting Trouble: Section 1 of the Charter and the Demise of Constitutional Review, attacked the Supreme Court of Canada for its repressive positions on pornography and hate literature. This paper was published in the Windsor Law Review, whereupon it provoked an angry letter of complaint to the Dean from the League for Decency in Education. Finally, Kathleen Kennedy attended an all night vigil in front of the Supreme Court of Canada when the Court ruled against James Keegstra because, as she told a reporter, "Mr. Keegstra is a deeply religious man. This failure to protect Mr. Keegstra's religious convictions is threatening to everyone's freedom to hold and practice religious beliefs."
The Law School reprimanded her formally in 1992, and warned that continued public discussion of her views could lead to further disciplinary action, including dismissal. The University put a note in her student dossier, which was referenced on her transcript, referring to the disciplinary event, and the warning for "inappropriate propagation of racist and sexist views." In 1993, Kathleen Kennedy published a novella, Taking Pains with You, in which Ernst Zundel appeared as a character romantically involved with Kim Campbell. She was reprimanded again, and a further reference was noted on her transcript.
Kathleen Kennedy completed her law degree at Windsor magna cum laude in 1993. The following year she applied for admission to the Bar Admission Course. Her application was denied. She applied to appeared before a committee of Benchers to argue her case for admission. At the conclusion of the proceeding, the Benchers confirmed the decision not to admit her. They delivered written reasons for their decision, which included the following:
The Law Society of Upper Canada is a corporation established by the Legislature of Ontario which is designed to provide for self regulation of the legal profession in Ontario. It is created and regulated by the Law Society Act, R.S.O. 1990, c. L.8, which provides in part:
"SECTION 2
THE SOCIETY
2.--(1) The Law Society of Upper Canada is a corporation without share capital composed of the Treasurer, the benchers and the other members from time to time.
SECTION 10
Government of the Society
10. The benchers shall govern the affairs of the Society,
including the call of persons to practice at the bar of the
courts of Ontario and their admission and enrolment to practice
as solicitors in Ontario.
BENCHERS
SECTION 12
Benchers by virtue of their office
12.--(1) The following, if and while they are members, are
benchers by virtue of their office:
1. The Minister of Justice and Attorney General for
Canada.
2. The Solicitor General for Canada.
3. The Attorney General for Ontario.
4. Every person who has held the office of Attorney
General for Ontario.
SECTION 23
Benchers appointed by L.G. in C.
23.--(1) The Lieutenant Governor in Council may appoint
twenty persons who are not members to be benchers of whom ten
shall be persons ordinarily resident in The Municipality of
Metropolitan Toronto and ten shall be persons ordinarily
resident in Ontario outside of The Municipality of Metropolitan
Toronto, and each person so appointed has all the rights and
privileges of an elected bencher.
SECTION 15
Election of benchers
15.--(1) An election of benchers shall be held in 1991 and
in every fourth year thereafter at each of which forty benchers
shall be elected by secret ballot, twenty of whom shall be from The Municipality of
Metropolitan Toronto and twenty of whom shall be from outside The Municipality of
Metropolitan Toronto.
SECTION 16
Who may vote
16.--(1) Every member in good standing and not in arrear to
the Society for any fee or levy is an elector qualified to vote
at an election of benchers.
SECTION 17
Qualification of candidates
17. No member is eligible to be a candidate for bencher at
any election who is not qualified to vote at the election.
SECTION 28
Classes of members
The following are members of the Society and entitled to practice law in Ontario as barristers and solicitors; ...
(c) the persons, being Canadian citizens or permanent
residents of Canada,
(ii) who successfully complete the Bar
Admission Course and are called to the bar and
admitted and enrolled as solicitors...
SECTION 60
Bar Admission Course
60.--(1) The Society may maintain the Bar Admission Course
and programs of continuing legal education.
Law degrees
(2) The Society may grant degrees in law.
SECTION 61
Admission to Bar Admission Course
Form of applications
61.--(1) Every application for admission to the Bar Admission Course shall be on the
prescribed form and be accompanied by the
prescribed fees.
Qualifications
(2) An applicant for admission to the Bar Admission Course shall have a degree from an approved Canadian Law School and shall be of good character in the opinion of the Benchers.
Where no refusal
(3) No applicant for admission to the Bar Admission Course who has met all admission requirements shall be refused admission.
Appearance before refusal
(4) No application for admission to the Bar Admission Course shall be refused until the applicant has been given an opportunity to appear in person before a committee of benchers.
Statement of reasons
(5) Where an applicant for admission to the Bar Admission Course is refused admission, the applicant is entitled to a statement of the reasons for the refusal."
Since 1963 the Lieutenant Governor of Ontario has invited community and public interest groups to submit the names of persons active in community affairs and who have the confidence of their communities to be considered for appointment as Benchers. These names are vetted by a committee made up of community and public interest group presidents. The committee of presidents compiles a shortlist of twenty names from the names submitted, and forwards the shortlist to the L.G. in Council. Since 1963, the L. G. in Council has appointed as Benchers those twenty persons on the shortlist.
The Law Society conducts the Bar Admission course which it staffs with members of the Law Society. Initial decisions about eligibility to enter the Bar Admission Course are made by Law Society staff, subject to confirmation by a Committee of Benchers.
Kathleen Kennedy consults you and asks for your constitutional law advice about the refusal to admit her to the BAC. Because she has meagre funds, and because she considers herself an expert in section 1 of the Charter, she asks you to refrain from expressing any views on section 1 of the Charter.
Advise Kathleen Kennedy as to matters other than section 1 of the Charter.
QUESTION 2 (50%)
"Holy Jeepers," Kevin O'Donnell exclaimed when Kathleen Kennedy told him about her troubles. "I heard that Seamus Kelleher had a similar problem. They wouldn't let him graduate from Algonquin College because he wasn't 'of good character' either."
"What did he do?"
"He just told it like it was in Northern Ireland. You know, the murderers an' all. He just told them, you know the Brits, and... Anyway, they have this rule, that, like, wait. .. Seamus wrote me a letter."
Kevin unfolded an envelope and read from the letter inside.
'The Trustees may, in their sole discretion, refuse to grant a degree to any person who is not in their opinion of good moral character.'"
"Where's the rule come from?" Kathleen asked.
"It says right here. 'An Act Respecting Algonquin College.'"
"Kevin, is it possible that these Colleges are using their power against the Irish?"
"You mean these Canadian English?"
"That's the way it seems to me."
"Ask your lawyer, maybe. Seamus will help you pay for it."
Kathleen Kennedy and Seamus Kelleher relate the above to you. They ask for your opinion on section 1 of the Charter. They also ask for your opinion as to whether their Irish theory could be relevant to Kathleen's law suit. To economize, Kathleen and Seamus request that you not repeat any points you made in your previous opinion in question 1.
Advise Kathleen Kennedy and Seamus Kelleher.
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