Trials of an Event Law-aison

The trials of a second-year law student at the University of Alberta.

An Awaited Judgment, Summer Research...

Nadya Ogloff - Tuesday, May 31, 2011

As some of you may recall from one of my earlier posts, the legal question in our first year moot scenario was based on the real-life case R. v. J.A. At the time, J.A. was awaiting judgment at the Supreme Court of Canada. It was quite an anticipated judgment, and the SCC released its judgment (2011 SCC 28) last Friday morning and decided 6-3 against prior consent to sexual activity anticipated to occur during unconsciousness. Whatever your opinion is on this matter, I encourage you to read the judgment (including the dissent) as it is a pretty interesting one, and gives you an idea of Canadian sexual assault laws. One of the things we were told in our courses (especially constitutional and criminal law) was to notice patterns in the way particular justices of the Court decides cases. Based on some of the other cases I have studied this year (in criminal law and during moot preparation), it is not surprising to see the way the Court was split in J.A., or even who wrote for the majority or dissent. The reasons by McLachlin C.J. as well as Fish J. show how the same Criminal Code provisions can appear to imply different things. For most though, the more interesting parts are probably in the policy aspects. It was great to see that many of the arguments raised by both sides in J.A. were also covered by our class in our moots and factums.

Based on the SCC decision J.A., our moot case's fictional accused would be found guilty if it was decided strictly on the legal question. However, the facts of the situation between J.A. and our fictional case are somewhat different. I wonder if the SCC would decide differently if it was the same legal question as J.A., but with the facts of our fictional moot scenario. I think our prof made a good choice in basing our moots on this case and legal question, because it was an interesting topic and we got to follow an ongoing, real-life case.

This summer I am working on a research project on biopiracy. Thus far in my work, I understand biopiracy as being the commercialization of substances derived from naturally-occuring biological materials, usually plants, without proper (or any) compensation to the indigenous groups from whose knowledge these substances were discovered. Some famous examples where patents have been challenged and revoked on the grounds that it was traditional knowledge include the neem tree, turmeric, and basmati rice. I have to admit though, it was tough to start reading again the week right after final exams. For the past couple of weeks I've been doing a lot of database searching and sifting through thousands of results. I suppose this is kind of like the part in life sciences research where you are streaking hundreds of plates or pipetting into thousands of tubes. On the other hand, each search result is a different news article or judgment or patent so I'm learning quite a bit too; I find it a lot more involved than pipetting or streaking plates, although I'm sure some people enjoy doing that kind of stuff too!


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