Law Times

Law Times • apriL 4, 2016 Page 7 www.lawtimesnews.com COMMENT Introspection is overdue Law faculties need to examine their tuition models BY MARCUS McCANN O ne of the last lifeboats protecting law stu- dents from the effects of high tuition is sinking. And that's OK. Changes in the federal and provincial budgets are set to drastically rewrite the way students pay tuition in the province. The biggest change comes at the provincial level, where the Ontario Liberals announced an end to the tuition tax credit. The end of that program will be used to free up provincial dollars to fund upfront bur- saries equal to average undergraduate tuition for stu- dents from low and modest incomes. The federal budget put new money into the financial aid system, in particular $1,000 of additional grants for low-income students. The feds also tinkered with loan repayment and the valuation of assets in assessing need. Shuttering the provincial tuition credit program will have a huge effect on law students. Students rolled over their credits while in law school and then used the savings in their early years of practice to pay down their debts. As tuition ballooned in the late '90s and early 2000s, so did the size of the credits for law students. Students from the Class of 2016 can expect to graduate with tens of thou- sands of dollars of these credits. Students from the Class of 2020 will have none. To be clear: The tuition tax credits were tied to the actual cost of tuition. The new grants are tied to average undergraduate tuition. The details of the plan have not been fully rolled out, and so there may be a few students for whom this is a wash. But for most, it amounts to a sig- nificant new cost. And it couldn't come at a worse time for law students. Tuition and fees at the University of Toronto Faculty of Law amount to $33,000 this year. That number is almost $25,000 a year at Osgoode. And tuition is rising steadily across the province. The average debt for law students in Ontario was $71,000 in 2014 (the most recent year for which data is available). Or, more precisely, that was the average for students who carry debt. Even with high tuition, many students graduate debt-free thanks to the bank of mom and dad. And this number is the provincial average — the debt load is higher for many students at more expen- sive schools such as U of T and Osgoode. But the tuition credit scheme was always hopelessly f lawed. By nature of being a non-refundable tax cred- it, students had to service their debts until they had enough taxable income to offset. The program also effectively punished students from lower-income backgrounds. Students from wealthy families often graduated with no debt and rollovers of tax credits for future years, whereas students from low and modest incomes had their credits reduced by the dollar value of any needs-based scholarships they re- ceived, meaning their rollovers were smaller. Moving more money into upfront loans for students from low incomes is a good thing, and I don't object to the policy rationale. From a bird's-eye view, the fact that significant coin is coming out of the pockets of law stu- dents is at worst collateral damage, if the program works the way it's supposed to. However, for members of the legal profession, we must grapple with these changes. For example, will the end of these tax credits increase the gravitational pull of Big Law at the expense of rural areas and the North? What effect will these changes have on lawyers contemplating practice areas such as migration, criminal defence, and poverty law? Ultimately, we are left to confront some difficult truths. Firstly, we can all agree that the old model of finan- cing law school is dead. Gone are the days where a bright young person could save up for law school by working for a year or two after completing an undergraduate degree. Gone, too, are the days where summering at a law firm could yield enough savings to f loat a student through his or her upper years. Secondly, the new model is also dead. During the period of deregulation, when tuition at some schools increased tenfold, the story went something like this: Rich students would pay market price, and low-in- come students would be insulated from the effects of high tuition through need-based bursaries. Now that many students from low- and modest-income families are graduating with more than $100,000 in law school debt, it's fair to say that low-income students are no longer protected, if they ever were. Thirdly, we can't count on the province to fix the problem. Post-secondary education is nearing the point of crisis. After 20 years without significant new invest- ment from any level of government, the institutions are ill. And in efforts to salvage what we can, law students are simply not a priority. Fourthly, things are going to get worse before they get better. There is no credible plan on the table for tack- ling accessibility of legal education and its intendent ills. (The intendent ills are worth their own columns: lack of diversity, lack of affordable legal services, regionalism.) In particular, the law faculties remain unmoved. While dean Lorne Sossin at Osgoode has taken some small first steps, the rest of his cohort appears content to bury their heads in the sand. I'm prepared to look at the bright side. Overall, the changes in the federal and provincial budgets will help put more students from lower-income families through undergrad, and help reduce the debt load of those stu- dents when they graduate. I also think there is a silver lining for the legal pro- fession. Law students and young lawyers were using the tuition tax credits as a crutch. Without it, law faculties are going to need to take a serious look at whether their tuition models are sustainable. Such introspection is long overdue. LT uMarcus McCann graduated from the University of Toronto Faculty of Law with six figures of debt. He now practises in the areas of employment and hu- man rights at Symes Street & Millard LLP. Homicide law desperately needs updating F irst-year law students learn that the Criminal Code divides "culpable homicide" into three categories: murder, manslaughter, and infanticide. The first two garner a lot of attention, while the third is usually ignored. On March 24, the Supreme Court ren- dered judgment in R. v. Borowiec, its first major discussion of infanticide, describing it as a "particularly dark corner of the crim- inal law." Like a lot of the code, the infan- ticide provision is poorly drafted and an- tiquated. According to s. 233, this offence is committed when a mother "causes the death of her newly-born child, if at the time of the act or omission she is not fully recov- ered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed." Instead of the automatic life sentence that follows a murder conviction, someone convicted of infanticide faces a five-year maximum. Infanticide was incorporated into Eng- lish law in 1922, and into our Criminal Code in 1948. In both countries, it was enacted as a response to juries' under- standable reluctance to impose a murder conviction — which meant an automatic death sentence — in cases where new mothers killed their babies while in the throes of what we would now recognize as postpartum depression. In this context, it made sense to offer a lesser offence as a halfway house between a death sentence and an outright acquittal, both of which might be unpalatable. Borowiec gave birth to three babies between 2008 and 2010. She placed all three of them in dumpsters, where the first two died. The third one survived. She faced murder charges in respect of the two deaths and raised infanticide as a (partial) defence, claiming her mind had been "disturbed." The trial judge accepted the defence expert's view that Borowiec's mind was disturbed, con- victed her of infanticide, and sentenced her to a further 18 months in jail. In the Alberta Court of Appeal, the majority held that the trial judge made no error in setting a low threshold for "dis- turbed mind" and in finding that it was met in this case. Justice Wakeling, in dis- sent, produced a detailed treatise on why and how infanticide should be clarified and rationalized. He noted that the con- cept of a "disturbed mind" is neither a recognized medical concept nor a defined term in the code. On a further Crown appeal, the Su- preme Court declined to take up Wakel- ing's invitation to reform the law. Writing for a unanimous court, Justice Cromwell took a minimalist approach, affirming previous judicial statements that "dis- turbed mind" is a low threshold not equiv- alent to the "not criminally responsible by reason of mental disorder" standard. While I largely agree with the court's conclusion, I also think it's an embarrassment that we're con- tinuing to govern ourselves by a code full of such outdated formulations. Surprisingly, despite its archaic talk of dis- turbed minds and lactation, infanticide is actually one of our more modern offences. The code itself was first en- acted in 1892, largely based on the model code written by the conservative British jurist Sir James Fitzjames Stephen. As Prof. Martin Friedland has shown, the decision to adopt Stephen's code was momentous: The other leading contender was a model code produced for Jamaica by R.S. Wright, whose sympathies were left-liberal. For example, Stephen's code was much heavier on morality-based offences, some of which came under judi- cial fire a century later with the advent of the Charter of Rights and Freedoms. But whatever its merits for its own time, a Victorian criminal code is a spectacular mismatch for ours. We have never under- taken a proper recodification of our crim- inal law. The result is a bloated, confusing code no intelligent layperson would want to peruse. Especially troublesome are an- tiquated formulations that still form an active part of the criminal law. Take, for instance, another partial defence to mur- der: provocation. Under s. 232, murder is reduced to manslaughter if the accused acted in response to something "suffi- cient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool." No one talks this way anymore, of course. Yet, because this remains the gov- erning test, we are regularly witness to the unedifying spectacle of 21st-century courts parsing the subtleties of warm- ing and cooling "passions." Far better, in my view, to have a generalized defence of "diminished responsibility" that would apply to provocation, infanticide, and all other cases where a reasonable person would conclude the accused succumbed to ordinary human frailty and ought not to be branded a murderer. Comprehensive recodification of the criminal law is per- haps a pipe dream given the disbanding of the Law Reform Commission, the general conservatism of the legal culture, and the inertia of Parliament. But sensible reform of homicide law is both meaningful and realistic. Parliament may be out of practice at doing anything in criminal law except jacking up sentenc- es, but this kind of manageable reform might whet the legislative appetite. There is plenty of work to do for anyone willing to undertake it. LT uMatthew Gourlay handles crimi- nal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litigation. He's available at mgourlay@hhllp.ca. u SPEAKER'S CORNER A Criminal Mind Matthew Gourlay

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