University of Alberta Faculty of Law Blog

New Edmonton suburbs will cost another $1.2B

The government doesn't tell the GAP how many jeans and how many slacks to make each year. Nor does the government pick the colour of the design. And it doesn't tell GM how many sedans and how many mini-vans it can produce. We accept that those decisions are best left to the manufacturer. Yet, when it comes to new subdivisions, the government regulates every aspect of the process, including the location, number, and even the design.

Local governments explain that a family’s choice to live in the suburbs imposes a cost on the rest of the taxpayers. And they are right. But the reverse is also true: forcing a family to live where (or how) the community thinks is “right” imposes a cost on that family. The trick is to make development decisions that maximize the benefits (or minimizes the costs) for everyone.

A century ago, land subdivision was not restricted. In fact, local officials believed that by servicing private land they could attract development and increase the community’s tax base. The results were disastrous. For example, in 1916, Calgary had a population of 50,000 residents, but enough serviced lots to accommodate a population of 770,00.  Some municipalities that took out loans to finance local services went bankrupt when the boom they expected failed to materialize.

The pendulum has swung since. Landowners may no longer legally subdivide their property without permission. Developers must themselves dedicate land and pay for the roads, sewers, and schools necessary to serve the houses they build. In some provinces (but not in Alberta), developers must also pay for “soft” services such as fire halls and ice rinks. The subdivision process has become highly regulated and very expensive. Some researchers estimate that the cost of planning, zoning, and subdivision approval, together with various levies accounts for as much as 40% of the price of a new home!

***

We read this week that new suburban neighbourhoods will cost the City of Edmonton $1.2 billion. The number is impressive, but not very helpful. I am generally suspicious of any claim that “policy X has a price tag of Y”. That’s because people tend to pick and choose the costs and benefits that add up to support the policy they believe in. People will tell you that smoking imposes large costs on the healthcare system, or that it saves the public system a great deal of money – depending on how they feel about smoking.

If we want to have an honest discussion, we need to keep our books honest too, and that means accounting for all of everybody’s costs and benefits. Sure, Windermere is expensive to serve, but it makes a lot of households very happy. How much would it cost if we took all these families and made them live on Jasper Avenue instead? And how much would those families lose? Their happiness counts just as much. How would Edmonton be affected if they decided to live in Fort Saskatchewan and not in Edmonton? The $1.2 billion is a real cost. But it’s not clear that a war on the suburbs would make us better off as a whole.

Beware also of anyone’s claim that the new suburbs are being subsidized by existing residents. It’s true that under Alberta law developers cannot be held responsible for all of the capital costs required by their projects. But at the same time, new residents bring economic development to the city, and their property taxes are sometimes used to build or refurbish services closer to the core, which they don’t necessarily use or benefit from. The evidence generally suggests that residential development does not pay its own way; but that was true in the 1960s and ‘70s, when many of our suburbs were built. Keep this quote in mind:

The argument that municipalities can be defined as “existing ratepayers” is an incorrect notion. It quickly becomes justification for placing a heavier burden on the person who is buying a house in the municipality. In fact, a municipality is a public corporation held in trust for all the people, … not only present but future generations. ((1983), 15 O.M.B.R. 75).

(To be continued)

Federal Government Proposes Amendments to Canada’s Embryo Research Law

The Federal Government has proposed amendments to the Assisted Human Reproduction Act, the legislation that governs fertility treatment services and embryo research, including many aspects of stem cell research. The amendments, which are contained in an omnibus budget implementation bill tabled before Parliament on April 26, seeks primarily to implement the 2010 Supreme Court of Canada ruling that invalidated several provisions of the law on the basis that the power to enact those provisions belonged to the provinces. The bill also seeks to abolish Assisted Human Reproduction Canada, the beleaguered federal agency charged with the responsibility of enforcing the legislation. Other proposed changes include:

• The licensing regime for research activities permitted by the legislation will cease to exist. This means that scientists will no longer require a license to conduct research on supernumerary IVF embryos, for keeping and handling gametes and embryos, or for transgenics. These activities are, in fact, no longer regulated under the statute. However, they would still be subject to other research regulations, such as the Tri-Council Policy Statement and the CIHR Guidelines for Human Pluripotent Stem Cell Research, or to future provincial regulations.

• The revised statute will maintain the prohibitions on research involving embryos and gametes. This includes bans on creating embryos for research purposes, somatic cell nuclear transfer, buying and selling of human gametes, and possibly, the derivation of gametes from induced pluripotent stem cells. This, in my opinion, is a missed opportunity to revise aspects of the law that are out of touch with scientific realities and public opinion.

•  The provision that bars many experts (persons who are, have applied to be or are affiliated with others licensed to carry out research activities permitted by the Act) from sitting on the Board of Directors of Assisted Human Reproduction Canada will be repealed. Such experts are also barred from sitting on the Stem Cell Oversight Committee, the national research ethics board established to monitor and approve human pluripotent stem cell research protocols. The practice of excluding experts from oversight boards is unique to Canada and to human pluripotent stem cell research, and is primarily aimed at addressing issues arising from conflicts of interest in research ethics oversight. The rule has attracted some criticism, with some commentators (including myself) noting that it is an example of cutting off the nose to spite the face. To exclude experts from oversight activities that sometimes require intimate knowledge of the field seems a bit heavy-handed and ill-informed. A better strategy would be to create comprehensive and stringent rules for managing conflicts of interest. This is the approach taken in most other jurisdictions, including the UK, where the stem cell research regulator is generally regarded as a model of good governance and oversight. One hopes that with the repeal of this provision, CIHR would also amend its rules to address the exclusion of experts from SCOC.

For those interested in seeing what the legislation would look like if the amendments are passed into law, I have prepared a revised version which you can download here.

Legal History at the Montreal Forum

I have just posted to SSRN my article, "Errors of Fact and Law: Race, Space, and Hockey in Christie v. York" uncovering the hidden story of the famous Supreme Court of Canada case, Christie v. York, [1940] SCR 139. Here is the abstract:

Christie v. York has pride of place among decisions wrongly decided in Canadian legal history. Fred Christie and two friends had been on their way to a hockey game when they entered the York Tavern at the Montreal Forum seeking a beer before the game when the York denied them service on the grounds of race. Or so the facts tell us. As it turns out, a significant error has long been woven into the story of Christie v. York. What were Christie and his friends doing that night at the Forum? This article reveals that they were not attending a hockey game. And yet, even in error, hockey matters in the case, especially in Justice Henry Davis’s famous dissent. Recasting Christie as a case that turns on the judicial construction of facts, this article highlights the importance of real space and circumstance in creating notions of identity, belonging, and equality. While Christie’s errors of law have been the principal source of interest among legal scholars to date, this article argues that Christie’s facts, both real and imagined, provide a far richer contribution to the legal history of the complex relationship between race and space and law.

 

Inside the Matrix

Wired Magazine has an interesting article by James Bamford on the new spy center of the National Security Agency who Bamford claims

has turned its surveillance apparatus on the US and its citizens.  It has established listening posts throughout the nation to collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas. It has created a supercomputer of almost unimaginable speed to look for patterns and unscramble codes. Finally, the agency has begun building a place to store all the trillions of words and thoughts and whispers captured in its electronic net. And, of course, it’s all being done in secret. 

 

Here's Bamford on Democracy Now today:

 

RIP Gerry Gall

Our colleague and friend passed away. His funeral service will be held tomorrow, Monday, March 19, at 4pm in the chapel of the Jewish Cemetary at 7622 101 Avenue.

Factual Causation: Here We Go ... Again?

The Supreme Court is scheduled to hear the appeal in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112; leave to appeal granted 2011 CanLII 36004 (SCC) on February 17, 2012. The Supreme Court’s summary of the issues in the appeal suggests that that all the Court was asked to do is clarify the meaning of the Resurfice material contribution test for proof of the causation requirements in causes of action in negligence and, then, determine the correct result in Clements based on that test. See

That is an accurate enough summary of what was in Ms. Clements (the appellant’s) leave to appeal factum. It is not an accurate summary of what is in her factum. The appellant (Ms. Clements) has explicitly asked the Court to decide if the causation issue ought to have been decided in her favour on the bases of the but-for test, in particular the “robust, pragmatic, common sense” approach mandated by Snell v. Farell [1990] 2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. That is not a problem because the Supreme Court’s mandate, having granted leave, is to make the decision that ought to have been made by the lower court from which the appeal comes; or order a new trial if that is the proper decision (if the decision appealed from was “against the weight of the evidence); or remand the appeal or any part of the appeal to the court appealed from for additional consideration in accordance with the direction of the Court: the Supreme Court of Canada Act, R.S.C. 1985, c. S-26, ss. 44-46.1.

The Supreme Court panel in Clements could have three judges who were appointed to the Court after Resurfice was decided. It will if the panel is the full 9 member court. It will have at least 1 new judge if the panel is composed of seven judges. Justices Cromwell, Moldaver and Karakatanis are the new appointments. Justices Bastarache, Binnie and Charron have retired. Only Justice Cromwell has expressed a judicial opinion on the meaning of Resurfice in reported reasons for judgment. Only Chief Justice McLachlin and Justice LeBel J. remain from the panel that decided Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati, [1996] 3 S.C. R. 458, 1996 CanLII 183.

A colleague’s comment about the granting of leave in Clements was “here we go”. My immediate reaction was to add “again”. I hope I am wrong.

 

Since, I'm talking to myself on this subject, as often as not where practitioners are involved, let's continue the bad(?) habit. I'm going to mention a number of points I've made elsewhere.

1. Between late 1996 and early 2007, Canadian tort jurisprudence formally had, at least based on an (ahem) "common sense", grammatical, ordinary, plain etc. etc. reading of Athey, an alternative method for establish factual causation (cause-in-fact) on the balance of probability. It was something called the Athey material contribution test.

2. The Athey material contribution test was, again on a grammatical etc. reading of Athey, applicable only where the but-for test was unworkable. That if too often seems it wasn't used that way may now be a moot point. It wasn't by the Alberta Court of Appeal in Resurfice, which is probably a good part of the reason the SCC granted leave to appeal. It also helped, I'm sure, that the ABCA claimed it was applying the SCC's own words in Walker Estate v. York Finch Hospital, in declaring that the Athey material contribution test applied, not the but-for test, but that's likely water under the bridge, at least for now.

3. Regardless of anyone's views on the vacuity of the Athey material contribution test – many academic lawyers and at least one practitioner might have gone on too long about this – it was used more than once by judges (trial and appellate) deciding tort cases across common law Canada. It found its way into the causation tests in statutory compensation regimes such as the provincial workers' compensation schemes and motor vehicle statutory accident benefit schemes, too.

4. For Ontario, a Court of Appeal decision in late 2006 (where leave to appeal was denied by the Supreme Court after the release of Resurfice, provided an explanation of the meaning of Athey's "unworkable". In Aristorenas v. Comcare Health Services, 2006 CanLII 33850 (ONCA)the majority wrote in para. 53:

Thus, it would seem that the “material contribution” test is applied to cases that involve multiple inputs that all have harmed the plaintiff. The test is invoked because of logical or structural difficulties in establishing “but for” causation, not because of practical difficulties in establishing that the negligent act was a part of the causal chain.

I suggest it is probable that the dissenting judge agreed on this point at least because the dissent was "merely" on the question of whether there was sufficient admissible evidence to support the trial judge's decision.

5. Again, at least in Ontario, Athey resulted in the Court of Appeal declaring that the Athey material contribution test was the label for the "legal principles concerning contributory causation". See Mizzi v. Hopkins 2003 CanLII 52145 (ONCA) starting at para. 26.

6. Resurfice declared the but-for test to be the "basic", "default" test. (Look it up yourself if you don't agree.)

7. The result of that, for all practical purposes – it took about a year – was that an "Ivory Snow pure" number of trial judges stopped formally using Athey material contribution to decide whether factual causation was established on the balance of probability. (I've used "seemingly", elsewhere, on occasion: feel free to substitute your own adjective. But DO NOT read my choice of adjectives to mean that I am suggesting that any judge has intentionally ignored the law binding on him or her, as he or she understood it, in order to make a decision he or she knew could not be validly made under the law as he or she understood it.)

8. Despite this, there has been no apparent difference in the actual result of reported cases. I've asked, again elsewhere (rhetorically of course) how it can be that Canada had so many instances between late 1996 and early 2007 where the but-for test was unworkable but seemingly none since. Again, this raises the not-too-rhetorical question of what changed in the laws of nature governing reality in common law Canada – at least reality as it exists outside of the National Capital Region and the boundaries of the various provincial and territorial legislatures – so that the but-for test was now almost Ivory Snow level workable?

9. Whatever factual causation actually means in the "real" world outside of the cloisters of law – take my word for it, the situation is worse than implied in either the English or French versions of para. 20 in Resurfice – it can be reasonably said that most judges and juries somehow got and get to the correct decision on what caused what. Or at least, make a decision that is defensibly correct under law's principles and at least as valid as any contrary decision. Don't forget that all law needs is whatever level of certainty "probably" means.

10. Nonetheless, even before Resurfice, even where the ultimate decision about whether the defendant's negligence was a cause of the injury seemed to be correct (or at least defensible) on the findings of fact, there was a real disconnection in too many reasons for judgment between the passages setting out the law and ultimate decision, particularly where the judges claimed the but-for test was "unworkable." By disconnect, I mean nothing more than that the judge's statements of the law do not actually explain why the judge made the decision that he or she did (in my view). As road maps, they don't get you from here to there.

11. If you want read why that might have been so, look up the meaning of "mantra" in your dictionary and look at my article whose short title is "Snark". It's published at (2005) 30 Advocates' Quarterly 1. It's long but there are subtitles. Or look at shorter version called "Tales of Sound and Fury: Factual Causation in Tort after Resurfice”, in Law Society of Upper Canada Special Lectures 2008, Personal Injury Law (Toronto: Irwin Law Book, 2009) 201. Or read Russell Brown, “Material Contribution’s Expanding Hegemony: Factual Causation after Hanke v. Resurfice Corp.” (2007), 45 Can. Bus. L.J. 432. (Yup, that Russell Brown.)

And consider this. The United States has had something called a "substantial factor" test – US tort law's equivalent to our Athey material contribution to injury test – for about 100 years. Many leading US tort scholars consider it a "vacuous incantation". In fact, enough did that the Restatement (3d) of Torts has abandoned it.

12. Amongst other reasons for that result was the realization that, in some cases, juries (and arguably even judges in non jury trials) were using a "substantial factor" analysis to find that negligence which was a but-for cause (whatever but-for means) was not a factual cause. That decision had to mean that because juries can only decide questions of fact, right?

13. Could that happen in Canada? You be the judge. I'll just quote the law. "The 'but for' test recognizes that compensation for negligent conduct should only be made 'where a substantial connection between the injury and the defendant’s conduct' is present." (Resurfice, para. 23.

13. That disconnect that I mentioned between what the judges write the law is, what lawyers seem to think the law is, and how many judges analyze the cases (at least as set out in their reported reasons) is getting worse. Look at the trial decisons in the Alberta Q.B. in 2011 if you care. This court is no worse than the other trial courts.

14. Next, the Ontario and British Columbia Courts of Appeal, at least in print, have been ignoring each other's written views about the meaning of Resurfice material contribution. (Alberta's is seemingly paying some attention to British Columbia's.) That's constitutionally permissible. Whether it's a good thing is a question for academics. (I'm not one, right?). Also, in B.C., since Resurfice, some appellate judges seem to have expressed the view (not in dissenting reasons) that the Athey material contribution test was never a separate test for proof of factual causation in negligence but merely a causal "yardstick" explaining when the but-for test applies. At least, that's what they seem to have said. If somebody has a better explanation (I don't), write an article. In Alberta? Look at the majority reasons in Nattrass v. Weber, 2010 ABCA 64 at paras. 46-47. Does that passage assert that the Athey material contribution test was not a separate test for factual causation.?

15. For my penultimate next, if you want to see how great the disconnect is between what some lawyers and some judges think the law is, look at the Clements trial reasons, the factums in the Clements BCCA appeal – Carswell has them online – and the factums in the Supreme Court of Appeal. Bart and Homer Simpson might well say "D'Oh!"

16. Almost finally, returning to points 7 & 8, it is literally correct that the Supreme Court did not actually say anything about the status of the Athey material contribution test in Resurfice. Anybody want to speculate about what'll happen, especially if the SCC says, in effect, "ahem, folks, you know we didn't actually overrule Athey material contribution. We know our own law (suggestions to the contrary are mistaken) and had we intended to overrule a decision we made so recently we would have said so explicitly. And, by the way, read our lips. It is a separate test for factual causation."?

I might, but I won't do so here.

17. Last, if you're wondering what I think of the Clements appellate reasons, the result seems correct on the evidence as I understand it. The BCCA's analysis of Resurfice material contribution, though? That's "just plain wrong".

Added Feb 11 - Part 2 of this discussion is on Slaw.ca - http://www.slaw.ca/2012/02/11/here-we-go-again-part-2/

Former U of A Prof an American Hero

I was saddened to learn of the passing of Gordon Hirabayashi, a former sociology prof and chair at the University of Alberta.

Professor Hirabayashi was one of three Japanese Americans to defy internment during WWII.  At the time, his curfew conviction was upheld by the US Supreme Court.  More than four decades later, the matter was again reviewed by a US federal appeals court and the conviction overturned.

His compelling story is told in Peter Irons' Courage of Their Convictions.  I used this for a course I taught a few years ago in tandem with ann early Ronald Dworkin piece that argued that civil obedience is justified when one truly believes that constitutionally enshrined values have been violated, notwithstanding what any court, not even the highest court, may say.  Professor Hirabayashi's experience was, and is, a perfect exemplar for this argument and ideal.

The U of A should do something to commemorate his accomplishment if it has not done so already. He was, as his son says, an American hero.

Attawapiskat and the state.

One of U of A Law's alumni has recently posted a lengthy dissection of the Federal Government's (sorry, "The Harper Government's") position on Attawapiskat. It is an excellent piece, with many links to related documents. You can see it here.

The blog post predates the government's announcement that it is removing control over band finances from the band council and into the hands of a private accounting company (see the Globe and Mail story here). Thus, the author does not directly address this response, but considering what she (and earlier audits have shown), the problem does not appear to be in the local allocation of funds provided, but in the lack of funds provided for housing in any case. The response is a nice bit of blame-shifting, asserting that the local government is obviously incapable of looking after its finances, and plays nicely into an anti-government ideology that assumes private control is better than public (or democratic?). One hopes, now that they've done this, the feds will at least not hire these guys to manage the community.

Liveblogging Steve Paikin's Lunchtime Conversation with Peter Hogg, Alison Motluk, Carolyn Bennett and Preston Manning

This is on the SCC decision in Reference re Assisted Human Reproduction Act. Event is part of a conference on the decision that I am currently attending at the University of Toronto. Link below:

http://ubaka.coverpage.coveritlive.com/

Barbarians at the gate

Abstruse Goose cartoon today -

Law, Science and Truth

All of the papers from the 2007 Brooklyn Law School symposium on law, science and truth - “Symposium: A Cross-Disciplinary Look At Scientific Truth: What’s The Law To Do?” - as published in (2008) 73 Brooklyn Law Review are are available for downloading in one pdf, here.

All law students should also read Mr. Justice Binnie’s “Science in the courtroom: the mouse that roared” (2007) 56 UNB LJ 307. The article is available on Carswell/Westlaw and can be found here and here.

He has more to say about science in the court room in his recent “exit” interview. The full interview is on the Globe and Mail site.

Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy

Our colleagues at the Faculty of Law, University of Western Ontario are hosting the Sixth Biennial Conference on the Law of Obligations, from July 17-20, 2012. The conference will bring together leading scholars in tort, contract, equity and unjust enrichment from throughout the common law world.

The theme of the conference is "Challenging Orthodoxy." They have prepared an academic program of over 60 speakers in which professors, graduate students and eminent practitioners will challenge established common law rules and suggest new approaches to both old and emerging problems. The plenary speakers are Chief Justice Beverley McLachlin and Justice Thomas Cromwell (Supreme Court of Canada), Melvin Eisenberg (Berkeley), John Goldberg (Harvard), Andrew Robertson (Melbourne), Ernest Weinrib (Toronto), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).

The Obligations Conference originated at the University of Melbourne in 2002, and has since become one of the leading private law conferences in the common law world. The biennial conferences have been held at the University of Melbourne, the University of Queensland, the National University of Singapore and the University of Oxford.

For more information on the Conference and to register please visit: http://www.law.uwo.ca/Conferences/Obligations6/index.html.

Legal Education versus Scamblogging

I thought I'd share with everyone some links to a very interesting debate/controversy surrounding the latest so-called "law school scamblog." The blog, titled "Inside the Law School Scam," is authored by an anonymous "tenured mid-career faculty member at a Tier One school" in the US. and makes a number of startling claims about legal education in the US. Since it launched on August 7, it has generated intense debate (including ad hominem attacks), traditional and new media coverage, and attempts to expose the identity of the blogger. Here are some quotes from the blog:

"For another, the transformation of law schools from quasi-academic professional schools to serious academic institutions has been, to put it mildly, incomplete. To a significant extent, that transformation has been quite partial and even illusory."

"Despite..all the changes in legal academic life over the past few decades, the law school world  has done next to nothing to create a system of peer review publication.  99.37% of legal academic work is still published in student-run law journals, of which, because of the increased emphasis on publishing, there are now several hundred.  The system, in other words, is hardly designed to reward and encourage genuine academic rigor."

"So no, law school is not a scam in the literal sense. What it is, for a huge number of law students all across the law school hierarchy, is a practical, intellectual, and economic waste of time and money."

"The typical law review article is read by perhaps five people: the author, one or two of the author's more diligent colleagues, and a couple of law review editors."

Hat-tip: Stuart H

NYT Graphic on Major Rulings of the SCOTUS, 2010-11 Term

via www.nytimes.com

View here.

It would be interesting to see a similar graphic for the SCC. Any takers?

Common (Public) Nuisance and the Fear of Smallpox

via Health Law in British North America

“The fears of mankind, though they may be reasonable, will not create a nuisance” – Defence counsel, R v Vantandillo, (1815), 4 M & S 72, 105 ER 76 (KB).

In R v Vantandillo, a mother was convicted and sentenced to three months imprisonment for “unlawfully and injuriously” carrying his infant son, who was infected with smallpox, along a public highway. The case is one of many that fall under the “grab bag” common law offence of common or public nuisance. The case also provides some insights on the strict liability quality of public nuisance qua crime. Here’s how:

• A “judgment by default” was entered against the defendant. I am not familiar with the history of this procedure, but I doubt that it means the same thing as a default judgment in the context of civil proceedings. If I were to guess, I would say that a conviction was simply entered against the defendant upon notice of the indictment. Some statements in the case report support this theory. For example, it is reported that “the defendant having suffered judgment by default, appeared to receive the sentence of the Court,” which suggests that an actual trial was dispensed with. Also, at the sentencing hearing, Lord Chief Justice Ellenborough, responding to the defence counsel’s contention that it was entirely possible that the only reason her client presented her child on the street was to obtain medical advice, noted (in a somewhat circular fashion) that even though the “necessity” defence could be proved by evidence, such defence was precluded by the mere fact that the “indictment alleged that [the offence was committed]…unlawfully and injuriously.”
• The defence counsel argued that the mother’s actions were neither unlawful nor injurious to anyone. According to him, since the indictment did not state how the child caught the disease or that he was purposefully inoculated with smallpox by or at his mother’s request, it was perfectly reasonable to assume that the reason why she exposed the child in the streets was to obtain medical treatment (inoculating or procuring the inoculation of a person was also a common law offence, even if commonly relied on at that time as a preventative from smallpox). This act by itself (i.e. the actions of caring mother), he argued, could not be unlawful. On the question of injury, he argued that since the indictment did not show that the child carried some outward manifestation of smallpox (such as sores) as the time of exposure, it cannot be concluded with certainty that there was any injury presented by the situation. He noted that without such outward evidence (as in the case of leprosy, and by analogy to the writ of de leproso amovendo), it would be difficult to distinguish between infected persons who pose an injury to the public and those who do not.

The court rejected both arguments. It surely must not have helped the defendant’s case that the prosecution alleged that “the passage in which the defendant had exposed the child was a cul de sac, extremely narrow; that there was a small school kept there, and that two of the children had caught the disorder and died.”

“Health” and the Distribution of Legislative Powers in the BNA Act, 1867

via Health Law in British North America

Here are some ideas (hypotheses?) emerging from my current research on infectious disease legislation and the advent of state medicine in 19th century Canada:

• Prior to confederation, legislation on the subject of “health” can be grouped under three general headings: quarantine and emigration laws, laws relating to vaccination, inoculation and sanitation, and laws relating to hospitals and health professions. The theme common to these three areas is the prevention and management of infectious and contagious diseases (indeed, it appears as if the fear and threat of diseases provided the impetus for state involvement in the regulation of medicine and health care, but that is a story for another post). These areas, with the exception of quarantine and emigration, emerged from and remained under the legislative and administrative mandates of local authorities until confederation (see my next point for why quarantine and emigration is excepted). More interestingly, at the time of confederation, these two areas had not coalesced into a precise, or (at a minimum) recognizable legislative notion of “health” or “health care”.  One could therefore hypothesize that this situation may account for why health—unlike “quarantine and the establishment and maintenance of marine hospitals”—is not specifically enumerated as a head of power under the British North America Act (BNA Act), 1867.
• In 1853, the Province of Canada legislature consolidated all statutes relating to quarantine and emigration under one enactment, thus repealing a number of quarantine statutes that had their origin in pre-union Canada. This may have contributed to a “vision” of quarantine as belonging to a class of subjects of national interest, despite the fact that early quarantine laws dealt mainly with local measures to prevent the importation of infectious and contagious diseases (especially in Lower Canada and Nova Scotia [see e.g. here, here and here]—Upper Canada entered the 1841 union without any quarantine laws, for reasons I speculated on in an earlier post). The 1853 consolidation specifically repealed the principal Lower Canada legislation dealing with quarantine in the context of importation of diseases, and replaced it with a section which empowered the Governor in Council to issue regulations relating to quarantine measures directed at the “preservation of the Public Health” and preventing the “introduction and dissemination of disease.”

So what are the implications of all this? First, I think there is a strong historical link between infectious disease regulation and the development of “state medicine” or more specifically, state/legal intervention in health/care. Second, the absence of a precise concept of “health” in the legislative context, and the fact that much of what made up that concept was handled by local authorities prior to confederation may account for why the subject of health is missing from the distribution of powers scheme in the BNA Act, 1867. What we find instead is that under the BNA Act, the legislative power over the establishment of health care institutions—one of three major areas of “health” legislation prior to confederation—falls to the provinces. This head of power, along with powers over property and civil rights and matters of a merely local or private nature in the province form the locus of authority that informs the present notion that the provinces occupy more of the field of health governance. Conversely, the responsibility for quarantine legislation may have shifted with the 1853 consolidation.

Interesting side note: Under the 1853 consolidation, any “Lunatic, Idiotic, Deaf and Dumb, Blind or Infirm Person” arriving in Canada must be accompanied by family members. If unaccompanied, and if in the opinion of the Medical Superintendent, “likely to become permanently a public charge,” the Master of the vessel in which such a person arrived in the Province must execute a bond with “two sufficient sureties” in the amount of seventy-five pounds to indemnify the Province for any expenses incurred for his/her maintenance and support within three years of arrival. This suggests that during this period, the maintenance of infirm and mentally ill residents of Canada was paid for by relatives or, in the case of persons without relatives, out of the public purse. What would have been the quid pro quo for the latter arrangement? Perhaps something similar to the Poor Law infirmary system?

The First Patent Act?

While searching for health-related legislation in Upper Canada, I came across this 1826 statute (7 Geo IV, c 5) that is likely to be the first patent/intellectual property legislation enacted for British North America (it appears a similar statute was enacted for Lower Canada two years later, in the ninth year of the reign of George IV). Interestingly, the definition of ‘invention’ hasn’t changed much since that time: to qualify for a patent, an invention must be a “new and useful art, machine, manufacture, or composition of matter, not known or used before the application [for a patent]” (cf. Patent Act definition; the 1826 definition was probably derived from common law doctrine). Here are other interesting features of the statute:

• The maximum term of exclusivity granted was 14 years.
• A patent can be obtained on an improvement (which is not defined, although it is stated that “simply changing the form or the proportion of any machine or composition in any degree, shall not be deemed a discovery). However, patents on improvements do not extend to the original invention and vice versa.
• An applicant for a patent was required to swear an oath or—if a Quaker, Menonist, Tunker, or a member of the United Brethren or Moravians—affirm before a justice of the peace that he/she is the true inventor of the discovery for which a patent is sought (the religious accommodation is noteworthy, but is it curious that Catholics are not included in this list?).
• Competing patent applications were to be settled by arbitration.
• The application procedure seems fairly onerous: an applicant was required to submit a written statement—signed by two witnesses and accompanied (if necessary) with drawings, models and written references—describing in detail the invention or improvement.

via healthlawhistory.wordpress.com

Health Law in Lower and Upper Canada, 1791-1841

Consider this: Number of health-related legislation enacted between 1791 and 1841 in Lower and Upper Canada (i.e. during the period of formal existence of both provinces):Lower Canada: 6*Upper Canada: Nil*

via healthlawhistory.wordpress.com

This is cross-posted from my new blog on health law in early Canadian history.

R v J.A: The Tangent

Earlier today, the Supreme Court released its decision in R v J.A, the case involving an Ottawa man convicted for sexually assaulting his partner during a round of consensual erotic asphyxiation by tying her hands behind her back while she was unconscious and then inserting a dildo into her anus as she was regaining consciousness. The case provided the opportunity for the SCC to revisit its consent jurisprudence in the context of the Criminal Code's sexual assault provisions. The majority, led by Chief Justice McLachlin, restored the conviction for sexual assault (a conviction at the trial stage was set aside by the Ontario Court of Appeal), reasoning that "[a]ny sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is...not consensual within the meaning of the Criminal Code." In their dissent, the minority (Fish, LeBel and Binnie) noted that the issue in the case was not whether or not an unconscious person can consent to sexual activity, but rather, "whether a conscious person can freely and voluntarily consent in advance to agreed sexual activity that will occur while he or she is briefly and consensually rendered unconscious." No summary of the decision can do justice to the opposing judgments, so I recommend reading the full decision.

As one might expect from a case straddling that thin line between factual and legal realities, the case is "trending" among lawyers in the usual places on the social network. It has generated some good debate among my Facebook friends, and I just gave my wife an earful on the ins and outs  of consent law, mens rea, etc. Personally, I think the minority got it right, mainly due to the fact that their opinion relies on a non-paternalistic reading/interpretation of consent rules that I find very compelling. Given the facts of the case, the minority opinion is also the just and sensible one. I plan to unpack these observations in a case comment. For now, I'd like to highlight a couple of observations about the SCC decision. The first is a question based on comments on the case by some of my colleagues, and the second is a brief commentary on the writing styles of the two lead justices. I welcome your comments on both topics.

1. Given that no female justice joined the dissent, does gender play any role in deciding cases like this?
(I should note that a female justice led the majority in the Ontario Court of Appeal)

2. As far as judicial writing goes, Justice Fish's dissenting opinion gets top marks from me. His opinion is succinct but clear, flows logically, and is very well canvassed. I encourage anyone who teaches legal research and writing to consider using it as an example of how to construct and dismantle legal arguments. Here are some nuggets:

"We are nonetheless urged by the Crown to find that the complainant’s yes in fact means no in law. With respect for those who are of a different view, I would decline to do so."

"According to the Chief Justice, the question is “whether an unconscious person can qualify as consenting [to sexual activity]”. With respect, that is not the question at all: No one has suggested in this case that an unconscious person can validly consent to sexual activity."

"In this case, J.A. engaged with K.D. in sexual activity to which K.D. freely consented while conscious. The Chief Justice would nonetheless convict J.A. of sexual assault, a serious crime.  I oppose this result. In my respectful view, it is unwarranted as a matter of statutory interpretation, prior decisions of the Court, or considerations of policy.  And it is wrong on the facts of this case.
That is what divides us. The rest is commentary."

I was wrong when I said earlier that no summary can do justice to the full decision: the latter quote does just that.

Are writing skills an important component of the judicial function or a factor in judicial appointments? I do not know of any studies of judicial writing styles in Canada, but I sure would like to undertake one. The matter has received some attention in the U.S.

Greatest comic book lawyers

Topless Robot lists the top 13 best lawyers in comic books.  If that interests you, be sure to check out William A. Hilyerd's thorough article in the Widener Law Review that runs through the history of comic book attorneys - Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007