University of Alberta Faculty of Law Blog

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

 

Binnie and Charron retiring

Read the CJ's announcement here.

Guess who's coming to U of T?

Michael Ignatieff did not have to wait long for another job. He is returning to the U of T's Massey College as senior resident and will be teaching in several departments, including the Faculty of Law.

France's full veil ban taking effect

Assange confronts Australian Prime Minister

Julian Assange confronts Julia Gillard on Australian television:

 

Integrity of the Income Tax System at Risk

Taxation is the involuntary (generally) expropriation of one's money. As such, it is particularly important that the strictest of controls are used in the administration of the system. If the rule of law does not operate in relation to taxation, then the integrity of the entire system of generating public revenue is threatened.

These observations are exceedingly obivious. So the news coming out of Quebec suggesting that auditors are accepting kickbacks should give us all cause for concern.

This Globe & Mail article details some of the goings on: Globe. The section about the offshoring of kickbacks is particularly situationally ironic.

The First Amendment and Bill O'Reilly

Bill O'Reilly had Megyn Kelly on his show last night to debate the Westboro Church decision and  Bill was predictably irate over the decision.  Kelly, a lawyer, tries to explain the First Amendment and educate Bill.  Oh, and Bill hates loopholes.

 

Kelly and O'Reilly previously sparring over Westboro: