University of Alberta Faculty of Law Blog

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activities permitted by the Act) from sitting on the Board of Directors of Assisted Human Reproduction Canada will be repealed.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.

“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?

This land is your land

this land is my land,
From Bonavista
To Vancouver Island*

Except, apparently, sometimes in the various provincial superior courts.

 

Latest "Legislative Overreach" Analysis from SCC: Reference re Assisted Human Reproduction Act

Earlier today, the SCC issued its long awaited ruling on the constitutionality of several sections of the Assisted Human Reproduction Act, Canada's assisted reproduction and related research legislation. The principal issue in the case was whether the impugned provisions exceed Parliament's legislative authority. The case is a feds appeal from a Quebec Court of Appeal judgment which struck down the provisions for being an intrusion into matters within provincial legislative authority. The SCC decision was a 4/4/1 split, with Justice Cromwell casting the deciding vote to allow the appeal in part, and affirm the Quebec Court of Appeal decision in part.

Below is my diagrammatic representation of how the two opposing judgments dealt with the legislative overreach analysis. Before reviewing each one, try guessing at first glance which of them 1Ls will find more accessible.

R. v. Morelli, 2010 SCC 8

Some excepts from the reasons.

From the majority reasons of Fish J (McLachlin C.J. and Binnie, Abella JJ concurring):

[1]  This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure.  And it relates, more particularly, to the search and seizure of personal computers.

[2]  It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer. 

[3]  First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you.  There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created.  The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

[4]  That is precisely the kind of search that was authorized in this case.  ...

The majority held that the search warrant was improperly obtained, the search was illegal, and the evidence obtained as a result of the search was to be excluded under s.24(2) of the Charter.

The Wrong Song - Judges Can't Do That

Judges, by virtue of their status as judges and role in the legal system, have to watch what they say, how they say it, and where they say it, far more than many others. For example, the nature of the position puts some constraints on the judge's ability to express views on political issues, and the the propriety - in the sense of desirability, not merely legality - of laws passed by the bodies having the constitutional power to pass such laws.

Once upon a long enough time ago - in people years -  John & Paul wrote and sang, together with George, and performed together with Ringo,  a song titled "You Can't Do That" which included the lyrics "because I told you before, you can't do that".

Kangaroo Justice

Okay, maybe kangaroo isn't the best term. But why is Khalid Sheikh Mohammed headed for trial in New York? Pat Buchanan weighs in.

Book Review

God's Joust, God's Justice
John Witte, Jr.

Grand Rapids: William B. Eerdmans Publishing Company, 2006

 498 Pages

 

Witte, a professor at Emory University, offers an intriguing account of the role of religious life shaping our legal heritage, and makes a case of its continued relevance in tracing our history and its role both in continuing our particular historical circumstances, as well as an argument for its necessity in interdisciplinary legal studies. 

The book is a compilation of previously published articles that have been moulded together, so one can expect less of an exhaustive argument, but rather illustrative “snippets” that highlight and emphasize issues that align more with both his methodological approach and traditional American preoccupations, viz. human rights, constitutionalism and American founding, and understandings of family before and after Roe v. Wade. As such, for the purposes of contextualization, it does bear the marks of a distinct tradition and most notably in its debt to his mentor Harold Berman.

 

Overview of approach:

 

“For me, history is more than a series of tricks that we play on the dead, or that the dead play on us. History is more than simply an accidental chronology of first one thing happening, and then another. For me, history is also a source of revelation, a collection of wisdom...The challenge of the Christian historian is to search within the wisdom of the ages for some indication of the eternal wisdom of God. It is to try to seek God’s revelation and judgment over time without presuming the power of divine judgment. It is to try to discern God’s justice within God’s joust” (4).

 

Witte puts forth what he calls “the binocular of law and religion” which is to say that, in the Western tradition, the historical vision is one part law, one part religion that interact and bounce off each other, and the means that informs the major currents of change has been dialectic: “Every legal tradition has known both theocracy and totalitarianism – the excessive sacralisation and the excessive secularization of law.  But the dominant reality in the West is that law and religion stand not in monistic unity, nor in dualistic antinomy, but in dialectic harmony” (5). The modes of cross-fertilization include, but are not limited to:

Conceptual overlap – eg, sin and crime, covenant and contract, righteousness and justice

Formal overlap – eg, liturgy and ritual, habits of tradition and precedent, shared sources of authority and power

Methodological overlap – analogous hermeneutic interpretation, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing doctrine

Professional relationship – both have officials

Institutional interaction – political and ecclesiastical officials and institutions (5)

 

As he notes, the goal of the “binocular” is to avoid the monocular view of looking to history with law or religion alone, for the purposes of:

Grand civilizational pictures – in which he follows Berman by identifying a distinctly Western tradition with its distinct watershed moments, particularly Rome and its conversion under Constantine, the Papal Revolution, the Protestant Revolution, The Enlightenment, and Post-WWII.

Narrower denominational pictures – in which emphasis is placed on mainly Protestant interactions and influences post-Reformation

Discrete doctrinal pictures of law and religion in Western history – revealing origins and trajectories of issues as they have played out and influence our understanding, with an emphasis on human rights and the family (6)

 

 The merits of the approach is an illuminating perspective that casts light on panoramic glimpses of history and ways of conceiving unifying threads that persist and continue to inform. It situates itself comfortably and contents itself as being detached from other scholarly investigations of the past. The student of history will find the approach most problematic, especially since it refuses to engage itself with defences from competing interpretations and problems. One issue comes notably to mind, that law and religion are not defended from the critiques that would displace them as foundational, nor an outline of the basis of granting them similar status in historical investigation, which would require deeper theorization. Thus, the reader is left with an interesting approach, but which presses no compulsion in acceptance. However, one suspects a combination of textual approachability, time, faith, and perhaps other unarticulated theological underpinning grounds the apparent complacency.

 

So much for me trying to sound academic. Bottom line: interesting book, controversial issues, moderated tone.

 

Constituting Difference

"Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion."

Moreover, how to interpret equality within a caste substructure? Yes, India's Bill of Rights give us pause for thought.

International influence of USSC waning; SCC's on the rise

Thanks to our colleague Linda Reif for bringing our attention to this story in the New York Times detailing the declining influence of the United States Supreme Court on other constitutional courts around the world. Our own Supreme Court, in contrast, has become increasingly influential.

Judging Bastarache

As my colleagues have pointed out below Justice Bastarache was no comrade - and the empricial evidence confirms this. The Canadian Constitution Foundation (on whose board I sit), released a study detailing his record on the Supreme Court. The study, is accompanied by a quick summary, which states:

A 70-page study posted at www.CanadianConstitutionFoundation.ca, “Judging Bastarache” reveals that the retiring Justice had an over-all strong record of defending individual freedom, economic liberty, and equality before the law. As between those three topics, his record was strongest on cases involving economic freedom (eg. upholding contracts) and equality rights, but weaker in respect of the individual freedoms set out in Section 2 of the Charter: freedom of expression, association, religion and conscience.

Is the tide turning

against the legal front of the US's war on terror? It seems so. The United States Court of Appeal for the District of Columbia, which was one of the more sympathetic courts to the U.S. Administration issued this opinion (via Bashman) ordering the release or the grant of a new trial for a Chinese Muslim who is being held in Guantanamo. More on the story here, as the court's opinion is very terse given the national secuirty and classified nature of the facts. What is interesting about the case is that the three judge panel consists of a Reagan, Clinton, and Bush II appointee - and the decision was unanimous. While I had suspected that the US Supreme Court would deal the administration a setback, I didn't expect the lower courts to responde so quickly.

Mildred Loving RIP

With Barack Obama's mixed racial backgorund making headlines, the racially ambiguous Derek Jeter injured, and the multi-racial Tiger Woods teeing off into the record books, mixed-racial couples today are taken for granted.  And yet, once upon a time in 17 states in the United States (not sure if it ever was the case here in Canada), inter-racial marriages were illegal.

Over 40 years ago, Mildred Loving who was black and her husband Richard who was white challenged their conviction for marrying each other in the Commonwealth of Virginia.

The Supreme Court of the United States had intentionally avoided granting cert. on the question of laws banning the marriage between races, even after Brown v. Bd. of Educ. Chief Justice Earl Warren felt that the Nation could not handle such a ruling so soon after Brown.  It is worth noting that one of the reasons schools were segregated in the South, even though residential districts were not (as opposed to the North where schools were not officially segregated but residential neighborhoods were), was because of the fear that white and black children who would become familiar with each other over time could marry each other.

The Lovings were initially banished from Virginia, and they left for Washington, DC.  Later, the ACLU approached them to see if they be part of a test case. Though the Supreme Court had twice denied cert. on two other cases, there was a feeling that the time was right. The Loving returend to Virginia, and were immediately arrested. The Supreme Court of Virginia upheld the conviction, on a variety of grounds, but mostly on a judicially conservative philosophy of non-activism. The Court states that this was really the province of the legislature and not the courts to decide. Furthermore, the Court pointed to the denial of cert. by the US Supreme Court as evidence of the validity of these laws (big mistake as any first year should know).

The United States Supreme Court heard the case and reversed. Arguing for the Lovings was a young ACLU attorney Philip J. Hirschkop (who still practices in VA) and Bernard Cohen. The oral arguments can be heard here, and the Earl Warren opinion in Loving v. Virginia can be read here.  The Court reversed the convictions and struck down such laws.

Richard died a few years later in a car accident, and Mildred passed away yesterday. She was 68.

Scalia on the Law

Once again Justice Antonin Scalia speaks to a group of students and does not disappoint. 

More on Personal Injury Caps

Having just returned to town (more about that in a later post), I've just caught up on the latest posts.  Moin's post on the Morrow v. Zheng decision striking down the minor injury regulation capping non-pecuniary damages at $4000 caught my eye.

What is ironic (although not necessarily wrong, at least for the purposes of this post) about this decision is that, while the Alberta Legislature's cap on minor injuries is gone (pending appeal), the judicially-imposed cap on catastrophic injuries (in Andrews) - a much bigger sop to the insurance industry - is still in place.   

The Court party (and the plaintiff's bar) might reply that the Andrews cap does not discriminate on the basis of disability, and I think that is a coherent argument:  people with less-than-catastrophic injuries receive lower awards based upon some mental calculation that judges make as well as upon comparisons with awards given in similar or as-close-as-possible-to-similar cases.  So, while the current value of the Andrews cap amount of (based upon the current value of $100,000 in 1979) somewhere between $315,000 and $335,000 (depending upon which economist you ask) would be awarded to the sentient quadriplegic, a severely burned plaintiff might receive $180,000 in non-pecuniary damages in BC (considerably less in Alberta), a plaintiff with a broken kneecap (that necessitated multiple surgeries) might receive $80,000 in BC (probably around $45,000 in Alberta) and a plaintiff with cuts, abrasions, bruising and moderate whiplash might receive $35,000 in BC (and again some lesser amount in Alberta). 

In other words, the Andrews cap (unlike Alberta's cap) applies to limit the non-pecuniary loss of every injured plaintiff.  As such, while perhaps a notorious example of judges engaging in legislative policy-making, it is constitutional (albeit in the limited sense that it doesn't violate section 15 of the Charter.)

If this is in fact the distinction that preserves the Andrews cap's constitutionality, the British Columbia Court of Appeal might want to take note.  In recent years, it has launched a campaign of sorts to subvert the Andrews cap by suggesting on a few occasions in obiter that it only applies to catastrophically injured plaintiffs, and not to people with more minor injuries.  Ignoring for a moment the perverse logic (in theory, a person with a scraped pinky could receive more in non-pecuniary damages than a quadriplegic breathing through a tube), wouldn't this mean that the Andrews cap singles out a particular form of disability for unequal treatment?  Let's hope Finch CJBC reads Morrow v. Zheng.

I don't know whether this will, as the insurance industry, Premier Stelmach and Moin all suggest, result in increased premiums, although it is hard to imagine how it won't.  To the extent that the absence of a cap was costing insurers prior to its adoption, then of course such costs had to, and will have to, be passed on to somebody, and policyholders seem the most likely group to bear them.  Of course, the converse point is that it's not obvious to me why the true cost of non-pecuniary loss (I realize that's an oxymoron, but that's how we deal with non-pecuniary loss, right?) to an innocent plaintiff resulting from a blameworthy defendant's negligence ought to be borne by the innocent plaintiff, as opposed to the blameworthy defendant (aka the defendant's insurer).  But that, of course, goes to the Legislature's decision to adopt the cap, not to the Court's competence to strike it down.

One last point:  insurers in Alberta should take a page from ICBC's book and start using civil juries as a matter of course in these minor injury cases.  Every time.  (Every time the plaintiff claims for $75,000 or more, that is, so that the streamlined (no jury) procedures don't come into play.)  While (as Moin knows from our joint work in this area) empirical evidence of jury verdicts is extremely difficult to obtain and compile, there is LOTS of anecdotal evidence, particularly from BC and Ontario, suggesting that jurors will typically award very little (much less than $4000, in fact) for the kinds of injuries that the Alberta cap covered.  Of course, they often award more than the Andrews cap (say $450,000 or $550,000 or $700,000) when the plaintiff is breathing through a tube and staring at a ceiling for the rest of his/her life.  Then the appellate courts ratchet the award down to the cap.  (Apparently, appellate judges have forgotten that damages are a question of fact.  And yes, I realize that Sopinka J. said that the Andrews cap is a matter of law, not fact.  But calling a fish a "bicycle" doesn't make it so.)  Perhaps, however, juries are telling our judges two things about damages:  (1) they are awarding WAY too much for the ordinary bumps and bruises that we run the risk of incurring just by getting up in the morning (a useful ancient maxim on this point is stercus accidit);  and (2) $300,000-plus is not enough to buy the "solace" that Dickson J. identified in Andrews as the goal of non-pecuniary damages.

Free speech except for thee?

Funny how we always love the concept of free speech except when it is against us! This story illustrates this point by pointing out how an anonymous gossip site has now become hated by students that some are calling for its access to be limited by Universities.

For those studenst worried if they are showing up on it, at least here in Alberta, be relieved: UofA is not on the list of schools covered by the site! Besides if attendance by the law students at law events is any indication, I wouldn't be holding my breath for any scandal to come out from the ranks of our graduates!

Religion vs Charter Values

Interesting story that illustrates the conflict.

Caps unconstitutional?

When St. Pierre brought in his beloved Charter of Righst and Freedoms, I am sure he had many issues on his mind regarding what the Charter was meant to address. We know that the drafters thought it was meant to guarantee procedural rights - but lo and behold it has become the social activist's handmaiden. A judge here in our city has decided that efforts by a democtratically elected (yes even in our one party state we have elected government as opposed to one appointed judge) government to curb the rising auto insurance premiums is unconstitutional!

The more these judgments are issued, we risk one day throwing out the baby with the bathwater - we may just return to a pre-charter era. The backlash against such undemoctratic grabs of power will only result in either the repeal of the Charter, the appointment of anti-Charter judges, or moves for the election and recall of judges. Wait till you get your higher insurance bill - you can think the Charter for that!

What is interesting is how the hapless opposition leader is so un-imaginative that he suggests the creation of a state-owned insurance company. Given, however, the socialistic tendencies of Premier Stelmach with his assault on the oilpatch with his royalty review (and let us not forget the federal tories with their confiscation of the Income Trusts), is it any wonder that other political leaders would tout socialism here?

Torture anyone?

Conservative darling icon tells Europeans to get stuffed! Well that is my paraphrashing of what he said. He aslo stated that he thought torture was acceptable in the case of the ticking bomb. That is a scenario that many have touted as when torture is permitted. I should say, I am not sure if there ever has been a ticking scenario actualize, and it is not clear that torture would yield anything.

But if one took this idea seriously, then why stop at the ticking bomb? What if someone was part of a gang that had kidnapped a child and this person was now in custody - could the police torture the suspect to reveal the location of the child? What about a suspected drug dealer who was involved in a ganga that had been committing a string of drive-by shootings - could torture be used to reveal the identities of the gang members? What about serial killers (and we in Canada have had plenty of these as a recent trial just showed) - could we torture them to reveal the location of the bodies and to confess? If anything the social utility from that information in terms of lives saved on a daily basis far outweighs any possible lives saved from this so-called ticking bomb scenario.

In fact, in most developing countries that do not obey the rule of law, torture by the police of suspects is routine. Most confessions are extracted by torture in those countries.  That is why (warning - sarcasm alert) those countries are so safe, criminals never get away with their crimes, and we all want to live under those legal regimes!

Torture and the Bush Justice Department

The New York Times today published a stunningly comprehensive and incisive report on the role of an elite Justice Department office in providing (disturbingly misguided) legal justifications for the worst excesses of America’s war on terror. The story highlights the role of young, ultra-conservative lawyers in sanctioning brutal (and according to many intelligence officials, mostly ineffective) forms of torture. It is becoming clearer and clearer that history will judge the Bush administration’s efforts (including the efforts of Justice Department and White House lawyers) on this front in the same light as the “Red Scares” and the internment of Japanese Americans during WW II. Truly shameful.