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activities permitted by the Act) from sitting on the Board of Directors of Assisted Human Reproduction Canada will be repealed.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

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?

Binnie and Charron retiring

Read the CJ's announcement here.

Are printed textbooks on their way out?

The Toronto District School Board may be heading that way:

A motion to explore the transition to digital textbooks was approved by trustees. The Board has spent approximately $8 million on textbooks in the last fiscal year and will spend approximately $100 million over the next ten years.  Printed textbooks are damaging to the environment. The Director has been asked to present a plan by January 2011 to increase access to digital course material content in middle and secondary schools. The Director must also conduct a feasibility study examining the creation of curriculum content that can be made available for digital distribution.

See here.

The medium is the message.

Yay or Nay?

In what promises to be a very inspired (and short lived?) series, I think I may feel drawn to hold up some legislative, juristic, or otherwise "legal" excerpt for no other reason than to show it as an instance of some considerable triumph or malfunction of the temporal lobe.

Today I give you section 24 of the Divorce Act.

"A document offered in a proceeding under this Act that purports to be certified or sworn by a judge or an officer of a court shall, unless the contrary is proved, be proof of the appointment, signature or authority of the judge or officer and, in the case of a document purporting to be sworn, of the appointment, signature or authority of the person before whom the document purports to be sworn."

Irony, or ... ?

June 23, 2010: a non-destructive earthquake starts in western Quebec, not far from the Ontario border, soon hits Ottawa and is soon felt in Toronto.

June 23, 2010: a tornado strikes Midland Ontario. The CBC reports that insurers estimate the damage as much as $15M. (http://www.cbc.ca/canada/story/2010/06/24/midland-ontario-tornado.html)

There was, of course, damage to a trailer park, too ... well, you had to know if there's a tornado involved there will usually be a trailer park, somewhere. Pictures on Youtube. (http://www.youtube.com/watch?v=4P6-rjImayg)

June 23, 2010: also the 20th anniversary of the death of the Meech Lake Accord. If this is Mother Nature's acknowledgment of the event, is she "punishing" Ontario for the failure of the accord - if so, she's got the wrong target - or for her then gov't and MPPs being on the "yes" side of what could be viewed as executive "putsch"?

Homolka's Pardon

The media are reporting that Karla Homolka will soon be eligible for a pardon under existing legislation. Nobody has suggested that they have information that she intends to apply. I do not know whether it's a given that she would get a pardon if she did apply. Nonetheless,  a majority of the members of the House of Commons have agreed, apparently, to expedite passage of the portion of  part of Bill C-23 that deals with pardons and changes the existing federal law (The Criminal Records Act) with the intention, apparently, of making it more difficult for Homolka to qualify.The Globe and Mail report is here. 

I assume - I haven't read the new provisions and it's been years since I did anything more than glance at the current - that under the new legislation H has less than the proverbial snowball's chance of getting a pardon in the immediate future.

The politics of the play are obvious, as are the good intentions of the MPs. But, there's that proverb about what the road to hell is paved with.

The lawyer in me wonders whether the Tories, in their grandstanding, and the other  MPs, in their rush to judgment, have received advice from lawyer(s) competent to give that advice that the legislation is constitutional, under the Charter, to the extent that it purports to alter, to their detriment, the eligibility for pardon of persons convicted of Criminal Code crimes prior to the passage of the proposed legislation? Bear in mind that, had the Criminal Code changed to her detriment after Homolka committed her crimes, she'd have been tried under the law criminal law as it was. Is "pardon law" a part of the criminal law for that purpose? The fact that deals with a criminal record suggests there's an argument it is. If it is, then isn't Homolka entitled to pardon eligibility under the law as it was when she was convicted (or new law if it's better for her, but that's not the case.)

The heinous nature of what she did doesn't entitle the current gov't and the rest of the MPs who are onside with it to knee-jerk in a way that's unconstitutional. Her acts were heinous. But that doesn't entitle the state to act unconstitutionally. There is something called the "Rule of Law" that even the current gov't is bound by, even when they don't like it.

But, if the proposed legislation isn't constitutional on the basis that it's contrary to the Charter - say s. 7 - and can't be saved by s. 1, and there isn't a notwithstanding clause, does that mean Homolka would have a s. 224 action against the Crown for damages?

Or does the gov't intend to use the Charter's notwithstanding provision just in case?

I don't know the better (or even correct)  answers to any of this. It's not my bailiwick. Perhaps I've missed something that means the problem I've raised doesn't exist.

Perhaps one of the members of this blog (or another reader with the required expertise) is in a position to comment.

Candidly, nothing I've seen in the conduct of the current party in power, or its members antics while in the oppostion makes me confident that the gov't has adequately considered the legal issues. I'd like to be wrong. about that. I'd also like to win Friday's $50 million lottery. (Yes, I 've bought a ticket.) 

Like Clockwork

By way of aldaily, here's an interesting article about weaponizing classical music in England, and other creative forms of social control. While the obligatory "boo" is appropriate about such measures, I can't question a degree of effectiveness. I remember a few years back entertaining a pack of anarchists (over cocktails, of course), and noting that from changing the background music from rock to Bach, the conversation became much more introspective. From "hey, how shall we plot capitalism's demise" to "say, I always thought I was the artistic type. Do you think I ought to study photography?" 

But the point remains. One shouldn't be perverting things of the highest elegance for crude purposes. This is the same justification I give for framing my Income Tax Act rather than studying it.

Greed Will Get You (Sometimes)

Leering v. College of Chiropractors of Ontario, 2010 ONCA 87

Greed is Good (Not)

This post, after the break, is long. It deals with the just posted (on the ONCA website) result in Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47 . If you click on the case, it will open up in a new window in html form. The pdf and html links are below.

http://www.ontariocourts.on.ca/decisions/2010/january/2010ONCA0047.htm
http://www.ontariocourts.on.ca/decisions/2010/january/2010ONCA0047.pdf

In summary, the MFN claimed that they are entitled to 35% of the net revenues from Casino Rama - the casino and night club located on their reserve in Ontario - in perpetuity or until they agree otherwise. The MFN lost at trial. The MFN lost again on appeal. The decision was unanimous. I suspect that, given the amounts involved, this one is headed for the SCC.

I've excerpted paragraphs that might explain, for some, the title I've chosen. I suggest the excerpts "speak for themselves".

Would You Want This?

Most people reading this board know something about the difference between the process by which Canada appoints its Supreme Court judges and the U.S. appoints its. In addition, most people reading this board know something about why, at least until recently, (1982)  the SCC generally wasn't a lightening rod for political attacks of the sort regularly faced by SCOTUS.

There's a recent paper about the SCOTUS worth reading for those interested in such issues. 

CS Lerner and N Lund, "Judicial Duty and the Supreme Court¹s Cult of Celebrity", just published on LSN (SSRN). Clicking on the link will take you to the SSRN site. (h/t to Prof. Lionel Smith (McGill))

6 December: 20 years on

      Twenty years ago today I came home from my first year Film Studies evening class. We'd had a mid-term that night and were let out early, so I was home by 10:00. I went into the basement, turned on the TV and saw the images of ambulances in the reddish light of night time live video. It took a while for me to figure out what was going on, in part at least because the reporter on the scene did not quite know yet.
      The story, as it unfolded that night, struck close to home. These were women my age doing the same thing that night I was doing: sitting in class. I wondered what I would have done, had someone come into my class and tried to divide us by gender. I wanted to think I would resist, but I also knew deep in my gut that I probably would not.
      At the time I probably did not have much of an opinion or much knowledge about many of the issues raised by the Massacre. I thought feminists were wrong or overstating things or something like that. I do not know what, if anything, I thought about guns.
      But as this day comes by every year I can track changes in my opinions.
      Twenty years on, I am a feminist, and proud of it. I am opposed to all private gun ownership, and proud of that too. But on 6 December every year, I am simply sad. Sad because those 14 women died this day 20 years ago; sad because so many more have died since; and sad because even more will die after today.

Osgoode as it Gets

The Toronto Star is running an interesting piece about a former sex worker whose grit and tenacity landed her a spot in Osgoode Hall this year, and one of ten students whose requirement of a previous degree was waived. As the reporter notes, this Pretty Woman meets Legally Blonde scenario is perfect for a movie script. It is a remarkable and inspiring story of personal achievement against the odds.

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.

Sarah Palin on Oprah

So Sarah Palin appeared on Oprah yesterday. Here's the youtube link for those who missed it. Many people have their own opinion on her. Here's mine. In every way she was more qualified for the presidency than Obama. She had far fewer flubs on the campaign trail than Obama. And as we've seen since she has been released from the clutches of campaign organizers, she has her own articulate stances on pressing issues. She is of course never going to win, and while she did her best to avoid answering directly whether she will run in 2012, she really shouldn't. But she is an intriguing figure, whose very presence exposes the turbulent biases lurking within the media, the Republican Party, and the national culture. Anyone else buying her book?

School Schmool

There has been controversy lately about gender proportions in higher education. Seems fair to say that one question that has been overlooked is why there is such a push for University education in the first place. Mighty high talk for a law student to be sure. But here's a piece from The Chronicle of Higher Education that shines a spotlight on just that debate.

Excerpt:

Q: At what point does the cost of going to college outweigh the benefits?

A: It depends on how much money you have.

4'33"

An interesting debate is underway in Ottawa, and its significance is hard to overstate.

http://www.canada.com/news/Human+Rights+Commission+challenged+over+investigative+powers/2069087/story.html

The entirety of the questioning of Ezra Levant and Mark Steyn has been posted to Youtube, so one can check it out if one is so inclined. Regardless of the their political inclinations, they both have a significant grievance with the Canadian Human Rights Commission which has investigated them: Levant famously reprinted the Danish cartoons depicting Mohammed in his now no-longer-in-print Western Standard, while Steyn's MacLean's article on tolerance landed him in hot water with the commission.

As an aside, the free speech debate even came up at U of A Law last year, when a clever and hilarious double entendre by the women's rugby team landed them in hot water with person(s) on the Faculty.

In Ottawa, R. v. Keegstra, [1990] 3 S.C.R. 697, has found its way into the debate, and it is worth examining the minority's judgement. It is also important to note that the questioning yesterday dealt with two different kinds of hate provisions, namely, those of the Criminal Code and those of s. 13 of the Canadian Human Rights Act, the former of which were the primary focus of Keegstra and the latter of which were the primary focus of yesterday's discussion.

In her dissent in Keegstra, McLachlin J. writes the following at para. 230:

“I turn then to the question of whether the expression here at issue falls within the sphere of conduct protected by the guarantee of freedom of expression in the Charter. As this Court has repeatedly affirmed, the content of a statement cannot deprive it of the protection accorded by s. 2(b), no matter how offensive it may be. The content of Mr. Keegstra's statements was offensive and demeaning in the extreme; nevertheless, on the principles affirmed by this Court, that alone would appear not to deprive them of the protection guaranteed by the Charter.”

In addressing the arguments of the Crown, McLachlin notes that Keegstra's comments did not fulfill the requirement of violence that would bring them under the purview of the Criminal Code, that the scope of s. 2(b) should not be diminished by s. 15, and that the Criminal Code's hate speech provisions did not operate to advance Canada's multiculturalism pursuant to s. 27 of the Charter. With regard to s. 27, she writes what I think is the most important argument that can be made for free speech: “cut[ting] back the protection afforded by s. 2(b) risks undercutting the fundamental freedom with no guarantee of a tangible benefit in return.” Her arguments are lucid and important.

Indeed, it seems that her reading of s. 2(b) conforms in some way with John Stuart Mill's argument in his essay On Liberty:

“The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise.” [emphasis added]

What, then, would we do with all this free speech?

“I have nothing to say and I am saying it and that is poetry.” – John Cage

What, then, might one do if one were inclined towards censorship?

http://en.wikipedia.org/wiki/File:Natgeo_censorship.jpg

Want to visit NYC for Cheap?

Then buy a one-way ticket to the Big Apple, pretend you are homeless (well you will be after your hotel reservation is up), and the good folks at City Hall will fly you back home on their dime!  Ok, I am kidding about the plan, but the story does raise an interesting question of how to deal with the nagging issue of homelessness, especially in a recession which strains the purses at Chancery Hall. Needless to say, the City is flying the homeless out of NYC in order to save on the cost of shelters. Some would say this is just exporting their poverty to another municipality causing an interestate externality.

Whatever issues one may have with this method of reducing homelessness, it makes much more sense than Vancouver's attempts to deal with homelessness, namely fining them $350.

Panhandling Middle Class Kids

No, this is not an allusion to the current recession. Rather, it is the title of my good friend Stephan Kinsella's provocative light-hearted take on kids who hawk everything from cookies to chocolates for their school or local cause. I personally like chocolates and candy, so I usually welcome the kids or their parents who come by. But I can see where he is coming from. The comments are pretty good too.

My two cents to Lindsay

Dear Lindsay Lohan,

I know you love Sam, but I really think you should dump her, especially after she threw your clothes out on the street. It is obvious that she doesn't trust you, and frankly you can do better. I watched Just My Luck the other day, and I think maybe fiction is becoming reality. Here's wishing it reverses back soon.