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5 Years After TRC: Is Canada Making the Grade?

Tansi, 

December 2020 marked 5 years since the TRC final report was released with 94 Calls to Action for truth and reconciliation with Indigenous people.  To commemorate this juncture, Team ReconciliAction set out to evaluate progress on each of the Calls to Action in the 5 years since their release. 

It has been quite a year for our team.  In addition to our ongoing report card, we attended the Indigenous Bar Association annual conference, the ILSA speaker series, the Kawaskimhon Moot, the Barton trial, Indigenous language engagement sessions, various faculty talks, we won a Clawbie and we attended protests, marches and vigils.  And we shared all of it with you, our dear audience.  We appreciate all of the engagement we've had this year on the blog and on our social media accounts, and we want to thank everyone who joined the conversation on reconciliation this year.  

Today, we release our final report card, and the culmination of our work over the 2020/21 academic year.  To those who have followed the progress, you have probably figured out that the report card on 5 year progress is bleak.  The few bright spots in reconciliation progress have come at the organizational level, where institutions could quickly work to address the Calls specific to them.  There has been little to no progress on more systemic change that requires governmental action, and in many cases we have actually seen a backslide.  For example, Prime Minister Justin Trudeau has ceased making his emphatic statements that Canada's relationship with Indigenous people is the most important relationship, and here in Alberta we are looking into curriculum changes that exclude education on the legacy of residential schools.  

The takeaway from our report card is that Canada has much work to do, and likely needs to make significant increases to funding and efforts to correct some of these systemic issues in housing, healthcare, the justice system, child welfare and anti-racism.  So what comes next?  Will Canada stop fighting against Indigenous children?  Will Justice Minister David Lametti acknowledge the importance of Indigenous language speakers in this country and allow the bilingual requirement for the SCC to include languages other than colonial ones?  Will communities get clean drinking water?  Will provincial governments denounce racism in education and healthcare?  I mean, we hope so and each of us plans to continue the discussion beyond this blog.

We aren't saying goodbye yet, though.  Stay tuned next week as we get some final thoughts off our chest, and the week after for our individual reflections on the year.  

And now, for those of you who have not already scrolled ahead - The final grade:

Until Next Time,

ReconciliAction YEG

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COVID-19 and Indigenous Communities

Tansi Nîtôtemtik,

Today Team ReconciliAction YEG will discuss the impact of COVID-19 on Indigenous communities in Canada. 

The spread of COVID-19 has progressed at an alarming rate internationally, and it feels like it reaches another grim milestone every day. In Canada, COVID-19 has claimed the lives of tens of thousands and infected over 750,000 people. ^[1] As of January 20, 2021, the active cases of COVID-19 in First Nations communities in Canada reached an all-time high of 5,571.^[2] Unfortunately, even the most remote Indigenous communities have seen the spread of this virus. For example, the isolated, fly-in community of Nunavik has seen 39 cases of COVID-19. Luckily, there have been no associated deaths. ^[3]

As we reported earlier in the year, the lack of data collection regarding Indigenous health outcomes will likely make tracking the impact on COVID-19 on Indigenous communities difficult. However, here is what Indigenous Services Canada has released so far* regarding First Nations communities and COVID-19:

• There have been 13,873 confirmed positive cases
• There have been 8,182 recovered cases
• 120 people have died 
• 9 out of 60 long-term care and related facilities on-reserve have been affected
• Of those facilities, there have been 89 cases among residents 
• The case fatality of those cases has been 15/89 or (17%)
• Over 90% of the cases have been in Western Canada

*all data from Indigenous Services Canada, see footnote 2.

The spread of COVID-19 in Indigenous communities

To understand the spread of COVID-19, we have to take into consideration the factors that contribute to its spread on-reserve. As the Canadian Medical Association notes, public health measures aimed at preventing the spread of COVID-19, like social distancing and hygiene practices, “require people to have housing, water, food and income security, which are often inadequate in Indigenous communities.”^[4] In the context of a housing crisis in Indigenous communities, this caution rings true.

(Photo Credit: Women's College Hospital Healthcare, https://www.womenscollegehospital.ca/research,-education-and-innovation/indigenous-wellbeing-in-the-times-of-covid-19)

Without funding and resources to support these basic needs, how can Indigenous communities adhere to these guidelines and prevent the spread of the virus? 

Colonialism and COVID-19

Historically, settlers brought diseases like smallpox and the Spanish flu upon their arrival to Turtle Island, resulting in the death of thousands of Indigenous Peoples. ^[5] Along with the imposition of Western views of medicine over traditional Indigenous healing practices, the treatment of Indigenous peoples in healthcare has left lingering distrust, especially in the context of public health. Take, for instance, the Indian Hospitals. The government created these hospitals in response to the high rates of tuberculosis in government-run residential schools, to protect non-Indigenous peoples from the spread of tuberculosis, through racial segregation and inferior (and often harmful) healthcare.^[6]  

(Photo credit: Telfer, Jean. “Coqualeetza Residential School in Sardis, Chilliwack, BC,” circa 1935-1939, taken from https://irshdc.ubc.ca/learn/indian-residential-schools/indian-hospitals-in-canada/)

The mistreatment of Indigenous peoples in the healthcare system is far from history—the recent death of Joyce Echaquan while in hospital is a painful reminder of this reality. As a result, the public health response to COVID-19 in Indigenous communities cannot be successful without recognition of and reconciliation with Canada’s colonial past and present.^[7]

Vaccination and Indigenous Communities

The public vaccination process has been difficult due to problems with supply and delivery. ^[8] The Government of Canada has identified adults in Indigenous communities as a priority for early COVID-19 protection, and some vaccination of this population has started.^[9] However, in some provinces Indigenous peoples living off-reserve have not been identified as having the same priority, despite data showing a higher incidence of poorer health outcomes in this population. ^[10] Whether the prioritization of Indigenous peoples who choose to get vaccinated will translate into reality remains to be seen, as many vaccinations are currently on pause due to supply shortages. Needless to say, Team ReconciliAction will be monitoring this progress carefully.

Thanks for reading! 

Team ReconciliAction YEG

¹CTVNews.ca, “Tracking every case of COVID-19 in Canada” CTV News (Jan 25, 2021) online:<ctvnews.ca/health/coronavirus/tracking-every-case-of-covid-19-in-canada-1.4852102>.

²Indigenous Services Canada, “Government of Canada COVID-19 Update for Indigenous Peoples and communities” (January 20, 2021), online: Canada.ca <canada.ca/en/indigenous-services-canada/news/2021/01/government-of-canada-covid-19-update-for-indigenous-peoples-and-communities1.html>.

³Ibid.

⁴Lisa Richardson & Allison Crawford, COVID-19 and the decolonization of Indigenous public health, (2020) CMAJ 192 (38), DOI: 10.1503/cmaj.200852. 

⁵Ibid.

⁶Indian Residential School and History Centre, “Indian Hospitals in Canada” online: <irshdc.ubc.ca/learn/indian-residential-schools/indian-hospitals-in-canada/>.

⁷Richardson, supra note 4.

⁸John Paul Tasker, “As Canada falls behind other countries on vaccinations, Trudeau promises to 'scale up' deliveries”CBC News (January 8, 2021) online: <cbc.ca/news/politics/trudeau-vaccines-scale-up-canada-lags-1.5866552>.

⁹Government of Canada, “Vaccines and treatments for COVID-19: Vaccine rollout” (January 22, 2021), online: <canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/prevention-risks/covid-19-vaccine-treatment/vaccine-rollout.html#a3>.

¹⁰Bryan Kennedy, “Toronto’s Indigenous population largely overlooked in COVID-19 vaccine plans, doctors who work with them say” Toronto Star (January 23, 2021)  online: <thestar.com/news/gta/2021/01/23/torontos-indigenous-population-largely-overlooked-in-covid-19-vaccine-plans-doctors-who-work-with-them-say.html>. 

Will We All Be Alive for #Canada300?

Where do I see Canada in the next 150 years? To be honest, I have absolutely no idea. However, with the technological and scientific advances occurring in today’s world, we may all be alive to witness Canada in the year 2167!

At Cambridge University, a researcher named Aubrey de Grey believes he has identified all of the causes of aging, and can overcome them all. By doing so, de Grey claims that humans are capable of living up to 1,000 years old.¹ He is convinced that he understands the theoretical underpinnings of human illness and death and has indicated that 25 years is all the world will need to make his theory a reality.

However, he recognizes that he is a computer scientist, not a human biologist.² S. Jay Olshansky, one of De Grey’s contemporaries, has the human sciences background that de Grey lacks. Olshansky is a professor of Public Health and research associate at the Center on Aging at the University of Chicago.³ His work pursues means to slow down human aging and discovering the “upper limits to human longevity.”⁴

If researchers are successful in extending the human lifespan, what kinds of political obstacles would they face?

Most people are skeptical that humans have the ability to extend their own lives.⁵ People firmly believe in the inevitability of aging and death and the science world is having a hard time changing that perspective.

But how then are pharmaceutical companies who sell “anti-aging products” so successful if the world refuses to buy into the idea of longevity?

These companies are excellent marketing specialists but they do not truly market “living longer.” Rather, they convince people that their products will allow them to remain young while they are alive. They encourage consumers to buy products that they claim will make them look and feel more youthful.

In the United States, pharmaceutical companies can legally sell anti-aging products that are merely placebo.⁶ The FDA allows “cosmeceuticals” to be sold without approval, so long as the product does not contain drugs.⁷

 

There is the additional problem that even if pharmaceutical companies attempted to conduct research on life extension, it would take a lot of money and a lot of time. These companies want to make money and it is not in their interest to invest all that time and money on an unsure bet.

However, if these money powerhouses teamed up with brilliant science minds, it’s impossible to say what they could accomplish.

There are also organizations popping up that provide cryonic freezing: a low temperature method of preserving human bodies in the hope that they can be revived by future medicine.⁸ Currently, this method of preservation is only available after death; you cannot be frozen while alive.

Whether or not you believe in life extension, there are many people working towards that ultimate goal.

So I may be long gone by the time #Canada300 rolls around, but who knows: maybe I won’t be.

¹Caspar Llewellyn Smith, “Aubrey de Grey: We don’t have to get sick as we get older”, The Guardian (1 August 2010), online: <https://www.theguardian.com/technology/2010/aug/01/aubrey-de-grey-ageing-research>.

²Sherwin Nuland, “Do You Want to Live Forever?”, MIT Technology Review (1 February 2005), online: <https://www.technologyreview.com/s/403654/do-you-want-to-live-forever/>.

^3See: https://www.lapetussolutions.com/team.

⁴See Olshansky’s professional website, <www.sjayolshansky.com/sjo/Background.html>.

⁵Richard A Miller, “Extending Life: Scientific Prospects and Political Obstacles” (2002) 80:1 Milbank Q 155 at 155, online: <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690099/>.

⁶Ibid.

⁷US, US Food and Drug Administration, Cosmeceutical (Silver Spring: MD, US Food and Drug Administration, 2014), online: <https://www.fda.gov/Cosmetics/Labeling/Claims/ucm127064.htm>.

⁸See Alcor, a life extension foundation: <www.alcor.org/FAQs/faq01.html#cryonics>.

How To Think Like A Lawyer for 1Ls and Up: Existential Questions and Casuistry*

*in its original, non-pejorative meaning: "The resolving of moral problems by the application of theoretical rules."

 

see https://en.oxforddictionaries.com/definition/casuistry

 

There is supposed to be humour in what you'll read below. It is also an example of the analytical approach you will have to learn in order to analyze questions of law.  There were at least 3 qualified lawyer types, and a gaggle of PHDs from various disciplines, involved in the discussions relating to these deep existential questions.

 

 

ConsTITutional Rights

Dear Madam and/or Sir,

Do you consider it to be “indecent” if a woman is topless in public? How about if a man is topless? Do you agree that women should have the same right as men to bare their chests? Perhaps you feel that only breastfeeding mothers should publicly milk the #FreeTheNipple campaign. Or perhaps you disagree with that too. If you run a Google search for “breastfeeding in public is”, the first four suggestions are “wrong”, “inappropriate”, “offensive”, and “nasty”.

Certainly, some nursing women choose to cover up or find a more private place. But is seeing a breast in public really offensive? Or inappropriate? What if you’re on an airplane and you want to nurse? Cover up? Seclude yourself in a tiny toilet room with your immuno-compromised baby? Now that’s nasty.  Nobody makes you eat your lunch in an airplane washroom.

Some people believe that women should have the right to walk around or enjoy life topless, just as men do. After all, they argue, without our common social construct that sexualizes breasts, they’re just two bags of skin filled with fat and glands. Indeed, some men have larger breasts than some women! And tit’s not just the outward appearance, it’s the internal breast tissue. The more tissue in the breast, the larger they grow. The Canadian Cancer Society notes male patients account for 1% of breast cancer cases.[1] So what’s the big deal about women’s breasts? Are we mam-merely maintaining modest traditional values?

Under the heading Disorderly Conduct, section 174 of the Criminal Code of Canada prohibits the act of “Nudity” in public without a lawful excuse.[2] Being “Nude” is then defined for the purpose of Nudity as being “so clad as to offend against public decency or order.”[3] This wording is quite vague, which allows for judicial interpretation, and some would argue, misinterpretation. Moreover, the word “clad” is misleading… it is the past participle of the word “clothed”, so technically, nudity should be unclad or partly clad. But further, what offends public decency or order? A breast? Part of it? What about “tasteful sideboob”?[4] What if we go the opposite way and people “clad” themselves in offensive garb? Here’s a fun collage to demonstrate the point:

But back to the tissue—we mean issue—abreast. Judicial interpretation occurs when courts interpret laws within the four corners of the written law. For example, s. 174 needs judicial interpretation of the words “offend”, “public decency”, and “order”. In 1996, Ontarian Gwen Jacob took her criminal charge for an indecent act[5] to the Court of Appeal for Ontario.[6] Apparently the police charged her with indecency in an attempt to nip it in the bud. Jacob was acquitted because the community standard of tolerance at that time indicated to the Court that her actions were not indecent. Further, the Court stated that there was nothing harmful, degrading, or dehumanizing about her conduct, and no one was forced to look at her.

We guess you could say... the Crown’s case went tits up.

So, twenty years later, how do we feel about topless women walking around town because it’s simply too hot for a shirt? CBC News reports that we don’t feel so hot about it.[7] Perhaps it’s because women fear censure, judgment, or ridicule.[8] Perhaps women fear assault or harassment because we live in a society where women’s bodies are objectified and harassment is trivialized. Ultimately, courts interpret laws in accordance with societal values and the Constitution is no exception. What do you think about women being topless in public? Comment below!

Thanks for the mammaries, Ms. Jacob,

The Dominion

 

[1] “Breast Cancer in Men”, Canadian Cancer Society, online: <www.cancer.ca/en/cancer-information/cancer-type/breast/breast-cancer/breast-cancer-in-men/?region=on>.

[2] RS 1985, c C-46 [Criminal Code].

[3] Ibid, s 174(2).

[4] Cards Against Humanity, Creative Commons BY-NC-SA 2.0.

[5] Criminal Code, supra note 2, s 173(1).

[6] R v Jacob (1996), 142 DLR 4th 411 (ONCA), 31 OR (3d) 350.

[7] Prithi Yelaja, “Women’s topless court victory 20 years later, CBC/Radio-Canada (28 Jul 2016) online: <www.cbc.ca/news/canada/women-s-topless-court-victory-20-years-later-1.1026403>.

[8] Ibid.

The internet-connected car - who owns your data?

In my previous post I raised the need for closer ties between legal authorities and the tech companies who are creating new tracking devices. Let me give an example of what I mean:

The Internet of Things describes a future where almost every physical product we use is connected to the internet, and is passing information and insights to other products or people. Your fridge could tell your supermarket to deliver milk to your home when you're running low. Your shoes could tell your personal trainer that you're gaining weight and need more exercise. Your car could post a message on your bathroom mirror reminding you to wear sunscreen, as the UV index is high outside (based on its windshield readings). And so on.

We're already seeing many of these technologies play out, particularly through new cars.

The modern car already has more computer components than engine parts. There are sensors that can tell who is sitting down behind the wheel, and automatically adjust the seat and mirrors to fit their shape. The navigation system gives advice on popular routes that the driver uses (and warns if there is a traffic disruption along those paths). Future cars will be able to monitor drivers to see if they're falling asleep or are otherwise distracted, and prompt them to pay more attention to the road. Cars could even monitor a driver's vital signs and notify an emergency responder if they're in an accident or are having a medical emergency on the road.

So, the question is, who owns all this personal data that is being tracked, transmitted and analyzed? Is it the car manufacturer? The car dealer? The producer of the computer hardware? Or the producer of the computer software? The company that does the analysis of the driver's data? The wifi provider that is being used to transmit the data? The company that runs the satellite the wifi provider is using? The company that owns the servers it is being stored to?

There could be dozens - if not hundreds - of companies involved in the manufacture and operation of a single car. Currently, no one company is responsible for the fair use (and storage and security) of the user data being collected from this car. The privacy buck can therefore continuously be passed.

And this will be the case for almost all Internet of Things device. If we cannot make one company responsible for the security and management of user's private data, could this be the end of privacy laws?

(Alberta's not-for-profit technology accelerator, Cybera, holds an annual conference in Banff each year exploring new digital technologies and issues such as this. The event is being held at the end of October. For more information, visit the event's website.)

A Section for Those Sensitive Topics No One Ever Wants to Discuss

Dear Sir or Madam:

Today we write to you regarding section 7 of the Canadian Charter of Rights and Freedoms. Section 7 has had profound impact on Canadian jurisprudence and continues to protect individuals from undue harm. The section’s fundamental goal is to protect individuals from undue state interference in their lives and allow them to make decisions with autonomy. Today’s post will highlight the parameters of s. 7 set out by the Supreme Court of Canada.

Section 7 of the Charter states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”¹ A plain reading of this section guarantees individuals three fundamental freedoms that cannot be infringed upon unless they are in accordance with fundamental justice. In order to fully understand s. 7 the courts needed to interpret what fundamental justice means. We’ll discuss each facet of s. 7, beginning with the right to liberty.

The Supreme Court determined in Re BC Motor Vehicle Act that absolute liability offences carrying a punishment of imprisonment violates the right to liberty.² In coming to this decision, the Court had to ascertain the meaning of fundamental justice to see whether or not mandatory prison sentences were in accordance with fundamental justice. The court determined that absolute liability, where the available punishment is imprisonment, offends the principles of fundamental justice.³ Essentially, imprisonment by absolute liability would arbitrarily detain individuals without requiring the proper requisite intention to commit the offence. Justice Laskin affirmed that it was not imperative that courts utilize the same method of interpreting fundamental justice so long as they secure full Charter protection for individuals.⁴ Further, the principles of fundamental justice do not carry one “single, incontrovertible meaning”⁵ Rather, the meaning can change based on the nature of the offence and the infringement on s. 7.

Canadian courts have been prudent in outlining situations where s. 7 applies. The Supreme Court focused on the right to liberty in Re BC MVA because the individual was subjected to physical imprisonment. Where a person is physically detained or imprisoned, their liberty is at risk. Courts have also determined that the right to liberty includes the freedom to make fundamental life choices without interference from the state.⁶

The next aspect of s. 7, security of the person, is engaged when there is “state interference with bodily integrity and serious state imposed psychological stress.”⁷ The most notable case where this branch of s. 7 has been applied is in R v Morgentaler. The Supreme Court in this case struck down procedural requirements for therapeutic abortions.⁸ The procedural requirements interfered with both bodily integrity and psychological stress; due to limited access to state approved abortion services.⁹

The last branch of s. 7 of the Charter is the right to life. This prong has recently become a contentious topic in both the legal and media realms alike. The right to life has most notably been highlighted in cases surrounding physician-assisted suicide. Suicide has historically been understood as a way for an individual to escape painful life-circumstances or illness.¹⁰ Physician-assisted suicide is premised on the same principles, but occurs when a patient requests professional medical assistance to enable the suicide through lethal drug treatments.¹¹ The Supreme Court recently legalized physician-assisted suicide in Carter v. Canada (Attorney General). The majority found that an absolute bar on assisted dying created a “duty to live, rather than a right to life.”¹² Further, the law demands that an individual’s choice to end their life must be respected in certain circumstances.¹³ The majority decision in Carter was met with contention and parliament recently applied for a six-month extension to amend the current assisted suicide legislation.¹⁴

Check back tomorrow when we discuss the s. 15 equality rights. Although we aimed to cover most of the notable sections in the Charter, some readers may notice s. 11 is missing. Section 11 regulates the powers law enforcement has once a person has been formally charged with an offence. Often in criminal cases both ss. 7 and 11 will be mentioned because liberty is at stake once a person has been formally charged. We at the Dominion can assure you the omittance of s. 11 from today’s discussion was a purposeful choice. For those interested in protections granted by s. 11, we will be covering this in upcoming weeks as the Vader case (and potential mistrial) continues to unfold. Until then, we hope you leave this post feeling confident that state interference in your life has definite limits.

Your Humble and Obedient Servants,

The Dominion

 

 

¹ Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
² [1985] 2 SCR 486 at 492, 24 DLR (4th) 536 [Re BC MVA].
³ Ibid at 502.
⁴ Ibid at 499.
⁵ Ibid at 501.
⁶ Madam Justice Bertha Wilson, “Will Women Judges Really Make A Difference?” (1990) 28:3 Osgoode Hall LJ, 507 at 516.
⁷ [1988] 1 SCR 30 at 32, 26 OAC 1.
⁸ Ibid at 71.
⁹ Ibid at 71.
¹⁰ Robert F Weir, Physician-Assisted Suicide, (Bloomington: Indiana University Press, 1997) at vii.
¹¹ Ibid at viii.
¹² 2015 SCC 5 at para 63, [2015] 1 SCR 331.
¹³ Ibid at para 63.
¹⁴ See Carter v Canada (Attorney General), 2016 SCC 4, 394 DLR (4th) 1.

Vaccines and the ethics of parental choice

This post is forthcoming on the Impact Ethics blog, but given the topical nature of the issue addressed in the piece, I am posting this preview here for comment and debate.

There has been much discussion lately in the news and public spaces regarding the resurgence of vaccine-preventable childhood infectious diseases and the problem of anti-vaccination and its milder cousin, vaccine hesitancy. These discussions were triggered, I suspect, by an outbreak of measles, a highly infectious vaccine-preventable disease that is the leading killer of young children worldwide, at Disneyland, that most magical of places. Or perhaps by the human interest element in Roald Dahl’s heartrending essay recalling the loss of his seven-year old daughter Olivia to measles, and in which he urged parents to get their wards immunized. Or perhaps due to the wildly irresponsible comments of US politicians like Rand Paul, who think that a public health measure that safely and effectively protects vulnerable children from a dangerous infectious disease should be resisted based on conspiracy theories and appeals to an absolute form of individualism. Maybe some combination of these things.

In the much bifurcated debate, vaccine proponents like me have pitched our tents squarely with norms founded on community welfare or social good, and with scientific evidence, which indisputably shows that recommended childhood vaccines are generally safe and effective, and that we need epidemiology-validated rates of coverage to achieve herd immunity. To borrow a maxim from a colleague, those of us in this camp believe “the devil is in the defaults”, and so have urged the establishment of default rules that express social good or community welfare principles, chiefly in the form of a robust and routine program of mandatory vaccinations sans religious or personal exemptions. Opponents have countered by questioning the science behind childhood vaccines or by referencing a parental right to be exempted from forced medical intervention that interferes with personal beliefs and preferences. In the background, there is a much less vocal or visible category of persons and groups who urge understanding of the values, beliefs, cultures, psychologies, valences, concerns and patterns of behaviour that lead to vaccine hesitancy, and adoption of strategies that emphasize engagement, shared and participatory decision-making and education (a safer bet in theory, but much less compelling in terms of actually changing attitudes to vaccination).

A missing perspective, or at least one that has not received much attention or discussion, relates to how we frame parental decision-making in relation to childhood vaccines. There is an implicit assumption, at least from the perspective of individualist or libertarian arguments (and to some extent, in the call for integration of parental views in shared or participatory decision-making), that parents have an automatic and unassailable right to make decisions regarding vaccination on behalf of their children. It follows therefore that taking away that right is seen as a violation or dilution of the parent’s liberty or participatory interests. This assumption is ethically and legally unfounded.

 Decisions regarding whether a child should or should not be vaccinated reside with the child, but only if capable of making the decision. Since most young children will not have the capacity to make such a decision, especially during the crucial early years when most childhood vaccines are administered, the decision becomes a substitute or surrogate decision that must be rendered by a legal appointee (typically but not necessarily parents), but only to advance the best interests of the child. While Canadian courts and statutory instruments have awarded parents a privileged position in making substitute or surrogate decisions on behalf of their children, it is also the case that parental decisions must be made to promote or advance what is objectively deemed to be the child’s best interests in the specific context of the decision in question. The question therefore is not whether or not parental rights in this context can be suppressed for the sake of community welfare but rather, whether parental decision-making that denies a child an opportunity to receive potentially life-saving vaccines can ever be considered a best interest decision. I think not, and here’s why.

Objectively speaking, ensuring that vulnerable children get immunized against vaccine-preventable childhood diseases is as much in their best interest as making sure they receive necessaries of life such as food and shelter, or that a child wears a seat belt while travelling in a motor vehicle. In Canada and most other jurisdictions, vaccines that protect against childhood diseases are available, at no cost, starting from infancy. A few doses – in many cases not exceeding a couple – are all that is required to provide effective life-long immunity to dangerous and sometimes deadly infectious diseases. Side effects are generally rare and mostly minor – an immunized child can shake off most side effects in a matter of hours and at most, a day or two. Much like not wearing seat belts, failing to immunize a child exposes him or her to a preventable danger that could have devastating effects, including disability and death.

Putting aside arguments about social good, herd immunity, discouraging free loading and preventing harm to others, vaccinating a child for the child’s sake is not just the right thing to do, but also the only thing to do. There are no other measures that would objectively better protect a child from infectious disease – not sanitation, not prayer, not eating natural and healthy, not cutting ties with the outside world, not homeopathic nosodes, and certainly not parental objections, however honestly held. And because we cannot rely on objecting parents to reach this objective and somewhat evident conclusion, society ought to step in and do what promotes the unimmunized child’s best interests. At a minimum, society must insist that this idea is the default norm. Once that is done, we can then focus on helping parents understand the norm and on encouraging their participation in operationalizing it.

More Comments on the Measles Vaccination Debate

Here are a couple more videos from Global Edmonton exploring the legal and practical dimensions of requiring mandatory vaccinations to stem the measles outbreak in Alberta. It appears the Alberta government is not considering any mandatory measures, but would rather go the education route (Liberal Education Critic Kent Hehr disagrees). There are also some interesting comments from the Vaccine Risk Awareness Network that are worth checking out. I certainly think mandatory measures with no exemptions are defensible on Charter grounds, but would be interested in hearing more on the issue from constitutional law experts. 

 

 

Whaling in the Antarctic: Part VI - What Now?

In this final installment of my assessment of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), I aim to provide a few thoughts on what the future holds for the International Convention for the Regulation of Whaling (ICRW) and the International Whaling Commission (ICW).

The first consideration must be whether or not Japan is going to comply with the decision of the International Court of Justice (ICJ). Japan has indicated that it will and it also does not appear that Japan is going to withdraw from the IWC in light of the decision. Does this mean that whaling in the Antarctic is done? Maybe, maybe not. Since the Whaling Case addresses permit issuance pursuant to JARPA II, the possibility remains that a new scientific research program could be developed and deployed in this region, which once again could be susceptible to challenge. Similarly, Japan’s JARPN II on-going special permit program in the North Pacific may also be scrutinized in light of the Whaling Case and the ICJ’s analysis of what is meant by “for the purposes of scientific research”. The decision may also have implications for the commercial whaling conducted by Iceland and Norway pursuant to objections that these States have lodged at the IWC if Japan seeks to supplement its diminished supply of whale meat (which may not be required given dwindling consumer demand). Alternatively, this development might similarly increase the coastal hunt of small cetaceans (dolphins and porpoises) that is not regulated by the ICRW. Or, it might mean the end of all special permit scientific whaling. It is early days yet and only the passage of time will reveal the ultimate consequences of this decision.

While the Whaling Case does not delve into the political and cultural issues that continue to prevent coherent implementation of the ICRW, it is obvious that future work and considerable compromise is needed to bridge the gap that separates those States that support the use of whales as a resource and those States that prefer preservation. Important questions remain unanswered: Should the moratorium on commercial whaling be lifted to allow for a limited take of those whale species that science suggests can bear such a take (i.e., the minke whale)? How do we account for cultural differences and preferred uses in an appropriate manner? Is it possible to reconcile these positions within the current international framework or should an alternative agreement be sought? How should the global community regulate the take of smaller cetaceans that live close to shore? And, perhaps most importantly, is enough being done to ensure that the other threats—bycatch, ship strikes, climate change, environmental pollution, habitat destruction, and even eco-tourism—are being addressed?

The Whaling Case represents an important piece of the larger marine mammal management puzzle. The puzzle is far from complete and we must continue to work to piece it together.    

Whaling in the Antarctic: Part V - Experts & Scientific Evidence

I will be exploring the issues addressed in today's post in more detail in an upcoming paper so this particular blog is going to be kept a bit shorter than the others.

First, it is important to state the obvious—international environmental law is inextricably connected to scientific and technical developments. One need look no further than climate change to understand just how connected our (changing) understanding of the natural world is to determining the appropriate form/function of the regulatory response. Further, and in addition to using and incorporating scientific knowledge during the development of international law, science and other forms of expertise have also become important aspects of international environmental dispute adjudication. Unfortunately—or fortunately, depending on your perspective—we do not have an “International Environmental Court” to deal with these increasingly technical problems. The ICJ did create a Chamber for Environmental Matters in 1993, but this chamber was effectively ended in 2006 without ever hearing a case.

Lawyers and judges may be expert in statutory interpretation but they are not, generally speaking, also expert in all things scientific or technical. Still, as identified above, it is critical that the appropriate and necessary evidence get before the Court to ensure informed decision-making and adjudication. There are different ways that this goal can be accomplished at the ICJ. The Court can arrange for the preparation of an expert opinion (Article 67 of the ICJ’s Statute), experts can appear as advocates/counsel before the court, an agent appearing on behalf of a party can become versed in the necessary scientific or technical information and present it, or a party can call experts/witnesses as part of its case (Article 65) in accordance with its declared list of intended witnesses/experts (Article 57). In the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), the Court made it apparent that it prefers the latter method because it allows the experts to be cross-examined by the opposing party and to be questioned by the Court. At paragraph 167 of the Pulp Mills judgment the Court stated:

“...those persons who provide evidence before the Court based on their scientific or technical knowledge and on their personal experience should testify before the Court as experts, witnesses or in some cases in both capacities, rather than counsel, so that they may be submitted to questioning by the other party as well as by the Court.”

This is exactly what happened in the Whaling Case. As described in paragraphs 20-21 of the Judgment, Australia called two experts during the public hearings: (1) Professor Marc Mangel (Distinguished Research Professor of mathematical Biology and Director of the Center for Stock Assessment Research, University of California, Santa Cruz); and (2) Nick Gales (Chief Scientist for Australia’s Antarctic Program). Japan also called one expert, Professor Emeritus Lars Wolloe from the University of Oslo and marine mammal advisor to the Government of Norway. Each expert was examined in chief, cross examined, and asked questions from the Court. Additionally, each expert provided a written statement that preceded their testimony.

It is obvious in reading the portion of the judgment that investigates the term “scientific research” (paragraphs 73-86) and the term “for purposes of” (paragraphs 87-97), and more importantly part 3 of the judgment titled “JARPA II in light of Article VIII of the Convention” (paragraphs 98-227), that the Court utilized and worked with the evidence presented by the experts. This decision may very well represent a model for the preferred use of experts in this judicial forum moving forward.

#ICJWhalingCase   

Whaling in the Antarctic: Part III - Jurisdiction

As described in my introduction to jurisdiction of the International Court of Justice (ICJ) in yesterday’s blog titled Nature of the Challenge & the Outcome, Australia based its application to the Court on the basis of each State’s optional declaration of compulsory jurisdiction. Japan asserted in its Counter-Memorial and during oral argument that the ICJ lacked jurisdiction to hear the case based on its interpretation of Australia’s optional declaration. Essentially, States can craft their declarations such that certain types of disputes are excluded from compulsory jurisdiction. And, pursuant to the principle of reciprocity, Japan can use Australia’s reservation to challenge jurisdiction since it only has to answer the claim if Australia has accepted the Court’s jurisdiction over the matter at hand. In short, if this claim came within Australia’s excluded type then Japan could properly assert that the Court is not entitled to adjudicate the dispute. So, what exactly does Australia’s declaration exclude? It reads:

“[A]ny dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.”

This reservation relates to the delimitation of the maritime zones memorialized and/or created in the United Nations Convention on the Law of the Sea, with delimitation referring to the determination of the limits of each zone when there are competing or overlapping claims (i.e., two adjacent or opposite States are geographically close enough that each cannot claim the full extent of various maritime zones without both claiming the same area). Such disputes are often settled through bi-lateral treaties or recourse to international dispute resolution, with the result being division of the contested area. Does this situation qualify? The ICJ decided that it did not, dismissing Japan’s argument.

At this point you might be wondering what maritime zone is potentially engaged since the dispute is occurring in the Southern Ocean around Antarctica. Good question! The treaty system that is in place in the Antarctic prevents novel claims for territorial sovereignty on the continent of Antarctica but remains neutral with respect to its impact upon pre-existing sovereignty claims. Australia made such a sovereignty claim in the 1950s prior to the current treaty system taking effect. Australia has also claimed an exclusive economic zone based on this pre-existing territorial claim. This claim has been hotly contested and opposed.

Japan interpreted Australia’s reservation such that the scientific whaling issue did relate to a disputed area (owing to the fact that Japan does not recognize Australia’s exclusive economic zone claim) that is sufficiently linked to exploitation of the whale resource through JARPA II in or adjacent to this disputed area. In considering this interpretation and coming to its conclusion on jurisdiction, the ICJ noted that the reservation requires a maritime delimitation dispute which simply does not exist in this situation (see paragraphs 38-40 of the Judgment). As such, Japan’s jurisdictional challenge was unsuccessful and the Court proceeded to adjudicate the claim.

#ICJWhalingCase

Whaling in the Antarctic: Part II - Nature of the Challenge & the Outcome

Disputes between States can be brought before the International Court of Justice (ICJ)—the dispute resolution organ of the United Nations—in three ways. First, a treaty may expressly provide that disputes between States Parties, being those members of the treaty that have signed and ratified the treaty thereby creating binding legal obligations, shall be submitted to the Court for resolution. Second, States can agree to accpt the ICJ’s jurisdiction for a discrete issue through Special Agreement. Third, and pursuant to Article 36(2) of the ICJ's Statute, States “may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes” relating to: treaty interpretation; questions of international law; whether a fact exists that proves a breach of an international obligation; or the sort of reparation owed due to a breach of an international legal obligation. Sixty-nine States have made an optional declaration.

In the Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening), Australia utilized the third option and initiated its challenge by written application to the Registrar of the ICJ. This option was available because both Japan (in 2007) and Australia (in 2002) had made the requisite optional declarations accepting compulsory jurisdiction (see more here).

Australia’s Application asserts that the second phase of Japan’s Antarctic research program (JARPA II, as described in yesterday’s blog Setting the Scene) violates key provisions of the regulatory Schedule of the International Convention for the Regulation of Whaling (ICRW). Specifically, that JARPA II, as proposed and implemented, violates the Schedule’s prohibition on killing whales for commercial purposes found in paragraph 10(e) and the prohibition on commercial whaling in the Southern Ocean Sanctuary found in paragraph 7(b) (see paras. 35-36 of Australia’s Application). Australia’s written argument (called a Memorial) also sought relief for an alleged breach of paragraph 10(d) of the Schedule, which prohibits the use of “factory ships or whale catchers attached to factory ships” for killing/treating whales, excepting out the minke whale (see page 276 of Memorial).

At its core, argument and analysis into the allegations set out above would turn on a detailed assessment of Article VIII of the ICRW. Article VIII(1) provides that:

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted. [emphasis added]

In short, this “special permit” potentially exempts lethal take from operation of the Schedule provisions described above so long as it is “for purposes of scientific research”. The national permits for minke, fin, and humpback whales that I described in yesterday's post were granted by the Japanese government to a not-for-profit research organization called the Institute for Cetacean Research, which further contracted out each annual take.  

And the core issue emerges: are the permits issued for JARPA II “for the purposes of scientific research” and consequently exempt from operation of the Schedule? If Article VIII is not satisfied then Japan is exposed for Schedule breaches.

The ICJ ultimately declared that Japan violated the three paragraphs of the Schedule identified above and, owing to JARPA II’s ongoing status as a program, ordered that any existing permit be revoked and that it not be granted any other permits under Article VIII (para. 245 of the Judgment).

Starting tomorrow, I will explore certain key aspects of the decision in more detail.

#ICJWhalingCase

Whaling in the Antarctic: Part I - Setting the Stage

On 31 March 2014, the International Court of Justice (ICJ) delivered its judgment in the case of Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening). The decision comes nearly four years after Australia’s Application to the ICJ in May 2010. This decision is attracting considerable attention from the international community and popular media owing to the fact that whaling is a ‘hot-button’ animal welfare and international environmental law issue that has political, emotional, and cultural dimensions.

Whales have historically been valued as an important natural resource (think oil, meat/blubber, and 'whalebone'). Unfortunately, international regulation of this resource has proved ineffective for some time. After centuries of mismanagement, over-exploitation, and stock collapse resulting in species-switching (whereby industry shifted from species to species following depletion), the international community sought meaningful cooperative regulation through the 1930s and 1940s. After two failed agreements, the international community negotiated the International Convention for the Regulation of Whales (ICRW) in 1946 at an international conference convened by the United States of America. This whaling convention, which entered into force in 1948, currently has 88 Contracting Governments (i.e., States parties). Canada is not party to the ICRW.

The preamble to the ICRW indicates that the Contracting Governments seek to achieve “the proper conservation of whale stocks and thus make possible the orderly development of whaling”. This regime is implemented by the International Whaling Commission (IWC), which is “composed of one member from each Contracting Government” (Article III(1)). The ICRW purports to regulate whaling within all of the waters where whaling occurs (Article I(2)) and as a treaty, its development has been made possible by the creation and amendment of a regulatory Schedule that “forms an integral part” of the Convention. The large so-called ‘great whale’ species—including familiar species such as the blue whale, humpback whale, fin whale, minke whale, gray whale, bowhead whale, and right whale—are regulated by the ICRW/IWC regime pursuant to this Schedule. Importantly, the Schedule can be amended only by a vote of the IWC that carries a three-quarters majority (Article III(2)).

Despite the initial purpose of achieving a sustainable, orderly whaling industry, the Contracting Governments voted in favour of a temporary moratorium on commercial whaling in 1982 and this became effective in the 1986-87 whaling season when zero-catch quotas were set for the regulated species in paragraph 10(e) of the Schedule. This does not mean that all whaling stopped. Norway and Iceland continue to whale commercially by virtue of the fact that they opted out of this Schedule amendment as permitted by Article V(3) of the ICRW. Further, after Japan withdrew its initial objection to the commercial moratorium, it initiated a scientific whaling program called the Japanese Whale Research Program under Special Permit in the Antarctic (JARPA), which began its second phase (JARPA II) in 2005-06. JARPA II witnessed the annual national issuance of permits to take, hunt and kill 850 minke whales (+/- 10%), 50 fin whales, and 50 humpback whales (no humpback whales have been killed owing to political pressure). This has attracted considerable attention owing to the belief held by some nations that this was commercial whaling disguised as science when commercial whaling and specifically commercial whaling within whaling sanctuaries—which the Southern Ocean is—are both prohibited (paragraph 7(b) of the Schedule).

With this background in mind, I plan to deliver an 8-10 part series that investigates important aspects of this whaling case, some of its implications, and its relevance in the Canadian context. I hope you can follow along!

#ICJWhalingCase

New Hammerhead Shark Species? Cool!

It is usually all doom and gloom when it comes to shark conservation... but not today! Super cool news story indicating that scientists have found a new species of hammerhead shark off the coast of Carolina! Read all about it here! 

The Federal Fin Debate

In case you missed the debate on Bill C-380 yesterday, but would like to hear what our MPs are saying on the issue, it can be found here. #SaveSharks

Sharks are contaminated... tell me more!

So, it is no surprise that sharks are contaminated with heavy metals such as mercury. I mean they (generally) occupy the top of the food chain, they are long-lived, and they feed on other marine animals that also accumulate contaminants. But there is more...

A recent study by Mondo et al that can be found here suggests that there is more to this story. Specifically, these researchers have found that a cyanobacterial neurotoxin also accumulates in shark tissue (including shark fins). This finding is interesting because this particular neurotoxin is under considerable investigation for its role in human neurodegenerative diseases, including Alzheimer's disease. Food for thought!

Here is a link to the story as it appeared in the NY Times this past summer:

http://green.blogs.nytimes.com/2012/03/06/shark-fins-are-loaded-with-a-neurotoxin-study-finds/

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.