Junk science makes bad law

Tuesday, December 1, 2015

It is time legal scholars and practitioners follow suit to ensure our legal disputes are resolved with the best science has to offer.

By Jason Chin, adjunct professor

This commentary was first published in The Hill Times, Monday Nov. 30, 2015.

A recent large-scale study has found that a great deal of science admissible in Canadian and U.S. courts is unreliable. 

Brian Nosek of the University of Virginia and his colleagues recently attempted the herculean task of determining if modern psychological science is reliable. To do so, they tried to replicate the results of 100 psychology studies that were already published in prestigious peer-reviewed journals.

The collaboration’s findings, published in the journal Science and now widespread in the media, were disturbing. Less than half of the studies Nosek’s team redid worked out the same way as the originals, despite copying the prior works’ methodologies. Many think the problem is just as extensive in other areas of science.

"Don't feed the trolls", they say. What if the Prime Minister is the Prime Troll?

Denise Réaume, Faculty of Law, University of Toronto

In the blogosphere, we’re advised not to respond to outrageous comments. "Don't feed the trolls" we're told; "they’re only trying to get a rise out of you"; "ignore them and they'll go away". Good advice, when the troll is an angry misfit holed up in his basement, but when the troll happens to be the Prime Minister, what's one to do? It should be obvious by now that Prime Minister Harper and the Conservative Party are exploiting the niqab issue to play to their political base and attract a few votes by stoking fear and division.

One wants to respond with rational argument. The arguments are straightforward. One wants to call the Prime Minister on his hypocrisy. His government’s record of anti-woman policies is clear.

Response seems necessary, but there is reason to fear that any response, no matter how measured and sound, risks feeding the trolls. Every plea for greater understanding, every appeal to our better nature, every effort to set the record straight is used to as evidence that the “barbarians” are not merely at the gates, but have breached them. Already the Prime Troll has announced an intention to ban niqab-wearing women from public service jobs.

The Constitutionality of Administrative Monetary Penalties: Defining the punitive paradigm

The Supreme Court of Canada released its anticipated decision in Guindon v. Canada[i]on July 31, 2015, which held that administrative monetary penalties ("AMPs") under section 163.2 of the Income Tax Act (the "ITA")[ii] are not offences that trigger constitutional protections such as the right to be presumed innocent.

Other AMPs schemes and the punitive paradigm

The door is still open for constitutional challenges to the myriad of other AMPs if they fall within the 'punitive paradigm'.  In Guindon, the Supreme Court observed that "[a] monetary penalty may or may not be a true penal consequence" and "[i]t will be so when it is, in purpose or effect, punitive."[iii]  Where a penalty's purpose or effect is punitive, this will trigger Charter[iv]rights.  The Court articulated a balancing test to determine whether an outcome is punitive:

The New Integrity Regime in Canada – Revised Debarment Rules still too strict?

On July 3rd, 2015, the Canadian government announced a new Integrity Framework (the “Integrity Regime”), which applies to all federal procurement and debars suppliers who have been convicted of “integrity offences” from contracting with the federal government for 10 years.  A supplier may have its ineligibility period reduced by five years, if they meet the new disjunctive test and demonstrate that they: 

  • cooperated with law enforcement authorities; or
  • have undertaken remedial action(s) to address the wrongdoing.

“ Integrity offences”  include

Being a migrant isn’t a crime and mental illness should not be punished

Canada routinely detains undocumented migrants, often in holding centres and sometimes in maximum security jails.  This includes non-citizens who are extremely vulnerable: asylum-seekers, torture survivors, and those who have serious mental health issues.

The number of non-citizens held in immigration detention in Canada has been steadily climbing in recent years. In 2013, over 7300 non-citizens were held in detention in Canada for some period of time, and over 60% of detentions occur in Ontario.  Almost a third of migrants are detained in provincial jails, most often co-mingled with the general prison population. 

IWe are not speaking of non-citizens who have been charged with a crime, tried before a judge, convicted, and serving a criminal sentence. The migrants in detention may have been on their way into Canada as refugee claimants, or on their way out of Canada because they have been ordered to leave. A Canada Border Services Agency (CBSA) officer unilaterally decides whether to order detention, usually on grounds that the person needs to be held in custody to facilitate imminent deportation, and/or out of concern that the person might ‘go underground’.  But deportation may turn out not to be imminent because the country of origin refuses to issue travel documents, or is so conflict-ridden that it is unsafe to send anyone there.  The end result: detainees are sometimes jailed for months and years.

The Promise and Peril of Adapting the Regulatory System to the Pharmacogenomic Context: New Paper McGill Journal of Law and Health

Recent years has seen growing hype around pharmacogenomics—the study of the influence that genetic factors have on drug response—and its alleged revolutionary impact on the practice of medicine. Part of the expanding field of personalized medicine, pharmacogenomics is said to show promise for helping to diagnose disease, identify people at risk of disease, and fine-tune treatments. Drug companies are developing an interest in increasing the efficacy of their products by developing companion diagnostic tests that can stratify patient populations according to genetic predisposition to respond to drug therapies. Part of the reason for the interest in pharmacogenomics also appears to be profit-related: many of the highly specialized drugs pushed through the regulatory system in the context of personalized medicine come with an extraordinary price tag, which raises questions about the affordability of this drug development model. In earlier papers, we already explored the significant issues associated with the move towards niche markets (see this paper), and the use of ‘orphan-drug’ designation to speed up drug approval and extend monopoly-like protections (see this paper).

Penalties that do not Punish: Administrative Monetary Penalties Under the Canadian Anti Spam Legislation

University of Toronto philosophy professor Joseph Heath argues for a reinstatement of rationality in social and political discourse in his new book, Enlightenment 2.0.[1]   This book provides modern examples of statements by politicians that are not based on proper factual or logical foundations.

We could use some rational logic  in the world of administrative monetary penalties. The new Canadian Anti Spam Law, (CASL)[2] is enforced by a  maximum administrative  penalty (AMP) of $1,000,000 in the case of an individual, and $10,000,000 in the case of any other person.  AMPs defy logic in two significant ways. 

First, CASL states explicitly under the heading of "Administrative Monetary Penalties",  "Violations" and the "purpose of penalty" that  "the purpose of a penalty is to promote compliance with this Act and not to punish."[3]   .   The proposition that penalties do not punish not only defies logic  but also violates basic rule of the English language.  Penalty is defined as "A punishment imposed for breaking a law, rule, or contract."[4]  

Minnesota Legislature Must Hold Hearings on Psychiatric Research Misconduct

By Trudo Lemmens, Raymond DeVries, Lois Shepherd and Susan M. Reverby (this op-ed was originally published on April 28, 2015 in the Minnesota Post)

(The following commentary was also signed by 159 scholars of health law, bioethics, medicine and pharmacy from institutions in the U.S., Canada, Australia, New Zealand, the UK, and other countries. Their names and affiliations are listed in a document attached to the Minnesota Post commentary. Earlier UofT Law blogs already reported on the initiatives and controversies mentioned in this commentary. See here)

As scholars of health law, bioethics and medicine, we are calling on the Minnesota Legislature to conduct public hearings on psychiatric research misconduct at the University of Minnesota.

Respect the weight of 800 years of law in Khadr bail


Portrait of Audrey Macklin


This oped by law scholar Prof. Audrey Macklin, commenting on Canadian Omar Khadr's release on bail pending his appeal, appeared in the print and online versions of the Globe and Mail today. Read the full commentary online here, or below.


Respect the weight of 800 years of law in Khadr bail

By Audrey Macklin, Professor & Chair in Human Rights Law

One Million Dollar Fine Confirms the Shift of Corporate Criminal Liability From the Boardroom to Middle Managers

On April 17, 2015, Justice Tôth of the Quebec Superior Court imposed a one million dollar fine on a corporation found guilty of price fixing in the case of R. c. Pétroles Global inc ("Global Fuels"). This case is important because it affirms that corporations will be penalized for the actions of middle level territory managers, even where there is no evidence that the head office of the company was aware of the misconduct.