What Counts As Evidence in the Polarized Euthanasia/Assisted Dying Debate: Lessons from a Belgian Criminal Case

In the context of the rapidly expanding, largely unbridled, #euthanasia #MAID practice in Canada, some MAID expansionists continue to deny that there are problems, notwithstanding accumulating reports of euthanasia for lack of social support and adequate health care. They often employ the rhetoric of 'anecdotes are not evidence', with some even naively pointing to a lack of successful prosecution. A critical analysis of a unique Belgian criminal case involving euthanasia by colleagues Marc De Hert, Sien Loos, Sigrid Sterckx,  Eric Thys, and Kristof Van Assche of the Universities of Leuven, Antwerpen, and Gent, is in that context uniquely valuable. See hereafter my JOTWELL review discussing why it should be read, particularly also in the context of the Canadian debate:

Statement by Canadian jurists on proposed transformation of Israel's legal system

Statement by Canadian jurists on proposed transformation of Israel's legal system

The undersigned are Canadian law professors and jurists. We write out of concern that recent proposals to transform Israel’s legal system will weaken democratic governance, undermine the rule of law, jeopardize the independence of the judiciary, impair the protection of human rights, and diminish the international respect currently accorded to Israeli legal institutions.

In the aftermath of the Holocaust and the other atrocities of the Second World War, the great project of legal reform throughout the world has been the establishment of systems of rights that protect human dignity. These systems exemplify the definitive legal repudiation of those (and similar) horrific events. Canadian and Israeli jurists have been partners in this project at the judicial, professional, and academic levels for decades. The transformation sponsored by the Israeli government would constitute a retrograde step that endangers the legal structure for protecting human dignity in Israel.

Parliament is not forced by the courts to legalize MAID for mental illness : Law Professors' Letter to Cabinet

Justice Minister David Lametti announced today the introduction of a bill which would delay by one year, until March 2024, the scheduled implementation of MAID for sole reasons of mental illness. Until today, the federal government had repeatedly suggested it was bound by 'the courts' to expand MAID and to make MAID also available for persons whose sole underlying medical condition is mental illness. Minister Lametti even stated in an interview for a recent investigative documentary of CBC's The Fifth Estate, which revealed troubling components of the current MAID practice, that the Supreme Court had recognized 'a right to suicide' and that MAID was a 'species of suicide'. He made similar statements in an interview for a podcast with Althia Raj of the Toronto Star. With some colleagues of other law faculties, we drafted a letter to Prime Minister Trudeau, Ministers Lametti, Duclos, Qualtrough and Bennett, to challenge this problematic and in our view unfounded rhetoric of 'our hands are tied by the courts'.

Thrilla in Manila

Thrilla in Manila 

It may not be “Smokin’ Joe” v. The Louisville Lip”. But hopefully MacIntosh v. Waitzer may supply at least some dry-as-dust securities lawyers with a moment or two's entertainment. 

In his second attack on my defense of Heather Zordel’s appointment as Chair of the OSC Board of Directors, Ed Waitzer not only claims that I repeatedly miss the mark, but that I do so in a way that would embarrass any reasonably savvy law student. He even says that I was “disingenuous”. Hmmm.

In fact, it is Ed who, like Sancho Panza, continues to tilt at windmills. In his initial critique, Ed stated “As the Globe article noted, following a negative recommendation of five of the eight part-time commissioners, in early 2021 Heather Zordel was not reappointed by the Ontario government as a part-time commissioner”.  In his second critique, Ed continues to deny that this tells the reader that Ms. Zordel was deliberately not re-appointed (as opposed to taking herself out of the running because of her busy legal practice). He says “I simply observed that her appointment was not renewed (and, in very short order, she re-applied). Words matter.”

OSC appointment fuss is a tempest in a teapot

The following first appeared in the National Post, Jul 25, 2022  

Ed Waitzer’s recent op-ed (“The issue at the OSC is integrity, not debate,” July 14, 2022) expresses surprise and disappointment in my recent op-ed (“Conflict at the OSC: Why the regulator needs to make room for dissent,” July 7, 2022). In that op-ed, I argued that lawyer Heather Zordel’s appointment as non-executive chair of the OSC in March of this year should be met with open arms, as it introduces new points of view into what seems to be a rather intellectually closed shop. I don’t suppose it will come as a shock to Ed Waitzer or anyone else that I am surprised and disappointed at his rebuttal.

To begin with, it contains a number of inaccuracies. It states that Ms. Zordel was denied reappointment to her earlier position (2019-2021) as part-time commissioner. In fact, given her busy legal practice, she took herself out of the running. This puts a rather different complexion on the matter.

Conflict at the OSC — Why the regulator needs to make room for dissent

 The following originally appeared in the National Post, July 7, 2022

Much heat has been generated lately about what’s going on at the Ontario Securities Commission, but, tragically, little light. 

The government’s appointment of Heather Zordel as non-executive chair of the OSC in March has raised some razor-sharp hackles. The Globe and Mail published a story on June 25 that relayed many pious and unflattering incantations related to Zordel’s allegedly questionable behaviour in her previous incarnation as a part-time commissioner at the OSC. Two former part-time commissioners who served with Zordel — Lorie Haber and Craig Hayman — were said to have resigned in protest of her appointment. Readers learned that five of eight part-time commissioners opposed the renewal of Zordel’s place among their ranks.

One of the bones of contention seems to be Zordel’s tendency to occasionally disagree with her fellow commissioners, taking a different view of what protecting investors entails. For example, her critics and the Globe thought it important to highlight that OSC records show Zordel was responsible for “two of only three dissents in OSC enforcement proceedings over the past decade.” 

B.C.’s law allowing directors to be appointed without a shareholder meeting must be changed

B.C.’s law allowing directors to be appointed without a shareholder meeting must be changed

(first published in the Globe and Mail, November 10, 2021)

The goings-on at Rogers Communications Inc. with two competing boards contending for mastery, demonstrates how corporate governance can sometimes resemble a blood sport.

We now have a winner in the battle of the boards, with Edward Rogers coming out on top. Last Friday, Justice Shelley Fitzpatrick of the B.C. Supreme Court held that Mr. Rogers was fully entitled to remove and replace five directors by an instrument in writing signed only by him. Christmas dinner with the Rogers will never be the same.

There are, however, a number of troubling aspects of this decision.

Mr. Rogers’s opponents argued that the outcome of the case should depend not only on the company’s constitution and its interaction with the governing legislation (the Business Corporations Act in British Columbia, where Rogers Communications is registered).

Rather, his opponents argued, the court should have regard to a reasonable shareholder expectation that company directors would only be removed and/or replaced as they always had been in the past: at a shareholders meeting.

These shareholder expectations were furthered by Rogers Communications’ repeated public statements that it is committed to “good” or “sound” corporate governance practices.

Governance issues loom large in Rogers court ruling

 The following first appeared in the Globe and Mail, November 2, 2021

The internecine strife in full swing at one of the country’s largest corporate megalodons has spilled out into the streets. This reality show pits Edward Rogers against his mother and two sisters (all of whom are directors of Rogers Communications) and the five “independent” directors on the Rogers board. There’s much more at stake, however, than tabloid-style prurient interest. Important issues of corporate governance loom large.

A key issue is whether Edward Rogers (who controls 97.5 per cent of the votes) had the power to unilaterally remove the five independent directors and replace them with his own nominees – both ostensibly effected by a written resolution signed only by him.

If Rogers was incorporated in any province other than British Columbia, the answer would be an unambiguous no. Under the federal template (the Canada Business Corporations Act), which has been adopted by most of the provinces and territories, removal of directors can only occur by a majority shareholder resolution passed at a shareholders meeting, or by a resolution in writing signed by all shareholders entitled to vote.

COVID-19: An Unsympathetic Predator

Covid-19: An Unsympathetic Predator

Just when we thought we had Covid cornered, it seems to have executed a delicate Cabriolé and is now poised to begin the dance anew. 

Covid cases have been rising dramatically in many parts of the world, including Canada. In Ontario, in the last half of July, the incidence of new daily cases fell as low as 119, and the 7-day moving average to 157. As of August 31, however, new cases per day stood at 656 and the 7-day moving average at 701. The increase in cases puts Ontario into a position roughly similar to that in June of this year, and substantially higher than one year ago. 

The culprit? At last in part, the Delta variant. Delta exhibits far higher viral loads than other strains and is on the order of twice as transmissible. It is responsible for new outbreaks in India, the UK, South Africa,  the United States, Asia, and elsewhere. While Delta currently constitutes only about 3.6% of all Covid cases in Ontario, Toronto is the country’s leading Delta “hot spot”, and it seems likely that it will not be long before we are jumping on the Delta bandwagon.