New Bill Medical Assistance in Dying Balances Competing Charter Rights; Prior Review Still Needed

The Canadian government just released its bill on Medical Assistance in Dying, in response to the Carter decision. The Government wisely decided that a criminal law prohibition should remain in place, but that in exceptional circumstances, medical acts that hasten a person's death are exempted from the criminal prohibition.  The Bill is emphasizing the importance of balancing competing Charter rights: the right for some people in exceptional circumstances to obtain active medical support for a life ending intervention (justified under Carter under the right to life, liberty and security of the person) and the right of those who are vulnerable and require our protection and full support, which--as Dianne Pothier aptly demonstrates--is associated with the Right to Life and Security of the Person and the Right to Equality. The access criteria reflect an appropriate balance, which was missing from previous reports that nearly exclusively focused on 'access' and individual choice, that ignored how contextual factors contribute to vulnerability, and that ignored growing evidence of problems in open-ended access regimes.

Canadians Support a More Prudent Approach to Medical-Aid-in-Dying than Parliamentary Committee, and Rightly So

Just when the federal government is about to table its bill on medically-hastened-death (or medical-aid-in-dying, physician-assisted dying, euthanasia, or physician-assisted-suicide), a new extensive poll of what Canadians want to see in new legislation suggests that Canadians support a more prudent approach than the open-ended access approach put forward by the Joint Parliamentary Committee (JPC) report and, prior to that, a Provincial-Territorial Expert Advisory Group (PTEAG) report. Canadians continue to support access to ‘physician assisted suicide’ (PAS), the term used in the poll, but a majority (51.8%) opposes the idea of providing access to PAS when the request is based on psychiatric conditions and purely psychological suffering. A majority also appears opposed to PAS for mature minors (in the poll: 16 to 17 year olds).  The 1,000 people polled were also asked about what they preferred as review mechanism. 59% of those polled support the recommendation by the committee of a review by two physicians, while 41 % supports a review by a ‘panel of independent experts’.

Joint Parliamentary Committee Assisted Dying Report Goes Beyond Scope, Ignores Evidence

This blog post follows my earlier posting about Balancing Access to Physician Assisted Dying and Protecting the Vulnerable

The following op-ed with David Baker was first published on the Globe and Mail website on February 27, 2016. We also added a short note in relation to attempts by some colleagues to impose changes to our text after publication.

Assisted Dying Report Goes Beyond Scope, Ignores Evidence

David Baker and Trudo Lemmens

Published Globe and Mail Saturday, Feb. 27, 2016

David Baker is a constitutional lawyer who represented the national disability groups in Rodriguez and Carter. Trudo Lemmens is Professor and Scholl Chair in Health Law and Policy at the Faculty of Law of the University of Toronto

Balancing Access to Physician Assisted Dying with Protecting the Vulnerable

The federal government is currently working on legislation that responds to the Supreme Court’s Carter v. Canada (AG) decision, in which the Court invalidated an absolute prohibition on physician assisted dying and invited the legislator to develop a “carefully designed and monitored system of safeguards.” The Carter decision declared the criminal prohibition void insofar it prohibits physician assisted dying for a “competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” The Court provided no further detail about how to implement these ‘parameters’, and stated explicitly: “the scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.” The case involved people who were terminally ill and/or, in the words of the trial judge in the case, people with “advanced weakening capacities with no chance of improvement.” In fact, at the trial level the claim made by the British Columbia Civil Liberties Association was also narrowly framed as a claim to recognize the right to physician assisted dying of those “who are suffering unbearably at the end of life.”

The Success Stories of Dual Class Shares Miss an Incontrovertible Truth - The Globe and Mail Feb 22, 2016

Dual class share structures are fundamentally unfair: they leave the subordinate shareholders unprotected and cry out for a response from securities regulators. Proponents of such structures call up the success stories – like Fairfax or Onex – but rarely do they focus on the incontrovertible truth that dual class share structures undermine corporate governance standards because the subordinate shareholders carry a lopsided share of the economic risk in the firm relative to their ability to influence the affairs of the corporation through their vote.

In particular, these shareholders cannot elect directors, approve financial statements, appoint auditors or ensure change through their vote. Their rights are meaningless in the face of the proportionately greater economic risk that they bear. Dual class structures thus undermine existing accountability mechanisms in the corporate statute. Because the jurisdiction of securities regulators is founded on investor protection and the public interest, dual class share structures should be further regulated, if not prohibited, in capital markets.

A Bailout won't Fix Bombardier's Biggest Problems - The National Post February 29, 2016

Many alternatives regarding the way forward for troubled Bombardier Inc. have been proposed. The Quebec government has already committed $1.3 billion in aid and now some type of moral argument is being levelled at Ottawa to throw money into Bombardier’s cap also. This is a very bad idea from a governance perspective, as well as a taxpayer perspective.

Let’s be clear about Bombardier’s governance reality: The Bombardier/Beaudoin families hold almost 60 per cent of voting power in the corporation, despite holding an economic interest of just one-quarter of that figure. This is a dual-class-share firm that just isn’t flying.

A federal bailout would place a billion or more taxpayer dollars in the hands of family that is insulated from governance accountability because of the corporate structure that it has chosen. This insulation and lack of accountability have not been good for the company. Over the past five years, Bombardier’s stock price has declined more than 75 per cent. Why should Canadian taxpayers be on the hook for Bombardier’s poor corporate governance?

When early self reporting pays off

Kenneth Jull is an adjunct faculty member at the Faculty of Law.

In the anti-corruption field in Canada, the two leading cases are Niko and Griffiths Energy, which involved fines in the $10 million range following pleas of guilty.  The newest Canadian case is Nordion Canada Inc., but this case sends a different message.  Early self-reporting in this case was explicitly acknowledged in a settlement with the U.S. Securities and Exchange Commission (“SEC”) and may have been a factor in a decision by the RCMP to not proceed with any charges under the Canadian Corruption of Foreign Public Officials Act.[1]

The SEC Order, released on March 3, 2016, states that the Commission considered remedial acts promptly undertaken by Nordion, Nordion’s self-reporting, and their cooperation afforded  the Commission staff.  “Nordion self-reported the conduct to authorities in both the U.S. and Canada, conducted a thorough internal review, identified the illegal conduct, voluntarily produced witnesses from Canada for interviews in the U.S. and translated documents, and implemented substantial remedial measures to prevent future violations.”[2] 

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: