Science & the Law by LawNow

November/December 2008

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The Intersection of

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Have you always harboured a secret desire to see your name in print? Is there a legal issue that burns in your brain, and you would like to write about? LawNow welcomes new contributors. We would love to hear from you. For this volume of LawNow, we are still looking for contributors for the following themes: • Law in a Wired World • Ofﬁcers of Parliament: Who are they and what do they do? • Law and Small Businesses • Hope for the Future: Legal Projects around the world. We also welcome your suggestions for other topics or for our columns. If you are interested in contributing on any of these themes, please contact: Teresa Mitchell Editor, LawNow teresa.mitchell@ualberta.ca

Volume 33, Issue 2

Feature on Science and the Law 7 The Intersection of Science and Law

Connie Mah Sometimes when science and law intersect, there can be controversies!

11 Carbon Capture and Storage: Silver Bullet or Legal Liability?

Jodie Hierlmeier and Meagan Johnston There are some complex legal issues to be worked out befoe Carbon Capture and Storage can work.

14 A Dead Person May Tell No Tales

Brian Seaman Science solved a mystery: a newborn's blood sample helped to convict her killer twenty years later.

18 Genetically Speaking, You Are What You Eat

Karine Morin The stunning advancements in the world of science push the law to keep up!

Departments 4 Viewpoint 6 Today's Trial

The scientific study of nutrigenomics affects the food we eat and the law must evolve to keep pace.

21 In the Public Interest? Changes to the Rules for Advertising NonPrescription Drugs

Elizabeth Robertson Canadians need to know about changes to the laws controlling the advertising of non-prescription drugs.

Special Report on Specialized Courts 29 Drug Treatment Court: Not a Free Ride

Columns 39 Human Rights Law 41 Online Law 42 Criminal Law 44 Not for ProďŹ t Law 46 Law and Literature

Nicole Lachance This new initiative can make a difference in people's lives, and save the taxpayer money!

35 Mental Health Courts

Mark Reiksts Mental health courts strive to be "problem-solving courts" by focusing on the individual.

37 An Aboriginal Court for New Brunswick

Josephine Savarese The time has come for New Brunswick to create an Aboriginal Court.

School's In Cover photo credit: ÂŠ Piotr Kozikowski | Dreamstime.com

25 Science, Technology and the Law: The Harvard Mouse Case

Lorine Sweeney November/December 2008

The contents of this publication are intended as general legal information only and should not form the basis for legal advice of any kind. Opinions and views expressed are those of the writers and do not necessarily reflect the opinion of the Legal Resource Centre of Alberta Ltd. Permission to reproduce material from LawNow may be granted on request.

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Publisher Diane Rhyason

Christopher Bird

Editor/Legal Writer Teresa Mitchell Production Manager Lesley Conley Production Assistant/Photo Editor Kristy Rhyason Editorial Assistant Karen Klak Illustrator Melanie Eastley

The American Supreme Court Shows The Danger of a Politicized Appointment Process

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Canada’s Supreme Courts’ selection process has been criticized in recent years for being absolutist and undemocratic. This criticism lies, at least in part, in the fact that Canadians have as their close comparison for matters judicial the United States, whose well-known Supreme Court judicial appointment process causes a media firestorm every time a seat becomes available. However, looking at the most recent terms of the United States Supreme Court – characterized by the New York Times as a “more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small” – we can more apparently see the flaw in politicizing the judicial selection process as the United States has done. The two most recent justices appointed to the American Supreme Court, namely John Roberts and Samuel Alito, were both characterized during their nomination process as center-right moderates. The most recent term has revealed both justices to be far more conservative than advertised. Justice Alito and Chief Justice Roberts united with Justice Clarence Thomas and Justice Antonin Scalia to form a four-man sharply conservative block of justices. With Justice Anthony Kennedy, a slightly conservative moderate who provided the vast majority of decisive votes in two terms characterized by a high number of 5-4 decisions, these justices: • ruled against affirmative action in racial makeup of student bodies in public schools (Parents v. Seattle and Meredith v. Jefferson), • overturned existing caselaw to uphold the Partial-Birth Abortion Ban Act (Gonzales v. Carhart and Gonzales v. Planned Parenthood),

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The two most recent justices appointed to the American Supreme Court, namely John Roberts and Samuel Alito, were both characterized during their nomination processes as centre-right moderates. The most recent term has revealed both justices to be far more conservative than advertised.

The financial assistance of the Muttart Foundation is gratefully acknowledged.

November/December 2008

Canada’s tradition of mostly centrist jurisprudence at the Supreme Court level seems, by comparison, to be much more levelheaded, and this is a result largely attributable to a selection process that, whatever its flaws, has tended in the past to be primarily apolitical and most concerned with good jurisprudence rather than with ideological conformity.

• made it more difficult for employees to sue their employers over discriminatory payment practices (Ledbetter v. Goodyear), • loosened restrictions on campaign finance law (Federal Election Commission v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life), • ruled that taxpayers could not sue to block funding for faith-based initiatives (Hein v. Freedom From Religion Foundation), • made it easier for prosecutors to remove potential jurors who appeared uncertain about being willing to issue the death penalty (Uttecht v. Brown), • affirmed the individual right to own a firearm (District of Columbia v. Heller), and • overturned a 96-year-old ban on price floors and other forms of minimum pricing agreements, previously considered to violate antitrust law (Leegin v. PSKS). Even on those occasions where Justice Kennedy voted with the Court’s more liberal bloc (Justices Stevens, Ginsburg, Souter and Breyer), more often than not, the conservative wing stayed intact to issue a four-person minority in cases like Massachusetts v. E.P.A., where the majority found that the Environmental Protection Agency did have a responsibility to consider carbon dioxide a pollutant, or Boumediene v. Bush, where the majority upheld the rights of Guantanamo detainees to challenge their detention in American courts. Canada’s tradition of mostly centrist jurisprudence at the Supreme Court level seems, by comparison, to be much more levelheaded, and this is a result largely attributable to a selection process that, whatever its flaws, has tended in the past to be primarily apolitical and most concerned with good jurisprudence rather than with ideological conformity. This is not to say that Canadian jurisprudence cannot divide the Supreme Court along idelogical lines (R. v. D.B. is example enough of that), but when such instances occur, they tend to be more happenstance than in the United States, where the politicized selection process increasingly tends to reward doctrinaire thinkers over true judicial centrists. This is an element of our judicial selection process that we should strive to protect; our court’s ideological flexibility is one of its greatest strengths.

U.S. Supreme Court building

This article is reprinted from the website “The Court” a project of the Osgoode Hall Law School, under a Creative Commons License Deed.

Today’s Trial Teresa Mitchell

Maybe it was the soggy weather that affected most of Canada in the summer of 2008. The Supreme Court of Canada churned out a quantity of important and significant decisions over the summer months; perhaps the judges thought that if it was raining they might as well stay in town and work! Three interesting judgments dealt with the area of employment law. On June 27 the Court released its decision in the case of Honda Canada Inc. v. Keays. This decision shocked many corporate and employment lawyers when a Ontario Superior Court judge awarded employee Kevin Keays damages equal to a 15-month notice period, boosted it to a 24-month notice period as aggravated damages, and added a further $500,000 in punitive damages because he ruled that Honda Canada was guilty of discrimination, harassment, and misconduct in the way that it handled Mr. Keays’ dismissal. The Supreme Court of Canada ruled that aggravated damages and punitive damages should not have been awarded in this case. It wrote that in the employment law context, damages resulting from the manner of dismissal can be awarded where the employer engages in conduct that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.” But in this case, the Court said, the employer’s conduct did not amount to an egregious display of bad faith justifying an award of damages for the way the dismissal was handled. In addition, the Court ruled that punitive damages should not have been awarded. It wrote: “Punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own…Courts should only resort to punitive damages in exceptional cases and the employer’s conduct here was not sufficiently egregious or outrageous to warrant such damages.” It set aside the awards for both punitive and aggravated damages.

On July 17 the Court released its decision in the case of Hydro-Quebec v. Syndicat des employe-es. This case looked at the duty of an employer to accommodate an employee and at what point this duty becomes an undue hardship. The employee suffered from a variety of illnesses and had missed about 960 days of work over 6 ½ years. The Quebec Court of Appeal had set aside the employee’s dismissal, stating that the company had not tried hard enough to accommodate her. The Supreme Court of Canada stated that an employer has a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. However, it wrote: “The test for undue hardship is not total unfitness for work in the foreseeable future. If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test.” The Supreme Court upheld an arbitrator’s decision stating that the dismissal of the employee was justified. On August 1, the Supreme Court of Canada released another interesting decision dealing with employment. In City of Montreal v. Quebec, Commission des droits de la personne, a woman who applied to be a police officer was rejected at the initial stage of the selection process because she had pled guilty to a shoplifting charge when she was 21 years old. Under the Criminal Records Act, she had received an automatic pardon, since three years had elapsed since her conditional discharge. However, the police force maintained that under the Police Act, she was not “of good moral character” and therefore did not meet its hiring criteria. She alleged discrimination under the Quebec Charter of Human Rights and Freedoms. Section 18(2) of that Charter states:

“No one may dismiss, refuse to hire or otherwise penalize a person in his employment owing to the mere fact that he was convicted of a penal or criminal offence, if the offence was in no way connected with the employment or if the person has obtained a pardon for the offence.” Six of the Supreme Court Justices agreed with the complainant. The majority wrote: “A conviction, or in the case of a discharge, a finding of guilt ‘should’ no longer reflect adversely on a person’s character following a pardon.” However, the Court also stated that “A pardon does not erase the past.” An employer is entitled, in evaluating a candidate, to consider the facts that resulted in a finding of guilt. Justice Deschamps wrote: “To justify an objection on moral character, the employer’s inquiry must uncover conduct or facts, that, when considered in light of the circumstances in which the person committed the crime for which the pardon was obtained, support a conclusion that this person is unfit for the job.” If the employer can meet that standard, then it may reject the candidate. In this case, the Supreme Court of Canada upheld the decision of the Quebec Court of Appeal that the applicant had been discriminated against under s. 18(2) of the Quebec Charter. It found that the employer had rejected the applicant on the sole basis of her conviction, and had not made the necessary examination of facts that would show that the applicant did not have the requisite moral character for the job for which she applied. 1. Honda Canada Inc. v. Keays, 2008 SCC 39 2. Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFPFTQ), 2008 SCC 43 3. Montréal (City) v. Québec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48

November/December 2008

The Intersection of Science and Law

ÂŠ Dmitry Kuznetsov | Dreamstime.com

Feature Report on Science and the Law

Connie Mah

The law in Canada, with its origins in British law, has historically been described as a living tree. This description is meant to reflect that the law is not stagnant and fixed. Instead, the law is continually evolving to reflect the changes in acceptable norms and standards of behaviors. How do science and the law interact? As scientific developments often change our behaviors and activities, including sometimes creating new ones not previously possible, it is not surprising that the law must evolve to address concerns raised by scientific developments. Scientific developments encompass a broad range from the commonplace use of cell phones, to the development of new life forms such as the Harvard mouse, and the ongoing developments in stem cell research. Different scientific developments create different impacts on society, from affecting the risk of individual personal safety and health to raising ethical

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and moral concerns. Thus, scientific developments often impact society, requiring the evolution of the law to address societal concerns.

Banning Cell Phone Use While Driving Today, cell phone use is so ubiquitous it is difficult to recall the time when we did not have a phone literally at our fingertips day and night. Indeed, our 16-year old children likely do not have any memory of the time before cell phones or even before cordless phones. At the other end of the spectrum, even my 70-something mother acquired and learned to use a cell phone as effectively as anyone else. And yet, even ten years ago, cell phones were still generally the size of a cordless phone and certainly not in widespread use. This scientific development in technology has now created a society where it often feels as if every man, woman, and child routinely carries a cell phone. The combination of the ubiquitous cell phone and

The legal debate involving the Harvard mouse is primarily focused on whether life forms can be patented (or put another way, whether patent protection should be granted with respect to life forms).

Newfoundland, Nova Scotia, and Quebec; while other provinces such as Alberta are considering implementing similar legislation. Cell phone technology has advanced to include text messaging and Internet access. Developments in wireless communications have led to the widespread use of iPhones and BlackBerrys. All of these wireless communication devices affect driver distraction.

Should Patents Be Available for New Life Forms Created by Science? the increased pace and multi-tasking of our current society has led to the common use of the cell phone while driving. This is an example of an issue that causes science and the law to interact. Specifically, the legal debate surrounding cell phone use focuses on whether legislation should be created to ban their use while driving. Research has shown that any distraction while driving increases the risk of collision by four to six times. Similar to driving while impaired with a blood-alcohol level over the legal limit, cell phone use impacts driver reaction time by 18% and makes it ten times more likely that the driver will fail to stop at stop signs. Clearly, cell phone use while driving has a significant potential effect on the risk of injury or death of the driver and/or other motorists and passengers. In Canada, three provinces have already passed legislation to restrict cell phone use while driving:

Scientific developments involving biotechnology have led to the controversy of ethics versus economic benefits, which in turn leads to a legal debate. An example of a development in biotechnology resulting in legal ramifications is the invention of a new life form called the oncomouse or the Harvard mouse. The Harvard mouse is a genetically engineered mouse designed for cancer research using a technique designed by Philip Leder and Timothy A. Stewart of Harvard University in the United States (U.S.). They created a laboratory mouse that was susceptible to developing cancer, thereby making it an invaluable research tool. The Harvard mouse is created by injecting a gene known to cause cancer into a fertilized animal egg and then surgically implanting the egg into the mother so it can be brought to term. When born, the result is a â&#x20AC;&#x153;transgenicâ&#x20AC;? animal (meaning a transfer of genes from one animal to another) because the mouse has traits attributable to the injected gene. Therefore, the transgenic mice have been genetically modified, constituting a new life form. As the transgenic mice are susceptible to developing cancer, it is invaluable for use to research the sources and causes of cancer, which may lead to developing treatments. Consequently, the design of the scientific technique to create the Harvard mouse raises ethical questions: whether scientists should use biotechnology to create new life forms or alter existing ones. The debate consequently revolves around the sanctity of life versus the commodification of life. There are also ethical concerns regarding possible developments of cloning and issues of cruelty to animals. Intertwined with these ethical concerns is a debate about whether inventors of such techniques should profit financially by being awarded patents under the law. The legal debate involving the Harvard mouse is primarily focused on whether life forms can be patented (or put another way, whether patent protection should be granted with respect to life forms). Due to the nature of patent law (the patent protection as a right granted to the inventor), the viewpoint in favour of granting patents invariably rests on economic arguments. The economic argument in favor of expanding

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the law to allow patents to be granted for a scientific development such as the Harvard mouse center on the assertion that patents stimulate the growth of industry. From the economic perspective, transgenic animals have great commercial value in the related fields of biotechnology and medicine, in the pharmaceutical industry, and in agriculture. In addition, the economic argument asserts that biotechnical advances benefit public health by reducing costs. The required research is expensive and therefore the availability of patent protection acts as an incentive to researchers. The economic and ethical controversies of scientific developments such as the invention of a new life form like the Harvard mouse directly resulted in a new development in U.S. patent law. It was based on analyzing three tenets: novelty, utility, and nonobviousness. The doctrine of “products-of-nature” operated to bar patents from being issued where there was no invention, which was interpreted to mean inventions involving living matter. But, in 1980, the U.S. Supreme Court rendered a decision in a case (Diamond v. Chakrabarty) relating to the patentability of a bacterium capable of breaking down crude oil. The U.S. Supreme Court ruled that the language of the relevant U.S. patent legislation was broad and therefore included living micro-organisms, which effectively expanded U.S. patent law to include living matter. Then, in 1988 a patent was granted in the U.S. for the scientific technique that created the Harvard mouse, which was the first patent issued in the U.S. for a mammal. Rights to the invention were thus recognized by U.S. law. Previously, U.S. law only permitted patents for select lower life forms such as microbes and plants, and excluded higher life forms such as mammals, from patentability. U.S. patent law was therefore changed to include the scientific development of the Harvard mouse. Soon thereafter, patent applications for the Harvard mouse were filed in Canada, Japan, and in Europe. Although Japan and Europe granted patent protection, by contrast, Canada did not. The Supreme Court of Canada (SCC) took a different approach when a patent petition was filed for the Harvard mouse in 2002. It concluded the Harvard mouse was not patentable. In a 5-4 split decision, the majority of the SCC noted that although the federal Patent Act was broad, it was not intended to include higher life forms and therefore it failed to address the unique concerns of patenting higher life forms. The majority of the SCC concluded the Harvard mouse failed to meet the definition of invention in the Patent Act. It further concluded the patentability of higher life forms must

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… patent applications for the Harvard mouse were filed in Canada, Japan, and in Europe. Although Japan and Europe granted patent protection, by contrast, Canada did not.

be made by clear and unambiguous direction from the Canadian Parliament. The Court essentially invited Parliament to draft new legislation. Like the U.S., Canada had previously permitted patents for lower life forms such as single-celled organisms or bacterium which were bio-engineered. However, unlike the U.S., Canada’s top court took a different legal approach by refusing to read into the existing patent legislation the ability to patent higher life forms.

Legislating Stem Cell Research Scientific developments such as stem cell research also create great ethical, moral, and legal controversies. What are stem cells? Stem cells are the raw cells that develop into the 210 different kinds of tissue in the human body. Stem cells are in the pre-specialized stage and, as such, they can theoretically be developed for specific uses such as to form cells for blood, muscle, nerves, and so forth. This potential of stem cells is the basis for the hope that stem cell research will lead to developing treatments for a variety of ailments such as Parkinson’s Disease, Alzheimer’s Disease, diabetes, heart disease, spinal cord injuries, and so forth, as these diseases involve either the death or dysfunction of specific types of cells. So, the theory is that if researchers can inject healthy stem cells into the patient, the patient may improve. Why is stem cell research so controversial? There are three sources of extracting stem cells: • from adult bone marrow; • from the umbilical cord after childbirth; and • from embryos from about one week old (but less than 14 days). It is thought that embryonic stem cells have the greatest potential for scientific research. In 1988, two research teams in the U.S. isolated and cultured stem cells from human embryos and fetuses. With respect to obtaining stem cells from embryos, the main controversy erupts from the fact the embryo must be destroyed in the process of extracting the stem cells, resulting in legal and ethical concerns. In addition, there are three sources of embryonic stem cells: embryos donated from an in vitro fertilization process as either excess embryos determined to be unsuitable; embryos specifically created for research;

The controversy surrounding stem cell research is great, and the legal approaches taken internationally have been varied.

and cloned embryos from human cells. Clearly, there are many legal implications arising from embryonic stem cell research. Firstly, there is a debate about whether an embryo is entitled to the protection of the law. This is similar to the abortion debate in that the issue is: when does an embryo become a person under the law? If it is a person, then to obtain its stem cells might contravene existing criminal law. The nature of embryonic stem cell research from embryos donated from the in vitro process necessitates new laws which at the very least regulate this new scientific process to ensure the protection of the health, welfare and confidentiality of the women donating these embryos, including the protection of vulnerable individuals and preventing the commodification of human eggs. These new laws would need to adopt legal principles from other areas of the law, which would apply to the process of obtaining embryos by donation from the in vitro process and governing the use of such embryos for research purposes such as: • informed consent of the donor; • protection against conflict of interest between the donor’s treatment team and the individual being granted the donor’s consent;

• prohibition against any financial inducements; • protection of donor privacy and confidentiality; and • regulations to ensure safe procedures. The controversy surrounding stem cell research is great, and the legal approaches taken internationally have been varied. The United Kingdom (U.K.), Belgium, and Sweden allow all forms of stem cell research. In 2001 the UK amended its legislation to permit the destruction of embryos for stem cell research but only if the research satisfied one of three conditions: it increases knowledge of the development of embryos; it increases knowledge about serious diseases; or it enables such knowledge to be applied to develop treatments for serious diseases. In addition, China has an unrestrictive embryonic stem cell research policy, but strictly forbids any research on human reproductive cloning. Other countries have restricted various aspects of stem cell research. Countries such as Austria, Ireland, and Poland have prohibited all forms of stem cell research. Germany and Italy have criminalized only the extraction of stem cells from embryos, but permit other stem cell research. In the U.S., the debate respecting stem cell research appears to focus primarily on whether or not public funds should be used.

Conclusion These examples illustrate how science interacts with the law. If the law is a living tree, then scientific developments can be seen as new branches and leaves, changing the structure of the law to address societal concerns. Connie L. Mah is a lawyer practising in Edmonton, Alberta

November/December 2008

Feature Report on Science and the Law

Carbon Capture and Storage: Silver Bullet or Legal Liability? Jodie Hierlmeier and Meagan Johnston The climate change challenge facing every nation is how to make deep reductions in greenhouse gas emissions (GHGs) without dampening economic progress. This is a daunting task given the direct linkages between economic growth, fossil fuel consumption, and GHG emissions. Enter carbon capture and storage (CCS) – now emerging as a vital component in many climate change plans, as it offers a way to reduce GHGs without giving up fossil fuels. CCS has become the cornerstone of Canada’s federal climate change plan, as well as a key aspect of several provincial strategies. Although our federal government has yet to regulate GHGs, it has signaled that large GHG emitters such as oil sands facilities and coal-fired plants starting up in 2012 must be CCS-ready. A government task force has estimated that CCS could eliminate roughly 40% of Canada’s GHG emissions by 2050. Alberta is counting on CCS to deliver a staggering 70% of the province’s GHG reductions by 2050 and has recently pledged $2 billion to kick-start development. Saskatchewan has also backed CCS and is home to the Weyburn Project, one of the few CCS pilot projects in Canada. It’s easy to see why both politicians and industry view CCS as an attractive option. It offers a technological solution to GHG emissions that does not force people to change their behaviour or their reliance on fossil fuels. It has market value too: it’s

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attractive to industry and governments which envisage continuing profits and royalties from fossil fuel production. CCS is an “end-of-pipe” technology that can be retrofitted into current facilities and it can also be built into new and future facilities. For a price, it allows carbon intensive activities to expand, while carbon emissions fall. As promising as it sounds, CCS is not a silver bullet. For one thing, the technology for capturing carbon is largely unproven at a commercial scale. There is also the cost associated with implementing the technology. CCS will require billions of dollars of capital cost investment in addition to the ongoing added costs of running CCS-equipped facilities. Debates are already raging as to who will pay for this infrastructure: industry or government?

It’s easy to see why both politicians and industry view CCS as an attractive option. It offers a technological solution to GHG emissions that does not force people to change their behaviour or their reliance on fossil fuels.

Current laws were not drafted with CCS in mind, so there are gaps and ambiguities that must be dealt with if CCS is to be seriously pursued.

Placing the issues of commercial feasibility and cost aside, CCS also presents a complex range of legal uncertainties that have yet to be resolved. Current laws were not drafted with CCS in mind, so there are gaps and ambiguities that must be dealt with if CCS is to be seriously pursued. Some of these legal uncertainties relate to property rights and liability for CCS projects.

What is CCS? While the technology for CCS is complex, its principles are simple. Carbon dioxide (CO2) emissions from large industrial facilities are captured, compressed, transported through pipelines and injected deep underground into geological formations for permanent storage. Possible geological storage sites include depleted oil and gas reservoirs, deep saline aquifers, unmineable coal beds, and salt caverns. Much of Canada’s storage potential is found in the vast depleted reservoirs throughout the Western Canadian Sedimentary Basin in British Columbia, Alberta, and Saskatchewan, but potential also exists in Ontario, and offshore in the Atlantic provinces.

Property rights: who owns what? To make a difference in the fight against climate change, CCS will have to capture and store many billions of tonnes of CO2. This raises many questions in relation to access and property rights for the areas in which the CO2 is injected and stored. There are at least four areas where property rights remain unresolved: • the granting of CO2 dispositions; • pore space ownership; • surface land access; and • ownership of the CO2 itself.

… there are ownership issues with the carbon itself. It is not clear who owns the rights to the injected CO2. In the context of natural gas, title to injected gas is typically not lost by its injection into an underground reservoir for storage purposes. The same considerations may apply to injected CO2

In a number of jurisdictions, notably British Columbia, Alberta, and Saskatchewan, the Crown owns the majority of the oil, natural gas, and other mineral resources in the province. Most jurisdictions have regulations setting out how the Crown grants mineral rights (called mineral dispositions) to private operators. The Crown typically does this by issuing licences or leases to the highest bidder. However, there are currently no regulations in place for the disposition of CO2. New regulations or revisions to existing regulations would be required for the Crown to grant CO2 dispositions, as well as to determine the rights and obligations of disposition holders, set a term for the disposition, possibly set fees and rental rates, address conflicts with other disposition holders (for example, if the CO2 disposal restricts the ability to extract adjacent minerals), and assign priorities for CO2 storage vis-à-vis mineral extraction. Pore space ownership is another issue that needs to be addressed. Currently, operators purchase mineral leases from the Crown, giving them the right to extract the minerals that occupy the pore space within a formation. It remains unclear, however, who owns the actual pore space in the formation. Ownership may reside either with the surface owner or with the owner of the mineral rights (which in most western provinces is usually the Crown). In any event, existing oil and gas regulations would need to be revised to confirm ownership of the pore space before the broad deployment of CCS could occur. A CCS regime would also have to resolve the rights of surface owners with the access needs of operators who want to dispose of the CO2. Amendments would have to be made to existing surface rights legislation to clarify how access for CO2 injection and storage would be obtained, what type of compensation would accompany that access, and how that compensation would be calculated. Lastly, there are ownership issues with the carbon itself. It is not clear who owns the rights to the injected CO2. In the context of natural gas, title to injected gas is typically not lost by its injection into an underground reservoir for storage purposes. The same considerations may apply to injected CO2, although the length of time required for the storage of CO2 extends well beyond that of natural gas. Due to the fact that CO2 may have to be stored in perpetuity, many industry proponents argue that ownership should transfer to the government. In any case, well-defined ownership rights will be necessary to facilitate long-term stewardship of CO2 and to assign liability in the event of a leak.

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Liability: who is responsible? That leads us to the most critical legal issue facing CCS projects: liability. Liability issues associated with CCS can be divided into short-term and longterm issues, with the majority of debate centered around long-term storage of CO2. Issues related to short-term liablities arise in relation to environmental, health, and safety risks associated with capturing, transporting, and injecting CO2. These issues are similar to those already dealt with by the oil and gas industry and therefore they could likely be addressed within existing legal regimes. Long-term liability is much more controversial. CCS projects need to store CO2 for hundreds or even thousands of years. Someone will have to assume responsibility for this long-term storage far into the future, much beyond the typical liability time frames that operators are held to today. This raises the question of who will be responsible and for how long. Should operators be liable in perpetuity, or should liability transfer to the Crown? The answer to this question will impact the costs of CCS projects, determine whether major industry players will invest in CCS projects, and be crucial in advancing public acceptance of this technology and process. Although every province has some regime to deal with environmental liability, these regimes are likely insufficient to meet the long time frames unique to CCS. New laws or regulations specific to CCS would need to be created to address issues such as: who will be liable; what penalties will be imposed in case of a leak; can liability be transferred; how will long-term monitoring and management be financed; and which regulatory agency will oversee these responsiblities?

Conclusions It is very tempting to rely heavily on CCS to mitigate climate change. But most governments and business leaders would agree that a host of strategies is needed to get us to a low carbon future. CCS may be one of those strategies, but it is not the strategy to accomplish this task.

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CCS projects need to store CO2 for hundreds or even thousands of years. Someone will have to assume responsibility for this long-term storage far into the future, much beyond the typical liability time frames that operators are held to today. Critics of CCS argue that it promotes a “business as usual” approach to the climate change crisis. It allows us to continue to build coal-fired plants and ramp up production in the oil sands while relying on a “technofix” to ensure that our carbon producing ways do not lead to catastrophic climate change. It may also detract funding and attention away from other approaches to dealing with climate change such as renewable energy and energy efficiency. Even if CCS is a possibility, there are still many major impediments to its implementation. In addition to questions regarding its commercial viability and cost, CCS is plagued with legal uncertainties. Until these legal issues, particularly issues of long-term liability, are resolved, it is doubtful that industry will be willing to invest heavily in this process. All of these concerns with CCS highlight the fact that there is no silver bullet to solve the climate crisis. No amount of funding and political will can overcome the need to fundamentally alter our cycle of carbon dependency.

That leads us to the most critical legal issue facing CCS projects: liability. Liability issues associated with CCS can be divided into short-term and long-term issues, with the majority of the debate centered around longterm storage of CO2.

Jodie Hierlmeier is Staff Counsel and Meagan Johnston was a summer research assistant with the Environmental Law Centre in Edmonton, Alberta.

Feature Report on Science and the Law

Marlborough Sound

A Dead Person May Tell No Tales … but some hair and a few drops of blood will. Brian Seaman The sea may present the opportunity to commit the perfect crime, provided nobody witnesses the killings or how the bodies are disposed of. Weigh them down with weights or a chain, dump them overboard in deep water, and let the fish and powerful ocean currents take care of the rest. Without bodies, where’s the physical evidence of murder? Ten years ago, the attention of many New Zealanders was riveted on what started as a missing persons’ investigation. Two young people disappeared following a New Year’s Eve party at an isolated vacation lodge called Furneaux Lodge. That line of inquiry quickly became a murder investigation that would culminate in the arrest, trial, and eventual conviction of a boat owner named Scott Watson for the murders

of Olivia Hope, 17, and Ben Smart, 21. However, the “Marlborough Sounds Murders” – so-called because the crimes supposedly occurred in or near an area of New Zealand called Marlborough Sounds – generated controversy at the time, and continue to generate speculation as to what happened to this day. In a country of breath-taking beauty, the sparsely populated Marlborough Sounds on the northern tip of New Zealand’s South Island stands out as a region of particular appeal to pleasure boaters. Countless coves and uninhabited islands define the rugged landscape of this region, and many of the cliffside houses and tiny settlements are accessible only by boat. The area is known to New Zealand’s “yachties” as a great place to sail and for providing many hidden shores

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or protected inlets for discreet partying. On December 31, 1997, about 1500 people of various ages were onshore at Furneaux Lodge to ring in the New Year, and almost 200 pleasure craft of various shapes and sizes lay anchored in the surrounding harbour. When the two young people failed to return to their respective homes by the evening of January 1st and had failed to call, two worried sets of parents – after talking with friends and Olivia’s sister who’d been at the party – decided to wait the night out, hoping the missing pair would turn up the next day. Late in the afternoon of January 2nd they called the police to report them missing. Police then began the daunting task of taking statements from hundreds of people, most of whom had already sailed and had to be tracked down days or even weeks later. From these hundreds of statements – many of them unhelpful or contradictory and most of them from people whose memories of what they saw or heard that night were, by their own admission, impaired by alcohol – prosecutors would have to piece together a largely circumstantial case to put to a jury one year later. Securing a double murder conviction based only on witness recollections and only on Watson’s actions would probably not have been possible. Those recollections were often contradictory. For example, there were a handful of water taxi drivers ferrying people from boats to shore and back again all night. One driver said he ferried a man who looked like Scott Watson back to a single-masted sailboat around 2:00 a.m. Watson told police that he recalled taking a water taxi around 2:00 a.m. back to his boat, where he fixed himself something to eat and then passed out for the night. However, other witnesses saw Watson get involved in a shoving match with some teenage boys on shore around 3:30 a.m. that was broken up before it escalated into a fight. A second water taxi driver recalled picking up five people around 4:00 a.m. – Hope and Smart, another couple, and a lone male who he would identify as Watson at trial. Years later, he would recant, saying the man had longer hair than Watson, was scruffier-looking, and that he’d been tricked by the police into identifying this man as Watson. The water taxi driver said that he’d only consumed two or three gin coolers all night, so was one of the few sober, or relatively sober, witnesses still awake. He described the vessel that he saw Scott Watson and the two young people board as a ketch, which is a two-masted sailing vessel. However, police suspicion fell instead on a onemasted vessel called Blade and Watson – its owner. There was evidence that all the hard surfaces of the cabin had been cleaned within days of the disappearances, and even cassette cases inside the cabin had been wiped clean. The cover for one of

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The “Marlborough Sounds Murders” – so-called because the crimes supposedly occurred in or near an area of New Zealand called Marlborough Sounds – generated controversy at the time, and continue to generate speculation as to what happened to this day.

the large cushions in the cabin was missing. Pieces of the cabin cushions themselves had been cut away and were missing. Clothing that Watson had worn the night of the party was missing and he could not account for its whereabouts. Police had independent reports from three different witnesses of hearing screaming and shouting some time between 4:00 a.m. and 5:00 a.m. from somewhere among the estimated 200 vessels at anchor. The witnesses said the voice was male. Witnesses saw Blade sailing out of harbour at dawn on New Year’s Day, a curious – indeed irresponsible – thing to do for somebody who would still be intoxicated from having consumed copious amounts of alcohol up until only two hours or so before. Furthermore, Watson gave his vessel a paint job a few days later, an act that would probably by itself have meant little, as there was independent evidence that Watson had earlier stated an intention to paint his boat in the New Year. However, investigators’ notes later referred to Watson as being evasive about his movements on the night in question and in response to queries about his actions in the following days. When Blade was seized and searched, forensics investigators found what appeared to be blood stains on a blanket in the cabin and blood smears on a cabin wall and on the bathroom door. They seized the blanket and, when examined in the crime lab, two strands of long, blond hair were found along with about 400 other hair fibres. The hair strands, fibres, and other tissue were sent to the Institute of Environmental Science in Auckland for analysis, along with hair taken from Olivia’s comb and bedding at her family home, and pubic hair taken from a pair of Ben’s underwear obtained at his family home. A DNA analysis was undertaken and compared to a DNA analysis of a reference blood sample taken from Scott Watson. It was determined that the staining on the blanket was indeed blood, that it was a male’s, and that it could be Watson’s. However a DNA analysis of the blood smears from the cabin wall and the door was inconclusive. With regard to the hair fibres, most were dark-col-

Blood spots stored on Guthrie cards helped secure a double murder conviction in the 1998 disappearance of New Zealanders Ben Smart and Olivia Hope. Their bodies have never been found.

The answer lay in something that occurred when Olivia Hope was only two or three days old. New Zealand, like most other developed countries, has had an infant screening programme in place for four decades.

oured. Since both Watson and Ben Smart had hair very similar in colour, to run a DNA test of each of those almost 400 fibres would have taken several months at a significant cost. A decision was made to focus on the reference sample from Olivia Hope. When a visual comparison under microscope of the blond hair found on the blanket was made with hair taken from Hope’s comb and bedding, they looked similar. However, a visual comparison hardly constitutes proof of anything. The best source for DNA would be blood; the roots of the blond hair found at the probable crime scene would provide a relatively fresh source for the crime lab scientists to come up with a DNA profile. However, where might the forensic scientists obtain a sample of blood for testing and comparison purposes that could more definitely put Olivia Hope in Watson’s cabin? The answer lay in something that occurred when Olivia Hope was only two or three days old. New

The blood spots are stored on cards colloquially known as Guthrie cards, in recognition of Dr. Guthrie’s enormous contribution to health care. The length of time these cards are stored varies from country to country, and even from jurisdiction to jurisdiction within a country.

Zealand, like most other developed countries, has had an infant screening programme in place for four decades. A few drops of blood are taken from babies by way of a heel prick, and then screened for a number of rare, but treatable, genetic or metabolic disorders. This blood screening procedure was pioneered by a United States microbiologist named Robert Guthrie, who discovered a way to test newborn infants for a disorder called phenylketonuria (PKU). This genetic disorder occurs in approximately one in every 10,000 to 20,000 Caucasians and Asians (the incidence is far less in Africans but as high as one in 4500 of persons of Irish ethnicity). The body of a baby with PKU is unable to metabolize an essential amino acid called phenylalanine. Amino acids are necessary chemical substances for the production of protein, which is necessary for normal cell growth and development. Left untreated, the baby will develop cranial deformities accompanied by neurocognitive impairment. However, when detected by screening, the condition is treatable by way of a special diet. The blood spots are stored on cards colloquially known as Guthrie cards, in recognition of Dr. Guthrie’s enormous contribution to health care. The length of time these cards are stored varies from country to country, and even from jurisdiction to jurisdiction within a country. In New Zealand, these blood samples are stored indefinitely in cold storage as part of the country’s national health care policy. Third party access to them is permitted only in the narrowest of circumstances, as in the case of Olivia Hope, to enable the police, subject to a warrant, to identify a missing person or human remains that cannot otherwise be identified. With regard to the two blond strands taken from Watson’s cabin, a DNA profile was obtained from the root of one of them and then compared to the DNA profile from Hope’s heel prick test. A forensic scientist found five matching characteristics in the DNA chains of the two samples, which led him to conclude that the hair was probably that of Olivia Hope. The New Zealand forensic scientist at the Institute of Environmental Science did a statistical analysis of the results based on a database of the general New Zealand population. She was able to conclude that the DNA extracted from the hair root was 28,000 times more likely to have come from Olivia Hope than from another fair-haired female randomly chosen from the New Zealand population. The third and final stage in the DNA analysis occurred when the two hair shafts from Watson’s boat were sent to the Forensic Science Service laboratory in the United Kingdom to test for mitochondrial DNA, which is a type of DNA passed only from mother to daughter.

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This result came back positive; the hair was definitely a female’s. The only reasonable conclusion would be that, unless Scott Watson was extremely unlucky for two of Olivia Hope’s hairs to have somehow arrived on a blanket on his boat by way of the wind or some chance encounter at some point during that party, the odds of her not being on Blade at some time that night were 28,000 to one. On September 11, 1999, after almost 21 hours of deliberating, a jury found Scott Watson guilty of the murders of Olivia Hope and Ben Smart. Watson, who did not take the stand in his defence, and who was reported to have maintained a stoic demeanour throughout much of his three-month-long trial, is reported to have looked at the jury after the foreman read the verdict and quietly said: “you’re wrong.” He was subsequently sentenced to life in prison without parole. A spate of books and a documentary film ensued, with various persons coming forth over the years with alternative theories about what happened. These included suggestions that the young couple were killed by drug smugglers after inadvertently stumbling upon a cache of cocaine or they were just a pair of young people madly in love who left New Zealand to get away from Olivia’s domineering father. Some even suggested the police deliberately chose to ignore the mystery ketch in order to construct a case against Watson, who was reputed to have an unsavoury reputation. One interesting postscript was the discovery after the trial of two objects on the floor of Cook Strait – a body of water separating New Zealand’s North and South islands that is notorious for bad storms and treacherous currents and whirlpools. Documents obtained by a New Zealand newspaper under the Official Information Act revealed that the two senior New Zealand police force commanders who led the Hope-Smart murder investigation had sought approval for a more detailed search of the seabed near Tory Channel. The request was based on results from a naval sonar search of the area that had located two distinct “targets” out of approximately 50 objects it found. The navy reported finding two targets at a distance of about 20 metres apart, with an associated drag mark on the floor to indicate a possible link between them. The confidential naval report said: “It has been concluded that the targets are unlikely to be a natural event. The targets are surrounded by mud or a semi-hard surface and appear to be depressions created by a man-made event.” New Zealand Police Detective Senior Sergeant John Rae, second-in-command of the murder investigation, wrote that the estimated size of the targets could indicate that one is a weight attached to another larger object.

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A nurse takes a few drops of blood from the heel of a newborn baby. The blood will be screened for various disorders, including phenylketonuria (PKU).

One interesting postscript was the discovery after the trial of two objects on the floor of Cook Strait – a body of water separating New Zealand’s North and South islands that is notorious for bad storms and treacherous currents and whirlpools

The sleeping bag that Olivia Hope was seen carrying as she got off the water taxi on January 1, 1998 has never been recovered. Nor were the weights and anchor chain from Blade. Brian Seaman is a Research Associate with the Alberta Civil Liberties Research Centre in Calgary, Alberta. The author is grateful for the assistance of Ian Wishart, a New Zealand journalist who, with Jayson Rhoades, wrote Ben and Olivia: What Really Happened? (Howling at the Moon Publishing, 1999) and Detective Senior Sergeant John Rae of the New Zealand Police. Any errors or omissions, and the opinions expressed in this piece, are the author’s own.

Feature Report on Science and the Law

Genetically Speaking, You are What You Eat Karine Morin, LL.M. The old adage “You are what you eat” may not seem like a convincing scientific theory. Everyone can think of individuals with poor eating habits who lived “healthy” lives and died of conditions not directly linked to nutrition, as well as individuals with exemplary diets who nevertheless suffered from cardio-vascular diseases or other conditions related to nutrition. Scientists have been working on this

Canadian researchers have made important contributions to this field. In 2006, Ahmed El-Sohemy, a Canada Research Chair in nutrigenomics based at the University of Toronto, was amongst a group of researchers who, in an article published in the Journal of the American Medical Association, provided much insight into the potential effect of caffeine on heart disease.

puzzle ever since, over two centuries ago, advances in chemistry made it possible to identify the main elements of foods, and better understand the physiology of digestion. But to this day, the myriad results related to nutrition and health published in scientific journals and reported in the mainstream media don’t seem to present a clear and coherent picture. Rather, it is one filled with contradictions. Who can keep up with the latest claim regarding the Mediterranean diet, the Atkins diet, the raw food diet? Is red wine good for the heart, or not? Can it prevent cancer? What about white wine? These questions, as so many more in the life sciences, are being asked anew through genomic lenses. First came the discovery of the structure of DNA in 1953, then the American-led initiative to map the human genome in the late 1980s, and more recently

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the publication of draft maps in the journals Nature and Science in February 2001 by, respectively, the publicly funded Human Genome Project and researchers from the biotech company Celera headed by Craig Venter. Because of these breakthroughs, today’s nutritional scientists have new tools to better understand the interaction between diet and genes. Dietary advice tailored to match an individual’s genotype has the potential to help prevent or mitigate common diseases, and optimize health. Nutritional genomics, the study of how dietary components affect the genome including responses based on individual genetic variations, is a specialized discipline devoted to these inquiries. Canadian researchers have made important contributions to this field. In 2006, Ahmed El-Sohemy, a Canada Research Chair in nutrigenomics based at the University of Toronto, was amongst a group of researchers who, in an article published in the Journal of the American Medical Association, provided much insight into the potential effect of caffeine on heart disease. Looking at a key gene involved in metabolizing caffeine, they were able to differentiate between individuals with a particular variation of the gene that made them “fast” metabolizers and those with another variant who were “slow” metabolizers. Coffee drinking represents an increased risk of heart disease only for the latter. Until these findings, evidence was conflicted as to whether coffee drinking increased the risk of heart disease. Other research at the University of Toronto has shown that variants of a gene active in the pancreas play a role in the average daily consumption of sugar. Results suggest that some individuals have a genetically impaired ability to detect changes in blood sugar, which in turn affects their sugar consumption. On the basis of such scientific findings, nutrigenomic pioneers have begun offering tests beyond the research laboratory directly to the public. Their services can be found through the Internet, where they claim that by analyzing a select number of genes involved in functions such as detoxification, antioxidant capacity, insulin sensitivity, and inflammation, along with answers to a lifestyle questionnaire, they are able to make individualized recommendations regarding a health-promoting diet. However, these tests, along with genetic susceptibility testing meant to identify the risk of disease, have been under considerable regulatory scrutiny. Without the involvement of a health care professional as a learned intermediary, there are fears that lay individuals may misunderstand the results and make rash decisions about their health care, overlook certain options, or not properly follow the advice that is offered.

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A similar distinction exists in the U.S., where some have advocated for regulatory reforms that would mandate that all genetic tests be assessed for safety and effectiveness by the Food and Drug Administration prior to their entry onto the market-place.

Other risks that are often mentioned include the possibility that the confidentiality of test results will be breached, or that the privacy of individuals who are tested will be violated. To reduce these risks, the U.S. recently passed the Genetic Information Non-discrimination Act (GINA). Canadian federal or provincial privacy laws also may serve as protection. Finally, it has been noted that some nutrigenetic testing companies sell supplements, which could mean that the tests are a bait to induce consumers into purchasing expensive products that are of little value. However, it is not clear that the arguments made against genetic susceptibility tests can also be made against nutrigenetic testing and related dietary recommendations. For the latter, truly harmful consequences are unlikely, and inaction after obtaining test results amounts to little more than wasted money. Therefore, when it comes to nutrigenetic tests, the balance of risks and benefits does not appear to be the same as with other genetic tests. Nevertheless, some researchers and regulators are worried that these tests are entering the market without appropriate scientific validation. Under the Canadian Medical Devices Regulations, all devices are categorized in one of four classes according to the risks they may present. Requirements demonstrating the safety and effectiveness of a product are more stringent for higher risk categories. While genetic tests would likely be categorized along with other in vitro diagnostic tests in class III, thereby requiring considerable evidence of safety and effectiveness prior to licensing, there is

Other risks that are often mentioned include the possibility that the confidentiality of test results will be breached, or that the privacy of individuals who are tested will be violated.

Traditionally, under Canadian law, there has been a sharp distinction between foods, and drugs or other therapeutic products. Until recently, claims related to health could only be made regarding the latter.

an important distinction which limits the scope of the Regulations: they apply only to test kits that are products sold commercially (for example, at-home pregnancy tests), and not to testing services provided by a laboratory, which fall under a separate oversight regime. A similar distinction exists in the U.S., where some have advocated for regulatory reforms that would mandate that all genetic tests be assessed for safety and effectiveness by the Food and Drug Administration prior to their entry onto the market-place. A test would have to be vetted both for its analytical validity (its accuracy and reliability) and for its clinical validity (its ability to detect or predict the risk of a condition in a patient). Some also claim that the net balance of risks and benefits associated with using a test in routine practice, its clinical utility, should be established before widespread use, but this may require more data than can realistically be collected during the research stage. There is another important way in which nutrigenomics may have an impact on health: the modification of food products which, ultimately, could be promoted to genetically-targeted populations. This could mean more functional foods such as yogurts with probiotics, omega-3 enriched eggs, or spreads and salad dressings with plant sterols and stanols to reduce cholesterol; more nutraceuticals such as lycopene, isoflavones and other bioactive nutrients extracted from foods offered as gels, tablets or powders; and various doses of supplements all accompanied by health claims that are substantiated by genomic data. For example, a particular variation of the “MTHFR” gene, which interacts with folate, causes changes in enzyme activity. This in turn may have repercussions such as increasing the risk of developmental defects as well as increasing protective effects against certain cancers. Nutrigenomics helps to distinguish these types of genetic responses and could help target them selectively. From the perspective of food regulators, this could represent a formidable challenge in terms of assessing the health claims found on labels. Traditionally, under

Canadian law, there has been a sharp distinction between foods, and drugs or other therapeutic products. Until recently, claims related to health could only be made regarding the latter. Changes began appearing approximately a decade ago when statements related to “healthy eating” were addressed under the Guide to Food Labelling and Advertising. In 2003, the Food and Drug Regulations began allowing food manufacturers to submit claims related to the reduction of disease risk or to health functions. But to this day, only a limited number of claims regarding dietary components and their impact on health have been scientifically vetted and accepted. Moreover, statements are strictly scripted in the conditional so as not to promise results: “A healthy diet containing foods high in potassium and low in sodium may reduce the risk of high blood pressure, a risk factor for stroke and heart disease.” Other disease risk reduction claims relate calcium and Vitamin D to osteoporosis, saturated and trans fat to heart disease, and vegetables and fruits to some types of cancers. Such blanket statements are unlikely to be equally valid for all genotypes. But before individuals can access comprehensive and reliable nutrigenetic testing, before regulators permit labeling that differentiates health benefits according to genotypes, and before manufacturers can gain commercial advantages by developing food products on the basis of nutrigenomics, many skeptics of the genomic revolution will have to be persuaded that even though 99.9% nucleotide bases are exactly the same in all people, the small differences that do exist between us really matter when we sit down to eat. As businesses, policy makers, regulators, and ordinary citizens contemplate this new facet of the life sciences and its application to one of our favorite activities, eating, some will instinctively call for hurdles in the way of change; others will embrace the prospect of living healthier lives through adjustments in their diets. Canada is considering proposals for a new life-cycle framework to licensure as part of a reform of the Food and Drugs Act, with the aim of becoming more proactive and transparent in protecting the health of Canadians. It will be critical that the new genomic reality be taken into account not only in relation to drugs and other therapeutic products, but also in relation to foods. Proponents of nutrigenomics can hope regulators will have the stomach to consider their input. Karine Morin is a Research Associate at the University of Ottawa, where her work focuses on biotechnology. Previously, she was the Director of Ethics Policy at the American Medical Association.

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Feature Report on Science and the Law

In the Public Interest? ÂŠ Piotr Kozikowski | Dreamstime.com

Changes to the Rules for Advertising Non-Prescription Drugs in Canada

Canadians are exposed to a barrage of drug advertising everyday on television and in the print media. Recent changes to federal legislation have expanded the claims allowed to be made in advertising by manufacturers of natural health products and over-thecounter drugs. Legal and ethical issues are raised by this relaxation of permitted advertising. The new federal regulations allow manufacturers of natural health products and many over-thecounter drugs to advertise that their products will prevent disease in relation to a list of serious diseases contained in the Food and Drugs Act. In order to understand the impact of this change, it is necessary to understand the regulatory regime with respect to drug advertising in Canada. In brief, Canada restricts advertising with respect to food, drugs, cosmetics, and medical devices under s. 3 of the Food and Drugs Act for a list of conditions found in Schedule A. Until the present changes, manufacturers were not allowed to claim that their products could prevent, treat, or cure any disease on the list. For diseases or disorders not on the list, manufacturers of non-prescription drugs or natural health products have always been able to advertise their products as preventatives, treatments or cures, providing they comply with other safeguards. Schedule A includes, for example, diseases which pose a serious health risk or limit a personâ&#x20AC;&#x2122;s ability to make health care decisions. Other illnesses are included because they pose a public health risk or because they are recently recognized disorders where it is unclear whether self-treatment is appropriate. In all cases, diseases in Schedule A require treatment by a

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Elizabeth Robertson health care professional. The list of disorders in Schedule A includes, most notably: cancer, heart disease, sexually transmitted diseases, obesity, hypertension, acute infectious respiratory disorders, acute psychotic conditions, and diabetes. Historically, the rationale behind the advertising restrictions has been to prevent fraud and protect consumers. The new regulations partially lift this ban by allowing preventative claims for natural health products and many over-the-counter drugs. Health Canada has justified the change in terms of the current health care environment in which consumers increasingly wish to take control of their own health and actively participate in health care decisions. As well, Canadians are demonstrating a greater interest in alternative health care. Thus, the theory is that allowing the advertising of preventative claims will increase the amount of self-help information available to Canadians. Health Canada maintains that other safeguards currently in place will ensure that Canadians are not presented with misleading or false preventative advertising claims. To advertise a preventative claim, manufacturers will required submit scientific evidence and have the wording used in labelling and advertising

approved by Health Canada. With respect to natural health products, when advertising preventative claims, manufacturers will be required to supply evidence beyond traditional use with supporting human clinical evidence of efficacy and safety. Further, any preventative advertising claims will continue to be subject to ss. 5, 9 and 20 of the Food and Drugs Act which prohibit false, deceptive or misleading labelling and advertising. Allowing advertising of preventative claims for Schedule A diseases represents a major policy shift away from the historical emphasis on protecting vulnerable consumers in advertising directed at serious diseases. The prohibition on advertising preventative claims, which included claims of risk reduction, has been in place since 1953. Undoubtedly, the expansion of allowable advertising for natural health products and over-the-counter drugs will be good for business. Bayer Canada has publicly applauded the regulatory change. In the U.S., heavily advertised prescription drugs result in significantly increased sales. Studies in the U.S. have shown that patient demand for advertised drugs has resulted in increased prescriptions by physicians. Allowing advertising of preventative claims raises a number of issues, such as concerns that the advertising will not be educational, may not be effectively monitored by Health Canada, and may lead to delays in treatment for serious illnesses. There is a danger that the preventative claim advertising will not educate the public and, even worse, may be false and misleading. Drug advertising can lead consumers to believe that the drugs are safe. A California survey found that 43% of respondents believed that only drugs that were completely safe were allowed to be advertised. This belief is at odds with the fact that in the U.S. about half of prescription drugs are found to have serious health risks after being marketed to the public. A study in the U.S. of magazine advertising for prescription drugs found that, overall, the educational value of the advertising was minimal. The majority of the ads made no mention of risk factors, other possible treatments, or other helpful activities, such as diet or exercise. In Canada, a recent study of articles in Canadian newspapers and magazines discussing alternative treatments for cancer found similar results. The majority of the articles did not contain information on the benefits or risks of the alternative treatments and few articles recommended that a patient talk with a health care professional before using the therapy. The authors concluded that the purpose of the articles appeared to be entertainment rather than the provision of accurate information. Advertising of preventative claims may mislead consumers into believing that the product will not only prevent serious disease, but may also treat or cure

such a disease. This may result in delays in seeking treatment. Allowing natural health products to be advertised as preventatives for serious diseases such as cancer may also lead consumers to believe that the products are conventional medical treatments or leave the impression that the manufacturers are mainstream health professionals. Furthermore, monitoring of advertising by Health Canada may not be adequate. Health Canada has stated that there will be additional staff to ensure compliance with advertising standards. However, evidence suggests that rigorous enforcement has not taken place in the past. As of 2004, no penalties have been imposed on any pharmaceutical company for illegal advertising since 1978. Health Canada has been under pressure from industry and the public to expand the categories of allowable advertising of drugs for some time, and to relax the restrictions on advertising of prescription drugs. In 2005, the Health Quality Council of Canada examined this idea and concluded that lifting the restrictions would not be in the public interest. This was mainly due to the U.S. experience with direct-to-consumer advertising of prescription drugs, which has been criticized as resulting in the overuse of prescription drugs and increased spending on expensive drugs. In addition, the Food and Drug Administration has been criticized for failing to enforce the regulations governing such advertisements. It is suggested here that the recent changes allowing advertising of preventative claims for natural health products and many over-the-counter drugs are also not in the public interest. The educational value of such advertising is likely to be minimal and may also be misleading. Is this expansion the first step in a further relaxation of advertising restrictions, which may ultimately extend to prescription drugs, to allow the advertising of claims to treat or cure serious diseases? Indeed, Bill C-51: An Act to amend the Food and Drugs Act introduced in the spring of 2008 would have removed s. 3 of the Food and Drugs Act which contains the advertising restrictions for Schedule A diseases. This Bill died on the Order Paper when the general election was called on September 7, 2008. It is interesting to note that in the U.S., undoubtedly as a result of the withdrawal of the arthritis drug Vioxx from world markets in 2005, there have been recent calls for limits on drug advertising, particularly for new drugs. In the interest of protecting consumers, the remaining restrictions on advertising for non-prescription drugs and natural health products should remain in place. Elizabeth Robertson is Project Manager/Research Associate, Health Law Institute, Faculty of Law, University of Alberta, Edmonton, Alberta.

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School's In

Science, Technology and the Law

The Harvard Mouse Case

To Students Section 1: The Science Conference Your province is hosting a student science conference where students are invited to showcase their thoughts and ideas involving science, society and the law. Your class has been chosen to participate! Each participating class is required to provide a display using posters, models, diagrams and so on, as well as a technology-enhanced presentation. The presentation must demonstrate that students understand the interrelationships that exist among science, technology, society and the law. As a class, you have decided to showcase issues arising from and relevant to the Harvard Mouse case and transgenic animals (See section 2). Your class has agreed to form small groups and each group will present or “pitch” an idea to the rest of the class. The best group presentation idea will be fully developed by your class and then will be taken to the provincial conference.

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Assignment

Lorine Sweeney

Your group will “sell” a presentation idea to the class. Your job is to convince the class that your idea is the best one to develop and take to the provincial conference.

Assignment Guidelines 1. The idea must arise from reading about the Harvard Mouse case and transgenic animals. 2. The idea must be guided by an essential question that fosters critical thinking. (See examples in Section 3). 3. The presentation idea must show how science, technology, society and the law are connected. 4. The presentation to the class must include: • design ideas for the poster/model section of the display. Examples are compulsory. • a description of the technology-enhanced section of the proposed display. Using technology, you must include a brief example of your proposed technology idea. • the presentation idea must include a list of information sources.

LawNow

Section 2: The Harvard Mouse Case and Transgenic Animals Background Transgenic Animals: Transgenic animals are species that carry one or more genes from another species. The first transgenic organisms were bacteria, and transgenic bacteria are widely used today by pharmaceutical companies. Scientists created the first transgenic animal in the 1970s by implanting an ape gene into a mouse. The mouse produced the ape protein but did not pass the gene to its offspring.

The Harvard Mouse Case The Harvard Mouse case arose from a patent application filed in 1985 for a transgenic mouse whose genetic makeup was altered by a cancer-promoting gene called an “oncogene”. This mouse could pass the oncogene to its offspring.

How does the process work? Scientists at Harvard University invented a process in which they could create “founder mice” that carry a cancer-promoting gene. Here is what happens. 1. A fertilized mouse egg is injected with a cancerpromoting oncogene. 2. The altered egg is implanted into a female host mouse and developed to term. 3. The offspring of the host mouse, called a founder mouse, with all of its cells affected by the oncogene, is mated with an uninjected mouse. 4. Some of the offspring of the second mating are also affected by the oncogene. These mice are born being readily susceptible to cancer. 5. Scientists who work with these altered mice can test their ideas about cancer much more quickly than waiting for mice to develop cancer naturally. 6. The process is very important for humans studying causes and cures of cancer.

Who owns the mice born with purposely altered genes? The President and Fellows of Harvard College set out to patent the process for preparing the affected mice as well as the product (the mouse itself). In the United States, the Harvard scientists got a patent on the process of injecting the oncogene into the fertilized eggs. They also got a second patent on all the mice (the product) that were born with oncogene in their cells.

LawNow

Although the U.S. Courts allowed the patent, the Supreme Court of Canada, because of its interpretation of the definition of invention, held the “Harvard Mouse” to be unpatentable. The Canadian Intellectual Property Office granted Harvard a patent for the oncogene itself and the process of injecting it into the fertilized eggs (the process), but not for the product (the mouse or its offspring). The majority concluded that Parliament did not intend to include higher life forms within the definition of a patent. In so doing, Canada became the first major jurisdiction whose high court has refused to recognize the patentability of higher life forms.

Section 3: Essential Question Examples Use the following questions as examples for forming your own question. Your question will be the foundation of your presentation idea. As you do further reading, more question possibilities will occur to you. 1. What implications are there if scientists are given a patent for higher life forms formed through transgenic animals? 2. To what extent does the ruling of the Harvard Mouse case affect other areas of societal decisions regarding genetically modified plants or animals? 3. To what extent does society benefit from the use of transgenic techniques in animals? To what extent may society be harmed by use of this technique? 4. To what extent do ethical considerations surrounding transgenic animals hinder the research and development of transgenic animals? 5. What should be the definition of a patent, and should it include higher life forms? 6. To what extent should the government be involved in setting the rules for transgenic research? 7. Which group opposed to transgenic research has the most justification? Why? 8. What possible effects will research with transgenic animals have on the Canada’s future? 9. To what extent should society and tax dollars support transgenic research? 10. To what extent does the definition of an “invention” affect transgenic research?

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Section 4: Further Reading The following websites are places to start retrieving ideas about transgenic animals and transgenic research. Complete your research by investigating further sites on your own. As you read, jot down possible questions, or modify the example questions that will form the background for your presentation idea.

• The Canadian Bar Association www.cba.org/cba/ newsletters/ip-2003/ip2.aspx

• North Carolina Association for Biomedical Research www.ncabr.org/biomed/bio_resources/ Rx%20for%20Science%20Literacy,%20Unit%20 III,%20Chapter%203.pdf • Ag West Bio Inc. www.agwest.sk.ca/publications/ agbiotech/abbjun04.pdf

• Judgments of the Supreme Court of Canada http://csc.lexum.umontreal.ca/ en/2002/2002scc76/2002scc76.html

• Cruel Science Research News www.cruelscience. ca/research-news.htm#18

Section 5: Evaluation Rubric Students will use this rubric to evaluate and choose the best idea for the class to develop more thoroughly.

Level Criteria Describes Plan for Poster Area of Presentation

Describes Plan for Technology-Enhanced Area of Presentation

Creates Examples

Proposal reﬂects understanding of interrelationship among science, technology, society, and the law.

Excellent

Proﬁcient

Adequate

Limited *

Provides a precise description

Provides a detailed descrip-

Provides a partial description

Provides an unclear

of the proposed display with

tion of the proposed display

of some of the display ideas

description of the proposed

precise and clear reference to

with clear reference to spe-

with general detail.

display with minimal detail.

speciﬁc detail.

ciﬁc detail.

Provides a precise description

Provides a detailed descrip-

Provides a partial description

Provides an unclear

of the proposed technology-

tion of the proposed technol-

of some of the technology-

description of the proposed

enhanced presentation with

ogy-enhanced presentation

enhanced presentation with

technology-enhanced

precise and clear reference to

with clear reference to spe-

general detail.

presentation with minimal

speciﬁc detail.

ciﬁc detail.

Creates examples that

Creates examples that clearly

Creates examples that

Creates very basic examples

effectively depict key ideas

depict the key ideas in the

partially depict the key ideas

that have little scientiﬁc

in the presentation plan and

presentation plan and that

in the presentation plan,

accuracy and minimally

that vividly enhance audience

explicitly enhances audience

but superﬁcially support

support audience

understanding.

audience understanding.

understanding.

Proposal synthesizes

Proposal summarizes relevant

Proposal reports information

Proposal shares information

pertinent information

information from a variety

from a variety of sources to

of sources to thoroughly

simplistically demonstrate

haphazardly demonstrate

systematically demonstrate

demonstrate understanding

understanding of

of interrelationship among

interrelationship among

science, technology, society,

and the law.

Communicates ideas and

information clearly and

information clearly, using

information using vocabulary

effectively, using speciﬁc

speciﬁc vocabulary that

that does not interfere with

that is incorrect and

vocabulary that is persuasive

is persuasive, but has few

the ﬂow of communication;

interferes with the ﬂow of

and engaging.

engaging elements.

has few persuasive elements

communication; presentation

and is not engaging.

is neither persuasive nor

detail.

and the law.

Presents recommendations

engaging. *Insufﬁcient work may be given no score.

November/December 2008

LawNow

To Teachers This mini-inquiry unit may be used in grades nine to twelve Science or Biology classes. Through the study of transgenic animals – specifically the Harvard Mouse, the lesson invites students to examine how science and technology are closely connected to society and the law. The assignment may be modified to include debate and presentations about genetically modified plants as well as transgenic animals. Curricular outcomes are similar to those found in several high school Biology courses in that students are asked to demonstrate the connectedness of science, technology, and society by engaging in projects such as: • evaluating the use of genetically engineered organisms in agriculture, forestry, and medical research;

• debating the societal and scientific definitions of life; • discussing the Human Genome Project in terms of the needs and benefit to society; and • discussing the implications to society of corporations being able to patent new life forms produced by biotechnology. Note: Most of the information in this article is taken and simplified from the Supreme Court of Canada case Harvard College v.Canada (Commissioner of Patents), 2002. The case can be found on the Supreme Court of Canada website. The citation is Harvard College v. Canada (Commissioner of Patents) 2002 4 SCR 45.

Lorine Sweeney, EdD is an educational speaker and writer with a background in curriculum and instruction.

Coming Fall 2008 Charter Challenges for Grade Six is designed as a teaching and learning resource for grade six students. Students are offered the choice of visiting either the ﬁctional animal land of Adinak or the alien planet of Beebonk. There they explore stories that may be considered unfair, and decide if these situations could be successfully challenged under our existing Canadian Charter of Rights and Freedoms. The stories explore four sections of the Charter. • Mobility Rights • Equality Rights • Search and Seizure • Freedom to Associate

Orion Axel

This series will be available in September. For more information contact info.lrc@ualberta.ca

LawNow

Rufus the Raccoon

November/December 2008

Drug Treatment Court: Not a Free Ride

Special Report on Specialized Courts

Nicole Lachance

At a recent alumni event, one graduate matterof-factly stated that before he entered the program, he was on the streets, breaking into countless cars per day, grabbing things that he could sell to finance his $1,000.00 a day cocaine habit. Another graduate talked about how she had been a solid drug user for more than twenty years; since completing the program she has been able to reconnect with her children. These individuals swear that the Edmonton Drug Treatment and Community Restoration Court (the EDTCRC) has given them their lives back.

What is the EDTCRC all about, and why should we care? The EDTCRC was launched in Edmonton, Alberta in December 2005. The program is funded by Justice Canada and Health Canada’s Drug Strategy Program, as well as provincial government ministries and private donors. Its current yearly budget is $583,000.00. Alberta Justice is also involved in the program.

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Steven Bilodeau, Q.C., the new Chief of the Edmonton Crown Prosecutors’ Office (ECPO), has indicated a desire to enhance Restorative Justice initiatives within the ECPO. To this end, he has recently appointed Dave Hill to the newly created Assistant Chief Crown Prosecutor (ACCP) position. His mandate is to oversee Restorative Justice programs within the ECPO. You might ask yourself, why would the government be spending your hard-earned tax dollars to help criminals beat their drug addictions? Don’t Canadians spend enough money taking care of criminals? What has become clear is that the EDTCRC provides a social return on investment (SROI) of such a magnitude that it really pays for itself, and then some. Here is a brief overview of how it works, and why you should buy into it.

The SROI Numbers Over the course of the past year, Kathleen Quinn

Throughout the program, participants must attend court and meet weekly with the treatment team to discuss their progress. Each week the treatment team produces a report for each participant and there is a pre-court meeting which the judge, members of the treatment team, Crown prosecutors, duty counsel and defence counsel attend.

has been crunching the numbers for the EDTCRC, to determine what value it potentially brings to our community. Her figures are based on the creation of a composite fictional profile of a highly addicted person creating high levels of victimization. She compared the cost for one person to complete one year of EDTCRC versus spending one year in jail. In her calculations, Ms. Quinn attributes 30% of the credit to family support, housing program support and personal motivation, and gives 70% of the credit to the EDTCRC for participants’ success, keeping in mind that $95,000.00 of the EDTCRC’s yearly budget covers residential treatment and counselling. Her findings demonstrate that one successful EDTCRC graduate creates a social value of over $3.00 for every $1.00 invested. The real measure of success is in the year following graduation, where the impact is over $9.00 for every $1.00 invested in that person. She projects a 9.4% recidivism rate among program completers, based on studies of United States drug treatment courts. She contrasted this with a 59% recidivism rate for women released from the Fort Saskatchewan Correctional Centre. The treatment provided to EDTCRC participants during their time in the program, as well as their aftercare through participation in the alumni group, enables graduates to maintain their positive lifestyle. Even taking into account recidivism, the EDTCRC investment provides a solid 3:1 return on investment. This means that for every $1.00 that is invested in the EDTCRC program, $3.00 of social value is created.

Who can beneﬁt from the EDTCRC? Some offenders commit crimes as a way of life, or a means of survival, or because violence is how they deal with the pressures of day to day life. These people are not appropriate candidates for the EDTCRC. Other offenders, however, commit crimes as a means of financing their drug dependency. For these offenders, a jail sentence of whatever length will only cure the problem in the sense that

it will keep them off the streets for the duration of their sentence. However, jail will not solve the underlying problem; as soon as drug addicted offenders are released, they will return to their same haunts, become reacquainted with their former associates, resume their drug use, and the cycle of crime will begin anew.

How can a person apply to the EDTCRC? The EDTCRC is a voluntary program with a maximum of twenty participants at any given time, and there are three stages for each application. Referrals normally originate from defence counsel. Offences pursuant to the Controlled Drugs and Substances Act (CDSA) are prosecuted by the federal Crown’s office, and Criminal Code of Canada (CC) offences are prosecuted by the ECPO. As such, referrals for CDSA charges are vetted by the federal Crown, and CC offence referrals are vetted by the ECPO. The EDTCRC offers both a pre-plea and a postplea option. Pre-plea (Track I) is a diversion option for offenders charged with simple possession of methamphetamine, heroin, cocaine or opiates, who have a drug addiction and no gang connections. Candidates for Track I typically have no prior criminal record, and their current charges would attract a sentence of no more than three months in jail. The prosecutor considers whether the applicant poses a threat to the community. If the drugs were consumed or found in a motor vehicle, Track I is not an option. The post-plea option (Track II) is available to offenders who have been charged with trafficking, possession for the purpose of trafficking, or various CC offences where the underlying cause is a drug addiction. Where the offence involved a young person, the consumption or possession of a drug in a motor vehicle, the offence was committed for commercial gain, or there are gang connections, the offender will not be eligible to apply. When defence counsel makes a referral, the first step is to review the applicant’s current file(s) to determine whether the offences are eligible for the EDTCRC. People accused of trafficking small amounts of methamphetamine, heroin, cocaine, or opiates will be eligible to apply to the EDTCRC, as long as they were trafficking to support their own addiction. The EDTCRC is not for people who are trafficking for commercial use, or dealing in bricks of cocaine. In terms of CC offences, the most common types are property offences, where the accused was stealing items to pawn or attempting to cash stolen cheques in an effort to obtain cash to pay for their next high, or communication for the purpose (prostitution). A general guideline for eligibility is that the applicant, if sentenced in the usual way, would face a

November/December 2008

jail sentence of less than three years. Applicants who have committed certain offences, such as breaking and entering a dwelling house, violent offences, or dangerous driving, will be screened out at this point. The initial screening process is so important because the Crown wants to ensure that when it consents to release an offender into the community, it must be satisfied that the offender does not pose a risk of violence. If there are no gang connections and the applicant has otherwise been deemed eligible to apply, then they proceed to the second stage of the application process, the assessment stage. An EDTCRC Probation Case Manager prepares an Intake Report. This is similar to a pre-sentence report, and usually takes a week to complete. If the Intake Report shows that the applicant would be a good candidate for the program, then the Case Manager will complete an Addictions Assessment Report, which may take a couple of weeks. During this third stage, the EDTCRC treatment team will make arrangements for the applicant to stay in a residential treatment facility, so that once guilty pleas are entered, the applicant will be released directly to the treatment facility. In cases where the applicant will not be going to a residential treatment facility upon release, the treatment team will take the time to investigate the proposed residence to determine whether the residence and/or roommates will be suitable. Once applicants are deemed suitable candidates for the EDTCRC, with the assistance of their counsel, they sign a waiver form, which will allow them a sixty-day grace period within which they may withdraw their guilty pleas, with the Crownâ&#x20AC;&#x2122;s consent. At the next court appearance, applicants will enter their guilty pleas and be released, by consent of the Crown, on strict bail conditions. The EDTCRC has standard bail orders, with conditions including weekly reporting, weekly court appearances, residency requirements, curfew, abstaining from alcohol and non-prescription drugs, weekly drug testing, and being polite to the treatment team. After the sixty days has expired, if the participant decides not to continue or is terminated, the EDTCRC judge is seized with the matter and the parties will schedule a date for sentencing. If, after the sixty-day grace period, the applicant seems to be a good fit, the Crown will confirm on the court record that the applicant has been formally accepted to participate in the program. Finally, each participant must complete an Individual Treatment, Recovery and Re-Integration Plan (ITRIP) with the treatment team. The ITRIP may include things such as educational and career goals, and community service initiatives.

November/December 2008

How does the EDTCRC work? When guilty pleas are entered, there is no formal agreement with respect to sentencing. Rather, if the participant successfully completes the EDTCRC program, the Crown will recommend a rehabilitative sentence, such as probation. Throughout the program, participants must attend court and meet weekly with the treatment team to discuss their progress. Each week the treatment team produces a report for each participant and there is a pre-court meeting which the judge, members of the treatment team, crown prosecutors, duty counsel, and defence counsel attend. During these meetings, the weekly reports are reviewed and each participant is discussed. Defence counsel usually attend the pre-court meetings while their client is still in the application stage, and later on if there is a difficulty with their client and a sanction needs to be discussed.

What happens when a participant fails to do what is required of them? Participants in the EDTCRC are not penalized for using drugs; however, they are penalized when they lie about having used. If a participant is found to have breached a bail condition, the pre-court meeting discusses possible sanctions, including admonishments from the Judge, having the participant write an essay explaining what they have learned from the experience, tightening a curfew for a week, imposing community service work, or even revoking bail for a certain period. One behaviour that will absolutely not be tolerated is bullying between participants. Participants need to feel safe within the group. When certain participants flout their bail conditions while others are working diligently toward their recovery, it compromises the integrity of the program if the bad behaviour is not censured. Conversely, rewards and commendations are given by the judge to participants who comply with their bail conditions, addiction treatment, and rehabilita-

In order to graduate from the EDTCRC, the participant must have abstained from using drugs for four consecutive months, must have completed their goals as set out in their ITRIP, must have spent a minimum of eight months in the EDTCRC program, and must demonstrate some kind of community contribution. Upon graduation, the participant is sentenced by the EDTCRC judge. This will usually entail a suspended sentence or probation.

There are currently drug treatment courts in Vancouver, Edmonton, Calgary, Regina, Winnipeg, Ottawa, and Toronto. Evaluations show that the yearly cost per participant is far below what it costs per year to maintain one offender in jail.

tion programs. These may include commendations from the Judge, attending court every other week, being allowed to leave court early, certificates of achievement, loosening up of certain bail conditions, or gift cards for coffee. From time to time, a participant may slip. Usually, the treatment team can assist them in getting back on track. However, some participants breach their release conditions repeatedly, and are dishonest with members of the treatment team. In these cases, the participant may be expelled, or may voluntarily abandon the EDTCRC program. In order to graduate from the EDTCRC, the participant must have abstained from using drugs for four consecutive months, must have completed their goals as set out in their ITRIP, must have spent a minimum of eight months in the EDTCRC program, and must demonstrate some kind of community contribution. Upon graduation, the participant is sentenced by the EDTCRC judge. This will usually entail a suspended sentence or probation. Participants who graduate with honours will usually receive a sentence of one day probation.

What makes the EDTCRC work? Since its inception in 2005, the EDTCRC has had 72 participants; there have been 37 women in the program and 35 men. Nine out of the EDTCRCâ&#x20AC;&#x2122;s fourteen graduates are women. Doug Brady, the Executive Director of the EDTCRC, believes that the reason why the program is so successful with female participants is that the treatment team is adept at

assisting women who have suffered traumas. The team does more than simply help participants in their recovery from drug addiction; rather, the team helps the participants to address their housing, health, educational, and child care needs. Furthermore, there is a strong alumni group for the EDTCRC, and its ongoing support is of immeasurable value. Although the guidelines state that a Track I participant can complete the program within six months, and a Track II participant should complete the program within eighteen months, some participants want to continue beyond these timelines, depending on their individual needs. So far, there has been only one graduate of the EDTCRC who has reoffended, and this may have been because he would have benefited from a bit more time in the program to solidify his recovery.

Drug Treatment Courts throughout Canada There are currently drug treatment courts in Vancouver, Edmonton, Calgary, Regina, Winnipeg, Ottawa, and Toronto. Evaluations show that the yearly cost per participant is far below what it costs per year to maintain one offender in jail. Although each city may have slightly different criteria for admissibility, the goals of recovery and reintegration through a restorative approach are the same. Hopefully, the EDTCRC will continue to guide its participants toward success. As it is a pilot program, some aspects will change over time. There is a waiting list for applicants, and the goal is to establish ongoing permanent funding to ensure continued growth and success. Nicole Lachance, B.A., LL.B., B.C.L. is a Crown Prosecutor with Alberta Justice in Edmonton, and is currently the Restorative Justice Backup. She would like to thank the Honourable Judge D. Wong, Linda Banks, Doug Brady, Dave Hill and Kathleen Quinn for their assistance. Kathleen Quinn works with the Prostitution Awareness and Action Foundation of Edmonton (PAAFE). She was granted a Fellowship by the Muttart Foundation to study the use of the SROI Analysis tool.

November/December 2008

ÂŠ Aleksejs Kostins | Dreamstime.com

Special Report on Specialized Courts

Mental Health Courts in Canada

Mark Reiksts

The Canadian criminal justice system in recent years has seen a steady growth in the numbers of accused persons with mental illnesses. This increase involving mentally ill persons has arisen as the provision of mental health-care services in this country have declined. Deinstitutionalization, the withdrawal of centrally-coordinated mental health supports, services, and resources, has led to the criminalization of mental illness within the criminal justice system. By default criminal courts, and the criminal justice system in general, have been downloaded with the responsibility of providing mental

November/December 2008

health-care services for those with mental disorders. However, the role of mental health provider is one that criminal courts have historically not been designed to fulfill. The problem is that criminal courts are often not equipped to identify and address the mental health concerns of accused persons. As a result those with mental disorders within the criminal justice system have often failed to receive appropriate treatments, the root causes of criminal behavior in these instances has gone unaddressed, and the overriding mandate of the criminal justice system to protect the public has been compromised.

The first question these courts ask is how can the law benefit the accused in dealing with his mental health issues, rather than how do we bring the mentally ill accused person in conformity with the law. In response to the challenges faced by the criminal courts in dealing with accused persons with mental illnesses, and the pressures this has placed on the criminal justice system, some jurisdictions in Canada have implemented what are known as mental health courts. These specialized courts chart a different path for those who have exhibited criminal behavior due to mental disorders, focusing on treatment and rehabilitation of the individual, rather than punishment for the criminal behavior. Currently, mental health courts have been initiated in Ontario and New Brunswick, while Newfoundland and Labrador currently has an ongoing pilot program in place. Other jurisdictions, including British Columbia, Manitoba, Nunavut and Yukon are at different stages in the development of mental health courts. Chief Justice Brian Lennox of the Ontario Court of Justice, in his remarks at the opening of the Mental Health Court in Ottawa, described mental health courts as follows: “The Ottawa Mental Health Court is an example of a progressive movement within criminal justice systems in North America and elsewhere in the world to create ‘problem-solving courts’. These courts, with collaborative interdisciplinary teams of professionals and community agencies, attempt to identify and to deal with some of the underlying factors contributing to criminal activity, which have often not been very well-addressed by the conventional criminal justice process. The goal is to satisfy the traditional criminal law function of protection of the public by addressing in individual cases the real rather than the apparent causes that lead to conflict with the law.” This description highlights several relevant features of mental health courts. First, the theoretical underpinnings of mental health courts as ‘problem-solving courts.’ Such courts seek to address the underlying causes of crime which the conventional courts have often failed to deal with. In addition to mental health courts, the principles of problem-solving courts have been used in establishing drug courts, domestic violence courts, and teen courts. The overriding goal is to achieve the criminal law objective of protecting the public by addressing the real, root causes of criminal behavior, rather than the “apparent” causes.

Second, mental health courts focus on the mentally ill accused person as an individual. The first question these courts ask is how can the law benefit the accused in dealing with his mental health issues, rather than how do we bring the mentally ill accused person in conformity with the law. This is an important reorientation of emphasis for courts that deal with accused persons with mental disorders, as the focus for mental health courts is rehabilitation rather than punishment of the accused person. In furtherance of this goal the mental health court, as a form of problem-solving court, seeks to apply principles of what is known as therapeutic jurisprudence to benefit the accused, and at the same time achieve the protection of the public. In mental health courts, therapeutic jurisprudence sees law as a force for providing beneficial, rehabilitative outcomes for mentally disordered accused persons. Third, in order to achieve the therapeutic jurisprudence goals of benefitting the accused by addressing the underlying causes of criminal conduct, mental health courts utilize judicially monitored programs, with a multidisciplinary team approach to encourage voluntary treatment over punishment. Mental health courts focus on the individual accused, but do so using a collaborative team approach. The multidisciplinary team approach recognizes that the criminal justice system is enhanced in its ability to assist accused persons with mental illness, if those with special knowledge and training in treating individuals with mental illness are integrated into the judicial process and permitted to collaborate with justice workers in furthering therapeutic outcomes for the accused. Furthermore, in keeping with the principles of therapeutic jurisprudence, the multidisciplinary approach allows accused persons with mental disorders the opportunity to have access to appropriate mental health resources and social services. They benefit from training, therapy, education and care that mental health care professionals can provide. The multidisciplinary approach is implemented at the court level through the establishment of a Mental Health Court Team. These teams usually consist of specially trained judges and lawyers, psychologists, psychiatrists, mental health-care nurses, community caregivers, and case managers or probation officers. The goal, and challenge, for mental health courts is to achieve a balance between the rights of the accused and safety of the public. Mental health courts view these twin pillars of the criminal justice system as not mutually exclusive. By adopting the principles of therapeutic justice with its emphasis on rehabilitation of accused persons with mental disorders, mental health courts aim to achieve these goals

November/December 2008

by reducing the criminalization of the mentally ill, and reducing the rate of re-offending amongst individuals with mental illnesses. In a recent article in “The Society Record”, printed by the Nova Scotia Barristers’ Society (April, 2007), former chief Crown Attorney Frank Hoskins, Q.C., of the Public Prosecution Service (now a judge of the Nova Scotia Provincial Court), identifies the following ways in which a mental heath court can operate to implement a therapeutic model of criminal justice, and by extension benefit both the individual accused and society: 1. Remove or divert accused persons with mental disorders from the criminal justice system, and place them into the mental health care system. 2. Increase the cooperation between the criminal justice system and the health care system – which do not have to be mutually exclusive. (As noted above, this is achieved through the implementation of a multidisciplinary team approach.) 3. Aim to strike a balance between the rights of the accused and the protection of the public by imposing the most appropriate disposition-designed to reduce the risk of recidivism. The accused is required to assume responsibility for the management of his or her treatment by complying with court-imposed treatment programs. 4. Ensure a quick evaluation and treatment of accused persons. The accused person is closely monitored by the court to ensure that he or she is complying with the treatment program. Diversion of mentally ill accused persons from the criminal justice system to the mental health care system, as one of the objectives of mental health courts, must be distinguished from separate diversion programs. Although diversion programs can exist as part of a mental health court structure, such programs can, and do exist separate and apart. Some provinces, such as Nova Scotia, have Adult Diversion Programs which exist in the absence of mental health courts. The Nova Scotia program is a post-charge, pre-trial option to the criminal justice system, and is not a special court. The distinction is important to note as some of the processes and procedures in diversion programs may differ from those employed in mental health courts. How to put the theory behind mental health courts into effective practice remains the principal challenge for those jurisdictions implementing these specialty courts. Although differences in operational details and policies exist among mental health courts in Canada, the general outlines are similar. At the heart of the mental health court process is the multidisciplinary team approach. From the moment of referral to the mental health court, a collabora-

November/December 2008

At the heart of the mental health court process is the multidisciplinary team approach. From the moment of referral to the mental health court, a collaborative approach between judges, lawyers, psychiatrists, psychologists, community caregivers and probation officers is employed to determine how best to assess and address the mental health needs of the accused.

tive approach between judges, lawyers, psychiatrists, psychologists, community caregivers and probation officers is employed to determine how best to assess and address the mental health needs of the accused. The process of the Mental Health Court in St. John, New Brunswick is fairly representative of how mental health courts operate in other Canadian jurisdictions. The St. John court operates on an offender-based approach, in which a referral may be made at any stage of the criminal justice process and for any offence. Application to the Mental Health Court is voluntary and an accused may withdraw from the process at any time. The Court operates through a Mental Health Court Team, consisting of the Judge, crown prosecutor, duty counsel, psychiatrist, mental health professionals, probation officer and community caregiver. The Mental Health Court process consists of two phases: the Admission phase and the Program phase. The Admission phase determines whether an accused should be admitted into a judicially-monitored mental health court program. It is in the Program phase that the accused actually participates in the program. The Admission phase consists of four components: presentation, eligibility, compliance and acceptance into the program. Presentation refers to the initial appearance of an accused in the Mental Health Court. This initial appearance usually results from a referral from a regular criminal court. The referral may be made at any stage of the criminal justice process and for any offence. Any party to a proceeding may make a referral to the Mental Health Court upon learning that the accused may have a mental illness, or intellectual disability, and upon receiving an indication of interest in participating in the Mental Health Court from the accused and/or family of the accused. On presentation, the accused is provided with duty counsel (a member of the Mental Health Court Team) who provides information about the program to the accused as well as legal advice. The accused may also choose to use private counsel. Private counsel must be in attendance at each sitting in the interest of preserving continuity in the process. At the presentation stage some accused are ordered to undergo an assessment to determine if they are fit

Built upon rehabilitative , therapeutic principles, and operating within a multidisciplinary team approach, mental health courts implicitly recognize the inappropriateness of criminalizing mental illness.

to stand trial or criminally responsible. Affirmative answers to both are requirements for an accused to be eligible to enter a court-monitored program. At the eligibility stage, the judge, with the advice and recommendations of the Mental Health Court Team, determines if the accused is eligible to enter a program. As part of these deliberations, the crown prosecutor must indicate that the Crown is willing to consider a withdrawal of the charges or recommend a non-custodial sentence upon graduation. Eligibility requirements may vary between jurisdictions. In the St. John Court, the accused must meet the following requirements for eligibility to a mental health court program: (i) an accused must be diagnosed as suffering from a mental illness or intellectual disability; (ii) the offence or offences alleged are as a result or related to such illness or disability; (iii) the accused must accept responsibility for the offence or offences; and (iv) the accused must be fit to stand trial and possibly be found criminally responsible. If an individual does not meet any one or more of these eligibility requirements (e.g., the accused is not criminally responsible by reason of mental disorder), his or her case is returned to the regular criminal court process. At the compliance stage both the court and the accused are given the opportunity to decide if the accused is able, and willing to follow a lengthy judicially-monitored court program. This stage helps ensure that an accused is ready to commence the program. At the acceptance stage the accused formally, in writing, applies to the court for entry into a program. The application contains an acknowledgment by the accused of a mental illness or intellectual disability, that treatment including medication if required is necessary, and a consent to follow any treatment plan. If the court accepts the accusedâ&#x20AC;&#x2122;s application, the accused enters the next phase, the Program phase. The accused is placed on conditions contained in an undertaking to the Court, which require the

accused to follow a specifically designed program. Additional conditions include those dealing with residency, curfew, finances, reporting requirements and non-use of alcohol and illegal drugs. The accused must return to court every two weeks for review. Sanctions may be imposed for violation of conditions or for correction, and include attendance in court more frequently. Incentives may also be utilized for encouragement of the accused, which include relaxation of restrictions. Graduation is achieved upon successful completion of the Program phase. The judge determines whether or not an accused has successfully completed the Mental Health Court program. Factors reviewed by the judge include the nature of the illness or disability, the nature of the offence, the circumstances of the accused, the response to treatment, and the length of time in the program. If the judge determines that the accused has successfully completed the program, the charges are withdrawn or a non-custodial sentence is imposed. Mental health courts in Canada are in the early stages of development and implementation. And while more experience with these courts may be required before a comprehensive assessment of their effectiveness can be undertaken, what is clear is that mental health courts represent a new approach in this country to addressing the reality of accused persons with mental illnesses in the criminal justice system. Built upon rehabilitative, therapeutic principles, and operating within a multidisciplinary team approach, mental health courts implicitly recognize the inappropriateness of criminalizing mental illness. Mental health courts provide options for mentally ill accused persons to receive appropriate mental health and social services, and reflect the better view that the impugned behavior of mentally ill accused persons is not due to criminality on their part, but is more likely a result of not being able to manage their mental illness. Mark Reiksts is a lawyer with the Department of Justice, Government of Nova Scotia, in Halifax, Nova Scotia. Note: The author notes his use of the following book in the preparation of this article: Richard S. Schneider, Hy Bloom, and Mark Heerema, Mental Health Courts: Decriminalizing the Mentally Ill (Irwin Law: 2007) The description herein of the processes of the St. John Mental Health Court is taken from the website at www.mentalhealthcourt-sj.com/about.html.

November/December 2008

Special Report on Specialized Courts

Aboriginal Courts for New Brunswick Josephine Savarese

There is much work to do, but there is also a lot of potential and excitement in the establishment of a justice system that really reflects the hearts and minds and values of Aboriginal peoples in Canada.1 —Karen Whonnock, Scow Institute, Vancouver BC

Introduction Over the last several decades, the Canadian criminal justice system has been encouraged to implement policies and programs that better correspond with the ideals and values of Aboriginal justice. Numerous commissions and task forces have pointed to the unequal treatment of indigenous peoples by police, courts, and corrections. Innovative approaches to remedying the limitations of the justice system’s response are varied. They include the creation of Aboriginal court worker positions, the implementation of restorative justice measures,

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Aboriginal policing programs, and the development of correctional programming that seeks to be culturally appropriate. While often acclaimed, these initiatives have not stemmed the over-representation of Aboriginal peoples in Canadian prisons and they have failed to promote the rehabilitation and restoration required. As a result, governments have intensified their efforts to develop programs within all facets of the justice system. The establishment of specialized courts dedicated to serving Aboriginal clients is a recent initiative. These courts work to ensure that the charges against Aboriginal accused are heard in a forum where cultural sensitivity and respect are incorporated into the criminal justice process. Four Canadian provinces – Alberta, Saskatchewan, British Columbia, and Ontario – have established Aboriginal courts. Operating since 2000, the courts have nearly a decade of experience to share with other regions in Canada. To date, there has been limited consideration of the Aboriginal court model in the

Snuneymuxw First Nation Elder, Ellen White addressing law students at an annual Aboriginal Awareness Camp, which is organized by law students attending the University of Victoria.

The integration of the courts into the criminal justice system indicates that it can be adapted to better serve indigenous peoples.

In 1999, the Aboriginal Issues Branch, Correctional Services of Canada reported that “In all of the provinces/territories, the proportion of Aboriginal inmates was dramatically higher than the proportion of Aboriginal persons in the population.”

Atlantic region. I will examine the arguments for an Aboriginal court for the Province of New Brunswick

Overview of Aboriginal Courts In Aboriginal Courts in Canada, Karen Whonnock defines this specialized model: “Aboriginal courts are culturally appropriate dispute resolution systems that are inclusive, respectful, and designed by Aboriginal peoples.” She states: “As there are many diverse Aboriginal peoples in Canada, each Aboriginal court will reflect the local Aboriginal culture and therefore be unique.”The Aboriginal courts operating across Canada are reflective of the diversity of First Nations, as several models are in operation. The first court in Canada – the Tsuu T’ina Nation Peacemaking near Calgary, Alberta – was established in 2000. The Saskatchewan Cree Court and the Gladue (Aboriginal Persons) Court in Toronto, Ontario were created in 2001. The Court in Saskatchewan uses Cree, an indigenous language, in its operation. A fourth court has been operating in New Westminster, British Columbia since 2006.2 The goal of the four courts is to respond more effectively to Aboriginal offenders and to ensure that alternatives beyond punishment are given full consideration. It is important to note that the courts operate within, rather than outside of, the conventional criminal justice system. They prosecute accused in accordance with the Canadian Criminal Code and are staffed by similar professionals, including judges, defence lawyers, and Crown prosecutors.

The four Aboriginal courts implemented in other Canadian regions could be tailored to the needs of indigenous people involved in the criminal justice system in Atlantic Canada.

Discussion In general, justice concerns with regard to fishing rights and resource access have generated more media and public policy attention in Atlantic Canada than criminal justice matters. While criminal justice issues generally receive less coverage, dissatisfaction by First Nations in New Brunswick with the administration of justice is longstanding. The 1999 Task Force on Aboriginal Issues states that it was informed about incidents of “racism and intolerance.” In the final report, the justice system is particularly singled out for its role in perpetuating discrimination. “The gulf that exists between the two cultures seems to widen upon entering the courtroom” states the final Report.3 Reports on the New Brunswick justice system verify that the indigenous population is underserviced within the criminal justice process. At the time the report of the Task Force on Indigenous Issues was written in 1999, New Brunswick was the only province in Canada that had not implemented the Aboriginal court worker program. There is evidence in other studies that indigenous people were encountering significant difficulty within the justice system. In 1998, Legal Aid New Brunswick hired an Aboriginal duty counsel in Kent County to serve the indigenous population from the communities of Big Cove, Bactouche and Indian Island. Aboriginal peoples in that area represented 7.4% of the population. In the province as a whole, they comprised 1.4% of the population. The goal of the Duty Counsel Project was to foster better communication with the Aboriginal peoples who came before the justice system. A duty counsel conversant in Aboriginal culture could reduce the backlog in processing cases. Adjournments were common due to misunderstandings about the justice process. Information gathered by the Department of Justice to monitor the project revealed that a significant portion of the Aboriginal accused persons (24%) possessed limited English language skills. Eight per cent of the persons studied spoke only Mi’Kmaq. It was further discovered that Aboriginal women comprised 32% of those accessing service. Because the Aboriginal duty counsel was conversant in Mi’Kmaq, she was better able to communicate with her clients, resulting in fewer adjournments and facilitating better case management. Importantly, she reported taking a more “holistic” approach to the files. She made 71 referrals to community services including anger management, marital counseling, and drug and alcohol counseling. These results suggest that many cases

November/December 2008

can be diverted out of the criminal justice system towards programs focusing on restorative justice and healing, when knowledgeable personnel are involved in the file.4 While this was a small scale project with results that cannot be generalized to the entire province, it underscores the need for an Aboriginal justice focus in New Brunswick. Other statistics also make this case. In 1999, the Aboriginal Issues Branch, Correctional Services of Canada reported that “In all of the provinces/territories, the proportion of Aboriginal inmates was dramatically higher than the proportion of Aboriginal persons in the population.” A June 2001 report, Aboriginal Peoples in Canada, prepared by the Canadian Centre for Justice Statistics confirms the over-reliance on terms of imprisonment. Recent statistics show the continuation of over-incarceration. In New Brunswick correctional institutions in 2004-2005, 14% of incarcerated adult women were indigenous.5 One reason for the inattention granted to Aboriginal justice, even in the face of discontent and over-representation, may be the small percentage of the population that indigenous people occupy. The 2006 Census reports that the Aboriginal population in New Brunswick comprised only 2% of the provincial population. However, the Census statistics also demonstrate increases in the Atlantic region. Consequently, the need for Aboriginal justice initiatives is becoming even greater among the Maritime provinces as well as Newfoundland and Labrador. Between 1996 and 2006, for example, the Province of Nova Scotia experienced increases of 95%. At 67%, New Brunswick experienced the second highest increase. Newfoundland and Labrador noted a similar increase at 65%. These statistics suggest that policy measures that foster positive relations with indigenous peoples in Atlantic Canada are an imperative. In the absence of meaningful reforms, the numbers of indigenous persons in prisons and jails may intensify, causing further hardship and straining relationships. Policies and programs to better address the needs of indigenous people are needed in New Brunswick if the goals of equality and fairness embedded in human rights law and social policy are to be realized. Other provinces are recognizing the need for change. In 2007, Prince Edward Island integrated sentencing circles within its justice system. In a press conference announcing the circles, Grace Vos, Aboriginal Justice Co-ordinator for the Mi’kmaq Confederacy, called for renewed efforts to reduce over-representation. In her view, the number of Aboriginal peoples imprisoned in Prince Edward Island are likely to decrease if the justice system avails itself of Aborig-

November/December 2008

In September 2007, the global community affirmed its commitment to indigenous rights with the adoption of the Declaration on the Rights of Indigenous Peoples by the General Assembly of the United Nations. While Canada is not a signatory to the document, its existence does confirm the groundswell of support that currently exists in remedying past injustices towards indigenous peoples.

inal culture, wisdom and teachings.6 The creation of an Aboriginal court could afford greater opportunity for Atlantic Canada to avail itself of these resources, enhancing justice. Further reasons for the creation of indigenous courts can be found within international human rights policy. In September 2007, the global community affirmed its commitment to indigenous rights with the adoption of the Declaration on the Rights of Indigenous Peoples by the General Assembly of the United Nations. While Canada is not a signatory to the document, its existence does confirm the groundswell of support that currently exists in remedying past injustices towards indigenous peoples. Article 5 of the Declaration states that indigenous peoples have the right to “maintain and strengthen their distinct … legal … institutions”, while retaining their right to participate in existing State institutions. Aboriginal courts established as a component of the existing justice system could serve as a means of regaining traditional legal systems.

Conclusions These are some of the arguments for an Aboriginal court in New Brunswick. The implementation of a court in that province could serve as the starting point for similar Aboriginal justice initiatives in the most eastern areas of Canada. While the indigenous population is smaller than elsewhere in Canada, there are convincing reasons to consider the creation of an Aboriginal court. Importantly, the 1999 New Brunswick Task Force on Aboriginal Issues found that there was significant dissatisfaction with the administration of criminal justice among indigenous peoples in New Brunswick. It encouraged efforts towards more sensitive, culturally appropriate service delivery. It has been nearly a decade since the report was published, indicating that dedicated action towards Aboriginal justice is overdue. The four Aboriginal courts implemented in other Canadian regions could be tailored to the needs of indigenous people involved in the criminal justice

system in Atlantic Canada. In 2008, the United Nations affirmed the goal of addressing past wrongs towards indigenous peoples. One important means of fostering justice is the creation of culturally appropriate legal systems. The implementation of an Aboriginal court in New Brunswick would allow that province to take a leadership role towards that goal. Josephine Savarese is Assistant Professor with the Department of Criminology and Criminal Justice, St. Thomas University, Fredericton, New Brunswick Karen Whonnock is with The Scow Institute in Vancouver, BC.

Columns 39 Human Rights Law Drug Testing: What's an Employer to Do?

Footnotes 1.Karen Whonnock, The Scow Institute, Aboriginal Courts in Canada, April 2008 www.scowinstitute.ca/ library/documents/Aboriginal_Courts.

Linda McKay-Panos and Emilia de Somma

41 Online Law 2. The courts have been the subject of many articles and reports. Readers who want to find out more may want to read an article by Amy Jo Ehman, A People’s Justice, in the Canadian Bar Association’s magazine, The National, June-July 2002. 3. J. Gerard La Forest and J. Graydon Nicholas, Report of the Task Force on Aboriginal Issues, March 1999, www.gnb.ca/0016/task/task. 4. Ab Currie, Research Report on the New Brunswick Aboriginal Duty Counsel Project (June 2000) www. justice.gc.ca/eng/pi/rs.reprasp/2000/rr00.

Learning from the Experts

Shaunna Mireau

42 Criminal Law Police Stops and Searches

Deborah R. Hatch

44 Not for Proﬁt Law 5. Ginette Petitpas-Taylor, Incarceration Not the Answer to Mental Health Problems (June 12, 2008), New Brunswick Advisory Council on the Status of Women, www.acswcccf.nb.ca/english/acsw1.asp. 6. CBC; Workshop Raises Awareness of Aboriginal Justice (Feb.14.07) www.cbc.ca/canada/princeedward-island/story/2007/02/14/aboriginal-circle.

NFP Corporate Legislation

Peter Broder

46 Law and Literature The Sealed Letter

Rob Normey

November/December 2008

Human Rights Law Linda McKay-Panos and Emilia de Somma

Drug Testing: What’s an Employer to Do? Recently, the Supreme Court of Canada denied the Alberta Human Rights and Citizenship Commission’s application for leave to appeal in a case involving pre-employment drug testing (Director of the Alberta Human Rights and Citizenship Commission, et al. v. Kellogg Brown & Root (Canada) Company May 28, 2008 No. 32505 S.C.C.). It is unfortunate that the SCC did not take the opportunity to clarify the law in this area for employers, employees, and human rights commissions. The uncertainty revolves around whether a perceived addiction to alcohol and drugs is protected under human rights legislation, and how employers can implement drug and alcohol testing policies without breaking human rights laws. Employers believe workplace drug testing ensures the safety of their workplace. Employers argue that workers under the influence of alcohol or drugs may affect the quality of the good or service, thus affecting a company’s reputation, business and profitability (John Pearce and Dennis Kuhn The Legal Limits of Employees’ Off-Duty Privacy Rights (2003). Employers utilize pre-employment testing as a means of risk assessment, so that they hire and promote “individuals whose lifestyle, character and employment and medical histories indicate that they will not create extraordinary risks for the company” (Pearce and Kuhn, at 381). Those opposed to workplace drug and alcohol testing argue it is discriminatory and an “unjustified violation of workers’ privacy” (Alberta Federation of Labour, July 2006). The AFL maintains that there are other, more effective methods of maintaining and improving safety in the workplace, such as reducing stress in the work environment, increasing supervision of workers, and establishing employee assistance programs).

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Entrop vs. Kellogg It is helpful to review two opposing legal decisions. In Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (C.A.) (“Entrop”), the Ontario Court of Appeal held that preemployment and random drug testing of employees in safety-sensitive positions is not allowed, since it does not reflect or predict present or future impairment on the job. In Entrop, Imperial Oil established an alcohol and drug policy at two Ontario refineries, targeting employees who worked in safety-sensitive positions. Mr. Entrop worked for Imperial Oil, and was a recovering alcoholic. When this information came to light, he was reassigned to a non-safety sensitive position (which, according to him, was less desirable), at the same rate of pay, until he completed an evaluation which confirmed that his alcohol dependence was in remission. Mr. Entrop filed a complaint with the Ontario Human Rights Commission, claiming he was discriminated against on the basis of his handicap, and perceived handicap. The Board of Inquiry held that Imperial Oil “had directly discriminated against him on the basis of ‘perceived handicap’ and that the company had not met its duty to accommodate him” (Entrop, at para. 26). It looked at the drug and alcohol testing policy more generally, and also found that the policy discriminated against drug users. The Divisional Court upheld the Board’s conclusions; Imperial Oil appealed. The Ontario Court of Appeal agreed that Imperial Oil’s pre-employment drug testing violated the Ontario Human Rights Code, but disagreed with the lower court’s conclusion on random alcohol testing. The Court of Appeal distinguished between alcohol and drug testing: breathalyzer readings measure present impairment, whereas drug tests do not show current impairment, but only indi-

cate past usage of a substance. The testing policy was discriminatory because sanctions – automatic termination or a withdrawal of the offer of employment – were applied to any person who tested positive, such that all users (both perceived or actual substance abusers) were adversely affected. The Court then applied the Meiorin test (developed in British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3) to determine whether the drug and alcohol testing policy could be considered a ‘bona fide occupational requirement.’ Imperial Oil’s goal of assuring a safe and productive workplace, by minimizing “the risk of impaired performance due to substance use” (Entrop, at para. 94) was rationally connected to the performance of the job. Second, the policy was developed in good faith. When analyzing the means which Imperial Oil took to accomplish its purpose, the Court found that the policy provisions were not reasonably necessary. It noted the predominant flaw in drug testing: that it does not measure current impairment, and thus does not indicate whether a person is incapable of performing his or her duties. Similarly, pre-employment drug testing is not indicative of future impairment at work. Sanctions for positive tests (for employees in safety-sensitive positions) – either automatic termination or refusal to hire (depending on the situation) – were overly stringent: Imperial Oil did not demonstrate that it had accommodated individual circumstances and capabilities to the point of undue hardship. Since breathalyzer tests do indicate actual impairment, the Court found that random alcohol testing of employees in safety-sensitive positions was acceptable, provided that Imperial Oil made accommodations for those who tested positive. By way of contrast, in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, 2007 ABCA 426 (“Kellogg”), Mr. Chiasson interviewed with Kellogg, Root and Brown (KBR) for employment at Syncrude’s oilsands project in Fort McMurray. He was informed that he would be required to take a pre-employment drug test – a test administered to all KBR employees, whether they were employed in a safety-sensitive position

or not. Mr. Chiasson took the test, began working with KBR, and nine days later was advised that he had tested positive for marijuana and was immediately terminated. Mr. Chiasson insisted that he was merely a recreational marijuana user. There were neither allegations nor evidence that Mr. Chiasson was ever impaired while at work. Mr. Chiasson filed a complaint with the Alberta Human Rights and Citizenship Commission, alleging that KBR’s drug testing policy was discriminatory on the basis of disability. The Panel found that Mr. Chiasson’s recreational drug use was a personal choice, and not a disability, and that since he was not dependent on the drug, he was not discriminated against. The Panel also decided that KBR’s policy was reasonably necessary in order to ensure workplace safety. Had Mr. Chiasson been drug dependent, his employer would have had a duty to accommodate his disability, but since this was not the case, he was not entitled to any accommodation. Mr. Chiasson appealed this decision to the Alberta Court of Queen’s Bench where the Court found that Mr. Chiasson was discriminated against on the basis of a “perceived disability.” KBR’s policy had created an external barrier to employment for users of controlled substances, and was therefore prima facie discriminatory. The Court then applied the Meiorin test to determine whether KBR’s policy could be considered a ‘bona fide occupational requirement.’ The Court found that the policy’s purpose of ensuring workplace safety was rationally connected to the job, and that KBR had adopted the practice in good faith. KBR failed the Meiorin test, however, since the Court held that the policy was not reasonably necessary. To be reasonably necessary, the onus is on the employer to prove that it would be impossible to accommodate individual employees without incurring undue hardship. In this case, there were no accommodations made – Mr. Chiasson’s employment had been terminated automatically upon receipt of a positive test result – whilst the Court found that there were alternate steps that KBR could have taken. Additionally, the Court noted several concerns regarding the effectiveness of urinalysis tests, and accepted

evidence that indicated that other tests, coupled with urinalysis, would be more reliable indicators of impairment at work. Lastly, the Court expressed concern over other factual circumstances of the case: • Mr. Chiasson was allowed to work in a safety sensitive position without KBR first receiving the results of the drug test called into question the necessity of a test; • unionized workers, who represented the majority of the workforce at the Syncrude site, were not required to be tested; and • KBR seemed “to have dispensed with what it claims is a mandatory precondition to employment when it had a pressing need to fill a position,” as it did when it hired Mr. Chiasson. The Court concluded that pre-employment testing was flawed because it did not predict future impairment at work, and held that KBR’s policy was furthermore not reasonably necessary because it “propose[d] a single standard of pre-employment testing for all employees, whether in safety sensitive positions or not.” Ultimately, KBR’s drug testing policy did not qualify as a bona fide occupational requirement, and the Court ordered “KBR to cease the contravention of the Act and to refrain in the future from committing the same or any similar contravention.” When KBR appealed, Alberta’s Court of Appeal restored the human rights panel’s decision. The Court of Appeal found that Mr. Chiasson was not terminated due to a “perceived disability,” because there was no evidence of Mr. Chiasson being regarded as an addict, and thus “no perception of drug addiction attributable to KBR.” The Court commented that “the policy [was] directed at actual effects suffered by recreational cannabis users, not perceived effects suffered by cannabis addicts.” KBR’s policy did not perceive Mr. Chiasson to be an addict, but “perceive[d] that persons who use drugs at all are a safety risk in an already dangerous workplace.” In reaching the conclusion that the pre-employment drug test policy was not discriminatory, the [Alberta ]Court declined to follow the Ontario Court of Appeal’s decision in Entrop.

Implications In late 2007, the Alberta Court of Queen’s Bench upheld the decision of an arbitration panel which had ruled that preaccess drug testing at an oil sands site was not prima facie discriminatory (see: United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local #488 et al. v. Bantrel Constructors Co., 2007 ABQB 721 (“Bantrel”)). The policy in question ordered assessment and counseling for employees testing positive; further, those who were slated to be tested were informed in advance as to the length of time required for drugs to be gone from their system. The Court agreed with the arbitration panel that this case was distinguishable from Kellogg ABQB, for the following reasons: a positive test allowed for individual accommodation and did not result in automatic termination; evidence indicated that no other testing methods were as reliable or inexpensive; a variety of other measures complemented the testing as part of a pre-employment drug policy; and evidence showed that preaccess testing assisted in reducing the risk of workplace accidents and increased safety (Bantrel, at para. 120). Ideally, employers should be able to establish pre-employment drug testing, notwithstanding that such tests might be prima facie discriminatory. This testing could be permissible provided that the testing was part of a comprehensive drug policy, and that accommodations were made for positive testers (such as the measures outlined in Bantrel, or by the Court of Queen’s Bench in Kellogg at paras. 122-123). Thus, the issue of workplace drug testing remains a grey area, since employers have received different messages from courts in different areas of the country. If the law were consistent across jurisdictions, it would help Canadian companies and foreign employers who operate on Canadian soil draft well-balanced and lawful workplace drug and alcohol testing policies. Linda McKay-Panos, BEd, LLB, LLM is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta, and Emilia de Somma was a summer law student at the Centre and is now in her second year of studies at the University of Ottawa.

November/December 2008

the Canadian Association of Law Libraries (www.callacbd.ca) especially Connie (www.conniecrosby.ca/crosbygroup.ca), Wendy and Susanna (http://callkm.wordpress.com/), and Michel-Adrian (http:// micheladrien.blogspot.com), Catherine Best (www.legalresearch.org), Joe Hodnicki (lawprofessors.typepad.com/law_librarian_ blog), Jim Milles (www.law.buffalo.edu/

Online Law Shaunna Mireau

Learning From the Experts I am winding down my fourth decade on the planet. This is only significant to me, of course, but as I reach toward another birthday ending in 0, I feel the need to reflect. Most of my reflecting must take the form of a thank you because everything I have learned in my life has been from others. Experts, in other words. When we think of experts in the legal context, it is usually experts called to give opinions in the context of litigation. How do lawyers find these experts? How do we know if the courts will believe in an expert? Who are the research experts?

Finding Experts There are several websites that provide lists of experts. Some of these require memberships, passwords, or payment, and some are open to public consumption. The chart shows a partial list that I have assembled over the years.

What Does the Court Think? Courts can either believe an expert, or not. The safest way to determine if the expert you find will be good for your issue is to determine whether that person has been believed by the courts in the past. Checking if an expert has been qualified as such can be challenging. Here are some helpful tips and links.

Tip 1 Use the Expert Directory through Litigator on WestlaweCarswell. This fee-based subscription service is online at www.westlawecarswell.com. The Directory links to cases where the expert has been qualified.

Tip 2 To find out if there is an expert on your issue who’s expertise has been qualified by the courts, plug the following search into the Court Decisions template on LexisNexis

November/December 2008

faculty_And_Staff/dynamic_general_proﬁle. asp?ﬁrstlevel=7&faculty=milles_james) and

Tip 3

last but not least, my past, current, and future colleagues in the Edmonton Law Libraries Association (www.edmontonlawlibraries.ca) and, of course, Field Law (www.ﬁeldlaw.com). Thank you LawNow for providing me with a relevant, interesting, and often refreshing perspective on the law.

This same task can be performed on the Canadian Legal Information Institute site at www.canlii.org.

Shaunna Mireau is a library technician with Field Law in Edmonton, Alberta.

Quicklaw. This fee-based subscription service is online at www.lexisnexis.com/ca/legal. expert /p qualif! /p [insert your specific subject area with “/p” between each word] You can also select a jurisdiction to search if you want to check just Alberta decisions.

Research Experts There are many research experts that deserve my thanks for assisting my personal life-long learning quest. All the contributors and individuals who comment on SLAW.ca, my colleagues and friends from Source link

Editor’s note: This is Shaunna's last submission as LawNow's Online Law columnist. We thank her for her outstanding contribution to the magazine over the last eight years. We will miss her lively and interesting columns.

Description

Canadian or mostly Canadian www.actla.ca

Alberta Civil Trial Lawyers Assn has an expert witness database – you have to be a member to access it .

www.cdlawyers.org

Canadian Defence Lawyers Assn has an expert directory – you have to be a member to access it.

www.library.utoronto.ca/ bluebook

U of T’s Blue Book of Expert Witnesses.

www.otla.com

Ontario Trial Lawyers Assn has an expert database – you have to be a member to access it.

www.riverfrontmed.com www.tasanet.com

Riverfront Medical Evaluations is a Toronto referral service for various types of physicians who are willing to testify as expert witnesses. Technical Advisory Service for Attorneys is U.S.-based but does serve Canada and has Canadian consultants/experts listed.

American www.expertlaw.com

Easy to use, free directory – people can list themselves so doublecheck!

www.expertpages.com

Easy to use, free directory – people can list themselves so doublecheck!

www.lexpertresearch.com

Describe the ideal expert and it will ﬁnd that person. Feebased consultants.

www.lexpertinc.com www.martindalehubbell.com

Specializes in scientiﬁc and technical experts. Fee-based consultants. Martindale Hubbell go to Experts and Services on this site.

Criminal Law Deborah R. Hatch

Police Stops and Searches You and a friend are walking down the street, discussing a movie or perhaps a book when you are confronted by a police officer. You are told to stop and empty your pockets. You are asked where you are going and where you have been. How do you respond, and why? Without doubt, the police must have the ability to effectively investigate criminal activity. The safe and proper functioning of a civilized society demands no less. Yet limits must be placed on the power of the state to intrude into the lives of its citizens even under the auspices of the detection of crime and the maintenance of law and order. While we know that unlimited powers of search and detention would lead to the detection of more criminal activity, most of us would agree that we are willing to forego that type of increased security to maintain “democratic security”. If the police could stop anyone on the street and demand that they empty their purses or bags and answer any questions, surely we would see more guns, more stolen property, more proceeds of crime seized, and ultimately more criminals off the street. What, though, would be the cost to society? The circumstances in which investigative detentions occur and the powers exercised

by the police in conducting these detentions have forced the courts to contemplate the intersection of the right of individuals to be free from state interference and a recognition of the importance of public safety. In the 2004 case of R. v. Mann, the Supreme Court of Canada provided some guidance as to when and under what circumstances the authorities may stop, question and search a citizen in the course of that investigation. Mann reflects the Supreme Court’s attempt to reconcile the competing interests of crime detection and public safety and freedom from state interference. The majority in the Mann decision was careful to note that there is not a general power of detention for investigative purposes. It noted that “This Court must tread softly where complex legal developments are best left to the experience and expertise of legislators.” In other words, the Court was reluctant to make any far-reaching conclusions granting the police broad powers beyond what either Parliament or the courts have already authorized. The Court was careful, however, to comment upon the unregulated use of investigative detentions in policing and the potential for abuse in the low visibility exercise of discretionary police powers. These are powers that are used “under the radar”, because

In the 2004 case of R. v. Mann, the Supreme Court of Canada provided some guidance as to when and under what circumstances the authorities may stop, question and search a citizen in the course of that investigation.

unless criminal charges result and the case is later scrutinized in a courtroom, this type of police stop will simply occur without any scrutiny. The uncontrolled exercise of this power would lend itself to a police state. The Court said in Mann that those who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. This means two things. First, there must be a reason for the detention (for example, a bank has just been robbed and the person stopped matches the description given of the perpetrator). Individuals may not simply be stopped because the police want to “check them out”. Second, the persons stopped must be told why their freedom is being curtailed, even if it is only being curtailed for a few moments. The requirement to advise the reason for detention is hardly surprising, given the right to choose not to speak to the police in a free and democratic society. That right would be valueless if one did not know on what basis the police were conducting inquiries. While the Supreme Court noted that no general power exists to conduct investigative detentions, it recognized a power to detain for investigation where reasonable grounds to detain exist. The police cannot simply stop anyone to “check them out” or because they “look like they are up to no good”. Mere suspicion does not amount to reasonable grounds. There must be a clear connection between the individual detained and a recent or ongoing criminal offence. It is not be permissible for the police to stop everyone who is in the vicinity of a recently committed assault. Where, however, a description of the perpetrator or the getaway vehicle matches that of an individual in the area just minutes later, the police would likely have the authority to detain and investigate. While the similarity between the individual stopped and the actual perpetrator may be an innocent coincidence, there is a justifiable reason for the police to be permitted to investigate in that circumstance. Most of us can see that the detection of crime must permit some interference with the freedoms of law-abiding citizens. That interference must be limited, though, both in frequency and duration. The Supreme Court recognized this fundamental principle in Mann.

November/December 2008

Mann also provided guidance about the power to search in the context of an investigative detention. It is one thing for the police to be able to stop, detain, and question an individual. It is another to be able to search their belongings or their person. Normally, the police must seek the prior approval of a neutral judicial officer before they are permitted to conduct a search. A search incident to an investigative detention is warrantless and presumed by law to be unreasonable. The Supreme Court of Canada detailed under what circumstances these searches will be permissible, including: • the duty being performed by the police; • the extent to which interference with individual liberty is necessary in the performance of that duty; • the importance of the performance of the duty to the public good; • the nature of the liberty interfered with; and • the nature and extent of the interference. A general duty to protect life may, in some circumstances, give rise to the power to conduct a pat-down search as a part of an investigative detention. Again, however, the Court noted that this power to search does not exist as a matter of course. The police must believe on reasonable grounds that their safety or the safety of others is at risk. Any suggestion that these searches are justifiably routine ought to be vigorously opposed. Vague or non-existent safety concerns will not suffice to justify these searches and they should not be seen as routine, even if they are brief and seemingly innocuous. For example, if the police are investigating a minor theft and they have received a fairly specific description of the perpetrator, would they be justified in stopping an individual who matched the description with the purpose of questioning him? Could they then search him pursuant to that detention on the basis that all individuals confronted by the police may become violent, where they have no other information suggesting that the perpetrator behaved violently or had a weapon? The Supreme Court very clearly limited searches incident to investigative detentions to allow only for searches reasonably

November/December 2008

Most of us can see that the detection of crime must permit some interference with the freedoms of law-abiding citizens. That interference must be limited, though, both in frequency and duration. The Supreme Court recognized this fundamental principle in Mann.

designed to locate weapons. The Court also noted that these searches must be brief in duration. One of the themes underlying the Mann decision is that of the divergence, on occasion, of police powers and police duties. The Court noted that while there is a duty to investigate crime, the police are not given licence to undertake any and all actions in exercising that duty. As a result, interference with individual liberty interests ought not to be taken lightly and the police do

not have a carte blanche to detain. This is a theme which will undoubtedly be tested given the continuing heightened focus on public security in the shadow of September 11, 2001. While there is a legitimate interest in allowing the police to properly investigate crime, the civil liberties of individuals, especially in this day and age, must be recognized and jealously protected. Deborah R. Hatch is a lawyer with the firm of Gunn and Prithipaul in Edmonton, Alberta.

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NFP Corporate Legislation

With last September’s election call and the dissolution of Parliament, Bill C-62 died on the Order Paper. Bill C-62, the Canada Notfor-profit Corporations Act, was the most recent draft of legislation to reform the law dealing with the creation and governance of federal not-for-profit corporations. This was only the latest in a series of failures over the years to revamp the current legislation in this area, the Canada Corporations Act (CCA). The faltering of this most recent legislative reform is a telling comment on the characteristically makeshift regulatory environment in Canada for not-for-profit corporations. Too often Canadian not-for-profit groups are expected to do 21st century work within a 19th century framework. Both federal and provincial governments provide legislation under which not-forprofit corporations can be constituted. These statutes vary widely from jurisdiction to jurisdiction, and the responsibilities and obligations of volunteer directors are not consistent. It has been almost a century since the CCA became law, and many of the provincial statutes are also badly out of date. In most Canadian jurisdictions, legislation in this area is a low priority.

Originally enacted in 1918, the CCA provided the framework for incorporation and governance of for-profit as well as not-forprofit entities. But, with the enactment of the Canada Business Corporations Act (CBCA) in 1975, a large section of the CCA was repealed and some minor tinkering done so that an adequate regime was left to cover not-for-profit corporations. The CBCA modernized incorporation procedures for for-profit entities and featured concepts like “as-of-right” incorporation and “natural person” powers. This provided more flexibility and freedom for the owners and operators of for-profit groups. As well, the CBCA and its provincial equivalents hold corporate directors to an “objective” standard of care, which provides them with much more certainty about their responsibility for their conduct than the “subjective” standard of care found in the CCA. There have been very few recent Canadian cases on the meaning of the subjective standard of care, so it is difficult to determine the extent to which it overlaps or differs with the objective standard of care. Ironically, in some cases, volunteer notfor-profit directors must meet a higher test

The governance practices of a faith-based group may be very different from a private golf club or arts group. The sources of revenue of a sports league will be very different from those of social service agency. The membership model of an industry association will differ from that of a community health centre.

for their conduct than their paid for-profit counterparts. A subjective standard of care takes into account the knowledge and experience of a director and is generally a more onerous test than an objective standard of care, which turns on whether an average person could reasonably have taken the same decision. Unlike the CCA, the CBCA has been regularly updated to reflect advances in the law of corporate governance. Most provincial statutes are closely modeled on the CBCA, and are routinely amended to reflect changes to the CBCA, ensuring that forprofit entities and their directors are subject to similar rules, whether they are provincially or federally incorporated. Meanwhile, not-for-profit groups continue to be saddled with legislation that requires Ministerial approval for incorporation and even for some by-law changes. It remains possible for not-for-profit corporations to act ultra vires – outside the scope of their powers – while this concept has effectively disappeared from for-profit corporate law. As well, the subjective standard of care to which their directors are held can discourage people from serving on the boards of not-for-profit corporations. In part the updating of the CCA has been derailed by the difficulty of drafting a law which, while satisfying the government’s legitimate interest in regulating these entities, also meets the divergent needs and expectations of the many different types of groups subject to the legislation. The governance practices of a faith-based group may be very different from a private golf club or arts group. The sources of revenue of a sports league will be very different from those of social service agency. The membership model of an industry association will differ from that of a community health centre. One approach to legislative reform is to base not-for-profit legislation on for-profit governance statues, so that members enjoy rights akin to those of shareholders. Bill C-62, which took this approach, attempted to accommodate religious, closely-held, and certain other specific types of not-for-profit corporations by applying broad transparency and accountability principles to all entities incorporated under the legislation, then carving out limited exemptions or exceptions

November/December 2008

for those meeting certain criteria. For example, under the federal draft legislation, an exemption was available for faith-based groups from the general rule that members, like shareholders, could assert monetary or other claims against the corporation if decisions were taken that compromised their interest in the corporation. Similarly, with unanimous member approval or, on application to Industry Canada, certain exceptions were available from standard disclosure obligations or audit requirements provided for in the statute. (Such provisions could be used by groups with a small or closed memberships). An alternative approach, exemplified at least in part by Saskatchewan’s Not-Profit Corporations Act 1995, establishes categories of not-for-profits and applies different rules depending on what category a group falls in. A key question with this approach is

whether groups should be able to opt out of aspects of the statute merely because they decide themselves that they fall within a specific category. Legislation drafted on this model typically allows more scope for not-forprofit corporations to act in their governance or financial practices in ways that might be considered contrary to public policy. One view holds that individuals ought to have the freedom to structure their organization and its activities however they want, provided the practice is not illegal. The contrary position is that the government (and the public) have an interest in how not-forprofit groups conduct themselves, and ought to preclude, as a matter of course, financial and governance practices that regularly recur and are considered unacceptable. There is little doubt that the Canadian notfor-profit sector would benefit from having federal legislation that better reflects con-

temporary values and modern approaches. Economic activity carried out by Canadian not-for-profit corporations was estimated in 2003, according to the NSNVO, to be $79.1 billion or 7.8% of the nation’s Gross Domestic Product. With activity of this scope, it would seem a given that we would want the best possible regulatory framework available. Perhaps after the election, the new government will make this a high enough priority that within the life of the next Parliament a successor to Bill C-62 will be enacted. 2018 will mark the centenary of the Canada Corporations Act, so it is well past the age when it ought to be retired. Peter Broder is Policy Analyst and General Counsel at The Muttart Foundation in Edmonton. The views expressed do not necessarily reflect those of the Foundation.

Updated September 2008

Consumer Fraud and Scams

in Alberta

A guide to resources

Updated September 2008

L R C

This guide is intended to help you find out information about consumer

Will

frauds and scams that could affect you. If you have already been impacted

by one of these schemes or think you might have been, contact information

in Alberta

for agencies that can help you has also been included.

This booklet is for people who are wondering if they should write a Will. 1. General Information and Tips for Prevention ...........................................................................2

It explains what is involved in making a Will. The purpose of writing a Will

Legal Resource Centre

2. Advance Fee Schemes ...................................................................................................................3

is to pass on your belongings to your loved ones according to your wishes

You should not rely on this

3. ATM, Credit Card and Debit Card Fraud ....................................................................................4

booklet for legal advice. It

more costly, complicated, and time-consuming to settle your estate, and

5. Financial Abuse...............................................................................................................................6 6. Home Renovation Fraud ...............................................................................................................7

Legal Resource Centre

L R C

and with as few problems as possible. If you die without a Will, it’s often

4. Contract Fraud ................................................................................................................................5

provides general information on Alberta law only.

this booklet describes some common examples. It gives general information

7. Identity Theft...................................................................................................................................9

only, not legal advice. It is not a do-it-yourself guide. For that, you need a

Updated September 2008

The Legal Resource Centre, funded by the Public Library Development

8. Internet, E-Mail and Online Shopping Fraud ......................................................................... 11

#201 10350 – 124 Street Edmonton, AB T5N 3V9 Phone: 780.451.5285 Fax: 780.451.2341

more detailed self-help publication or legal advice. See the last few pages of

Power of Attorney

9. Investment and Mortgage Fraud ............................................................................................. 12

Initiative (PLDI) and the Alberta Law Foundation, has produced a series

this booklet for information on where to get this help.

10. Telemarketing and Telephone Scams.................................................................................... 13 11. Where to Go for Help ................................................................................................................ 14

FREE

Contents

You should not rely on this booklet for legal advice. It

1. What is it? General information about Wills ..........................................................................2

provides general information on Alberta law only.

in Alberta

2. How do I make one? Top 10 Questions about Creating a Will. .............................................5 3. What goes in it? Top 15 Questions about the Contents of a Will .........................................8

Legal Resource Centre

R a This booklet is for people who are wondering if they should write C

6. How does it end? Top 5 Questions about how a Will stops having effect ....................... 17

Edmonton, AB T5N 3V9

the future. It explains what is involved in making a Power of Attorney and Phone: 780.451.5285 Fax:

of booklets entitled The Law and You: Seniors and Older Adults.

4. When does it get reviewed? Top 5 Questions about Reviewing and Updating Wills ... 13 5. What happens with it? Top 10 Questions about the Administration of Wills ................. 15

Power of Attorney. It is about putting your affairs in order and #201 planning 10350for – 124 Street

7. What do the Words Mean? Glossary ...................................................................................... 18

780.451.2341

Titles in the series include:

how a Power of Attorney can help you to look after your current and future

8. Where can I get more help? Community Resources ............................................................ 19

FREE

financial affairs. It describes some common examples. This booklet gives

general information only, not legal advice. It is not a do-it-yourself guide. For that, you need a more detailed self-help publication or legal advice. See the

•

Making a Will

•

Making a Personal Directive

•

Making a Power of Attorney

•

Being an Executor

•

Being an Attorney

•

Being an Agent

•

Protecting Yourself from Consumer Fraud and Scams

•

Grandparents’ Rights

last few pages of this booklet for information on where to get this help.

Contents Updated September 2008

You should not rely on this

Grandparents’ Rights

1. What is it? Top 5 General Information Questions about Powers of Attorney .......................... 2

booklet for legal advice. It provides general information on

2. How do I make one? Top 10 Questions about Creating a Power of Attorney ......................... 4

Alberta law only.

3. What goes in it? Top 10 Questions about the Content of a Power of Attorney ...................... 7

Legal Resource Centre

L R C

4. When does it get reviewed? Top 5 Questions about Updating a Power of Attorney ............ 9 5. What happens with it? Top 10 Questions about the Administration of

Powers of Attorney ...........................................................................................................................10

#201 10350 – 124 Street Edmonton, AB T5N 3V9 Phone: 780.451.5285 Fax: 780.451.2341

FREE

in Alberta

6. How does it end? Top 5 Questions about how Powers of Attorney stop having effect .....12

7. What do the Words Mean? Glossary .............................................................................................14 8. Where can I get more help? Community Resources ..................................................................15

This booklet is for grandparents who want to know about their rights and options with respect to their grandchildren. For grandparents who are currently being, or are worried that they will be, denied access to their children, this booklet explains what is involved in obtaining access with your grandchildren through a “contact order”. For grandparents who are concerned about the safety and well-being of their grandchildren, this booklet outlines the various options that would enable those grandparents to care for those grandchildren. This booklet also provides link to grandparents’ organizations

Updated September 2008

that can help with all aspects of these issues.

Personal Directive

in Alberta

The information in this booklet is for general use only, not legal advice. It is not a doit-yourself guide. For that, you need a more detailed self-help publication or legal advice. See the last few pages of this booklet for information on where to get this help. Contents

You should not rely on this

As a grandparent, do I have rights? Top 5 questions about grandparents’ rights in general.............................................................................................................................2

I want contact with my grandchildren (Part 1) Top 10 questions about contact with grandchildren when there has been a separation, divorce, death, and/or remarriage ............4

I want contact with my grandchildren (Part 2) Top 5 questions about accessing grandchildren in “intact” families (where there has been no separation, divorce, death, and/or remarriage) ........................................................................................................................7

I want to care for my grandchildren (Part 1) Top 10 questions about grandparents as a type of foster parent ..............................................................................................................8

I want to care for my grandchildren (Part 2) Top 10 questions about obtaining private guardianship of your grandchildren ......................................................................12

What do the words mean? ..................................................................................................... 16

This booklet is for people who are wondering if they should writebooklet a for legal advice. It provides general information on Alberta law only. Personal Directive. It is about putting your affairs in order and planning for

the future. It explains what is involved in making a Personal Directive and

Legal Resource Centre

L R

C how a Personal Directive can help you to look after your future personal

#201 10350 – 124 Street (non-financial) needs. It describes some common examples. This booklet Edmonton, AB T5N 3V9 Phone: 780.451.5285 gives general information only, not legal advice. It is not a do-it-yourself Fax: 780.451.2341

guide. For that, you need a more detailed self-help publication or legal advice. See the last few pages of this booklet for information on where to get this help. You should not rely on this

Contents

booklet for legal advice. It provides general information on Alberta law only.

Legal Resource Centre

L R C

#201 10350 – 124 Street Edmonton, AB T5N 3V9 Phone: 780.451.5285 Fax: 780.451.2341

FREE

1. What is it? Top 5 General Information Questions about Personal Directives .......................... 2 2. How do I make one? Top 10 Questions about Creating a Personal Directive ......................... 3 3. What goes in it? Top 10 Questions about the Content of Personal Directives........................ 6 4. When does it get reviewed? Top 5 Questions about Updating a Personal Directive ............. 9 5. What happens with it? Top 10 Questions about the Administration of Personal Directives ..10 6. How does it end? Top 5 Questions about how Personal Directives Stop Having Effect ....13

FREE

Where can I get more help? Legal, Services, Community .................................................... 17

Where can I get more Information? Links to literature on the topic of the role of grandparents in the lives of children ........................................................................................ 19

For more information, or to order copies, contact the Legal Resource Centre: Phone: 780-451-8764 Fax: 780-451-2341 e-mail: info.lrc@ualberta.ca

7. What do the Words Mean? Glossary ............................................................................................14 8. Where can I get more help? Community Resources ..................................................................15

November/December 2008

Law and Literature Rob Normey

The Sealed Letter The Sealed Letter (2008) is the latest novel by the acclaimed Irish writer Emma Donoghue, who has recently resettled in London, Ontario. She has previously written Slammerkin, which was a New York Times Notable Book of the Year. The Sealed Letter is an absorbing novel which narrates a divorce trial in London in 1864. Donoghue bases the novel on the actual Codrington divorce trial and retains many of the details of the case. However, it is wise to remember that this is fiction: some of the events Donoghue narrates she clearly imagined. The book is not a docudrama; there is no use in asking whether certain of the events could really have happened. That being said, Donoghue is evidently inspired by the actual Codrington divorce trial to provide us with a fascinating look at how a famous trial unfolded in Victorian England. As Donoghue has stated in an interview, the Codrington case was very much the O.J. Simpson trial of its time. Everyone in London seems to have been galvanized by it. Crowds flocked to the courtroom. Newspaper coverage was intense. The novel focuses on three main characters. They are Helen Codrington, her husband, Vice Admiral Henry Codrington, and Helen’s friend, the pioneering feminist Emily ‘Fido’ Faithful. Helen is 36 when the novel opens in 1864. She is beautiful and lively, yet unhappy in her marriage to

Henry, or Harry, as he is called. Helen considers her much older husband stodgy and unromantic. She is clearly no longer in love with him. Helen has over the last several years taken up with young, exciting naval officers. At the time of the Codrington’s return to London from Malta, she is conducting a secret sexual affair with Colonel David Anderson, who was stationed in Malta at the same time as Vice Admiral Codrington. The opening pages of The Sealed Letter set the scene for what is to unfold. Helen and her companion Colonel Anderson meet Helen’s old friend Fido on the streets of London. Helen and Fido haven’t seen one another for over seven years. Fido’s letters to Helen were not responded to, a state of affairs Helen explains must have occurred because of the failure of the Maltese Post Office. Fido muses that the odds of running into someone in London are three and a half million to one. Was it in fact blind chance that brought the two old friends together? We find out later what really happened. During the discussion between the old friends we learn that Fido is a pioneer of the British women’s movement and a printer and publisher of a woman’s magazine, the Victoria magazine. She is also a dedicated philanthropist. Fido soon learns that Helen is unhappy in her marriage. She reflects on her relationship with husband and wife. She felt drawn

Fido muses that the odds of running into someone in London are three and a half million to one. Was it in fact blind chance that brought the two old friends together? We find out later what really happened.

to Helen at once “as a bloom opens to a bee.” She also liked “tall, bearded Captain Codrington” (as he then was). She was drawn to his earnestness, his zeal for the Navy, his tenderness with the children, his manliness. Fido becomes unwillingly entangled in Helen’s affair with Colonel Anderson. It comes to appear later to Harry that Fido was assisting Helen in her assignations. In fact, she was manipulated by Helen. A particularly dramatic scene in the novel is the event which leads Harry to suspect that Helen is having an affair. He is told that his wife is dining with Fido and some of her friends. The Codrington’s daughter Nell becomes extremely ill and Harry wires Helen to come home at once. She doesn’t return for hours. It turns out that she was off at a hotel with Anderson. After this Harry hires a private detective, to gather information about Helen’s infidelity. Soon the matter is in the hands of the lawyers. Harry’s petition for divorce is brought under the terms of the new Matrimonial Causes Act (1857). Earlier in the novel Fido and other feminist social activists have discussed the sexual double standard at play in the legislation. While a husband can petition for divorce on the grounds of his wife’s adultery, a blameless wife whose husband takes half a dozen mistresses can’t obtain a divorce on that basis alone. She can only free herself of him if she proves him guilty of a compounding offence as well, such as desertion, cruelty, rape, bestiality, or buggery. The activists also criticize matrimonial law for its denial of the right of women to retain or acquire property. “The possessions of the woman who commits murder and those of the woman who commits matrimony are both dealt with alike: confiscation.” In his meeting with his solicitor Harry learns that the Matrimonial Causes Act has made the business of obtaining a divorce easier than it was. Bird states that currently petitions stand at 250 a year, of which 150 are granted. In point of fact, it was still difficult to obtain a divorce. The ensuing trial dramatizes what I perceive to have been four major flaws with the divorce laws of the time. First, the petitioner and respondent are not entitled to give testimony at their own trial, on the

November/December 2008

theory that they are presumed to be biased. This plays out in the evidence of a friend of Harry’s, Mrs. Watson. She fabricates a story that Helen confided in her that she had sex with a lieutenant in the lane at the back of the Watson’s house. Helen is unable to testify that Mrs. Watson’s story is utterly false. Second, the law requires that a petitioner prove fault, and if he or she does so, the respondent will be left with nothing. Harry must prove adultery, and if he does, Helen will be disgraced and left with no maintenance, and no custody or access to her two daughters. The stakes are high indeed. Third, the law requires for a divorce to be granted that the petitioner has not been guilty of allowing the respondent improper freedoms. As Helen’s solicitor tells her, he is looking for evidence of the 5 Cs. “Did the admiral conduce to misconduct by leaving you lonely and unprotected? Did he condone the adultery by tacit forgiveness? Did he connive with her by turning a blind eye or even collude in the hopes of obtaining an easy divorce The final C is cruelty.” The possibility that the divorce will be denied on any of these grounds, interpreted strictly against the petitioner husband, leads Harry to take extreme measures to ensure that any allegations of one or more of the “Cs” is rebutted. Fourth, and related to the previous two, is the extreme adversarial nature of the proceedings. The stakes are so high that in addition to the false testimony of Mrs. Watson, both Helen and Harry are driven to commit deceitful acts in the course of the trial. Donoghue implies that even basically decent people may be driven to such desperate measures in order to avoid defeat. Donoghue gives the reader a front row seat at the trial. She narrates it with zest and with careful attention to the thoughts and actions of the three main characters as the trial unfolds. She accords full scope to the lawyers as they do their best to tarnish the reputation of the opposing party. Helen and Harry struggle through the ordeal and Fido, after initially going into hiding to avoid being subpoenaed, consents to come to court and provides surprising testimony. The book is highly recommended for those interested in the dynamics of a sensational divorce trial in Victorian England.

November/December 2008

“The possessions of the woman who commits murder and those of the woman who commits matrimony are both dealt with alike: confiscation.”

Robert Normey is with the Constitutional and Aboriginal Law Branch of the Alberta Department of Justice. The views expressed in this article are the author’s own and do not represent the views of the Alberta government.

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