We are pleased to announce that the Spring issue of the DLJ is now available online: https://digitalcommons.schulichlaw.dal.ca/dlj/vol42/iss1/
We are pleased to announce that the Spring issue of the DLJ is now available online: https://digitalcommons.schulichlaw.dal.ca/dlj/vol42/iss1/
In this episode for the Dalhousie Law Journal Podcast Jon Goud speaks with Professor Adelina Iftene about the regulatory, political, constitutional, and ethical case for a compassionate release regime for elderly prisoners in Canada. Listen here:
See Adelina’s article here: www.albertalawreview.com/index.php/AL…cle/view/783
View her SSRN profile here: papers.ssrn.com/sol3/cf_dev/AbsBy…fm?per_id=2640651
Her book is available for purchase online here: www.chapters.indigo.ca/en-ca/books/p…&gclsrc=aw.ds
*Note on audio quality: This was the initial pilot episode for the podcast and the microphone quality has since substantially improved.
In June 2019, the Criminal Code jury selection procedures were dramatically changed by Bill C-75. The elimination of peremptory challenges and changes to challenges for cause will have the most obvious impact, but this post will explore a different issue: the trial judge’s ability to have a juror “stand by”. Until now, this power has largely been a complement to the judge’s power to excuse a juror: if a juror asked to be excused for reasons of personal hardship, a judge could instead postpone that juror to the end of the list. As a result, a full jury might be selected before that juror was re-called.
As originally drafted, the exemption section was limited to standing jurors by based on personal hardship or other reasonable cause. Bill C-75 now allows a judge to have a juror stand by to “maintain public confidence in the administration of justice”. This change seems to be founded on an understanding of “representativeness” that is not only different from that which has been adopted until now, but is the very understanding rejected until now. As a result, it raises a host of questions.
The genesis of this change was the trial of Gerald Stanley, a white accused found not guilty of killing an Indigenous man: much media attention focused on the fact that all the jury members were white, although Indigenous people had been among the pool from which the jury was selected. The natural inference is that that was the “problem” this change was meant to solve: that judges should use this new ability for things like influencing the racial makeup of a jury. For example, if no visible minority jurors have been randomly selected from the jury pool, the judge could stand by the white jurors whose names are called until a visible minority juror’s name is called, so that the jury will be more representative. In isolation, that is an understandable position.
However, the change does not occur in isolation: it is being incorporated into a system which has resolutely rejected that view of representativeness: “[c]ourts have consistently rejected the idea that an accused is entitled to a particular number of individuals of his or her race on either the jury roll or petit jury,” (at para 39) the Supreme Court has stated, as well as that “representativeness is not about targeting particular groups for inclusion on the jury roll.” (at para 61) An accused cannot insist that the jury or jury array contain members of the accused’s race. It has similarly been held that “public confidence in the administration of justice would be seriously undermined if Crown counsel were permitted to exercise the power of peremptory challenge on racial or ethnic grounds.” (at para 66)
The attitude which has been strongly reflected in the law until now is that, despite differences, any person is presumptively capable of being a juror for any other person. (at para 52) As a result, representativeness has been equated with randomness, and therefore the latter has been protected. Indeed, in some cases attempts merely to increase the likelihood that jurors of a particular race would be available for selection have been found to be a basis for ordering a new trial. That is not to say that the opposing approach cannot be taken, but the struggle for judges will be that, although the new section 633 seems to adopt the view that judges should tinker with the jury composition to achieve “representativeness”, the notion that they should not do so is still present everywhere else in the system.
The closest thing we have to guidance on this issue are cases where the Crown used its powers to produce all-female juries in sexual assault cases. In R v Pizzacalla the Ontario Court of Appeal ordered a retrial in a case where the Crown used its stand-aside power to produce an all-female jury in a sexual assault case. Biddle presented another case in which the Crown used its power to create an all-female jury for a sexual assault case. Justice Gonthier criticized the Crown’s behaviour as an effort to fashion a jury that might seem favourable to it, even if it was, in fact, impartial. In contrast, McLachlin J (as she then was) argued that an all-female jury would be seen by a reasonable observer to be impartial.
Would standing jurors by in order to increase the likelihood of producing a jury with more of any identifiable group be based on the logic that expectations about a person can properly be based on their group membership? In Pizzacalla, the prosecutor thought that female jurors were more likely to disapprove of sexual harassment in the workplace, which is not an obviously irrational opinion. However, in other contexts the belief that expectations about a person can legitimately be based on that person’s race or sex is exactly the reasoning the judicial system is trying to eliminate.
The principle that powers should not be used to produce a jury that does not appear impartial is not in dispute. The source of dispute will be what sort of judicial steps to influence the make-up of the jury violate that principle. The deliberate exclusion of one race or one sex from a jury violates that principle. (at para 50) However, the deliberate inclusion of one group is, functionally, in part the exclusion of others, which makes this principle challenging in practice. At the stage of assembling the jury array, for example, attempts to consciously decrease or increase the number of Indigenous people summoned have both been found objectionable.
The only thing that can be said with confidence about the new exclusion ground in section 633 is that it will create challenging issues for courts to wrestle with as they begin to apply it.
Professor Jason MacLean of the University of Saskatchewn joins Alexander Jessome from the Dalhousie Law Journal to discuss his upcoming paper “Manufacturing Consent to Climate Inaction: a Case Study of The Globe and Mail’s Pipeline Coverage” which will be published in this year’s Fall edition of the DLJ.
Highlights include a discussion of fake news, conflicts of interest in the mainstream media, and the impact of Canada’s 2019 Federal election on the future of the country’s climate policy.
Professor MacLean’s profile can be found on the University of Saskatchewan’s website: law.usask.ca/people/faculty/jason-maclean.php
Find his SSRN profile here: papers.ssrn.com/sol3/cf_dev/AbsBy…fm?per_id=1190710
You might think that people with dementia cannot get medical assistance in dying (MAiD). But you’d be wrong. In fact, some people with dementia can get MAiD. Indeed, some people with dementia have received MAiD. Here’s how.
In order to be eligible for MAiD, a person must:
If a person is in the very advanced stages of dementia, they will not be eligible for MAiD because they will not be capable of making decisions with respect to their health immediately prior to the provision of MAiD. Advance requests for MAiD are not allowed in Canada.
But in the earlier stages, a person with dementia may be eligible for MAiD.
Dementia itself is not an illness, disease, or disability. Rather, it is a group of symptoms. Dementia can be caused by a range of things, including diseases such as Parkinson’s, Huntington’s, and Alzheimer’s disease. It can also be caused by traumatic brain injury, reduced blood flow to the brain, and drug or alcohol abuse. Since Alzheimer’s disease causes most cases of dementia, I will use it as my illustrative example.
Alzheimer’s disease is clearly a serious and incurable disease.
A diagnosis of Alzheimer’s disease immediately makes one’s natural death “reasonably foreseeable”. “Reasonably foreseeable” can, and has, been interpreted as meaning: the timing of anticipated death is not too remote or the cause of death is predictable. With Alzheimer’s disease, upon diagnosis one’s natural death is “not too remote” (because the median lifespan is seven years after diagnosis) and one’s cause of death is predictable.
People with Alzheimer’s disease can experience an advanced state of irreversible decline in capability before they lose decision-making capacity. An immigrant might lose the ability to speak the language of his adopted home after having spoken it for decades. A professional pianist might lose the ability to play the piano. An English Professor might lose the ability to read. A hiker might lose the ability to walk more than a block at a time. They might all still be fully capable of making decisions about their health. Alzheimer’s can significantly impair our ability to perform everyday tasks that involve physical coordination, memory, or planning, before we have lost the capacity to make decisions with respect to our health. And, as Stefanie Green, President of the Canadian Association of MAiD Assessors and Providers noted, “’What would be more advanced… than being close to losing capacity to make decisions for oneself?’”
People with Alzheimer’s disease can also experience enduring, intolerable and irremediable physical or psychological suffering before they lose decision-making capacity. Some people find the following to be excruciating: the inability to independently perform any of the activities of daily living; the inability to recognize one’s children; the inability to pursue any of the activities that gave one’s life meaning; and the total loss of independence.
Thus, someone with Alzheimer’s disease could be eligible for MAiD.
For an example of just such a person, consider the following actual case (the quotes below are from a letter to the clinicians involved from the College of Physicians and Surgeons of BC who were responding to concerns expressed by the Coroner and Chief Medical Officer of BC).
Ms. Wilson was a 74-year-old woman formally diagnosed with Alzheimer’s disease in 2015. She began seriously pursuing MAiD in January 2017.
She was fully informed about the alternatives to MAiD and ways to maximize her quality of life and she had good access to medical treatment and supports.
“Drs. Pereira and Dr. [ ] had long-standing involvement in the provision of medical care to Ms. Wilson, and were familiar with her condition and decline over the years. Both physicians were similarly well-aware of her suffering, and made significant attempts to ameliorate her condition with medical therapy, multi-disciplinary involvement, and community supports.”
“Ms. Wilson received very good and complete medical care, and she saw numerous specialists to treat her condition over the last years of her life, including therapists, paramedical professionals, and a clinical pharmacist, as well as support from the geriatric clinic. Her medical treatment was maximized, and she had good support from community organizations and her family.”
Ms. Wilson was found to be capable of making the MAiD decision by three physicians (her family physician of more than ten years, her neurologist of four years, and her MAiD provider).
“she demonstrated continued capacity to direct her medical care…”
“Dr. Pereira was the long-standing family-physician for Ms. Wilson, and was very familiar with her current cognitive status. We further note that Dr. [ ], in [ ] capacity as a neurologist providing longitudinal care for Ms. Wilson conducted a formal capacity assessment, and provided [ ] documented opinion that Ms. Wilson possessed the appropriate capacity to consent for MAiD.”
Ms. Wilson had been diagnosed with Alzheimer’s disease.
Ms. Wilson had lost a wide range of prior capabilities.
“Ms Wilson was no longer able to drive, could not operate the television remote control, could not work the telephone, and was unable to make meals.”
“She was not able to perform most activities of daily living without assistance from her husband.”
Despite high levels of family, community, and professional supports, Ms. Wilson was experiencing suffering that she found to be intolerable and which could not be relieved.
“On numerous occasions she related that her suffering was intolerable to her, and that was why she requested MAiD. As her cognition deteriorated and her dependence on her husband increased, her reported suffering worsened. … She became increasingly distressed at her level of deterioration, despite the support and care of her doting husband. Dr. Pereira noted that in his opinion, Ms. Wilson’s condition was grievous to her in a very profound way.”
“Ms. Wilson articulated her increased suffering, particularly her psychological suffering, as a result of her increasing loss of independence. She was very clear that she did not want to leave her home, and did not want to live in a care facility. … Ms. Wilson communicated that she was suffering in a way that was increasingly intolerable, and she did not find any alternatives to be acceptable.”
MAiD was provided to Ms. Wilson on October 29, 2017.
On December 6, 2018, following a detailed review of the case, the College of Physicians and Surgeons of British Columbia concluded “the three physicians involved in this case practiced consistent with the current legislation…”
In May 2019, Canadian Association of MAiD Assessors and Providers released a clinical guidance document “Medical Assistance in Dying (MAiD) in Dementia,” to provide guidance to physicians and nurse practitioners when presented with requests for MAiD from persons with dementia, https://camapcanada.ca/wp-content/uploads/2019/05/CPG-dementia.pdf
And so, now, it is apparent that some people with dementia can get MAiD in Canada.
We’re excited to launch the Dalhousie Law Journal blog. Our plan is to use this blog as a place to continue the great conversations that began in the DLJ or around the halls of the Weldon building.
In this opening blog, we discuss recent and upcoming issues, our open access copyright policy, our progress expanding the journal’s digital footprint, and some new dissemination initiatives.
This summer saw the release of a special issue on immigration law: a topic that is top-of-mind given the election discussions. You should check out some of the papers. Our next issue is a special issue on business law, which features a fantastic collection of Canada’s emerging business law scholars. (Thanks to last year’s Purdy Crawford business law workshop!) You can expect us to move the dial on topics like the case for a risk-based perspective to climate change, strategies for bringing Aboriginal and Indigenous perspectives to business law classrooms, the media’s complicity in special interest legislation, tax remission orders, the changing face of corporate restructuring, and more.
We’re well into planning for the Spring 2020 volume, but welcome submissions any time. (Find submission guidelines here.)
The DLJ embraces principles of open access copyright. Given our role as an institution within a public university, we believe it is imperative to distribute the insights of authors who work with us as broadly as possible. Going forward, our author agreement incorporates the principles of a non-commercial open access 4.0 license.
We’ve expanded our digital footprint. We have partnered with Bepress to host a complete digital archive owned and maintained by the DLJ. In the future this will help us track an article’s impact. Additionally, the DLJ is now available on CanLII. Issues of the DLJ from 2015-2018 are available, and older issues will be uploaded and published soon. The full catalog of the DLJ is available on Hein Online.
This blog will become one of our main venues for continuing conversations. On it, you can expect to find brief pieces written by DLJ authors and Schulich faculty and graduate students. Upcoming blogs include an overview of the dramatic impact of Bill C-75 to the Criminal Code, a discussion of Professor Adelina Iftene’s new book “Punished for Aging”, reports from conferences at the law school, a case comment on the fallout from Vavilov and others.
And there’s more. The DLJ has a new podcast series. In this series the student editors of the journal talk with Schulich academics and DLJ authors. These conversations are a brief introduction to the authors’ themes, and an opportunity to explore nuance and counterarguments. The podcast focuses especially on scholarship with policy ramifications.
Finally, we’re on twitter! You can follow us at @DalLJ to stay current on blog posts, podcasts, new issues, and general interest news in the world of legal academia.
Welcome to the Dalhousie Law Journal Blog – a place where the conversation continues one idea at a time.
This is a place for academics and practitioners to share ideas, access our podcast, and find links to explore the DLJ.