RSS FeedHealth Law: What Does It Mean To You?
The Health Law Student Association (HLSA) at the University of Ottawa brings together people who have a common interest in the area of Health Law.
However, when questioned, most members of the HLSA (myself included) will probably struggle for some kind of coherent definition. The more I plunge into the depths of Health Law, the more I realize that a definitive scope of what Health Law entails is just not a reality.
Instead, the ebb and flow of the Health Law stream seems highly dependent on the particular lawyer or health practitioner you ask, on the particular law firm, organization, or hospital you’re involved with, or simply on the whim of the funding allocation decisions of the government of the day.
Law 101 for Health Care Professionals
Fourth post in a series on the First Annual Interprofessional Health Law Conference.
Elyse Sunshine of Gardiner Roberts provided health care professionals the basics of the regulatory scheme governing the health sector in Ontario.
Law is Cool Podcast: Polygamy and the Law (Episode 18)
Polygamist leader Winston Blackmore and James Oler are facing criminal charges of polygamy in British Columbia. Polygamy refers to a practice in which a person is simultaneously married to more than one spouse. The most common form of polygamy is polygyny; this is the practice of one man having multiple wives. Social attitudes toward polygamy vary widely across cultures and religions. Polygyny has often been associated with the Mormon and Islamic faiths, although attitudes toward the practice vary enormously within those religious communities.
In Canada, polygamy is not recognized as a valid form of marriage. In fact, section 293 of the Criminal Code states:
293. (1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
In the context of polygyny, s. 293 of the Criminal Code makes all spouses (including the wives) liable to a maximum prison term of five years. Mr. Blackmore has indicated that he plans to challenge the Criminal Code sanction by claiming, among other things, that it is a violation of freedom of conscience and religion as guaranteed in the Charter s. 2(a).
At least one legal scholar believes that a Charter challenge might succeed. Beverley Baines is a Professor of Law and Head of Women’s Studies at Queen’s University. In 2005, she co-authored one of a series of four policy papers regarding polygamy funded by Status of Women Canada’s Policy Research Fund. That paper argues, inter alia, that the criminalization of polygamy may be vulnerable to Charter scrutiny.
The polygamy issue has also promted responses from a very different perspective. Some opponents of same-sex marriage have argued that re-defining marriage could open the door to further revisions including polygamy. Dr. Margaret Somerville is one of Canada’s most well-known bioethicists. She is Samuel Gale Professor of Law at McGill University and the Founding Director of the McGill Centre for Medicine, Ethics and Law. She argues that marriage as a social institution has its basis in the biology of natural procreation. In her view, the same-sex marriage debate marked a fundamental shift in our concept of marriage from one that is based on biology to one that is based on personal preference. She argues that this has opened the door for legal reconition of marriage rights in polygamous marriages, possibly to the detriment of the children of those marriages.
On today’s podcast, I interview both Professors in order to explore some of the legal and social challenges raised by polygamy. As we follow the Blackmore case through the court system, it will be interesting to see how these challenges will be addressed.
Lawyer’s Fee: $125,000 In Gift Cards
California attorney Neil B. Fineman brought a class action lawsuit against apparel store Windsor Fashions. The store had been collecting personal information from credit card purchases in violation of California’s Civil Code §1747.08(a)(2).
The store settled: Fineman would receive $125,000 in fees, but aggrieved customers would get a $10 gift card, not cash. So Los Angeles Superior Court Judge Brett Klein issued an order stating that Fineman would receive his fee in the form of 12,500 $10 gift cards.
The settlement was not likely to deter Windsor Fashions – after all even their affordable dresses are well above the $10 gift card’s value. Maybe this might herald a shift to cash and away from glorified coupons.
(h/t Megan McArdle)
Kiss Me… Do Not Pass Go, Do Not Collect $200
The BBC recently reported on a criminal case in India against a couple who were arrested for kissing. This kind of story isn’t all that surprising anymore thanks to the modern media, which has reported on such stories before. Regardless of the lack of surprise, though, I remain in disbelief.
To my knowledge, common law countries have different approaches to the evolution of law. Courts in the United States, for example, tend to try to preserve the original intentions of the framers of the constitution, but their common law changes with the times. In Canada, our “living tree” approach to the constitution allows our interpretation of it to evolve, for better or worse, with society much like our common law principles.
Across most legal systems there is at least one constant: Change.
But everywhere there is law there is bound to be a dichotomy between written rules and cultural norms. Sometimes laws are made before society as a whole is willing to accept them (and the failure of culture to catch up is often referred to as “cultural lag”), while at other times laws are made late and after myriad different groups and individuals voice the need for change (let’s call it “legal lag”).
Being that the case was dismissed, it’s safe to assume that the courts, if not the law, are beginning to realize the madness in actually punishing people for public affection in a modern democracy (of which India is the largest, by the way). Personally, I think the dirty looks we often give to people who push the limits of good taste in this regard are punishment enough. But the fact that this case involves an arrest means that someone, namely the police officer(s), disagreed. This is cultural lag.
This isn’t a criticism of Indian culture, but of Indian law (as well as the similar laws of countless other countries). I think that Indian culture can continue to punish a faux pas such as public smooching with the same social stigma that everyone else does. But arrest and possible criminal charges seem a bit harsh.
And yes, I am aware of the fact that Canada has stupid laws too. There is as much room for change here as there is anywhere else. The only reason for this post is that the romantic in me dies a little every time a story like this arises. This isn’t as severe a slight to public morality as the “British Sex on the Dubai Beach” incident, or Richard Gere’s public assault on Shilpa Shetty. This was just a kiss between two consenting adults in a relationship.
Kissing isn’t an exclusively Western phenomenon. But I’m sure some would argue that shamelessness is. Perhaps that’s why public affection, within reasonable limits, isn’t as frowned upon here as elsewhere. I can see merit in the concerns about Western popular culture flooding, and in many cases drowning, the unique cultures that don’t enjoy worldwide cultural expression nearly as prominent. I’m also all for the preservation of such cultures both here and there. But I personally see nothing wrong with us all exporting what has become our most valued commodity. And maybe in our case, some of the shamelessness that might come with it.
Osgoode Gets Down to Business
With all the negative press surrounding the York strike in recent weeks, it’s a welcome change to hear that something productive is going on at the northern Toronto university: Osgoode Hall is teaming up with fellow York faculty Schulich School of Business to create the Jay and Barbara Hennick Centre for Business and Law, an interdisciplinary learning centre which will aim to produce lawyers with sound business sense.
The initiative was made possible by a $3 million donation from Jay Hennick, the Toronto-based founder and CEO of FirstService Corporation, a real-estate service company with more than US$1.5 billion in annualized revenues.
Mr. Hennick, who attained a B.A. from York and LL.B. at the University of Ottawa, had previously donated $500,000 to his legal alma mater to establish the UofO’s Jay Hennick LL.B/MBA Program.
Unlike a joint J.D./MBA (formerly LL.B./MBA) format, the Hennick Centre will grant a business/law degree in just three years, as opposed to the joint degree’s four.
Additionally, the Centre plans to launch a business certificate program for already-practising lawyers, similar to the executive MBA currently offered at many business schools.
The Hennick Centre is allegedly modeled after a similar program at NYU, and, by taking advantage of faculty integration, aims to move beyond a current system which creates “good technicians grounded in the law, but who lack business judgment.”
The framework for this project has been being laid since at least June 2008, and the advisory board is still adding to its roster of big-business lawyers and entrepreneurs.
A formal launch for the Hennick Centre will take place tomorrow, Friday, February 6th 2008 at the Hilton Toronto Hotel. The reception will feature former Ontario Premier Mike Harris introducing the keynote speaker, current Federal Finance Minister Jim Flaherty. Perhaps if Mr. Flaherty (originally a small-town personal injury lawyer) had been able to take advantage of such an innovative program in his day, he would be exercising better business judgement while managing one of the world’s largest economies.
The Solution is Insite, Part II
In October 2008 I wrote a bit about my personal opinions and experiences with Insite, a unique, government-funded legal safe injection site that has been on the front lines of Vancouver’s drug epidemic. Insite was also recently the source of much attention at the First Annual Interprofessional Health Law Conference, covered by Omar. To my surprise, Insite and the legal issues surrounding it recently became the subject matter of a memorandum assigned to me by my “senior partner” (Legal Research and Writing professor). What I found in the course of writing this memo was a defective and hypocritical law, the Controlled Drugs and Substances Act (“CDSA”), and a brave decision in the Supreme Court of British Columbia that might one day change Canada’s drug laws for the better.
What’s Behind the Veil of Justice?
An abridged version of this piece was published today in the Toronto Star. Reproduced here for interest with permission of the author, all rights reserved.
Veils and justice
February 04, 2009
Faisal Kutty
Here they go again. Muslims just don’t give up trying to change our values and roll back hard fought rights of equality and justice. Though this time, we may have nipped it in the bud early – but should we?
Ontario Court Justice Norris Weisman‘s “admittedly difficult decision” to force a complainant to testify without her niqab, or face covering, in a sexual assault case has unleashed a torrent of discussion and debate. Again, the usual suspects with too little knowledge, appreciation or understanding of the complexities of the issue have jumped into the fray.
The ruling once again brings to the fore questions surrounding the limits of accommodation in a liberal multicultural society. But this time, in a novel twist, the clash pits a person’s religious right with the right of a defendant in a criminal trial to due process and procedural fairness; namely that of being able to face his or her accuser in open court. Obviously, both are important rights in a liberal democracy.
The niqab – which a small fraction of orthodox Muslim women use to cover their faces, and not to be confused with the hijab or head covering – is attacked by some as a symbol of oppression. By others as a badge of political Islam. By others as a public-relations nightmare for their “moderate” or more palatable versions of Islam. By others as something that should be compromised in the two-way dance of accommodation. And still by others as not compulsory or even totally unnecessary from a strict Islamic legal point of view.
My Life as a Groundhog
Sysomos Has Your Info, and Has Some Interesting Results
Yesterday, Nicole Baute of the Toronto Star covered a new social networking analysis company, Sysomos. The Canadian company gathers data from Twitter, Facebook, and 30 million blogs. Yes, 30 million.
It’s a new start-up by a UofT prof and one of his grad students, and they received financial support from the province to get things going.
They claim to go beyond brand monitoring by identifying what people are saying, who these people are, and what their tone is.
One recent practical application is mentions of Stephen Harper when parliament was prorogued. They also say it could be used for crisis communications, such as the recent Maple Leaf scare.
Privacy concerns are also raised by one marketing professor,
I’m no lawyer, but my general sense here is that there’ll be some noise in the system (from privacy advocates) about this. I think it’s user beware, and if you choose to blog, you’re putting stuff out into the public sphere.
I’m no lawyer either, but I would agree that if the information they are collecting is made publicly available by the user and only analyzed in the aggregate, there is little room to complain.
As for ads that watch you through a hidden video camera and use facial-recognition software, that’s a totally different issue.
Cross-posted from Slaw
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