Getting to know the MJLH: Adrian Thorogood, Editor-in-Chief

Posted By Rosel Kim – Aug. 31, 2012

Introducing Adrian Thorogood, Editor-in-Chief

1. Pourquoi le droit de la santé?

I applied to medical school years ago, and had a creeping realization that my sense of humor, quarrelsomeness, and literary panache were going to be wildly underappreciated in the medical profession. Plus, I hate wearing Crocs. The doctors I know all wear Crocs. I worked briefly in public health research, but, as an irrepressible polymath, I felt constrained by the narrow scope of our investigations. Then I stumbled across health law – a fascinating, multi-disciplinary field that really challenges you to understand every angle of a problem, a field of study where I found my background could be put to use.

2. What was your favourite MJLH moment?

There are really too many to count. The relief of finishing my first issue as English Executive Editor remains unparalleled. I also remain proud of my Churchillian election speech (We will “cite” them on the beaches). My yearly argument with fellow journal member Marie-Laure Tapp at the Health Law Colloquium is always a highlight; especially when it degenerates from highfalutin policy debate to unhinged, personal vituperations.

3.  What is the quirkiest thing about McGill law?

Professor Muñiz-Fraticelli. Oh, and CEGEP kids. They’re like brilliant little gremlins, always running about with fastidiously packed lunch boxes and charming naiveté.

4.  Qu’est-ce que vous avez fait cet été?

Despite my old age and recent knee surgery, I’ve had something of an athletic renaissance this summer. I’ve been a fixture with the Montreal Wanderers rugby club, helping them secure the league championship. In June, I biked 1000km around the Gaspé peninsula. I’m also running my first triathlon in early September.

5. What are you doing when you’re not at the journal or at law school?

I work part time doing legal research at the Centre of Genomics and Policy, where I help to assure that genetic information will be kept confidential by medical researchers, cancer will be cured, and humans won’t be cloned. What scraps of free time remain I spend contemplating the banality of my existence and trying to get the attention of famous people on twitter (@adrianthorogood – please follow!).

Global Commission’s Report on HIV and the Law

Posted By Adrian Thorogood – Aug. 27, 2012

A month ago, I attended a press conference announcing the release of the Global Commission’s Report on HIV and the Law (now available online). The Commission is an independent body supported by the United Nations Development Programme, designated to investigate the role the law plays in combating, or alternatively in exacerbating, the HIV epidemic. The press conference made for an excellent introduction to the report. Speakers were split equally between articulate policy trailblazers, and the victims of “bad” HIV law. American congresswoman Barbara Lee ably summarized the Commission’s recommendations. Nick Rhoades, a man sentenced to 25 years in an Iowa prison for not disclosing his HIV-status to a sexual partner, discussed misplaced intentions and misused resources in the criminal system. Neither last nor least, Canadian diplomat and former UN Special Envoy for HIV in Africa Stephen Lewis unleashed a scathing indictment of abusive patenting and marketing practices for HIV related pharmaceuticals. This colorful cast of contributors left me eager to tackle the report itself.

The report focuses on six major areas of regulation that significantly affect public health: discrimination, criminalization of transmission, stigma in marginalized populations, gender disempowerment, children, and access to affordable treatment. It successfully captures the staggering scope of the legal problems relating to HIV. I was left with a sense that this is an epidemic of legal-, rather than immuno-deficiency. Such a potential diagnosis is profound, perhaps even disturbing. It strikes at fundamental assumptions that both legal practitioners and regular citizens have about the law: that the law exists to protect us; that even bad laws are often better than no laws; that while the law may seem harsh in individual circumstances, this is necessary for the greater good.
The report draws on the perspectives of thousands of victims of degrading laws on a sweeping, international scope. The result is a humbling, compassionate, and diverse set of criticisms. Academics, particularly legal scholars, prefer to remain insulated in the abstract. But combining rigorous analysis with human narrative makes space for the highest principle needed in the public health debate: human dignity. Indeed, the report emphasizes that the fearful dismissal of the dignity of those with HIV is in part what fuels this peculiar epidemic. It drives marginalized populations further underground and towards riskier behaviors, away from accessing preventative tools and treatments.
The report has some shortcomings. First, it fails to offer clear national, regional, or international priorities. This is a predictable trap for international policy recommendations, and a particularly inescapable in this case. Attitudes about HIV, prostitution, homosexuality, and criminal responsibility vary widely between nations, a difference compounded by law’s general tendency for parochialism. While the compassion and urgency of the report have general application, some of the recommendations do not.
A second problem with the report is its tendency to misrepresent liberal ideology as international consensus. While the recommendations are compelling, compassionate, and evidence based, they are framed by a single, overriding concern: HIV harm reduction. Policy makers do not have the luxury of such single-mindedness; few are likely to share the Commission’s readiness to decriminalize disclosure, legalize prostitution, and provide safe-injection sites for drug users. In the face of stigma and ignorance, however, it is clear why this call for legal reform has been made vociferously.
While the content of this report is susceptible to criticism, the spirit in which it was drafted is not. Law-making is a conversation, one that tends to exclude those with the most at stake. The Global Commission’s Report on HIV and the Law succeeds in giving these victims voice.

Reflections from the 2012 MJLH Colloquium: the Impact of Criminalized Behaviour

Posted By Kaitlin Soye – Aug. 21, 2012

The 4th annual McGill Journal of Law and Health Colloquium was held March 10th at McGill Univeristy. The topic was Insight on INSITE: The Evolution of Canada’s Drug Treatment Policy. Featured speakers included lawyers, doctors, researchers, politicians, NGO workers and law enforcement. The event was both informative and engaging.

As the discussion progressed many issues emerged and academic discussion ensued. Two ideas emerged from the discussion that I found particularly interesting and insightful: the role of law enforcement in drug treatment policy and intersectionality of public support systems in drug treatment policy.

Our police officers are the people on the street who apply the law. These are the men and women who are asked to enforce our laws and interact directly with the people who are breaking them. Through discussions with an RCMP officer at the colloquium I learned how strained this interaction can be. A person who is abusing drugs and may be dealing with an addiction cannot be reduced to merely a person committing a crime. Addiction is a disease and can result in a person acting irrationally and dangerously. While it is the responsibility and duty of law enforcement to maintain safety while upholding the law, discretion may be needed. What I learned during our discussion is that police officers are not always trained in the social issues surrounding addiction.  As advocated by a colloquium participant from the RCMP, if police officers are taught about the special needs of a person with a drug addiction there can be more compassion, more effective and humane practises. This could lead to more positive and effective interactions between people with addictions and law enforcement. In law school, I have naïvely neglected to reflect on the role of police officers in the law. In the case of drug treatment policies, I see this as the perfect example of flexibility and interpretation in the law. This is a situation when the spirit of the law may be more important that the specific decree of the law.

Before the Colloquium, I had not considered the depth of intersectionality that exists surrounding drug treatment policies. There are so many actors and stakeholders. I have already discussed the role of the law enforcement, but other stakeholders include the politicians, prosecuting lawyers, community advocates, physicians, researchers, and many more. Almost all programs and policies implicated in drug treatment policies come from the same source. The government pays for our hospitals and doctors; it pays for police, prosecutors and judges. There is federal and provincial research funding and community outreach groups. On a purely economic level, it is not cost effective for these groups to be competing with each other. When these players can work together, funding can be used efficiently and the needs of citizens can be best met.

All interested parties share a common goal and have the best interest of health and safety of citizens. It is clear that incarceration is not going to be the solution to Canada’s drug problem. In the face of the Omnibus Crime Bill C-10 passed by the majority conservative government on March 12, 2012 mandatory minimum sentences may cause problems for our colleagues who work on drug treatment policies and with the people affected. Now is the time for concerned parties’ to work together to progress our policies and practises.

When looking at the intersection of law enforcement, rights and harm prevention the case of prostitution at the Ontario Court of Appeal (Canada (Attorney General) v. Bedford, 2012 ONCA 18) highlights many of the ideas expressed at the colloquium. In Canada, while prostitution was not found to be illegal, many of the activities surrounding it were. In this recent decision, the court found that legal prohibition of living off the avails of prostitution and keeping a “common bawdy house” were unconstitutional, while the prohibition of communication for the purpose of prostitution remained constitutional. These laws were challenged in the context of maintaining the safety and security of people engaged in the business of prostitution.

This ruling may increase the safety of people engaged in the sex trade by allowing them to conduct business in their private homes or to hire security. This extends the fundamental right granted to all Canadians security of the person (s. 7, Charter). The court found that laws compelling prostitutes to work in dangerous situations to be illogical, given that prostitution itself is legal. While the trade is often dangerous, people engaged in prostitution are owed the same standard of protection as any other citizen. A comparison could be made to people who use illegal drugs. Although, they have engaged in a risky activity, they have the same rights as all Canadians to safety and security. This safety could be better delivered to them through general availability of safe-injection sites to minimize harm, reduce violence, and give people better access to need health interventions.

This year’s colloquium was very timely with the INSITE decision being handed down from the Supreme Court of Canada in Fall 2011, this month with the passing of the Omnibus Crime Bill, and Bedford at the Ontario Court of Appeal. Hopefully, the conversations that stated at the colloquium will continue and will lead to progress and change as we engage in drafting and implementing Canada’s drug treatment policies.

Mayo v. Prometheus – U.S. Supreme Court raises further questions

Posted By Rachel Tonelli-Zasarsky – Apr. 20, 2012

On March 20th, 2012, Justice Breyer, speaking for the Supreme Court of the United Sttes in the case of Mayo v. Prometheus, held that Promethus’ patent claims in No. 6,355,623 and No. 6,680,302 were invalid because the claims effectively embodied laws of nature.

The definition of patentable subject matter in the United States is found in Section 101 of the Patent Act:

“Whoever invents or discovers any new and useful process,machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this title”

However, precedent dictates that “laws of nature, natural phenomena, and abstract ideas” constitute an exception to s. 101 and are therefore not patentabe” (Diamond v. Diher).

At issue in this case were process claims such as Claim 1 of No. 6,355,623 which states that:

“A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:“(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and “(b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder, “wherein the level of 6-thioguanine less than about 230 pmol per 8×108 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and“wherein the level of 6-thioguanine greater than about 400 pmol per 8×108 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.”

The court interpreted such claims as a three step process instructing doctors to measure the level of the metabolite (6-thioguanine), use the law of nature to calculate limits, and finally reconsider the dose of drug to be administered. Justice Breyer maintained that “these instructions add nothing to the specific laws of nature”, and therefore the claims are not patentable.

After reading the decision, I could not help but ask the question: “but what about the threshold”. Certainly the laws of nature and the process allow one to determine the level of the metabolite in the blood, but the measurement is meaningless without a comparator. The quoted “230 pmol per 8×108 red blood cells” and “400 pmol per 8×108 red blood cells” represent the triggers for decision making. These numbers are limits, comparators, and not laws of nature in and of themselves. They are a diagnostic tool which can be used only once a measurement through a law of nature is made, yes, but that measurement is not what the patent seeks to protect. The patent seeks to protect the trigger. This trigger is, in my opinion an “improvement” of the process of drug administration in this scenario: it eliminates the trial and error approach, in favour of a methodical one.

In Canada, the fact that laws of nature cannot be patented is embodied in s.27(8) of the Patent Act, whereby “No patent shall be granted for any mere scientific principle or abstract theorem”. Most definitely if a Canadian court had interpreted these patent claims as Justice Breyer did, Prometheus’ patent would have been found to be invalid here too. The question remains then, did Justice Breyer incorrectly fail to account for the “trigger”, by simply sweeping it under the rug as part of a process?

What Insite revealed about Canadian federalism

Posted By Rosel Kim – Apr. 3, 2012

What Insite revealed about Canadian Federalism

The doctrine of interjurisdictional immunity, which, in division of powers, renders inapplicable any law that infringes upon the “basic, minimum and unassailable core” of a head of power, has always held a tenuous place in Canadian federalism jurisprudence. While the Insite judgment was not based on interjurisdictional immunity (IJI), Chief Justice McLachlin’s discussion of its underlying philosophy and its relationship to Canadian federalism was nevertheless rather illuminating on a conceptual level. An analysis of the Court’s conception of IJI in Insite reveals one of a pan-Canadian community perspective, rather than a territorial one. This in turn offers proof that the Court’s reliance on community perspectives of federalism, in lieu of its more conventional functionalist perspective.


Differing views of interjurisdictional immunity’s potential to protect provincial powers

The Supreme Court’s reliance on the controversial doctrine of IJI has drawn criticisms for its alleged bias towards exclusiveness and its centralizing tendencies. Past cases involving the doctrine sought to protect a federal “core” by rendering provincial laws inapplicable. As a result, some writers have seen IJI as a vehicle that lends itself to federal domination. The constitutional scholar Peter Hogg attributed the doctrine’s bias to federal laws to its origin; federally incorporated companies invoked IJI to seek exemptions form provincial laws.1 The unbalanced nature of the doctrine led Hogg to denounce the doctrine as “unprincipled and perverse.”

In contrast, others have more recently suggested that IJI can protect provincial powers in a limited manner.Robin Elliot suggests IJI has the potential to guarantee provincial autonomy.2 He envisions IJI as fostering cooperative federalism with the provincial and the federal powers in harmony, by suggesting that true cooperation between the two levels of government should “work to reduce rather than enhance the degree of overlap”3 of powers.


Exploring the relationship between interjurisdictional immunity and provincial powers

However, the Supreme Court in Insite did not uphold Elliot’s argument for IJI’s possibility of granting an exclusive provincial core. When McLachlin CJ characterizes the “core” of health case as “broad and expansive”4 and unable to be contained as an exclusive jurisdiction, she provides for the possibility of future federal government intrusions into health care. However, the Court’s refusal to acknowledge health care as an exclusive and protected provincial “core” is supported by s. 92(7) of the Constitution Act, which only grants provinces the powers of “Establishment, Maintenance, and Management of Hospitals”5 rather than broader jurisdiction of health care itself. Therefore, the traditionally federally biased doctrine of IJI, coupled with the restrictive wording of the Constitution Act, ultimately deny a “core” and provincial autonomy.


Insite and interjurisdictional immunity — expanding and promoting a pan-Canadian community perspective

By refusing IJI to Insite operations, McLachclin conceptualizes the “public” (affected by the site) as a broader universal community overstepping territorial borders, where its interests are supposed to be protected and checked by the watchful eye of the federal and provincial powers. In widely expanding the definition of “public” to encompass a pan-Canadian community, the Insite  ruling succeeds in protecting the rights of drug users by treating them as a universal community, rather than territorial one. In directly contradicting the British Columbia government’s assertion that matters of public interest were not immune from federal intrusion, the Court establishes that the safety and rights of drug users that are being addressed by Insite are a matter of both federal and provincial concern.

By conceptualizing drug users as a larger community rather than a territorial one (and thus requiring federal intervention), the Court’s decision has also led other provinces like Quebec to seek exemptions for safe injection sites.6 This emphasis on shared jurisdiction over marginalized communities when protecting rights to health care is not new: a most telling example was in R v. Morgentaler, where the Supreme Court ruled that women were entitled to equal access to abortion regardless of their territorial community.7 Therefore, marginalized groups’ interests are best protected through exhaustive, overlapping powers, rather than exclusive ones outlined by IJI.


Potential delays due to coordination needs

From a functional perspective, however, the denial of IJI to the provinces is not effective due to its extensive overlap. McLachclin CJ explicitly invokes cooperative federalism as a guiding principle for the judgement, where “both governments should be permitted to legislate for their own valid purposes” (emphasis mine)8 with “concurrent federal and provincial legislation with respect to a matter.”9 The multiplicity of “purposes” rather than a singular “purpose” in her judgment indicates that McLachlin’s conception of cooperative federalism would enhance overlap, unlike Elliot, who views true cooperative federalism as reducing such overlapping powers. McLachlin’s call for “cooperative federalism” then requires multiple governing bodies to oversee Insite, including the federal Ministry of Health and the provincial Vancouver Health Services. The significant overlapping legislations necessitates more laborious coordination in operating drug laws risking  “unacceptably high decision costs.”10 The prolonged coordination process could create potential delays in future safe injection sites proposed in Montreal — the impact remains to be seen.


1 Peter W Hogg, Constitutional Law of Canada, 2nd ed (Toronto: Carswell, 1985) at 329.

2 Robin Elliot, “Interjurisdictional Immunity after Canadian Western Bank and Lafarge Canada Inc.: The Supreme Court Muddles the Doctrinal Waters — Again” (2008) Supreme Court Law Review (2d) 433 at 488.

3 Ibid at 489.

4 Canada (AG) v PHS Community Services Society 2011 SCC 44 at para 68 [Insite].

5 Constitution Act, 1867 (UK), 30 & 31 Vict c 3 s 92(7) reprinted in RSC App II No 5.

6 “Quebec primed for safe injection sites” CBC (11 October 2011) online: CBC News

7 R v Morgentaler [1993] 3 SCR 463 107 DLR (4th) 537.

8 Insite, supra note 4 at para 62.

9 Ibid at para 62.

10 Richard E Simeon, “Criteria for choice in Federal Systems” (1982-1983) 8 Queen’s Law Journal 131 at 143.