Falling Between the Jurisdictions: Genetic Discrimination & the Law

Contributed by Alanna Crouse

Genetic testing is becoming an every-day reality for many Canadians. Between the rise of personalized medicine in clinics, to the trendiness of at-home DNA tests like 23andMe, there appears to be a growing acceptance and comfort with genetic testing. Yet despite this normalization, not everyone is ready to embrace the idea of scientists or companies having access to some of their most innate and intimate information.

This trepidation is understandable and well-founded. Each of our genomes (the collection of an individual’s genetic material) is unique and offers a wealth of information into our past, present and future. Our genomes can reveal our ancestral origins, who we are biologically related to, and predispositions to diseases that may manifest later in life. Thus, one cheek swab has the potential to uncover stories and vulnerabilities we may not know about ourselves.

The ability to uncover such information brings with it the potential for genetic discrimination. Genetic discrimination occurs when people or organizations treat others differently because they have a gene mutation that causes or increases their risk of disease. Genetic discrimination has so far impacted the ability of Canadians to gain and retain employment, and obtain insurance coverage. Fear of these life-altering ramifications has led some to decline genetic tests that would otherwise generate beneficial information including diagnoses, appropriate treatment options, and disease prevention plans. Thus, the inability to guarantee the safeguarding of genetic information has been holding Canadians back from safer and healthier lives. Continue reading “Falling Between the Jurisdictions: Genetic Discrimination & the Law”

Liability for Brain Injuries in Sports

Contributed by Darena Muça

Introduction

This past January, the McGill Research Group on Health and Law hosted its annual lecture, “Brain Injuries in Sports: from Awareness to Action,” delivered by Ken Dryden.  Dryden was a goal tender for the Montreal Canadiens hockey team during the 1970s. In 1973, he graduated from the McGill Faculty of Law; however, he never practised law. Besides being a renowned hockey star, appearing in the Hockey Hall of Fame and winning 6 Stanley Cups, he is an educator, politician and philanthropist dedicated to educating youths about the importance of higher education and raising awareness about sport-related brain injuries. In his presentation, Dryden shared his perspective that more steps ought to be taken to prevent brain injuries in the sport.  In consideration of Dryden’s lecture, this article sheds light on the difficulties of holding sports organizations liable for brain injuries in sports.

Looking into brain injuries

Contact sports can have dramatic impacts on the structure and function of the brain due to repeated body contact. Nathan Churchill, a post-doctoral fellow in the neuroscience research program at St. Michael’s Hospital in Toronto, emphasizes that “there is growing concern about the risk of collisions in sports.” He notes that the effects of contact sports are not only seen in retired professional athletes, but also in young, healthy athletes in amateur and professional sports. Athletes with a repetitive history of blows to the head can suffer from traumatic brain injury (TBI) and chronic traumatic encephalopathy (CTE), a progressive neurodegenerative disease, which is also found in the brains of people who suffer from Alzheimer’s disease. CTE causes several cognitive, mood and behavioural symptoms, such as memory loss, confusion, depression and dementia. The term TBI was first introduced analyzing professional and amateur boxing, while CTE encompasses the “potential long-term neurological consequence of repetitive TBI” which can occur in numerous contact sports, such as football, wrestling, rugby, hockey and basketball. Continue reading “Liability for Brain Injuries in Sports”

Popping the Cap

Contributed by Phil Lord

Over 40 years ago, our Supreme Court set an “upper limit” on the amounts which can be awarded as compensation for the non-pecuniary component of a bodily injury.1 Pecuniary damages are those which can easily be quantified, such as lost wages. In contrast, non-pecuniary damages, such as pain and suffering, are not financial in nature. The upper limit on non-pecuniary damages is now an effective cap. While the interpretation of the principles first set out by the Court has evolved, the cap has enjoyed a surprising and unusual stability, even as our society has changed. The cap devalues the suffering of personal injury victims and has no theoretical underpinning. I want to preliminarily set out here my thoughts on the cap, how it is understood by our courts, and the arguments which could lead to its abolition. I look forward to further elaborating on these thoughts in a future article.

In the late 1970s, the Supreme Court heard three cases involving very serious bodily injuries: Arnold v Teno, Thornton v School Dist No 57 (Prince George) et al and Andrews v Grand & Toy Alberta Ltd. The judgments were rendered on the same day.2 In Andrews, a unanimous Court states that “the appropriate award in the case of a young adult quadriplegic like Andrews [is] the amount of $100,000” and that “[s]ave in exceptional cir­cumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.”3 Considering the seriousness of the victims’ injuries, the intimation was that few, if any, injuries would justify a higher award. Continue reading “Popping the Cap”

Mental Health and Anti-Discrimination Law at Work

Contributed by Annelise Harnanan

Introduction

In 2015, the government of Canada released its “Report from the Canadian Chronic Disease Surveillance System: Mental Illness in Canada.” The report used data from provincial and territorial administrative health databases to identify cases of mental illness in Canada. The report’s findings indicated that “one in three Canadians will experience a mood disorder, generalized anxiety disorder or substance abuse dependence in their lifetime”. Many people with mental health conditions, however, can and do remain in the Canadian workforce. Based on data from 2011, the Mental Health Commission of Canada stated that “21.4% of the working population in Canada currently experience mental health problems and illnesses.” Considering this, the question arises: what protections does the Canadian legal system offer to persons who face discrimination at work in relation to a mental health condition? This article briefly examines the protections that anti-discrimination law can offer to these individuals.

The Anti-Discrimination Law Framework

Federal and provincial human rights acts endeavor to prevent discrimination in the workplace based on various enumerated grounds such as age, religion, disability and sex. Under the legislation, mental illness typically falls under the ground “disability.” For example, the Nova Scotia Human Rights Act explicitly prohibits discrimination based on “physical and mental disability.” If an individual with a mental illness feels that they have been discriminated against because of their condition by an employer, they can file a complaint with their provincial human rights commission or tribunal. Continue reading “Mental Health and Anti-Discrimination Law at Work”

Recap of the 12th Annual Colloquium (Part 2)

Contributed by Darena Muça

On February 8, the McGill Journal of Law and Health welcomed four fantastic and engaging speakers to our 12th annual colloquium titled “Neurolaw: Combining the Science of the Brain and the Law.” Following is a brief summary of the latter two speaker’s presentations.  A summary of the first two presentations is available here.

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William Wannyn

William Wannyn is a member of the centre interuniversitaire de recherche sur la science et la technologie (CIRST). He holds a PhD from Université de Montréal on the topic of neurolaw. His doctoral thesis focused on the intersection of neuroscience and the law, particularly involving brain scans as evidence in criminal cases within the United States. Dr Wannyn was interested in what science had to say about traumatic brain injuries in civil cases and how neurolaw has evolved as a scholarly topic. His lecture at the Colloquium was dedicated to how the United States deals with questions of youth justice.

Studies demonstrate that there is an increase in neuroscientific evidence in courts; nevertheless, they are always used in combination with other forms of evidence, such as testimonies and psychological analyses. Neuro imaging is the least used form of evidence, with a 15% usage rate. Amongst neuroscientific technologies, fMRI is the least used, since getting experts to testify in court is expensive. Unfortunately, neuroscientific evidence has a double-edged sword effect because it can be used by the defense as a mitigating factor but can also be used by the prosecution as an aggravating factor. However, as Dr. Wannyn puts it, “what truly matters in the eye of the law is action. In other words, what people do in the eyes of law, not what their brains look like.”

Considering US Supreme Court decisions such as Roper (2005), Graham (2010) and Montgomery (2016), legal defenses for juveniles who committed criminal acts emphasize brain immaturity. Indeed, the central argument in such cases is how the brain is incapable of regulating itself and youths are prone to aroused senses, so they adopt risky behaviours. Dr Wannyn explained the historic development of how the US system deals with youth justice. The main premise is that due to their age and ongoing brain development, adolescents are biologically different from adults; thus, they should be treated differently within the criminal justice system. In the United States, youth crime and violence became politicized and gained a lot of media traction. Tough on crime legislation was adopted and young people were charged in adult courts where they were sentenced with mandatory minimums. At the end of the 1990s, academics started thinking about how to prove that youth were different than adults. Then, in the 2000s, neuroscientists gained knowledge about adolescent brains increased connectivity and tremendous change, which confirmed that the adolescent brain is still growing biologically. Since the brain is malleable, they argued, youth sentences should involve rehabilitation instead of harsh punishment.

However, these discoveries about adolescent brains leave many questions unanswered when it comes to the law. For example, what does it mean to say that on average the adolescent brain is different than that of adults? What is an average adolescent, let alone what is an average brain and what does it look like? While brain imaging can show us the larger trends in brain development, we are still far from being able to use an individual brain scan to determine the exact maturity level of an adolescent offender’s brain.

 Daniel Ambrosini

Daniel Ambrosini was the founding Co-Editor-in-Chief of the McGill Journal of Law and Health. He teaches at McMaster University in the Department of Psychiatry and Behavioural Neurosciences. Moreover, he serves as legal counsel in the Forensic Psychiatry Program at St. Joseph’s Healthcare Hamilton.

Dr Ambrosini’s lecture during the Colloquium focused on the different states of mind within the penal code, and what role neurolaw plays as evidence in distinguishing states of mind. To start, he explained the four states of mind in the US model penal code (PRKN): Purposeful, Recklessness, Knowledgeable, Negligent. Under Canadian Law, state of mind is referred to in section 16 of the Criminal Code, as well as section 4(1) of the Health Care Consent Act. Moreover, the Montreal Cognitive Assessment scale (MoCA) assesses mental states of peoples. Scores from this psychometric test range from zero to 30; where extremely low numbers signal mental impairment.

Dr Ambrosini then referenced a study from 2017, which found that brain scans can reveal different areas of brain activity, specifically the knowledge and recklessness categories. However, he asked, what happens when you reveal brain scans to judges, and how can this evidence be admissible in court? In the United States, for instance, the Frye Test determines the admissibility of scientific evidence. Essentially, such evidence must be relevant and verifiable. In Canada, the Mohan Test establishes the admissibility of expert evidence, based on four criteria. The evidence must be relevant, necessary in assisting the facts, not fall under any exclusionary rule and given by a properly qualified expert. This raises questions regarding the role of finder of fact. What is the purpose of scientific evidence, and has the evidence encroached on the domain of the finder of fact? In other words, the inclusion of these highly technical brain scans in evidence raises the question of what weight scientific evidence has from a legal perspective.

Overall, when neuroscientific evidence is being introduced, its application has different purposes; consequently different questions should be asked based on the purpose of such evidence. Dr Ambrosini shares seven criteria which help us understand the fundamental issue of the purpose of scientific evidence: he asks whether such evidence is used to “butter”, to detect, to sort through, to challenge an assumption, to intervene, to explain or to predict.