Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope // Speaker bio: Alana Klein

Posted By Rosel Kim – Feb. 19, 2014
On February 22nd, 2014, the McGill Journal of Law and Health’s annual colloquium will be revisiting the divisive Chaoulli decision and analyzing the impact it has had nine years after its release.  The colloquium, “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope” will examine legal decisions from Alberta and British Columbia that indicate Chaoulli’s influence is spreading to other provinces. Here is the biography of one of our speakers, Alana Klein.


Assistant Professor Alana Klein teaches and researches in health law, criminal law, and human rights. The position of marginalized groups and individuals in decentralized and privatized systems and the role of accountability requirements in governance and decision-making are primary preoccupations in her research.
Prior to joining the Faculty, she was a senior policy analyst with the Canadian HIV/AIDS Legal Network, where she worked on HIV/AIDS and immigration, legal and other barriers to harm-reduction programs for people who use illegal drugs, and law reform to promote the rights of women and girls in the context of HIV/AIDS in sub-Saharan Africa.

She has taught at Columbia Law School and Columbia University and has interned with the International Refugee Program at the Lawyers Committee for Human Rights (now Human Rights First) and with the Palestinian Ministry of Economy and Trade. In 2002-2003, she was a law clerk to former Supreme Court of Canada justice Louise Arbour and she was appointed to the Ontario Human Rights Commission in 2006.

Education

J.S.D. (Columbia) 2011
LL.M. (Columbia) 2005
B.C.L., LL.B. (McGill) 2002
B.A. (Concordia) 1997

Employment

Assistant professor, McGill University, Faculty of Law (2008- )
Boulton Fellow, McGill University, Faculty of Law (2007-2008)
Senior Policy Analyst, Canadian HIV/AIDS Legal Network (2006-2007)
Associate in Law, Columbia Law School (2003-2005)
Law clerk to Hon. Louise Arbour, Supreme Court of Canada (2002-2003)
Member of the Law Society of Upper Canada

Areas of Interest

Canadian and comparative constitutional law, human rights law, international law, criminal law

Publications

Journal articles

A. Klein, “Criminal Law, Public Health, and Governance of HIV Exposure and Transmission” (2009) 13 Int’l J. Hum. Rts. 251.

A. Klein, “Gladue in Quebec” (2009) 54 Crim. L. Q. 506.

A. Klein, “Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights” (2008) 39 Colum. Hum. Rts. L. Rev. 351.

Research reports

A. Klein, Sticking Points: Barriers to Access to Needle and Syringe Programs in Canada. (Toronto: Canadian HIV/AIDS Legal Network, 2007).

A. Klein, Immigration and HIV/AIDS: Final Report. (Montreal: Canadian HIV/AIDS Legal Network, 2001).

Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope // Speaker bio: John Carpay

Posted By Rosel Kim – Feb. 18, 2014
On February 22nd, 2014, the McGill Journal of Law and Health’s annual colloquium will be revisiting the divisive Chaoulli decision and analyzing the impact it has had nine years after its release.  The colloquium, “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope” will examine legal decisions from Alberta and British Columbia that indicate Chaoulli’s influence is spreading to other provinces. Here is the biography of one of our speakers, John Carpay.
John Carpay has been a voice for freedom in Canada’s courtrooms since 2001, when his then-employer, the Canadian Taxpayers Federation, intervened in Benoit v. Canada. In the Benoit case, the Canadian Taxpayers Federation argued that race, ancestry, descent, and ethnicity should not be grounds for the unequal taxation of Canadians. John also championed racial equality before the Supreme Court of Canada in R. v. Kapp, representing the intervener Japanese Canadian Fishermen’s Association. He defended freedom of expression before the Saskatchewan Court of Appeal in Whatcott v. Saskatchewan Human Rights Commission, and before the Alberta Court of Queen’s Bench in Lund v. Boissoin. John’s involvement in Kingstreet Investments v. New Brunswick led to a victory for taxpayers and for democratic accountability, with the Supreme Court of Canada recognizing the principle of “no taxation without representation.” In Wilson v. University of Calgary (currently before the Alberta Court of Queen’s Bench) John advocates for the right of tuition-paying students to express their opinions on campus in the face of the university’s censorship demands. The court action of Allen v. Alberta seeks to empower citizens with the right to access health care outside of the unaccountable government monopoly with its long and painful waiting lists.  John Carpay serves on the Board of Advisors of iJustice, an initiative of the Centre for Civil Society, India.
Preston Manning presented John Carpay with the Pyramid Award for Ideas and Public Policy in recognition of John’s success in building up and managing a non-profit organization to defend the constitutional freedoms of Canadians.
Originally from the Netherlands, John grew up in Williams Lake, B.C. He earned his B.A. in Political Science at Laval University in Quebec City, and his LL.B. from the University of Calgary. He is fluent in English, French, and Dutch.
John served the Canadian Taxpayers Federation as Alberta Director from 2001 to 2005, advocating for lower taxes, less waste, and accountable government. During that time,Alberta Venture magazine named him as one of Alberta’s 50 most influential people. The Edmonton Sun described him as the “unofficial leader of the opposition.”
John’s many columns have been published in newspapers across Canada, and are posted at www.taxpayer.com and www.johncarpay.ca.
John, his wife Barbra, and their four children reside in Calgary.
To RSVP or to receive more information about the colloquium, please contact: mjlh.colloquium@gmail.com.

Student Recruitment 2013-2014/ Recrutement d’étudiant(e)s 2013-2014

Posted By Rosel Kim – Sep. 3, 2013

The application forms for editorial, managerial and online editor positions are now available online. The deadline for applications is September 22.

Should you have any questions about the journal or the application process, please do not hesitate to contact us at: editor.mjlh@mail.mcgill.ca or manager.mjlh@mail.mcgill.ca.

Francesca Taddeo, Editor-in-Chief, vol 8

Jennifer Anderson, English Executive Editor

François Nolet-Lévesque, French Executive Editor

Vaughan Balderston, Executive Managing Editor

Rosel Kim, Executive Online Editor

 


Les formulaires de candidatures pour les postes de rédaction, d’administration et de rédaction web sont disponible en ligne.

La date limite pour la soumission de candidatures est le 22 septembre.

Si vous avez des questions sur la RDSM ou sur le processus d’application, n’hésitez pas à nous contacter à: redacteur.rdsm@mail.mcgill.ca ou manager.mjlh@mail.mcgill.ca.

Francesca Taddeo, Rédactrice en chef, vol 8

Jennifer Anderson, Rédactrice exécutive pour l’anglais

François Nolet-Lévesque, Rédacteur exécutif pour le français

Vaughan Balderston, Rédacteur exécutif administratif

Rosel Kim, Rédactrice exécutive web

Notes from the McGill Research Group on Health and Law’s Annual Lecture

Posted By Jessica Walsh – Mar. 17, 2013

On 30 January 2013, disability rights scholar Anna Lawson delivered the Annual Lecture of the McGill Research Group on Health and Law. Lawson is Deputy Director of the Interdisciplinary Centre for Disability Studies at the University of Leeds (UK).

The lecture highlighted how making progress in disability rights depends on both the achievement of the rights to health and equality. In other words, we need both equality in health (i.e. equality in accessing care, refusing unwanted treatment) and health in equality (i.e. preventing disability status from being a determinative factor in where people live and work). Lawson also stressed the importance of implementing the Convention on the Rights of Persons with Disabilities (CRPD) as well as an integrated approach to disability issues that reaches across disciplines.

Below is an overview of the lecture.

 

Background Facts

  • 15% of the world’s population is disabled
  • 1/5 of the world’s poorest are disabled
  • There is a bilateral link between poverty and disability: if you are poor, you are more likely to become disabled; if you are disabled, you are more likely to be poor.
  • 35% of all children not in school are disabled
  • only 2% of disabled children are enrolled in school
  • disabled people experience disproportionately high levels of unemployment

 

Equality in Health

Disabled people experience significant inequality across the globe. Realizing equality in health means achieving equality in the following areas:

 

EQUALITY IN REFUSING UNWANTED TREATMENT

Most people have the right to refuse treatment with informed consent. Disabled people, in particular girls and women, have been victim to the imposition of treatment such as mental health therapies and sterilisation. The CRPD says imposition of treatment without informed consent is torture and that there are ways for states to support disabled people in exercising their legal capacity in such situations.

EQUALITY IN ACCESSING GENERAL HEALTH CARE

Where health care is available, disabled people should have access like everyone else. However, there are institutional obstacles that currently prevent disabled people from accessing care in the same way as others. These obstacles include lack of accessible transport, inaccessible buildings and medical equipment, lack of sign language interpreters, and lack of awareness and understanding of disability issues by care workers.

 

EQUALITY IN ACCESSING DISABILITY-SPECIFIC TREATMENT

Disabled people may require specialized services related to their particular disabilities. These services place added demands on governments in caring for their citizens.

 

EQUALITY IN ACCESSING UNDERLYING DETERMINANTS OF HEALTH

There should be non-discriminatory access to an adequate standard of living, food, clothing, water, public housing, social protection and poverty reduction programs and disability-related expenses. Stigma can often cause disabled people to be refused these basic services. Therefore, states must challenge the stigmatization of disabled people in order to create access to water and sanitation.

 

Health in Equality

Health plays an important role in trying to realize equality.

 

DISABILITY STATUS RESTRICTS EQUALITY

Diagnoses of disability affect where people live, where they are educated, where they work, and the type of welfare benefits they receive (for instance, if one chooses to receive disability benefits instead of working full time).

 

HEALTH LIMITS THE ABILITY OF DISABLED PEOPLE TO BRING DISCRIMINATION CLAIMS

Disabled people must show they meet a certain definition of disability before bringing a claim for discrimination. This is especially difficult for people with fluctuating health conditions or progressive conditions that fall outside the accepted definition.

 

The Promise of the CRPD

The CRPD was celebrated upon its adoption by the disability movement as the beginning of a new era for disability rights. There are innovative provisions within the convention. For example, Art. 4(3) states that disabled people should be actively involved and consulted by governments in policies affecting them. However, the CRPD does not provide guidance on how actively involve disabled people in these decisions. It is hopeful that these details will come through individual and group complaints to the UN Committee on the Rights of Persons with Disabilities, which has already heard its first case (see HM v Sweden).

 

Conclusion

Going forward, we need to ensure that health does not inhibit equality. Implementing the CRPD will contribute to this goal, but there also need to be inclusive development practices that integrate disability into development frameworks like the Millennium Development Goals.

Take away message: until equality is tackled, disability will be a big problem. We must reach beyond our professional and disciplinary boundaries to begin addressing inequalities around us.

Physician-Assisted Suicide: A Recap of the MJLH’s 2013 Colloquium

Posted By Laura Crestohl – Feb. 28, 2013

Part 1 of the colloquium recap will focus on the morning panel presentations, while Part 2 will cover the afternoon debate between McGill Professors Weinstock and Sommerville titled “Is legalizing physician-suicide a good idea?”.

The McGill Journal of Law and Health held its annual colloquium on February 2nd, on the topic of physician-assisted suicide. The colloquium began with a panel featuring Grace Pastine, of the British Columbia Civil Liberties Association (BCCLA), who represented Gloria Taylor in a recent case in BC, Dr. Manuel Borod from the McGill University Health Centre (MUHC), Suzanne Philips-Nootens from the Faculty of Law at the University of Sherbrooke and Alex Schadenberg, executive director of the Euthanasia Prevention Coalition.

The panel started with McGill graduate student Keith Lenton giving a short introduction as to the law on physician-assisted suicide as it now stands in Canada. Lenton mentioned important moments in the continuing development of this area such as:

  • Rodriguez v British Columbia (Attorney General): a 1993 Supreme Court case in which Sue Rodriguez, suffering from amyotrophic lateral sclerosis (ALS), challenged the criminal code provision prohibiting physician-assisted suicide. She claimed the provision was an infringement on her Charter rights to life, liberty and security of the person (s 7), and equality (s 15). The court ruled against her in a 5-4 split decision.
  • Carter v Attorney General of Canada: A BC case being appealed to the Supreme Court wherein the BC Supreme Court (BCSC) and Court of Appeal (BCCA) granted Gloria Taylor a constitutional exemption so she could die with dignity, while the government could change the law to conform with the Charter.
  • Quebec’s Dying with Dignity Report by the Menard Committee: released in January 2013, the report recommends that the government reassess its position on end-of-life care and recognize a right to medical aide to dying.

 

Why Now? — The Gloria Taylor Case

The first panelist, Grace Pastine of the BCCLA, spoke of her experience representing Gloria Taylor, a BC resident who suffered from ALS  who fought for the right to physician-assisted suicide. Pastine said that she felt the time was right to bring the subject back to the courts for various reasons, including:

  • the availability of more social science evidence  from other jurisdictions who had legalized physician-assisted suicide (such as Oregon and Belgium);
  • the public opinion on the subject, which she felt had changed since the Rodriguez case;
  • the development of Charter jurisprudence and new  legal principles such as fundamental justice and gross disproportionality.

The BCSC and the BCCA both ruled that the provision prohibiting physician-assisted suicide was unconstitutional. Justice Smith of the BCSC found that the harm the provision caused was grossly disproportionate to the safety it was supposed to protect.

 

Where’s the Slippery Slope?

The subsequent panelists’ sessions focused on providing definitions of words commonly used around assisted suicide, and attempting to clarify and distinguish them from one another.

The second speaker, Suzanne Philips-Nootens, a leading medical ethicist, discussed the findings of the Dying with Dignity Report while also discussing international developments. You can find out more about her research here.

She placed emphasis on the fact that the Dying with Dignity report especially highlighted the importance of prioritizing palliative care and advance directives.

Philips-Nootens spoke about the “slippery slope” associated with physician-assisted suicide that has already presented itself in countries like the Netherlands and Belgium, where physician-assisted suicide has been legalized. Philips-Nootens argued that In those countries, assisted suicide is becoming available in cases  where :

  • people are not terminally ill, but rather “tired of living”
  • the request is occurring too soon
  • people develop disabilities
  • there is no immediate risk of dying

Euthanasia and Palliative Sedation–Are They Different?

Dr. Manuel Borod from the McGill University Health Centre (MUHC) began his session by defining “palliative care” from the WHO definition, which

  • sees dying as a normal process
  • neither hastens nor postpones death


Borod distinguished the term “euthanasia” from other terminology associated with end-of-life care. First, he emphasized that withholding or withdrawing treatment are not synonymous with “euthanasia.” He also highlighted the vagueness of the term “near death,” which could signify different conditions depending on the patient.

Another term he discussed was “palliative sedation,” which deliberately induces and maintains a patient’s sedative state in end-of-life care. 95% of the specialists in Quebec support palliative sedation as end-of-life care, but they have split opinion on whether palliative sedation itself qualifies as euthanasia.

Borod concluded his talk by arguing for having input from people who are directly affected by issues of assisted suicide, rather than healthy people, stating that most patients prefer to be kept alive.  Finally, we are “talking about the wrong issue” by focusing on assisted suicide, when we should ask: “why do we keep people alive?”

Alex Schadenberg from the Euthanasia Prevention Coalition wanted to clearly differentiate the terms “sedation” and “euthanasia”. He stated his point with an anecdote of drinking a lot of scotch with a friend in Scotland, leading to a state he described as “sedated.” “But we were not euthanized that night,” he added.

He also emphasized the act of “killing” in euthanasia, by stating that most euthanasia today is now conducted by legal injection. He also stated that it is a “modern fallacy” to believe that there is no difference between “killing a person” and “letting a person die.”

Schadenberg spent most of his talk discussing euthanasia in Belgium, alleging the existence of assisted suicide that were administered by unsupervised nurses. He warned that Quebec is most likely to follow suit, since it is using the same definitions for terms such as “assisted suicide.”


For the first time, the online team recorded the symposium on social media by live-tweeting the event. A collection of all the tweets from the day can be found on Storify. Visit the Journal’s Facebook page to see photos from the event.